The Tel Aviv District Court has overturned a lower court's ruling that recognized a woman who donated eggs for in vitro fertilization to be registered as the third parent of twins who were later born via the procedure, affecting co-parenting families.
The egg donor provided the eggs to her female domestic partner at the time, who carried the pregnancy and delivered twins. The two women and a man who donated the sperm signed an agreement before the children were born that provided that all three of them would be considered the parents.
Last year, the Tel Aviv Magistrate’s Court ordered the egg donor to be registered as a third parent. The decision was appealed to the district court by the office of Attorney General Avichai Mendelblit, which took the position that Israeli law does not provide for three people to be the parents of a child.
A district court panel of judges agreed, ruling in April that despite an agreement signed by the three, the agreement could not be enforced. The ruling remained confidential, but has been allowed to be made public, without disclosure of the identities of the parties involved, now that all appeals in the case have been exhausted.
The case involves a man publicly identified only as G., and A., the woman who underwent in vitro fertilization treatments. The two wished to jointly become parents of children but could not do so due to a genetic abnormality. The two, who were not in a domestic relationship, approached the woman’s domestic partner at the time, T., to donate her eggs. The three entered into two agreements designed to govern their parental relationship.
The children were born and the three lived together until 2014, when A. and T. broke off their domestic relationship. T. moved out and several months later filed a request to be officially recognized as a mother of the children. A. and G., the biological father, objected. They agreed that she could have contact with the twins, but claimed that before T. donated the eggs, she had waived any legal rights to the children.
In March of last year, the Tel Aviv Magistrate’s Court ordered the Interior Ministry to register T. as the third parent of the twins, ruling that the right to parenthood could not be lightly superseded by other rights or agreements and that it would also protect the rights of the children. The court noted that a professional opinion had been submitted to the court indicating that the children viewed T. as their mother. “It is apparent beyond any doubt that from the children’s experience, they have a dad and two mothers,” the magistrate’s court concluded.
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The magistrate’s court also addressed the attorney general’s claim that recognizing T. as a third parent would create a “slippery slope” leading to a large number of other such requests. “The children before us have nothing to do with system-wide considerations and don’t need to,” the magistrate’s court ruled.
The attorney general’s office appealed the decision to the district court, claiming that the ruling ran counter to Supreme Court precedent, that it violated Israel’s egg donor law and that it was against the public interest. Any such change in policy should be made by the Knesset following public debate, Mendelblit’s office argued, adding that as a practical matter, the magistrate’s court had “created a new kind of nuclear family with two mothers and a father, which has broad and not such simple implications.” The attorney general’s office said “the state was not a party to the agreements [among the three] and is not bound by them.”
It also claimed that “the best interests of the children cannot create the status of parent, certainly not for [a child] who already has two registered parents. If three people can be registered as parents, why not four of five people, the attorney general’s office asked. “There is no end to this.”
For her part, T. said the attorney general’s office was placing excess reliance on references in the law to the terms mother and father and husband and wife and was failing to recognize medical developments such as fertility treatments and new developments relating to family structure in the 21st century. “Courts in Israel have repeatedly preceded the legislature on charged and sensitive issues that have reshaped the nuclear family,” she claimed.
In ruling against T., the district court cited a number of prior court rulings in recent years in which similar requests were denied. In his legal opinion, Tel Aviv District Court Judge Naftali Shilo wrote that, in overturning the order that T. be registered as the twins’ third parent, the court was not denying that the children relate to her as a mother.
And in light of the agreements that the three signed for shared parenting, the judge stated that A. and G. must get T.’s consent on decisions relating to the children’s education and health and how they are raised.