Israel's Surrogacy Law Is Discriminatory Toward Women, Attorney General Says

Currently, only a man and woman in a relationship may have a child through a surrogate in Israel.

David Bachar

Israel’s law on surrogacy is discriminatory and needs to be changed, said Attorney General Avichai Mendelblit. Currently, only a man and woman in a relationship may have a child through a surrogate in Israel.

Mendelblit, writing in response to a petition to the High Court of Justice, called for amending the law to allow women without a male partner to apply for surrogacy, too. He did not express an opinion on letting gay or single men apply.

In its reply, the state wrote that the issue is complex and the legislature must formulate a position on the matter.

The petition was filed in 2015 by the couple Itai and Yoav Arad-Pinkas, together with another gay couple and two single women. It was also submitted on behalf of the Tammuz surrogacy agency and The Israeli Gay Fathers Association. The petitioners are asking that the law on contracts for carrying fetuses include both single men and single women as well as same-sex couples. In deliberations about four months ago, the High Court rebuked the state for not having submitted a reply to the content of the petition.

The reply submitted Tuesday by the State’s Attorney’s Office states Mendelblit’s opinion: “At the conclusion of consultations he held, the attorney general’s position is that the definition in Paragraph 1 of the Surrogacy Law, which does not enable a woman (without a partner) to enter into a surrogacy contract, raises a legal flaw that requires amendment through legislation. Therefore the attorney general’s position is that the government must undertake a suitable legislative process that will enable every woman to avail herself of suitable medical surrogacy procedure, irrespective of the question of the existence or non-existence of a male partner.”

The attorney general’s point of departure is that the legislature has allowed surrogacy procedures for “extreme cases” – couples who do not have the possibility of having children as the result of a physiological problem. In his view, “Given the fact that the Israeli legislator saw fit to allow a woman who suffers from a medical problem, due to which she is not able to carry a pregnancy, to enter into a contract with a surrogate mother, the question of whether that woman is in a couple relationship with a male partner is not relevant to the fact of the possibility of entering into a surrogacy contract.” Mendelblit believes that “not allowing the possibility to a woman without a male partner discriminates against her relative to a woman who suffers from the same problem and does have a male partner.”

The second case the attorney general addresses involves a man who does not have a female partner. “There is, in principle, a relevant difference regarding surrogacy procedures between a man who does not have a female partner and a woman, with or without a male partner, who has a medical problem.”

The state responded by citing parts of the recommendations of the committee headed by Prof. Shlomo Mor-Yosef, which examined the issue of surrogacy. The committee noted that giving single men the possibility of turning to surrogacy for pay “could lead to competition between prospective parents, the demand for surrogacy would be significantly greater than the supply, and this could cause a rise in prices that on the one hand only wealthy people could pay, and on the other hand constitute a tempting factor for women who previously had not considered being surrogate mothers and are not suited to the procedure.”