Israel to Fight Listing Both Fathers of Kids Born via Surrogacy

The move, coming a few days after the Knesset voted not to include gay men in a new domestic surrogacy law, will make it harder for gay men to be recognized as the parents of children born abroad using surrogacy

An Israeli walks with a flag in front of a banner showing Israeli Prime Minister Benjamin Netanyahu during a rally to protest against inequality for the LGBT community in Tel Aviv, Israel, Sunday, July 22, 2018.
AP Photo/Sebastian Scheiner

The state plans to appeal in the Supreme Court two cases in which courts recognized the parenthood of a nonbiological father to a child carried by a surrogate, Haaretz has learned.

The move, coming a few days after the Knesset voted not to include gay men in a new domestic surrogacy law, will make it harder for gay men to be recognized as the parents of children born abroad using surrogacy — the only avenue open to them.

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If the rulings are overturned, couples will have to undergo a long, expensive procedure to determine their parenthood by a court order. Even then, registration of fatherhood will not be retroactive. The procedure includes a genetic test and can take up to two years.

Apart from the emotional impact of not being recognized as a parent from birth, the couple will lose income tax and parental leave benefits. The prosecution intends to appeal two rulings this year regarding gay couples who used a surrogate in the United States. The courts recognized the men’s parenthood based on the U.S. judgments severing the surrogate’s parental rights, in accordance with the contracts between the couples and their respective surrogates.

Eran Ben David and Yair Stern are the fathers of a 2-year-old boy carried by a woman in Oregon. They both donated sperm, and when their son Maximilian was born they did not want to know which of them was his biological father.

When Max was two days old, a U.S. court issued a ruling recognized both men as parents. But when they returned to Israel, the Interior Ministry’s population agency refused to recognize the U.S. ruling and demanded they take DNA test to determine the baby’s biological father.

The test proved Stern was Max’s genetic father. He was listed as a single father. After a legal battle, Ben David’s fatherhood was recognized —but only from Max’s second birthday.

“We’ve been raising this child together lovingly from the first moment he was born,” Ben David said. “It really hurts when you pay this country so much taxes, serve in the army, are forced to pay $160,000 for surrogacy abroad because they won’t let you do it in Israel and then won’t even register us both as parents.”

Ben David also lost thousands of shekels in tax benefits as a father. The parental leave he took to be with his son was also not recognized.

“Not only doesn’t the state allow male same-sex couples to have surrogate birth in Israel, it won’t recognize them as parents from the day of birth,” said one of the couple’s lawyers Smadar Weinberg. “The state continues to cause them suffering, huge financial expense and worries even after the child is born.”

The Justice Ministry said that since the cases were being heard behind closed doors it could not comment on them. However, the Israeli surrogacy law does not permit retroactive recognition of parenthood. It does not address surrogacy carried out abroad and parenthood will be recognized only from the moment a court order is issued in Israel, the ministry said.