A Petah Tikvah court rejected on Sunday the state’s demand that a same-sex couple provide proof of a long-term relationship in order for the non-biological parent to be recognized as a legal guardian, a criterion not required of heterosexual couples.
The state had demanded documentation proving proof of a long-term relationship between the two women before recognizing them both as the mother of the child. However Judge Nava Gadish of the Petah Tikva Family Court slammed this demand.
“A couple that isn’t same-sex isn’t required to present any proof of a shared life,” she wrote. “The status of two women is different, because their assertion isn’t based on a biological connection. But that isn’t enough to justify an unnecessary invasion of their privacy.”
The couple had argued that the state’s demand violated their rights to equality, privacy and parenthood. They submitted an agreement they signed in June 2018, several months before the pregnancy began, in which they settled their mutual rights and obligations. That agreement was approved by a court after they said they had been living together since 2017.
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The state argued that the document was signed four months before the pregnancy and didn’t attest to a shared life or specify when their relationship began. Gadish found this argument specious, asking, “It is inconceivable that two women should seek to form a spousal relationship and expand it into a family relationship even after a short time?”
The Knesset ought to pass legislation regulating the status of non-biological parents who seek recognition as parents, Gavish added. But until then, the courts must exercise their judgment in each specific case, “and that is what I did in this case.”
The couple’s attorney, Iris Sheinfeld, praised the court for recognizing “the individual’s autonomy to establish a family” and allowing parenthood that doesn’t “meet the state’s ridiculous demands.” It thereby “reduced the state’s intervention in individual decisions,” she said.
The state poses many demands of same-sex couples before recognizing them as joint parents including having a joint bank account and proof that they have either rented or bought a home.
A year ago, Orly and Ravit Weisselberg-Zur asked the High Court of Justice to end the special demands made of lesbian couples, including the need to obtain a court order recognizing their joint parenthood, and instead make do with the biological mother’s declaration that her partner is the child’s second mother. That case is still awaiting a decision.
In July, Haaretz reported that the state was refusing to consider a same-sex couple’s request for a parenthood order during pregnancy, citing “cultural worldviews” under which “it’s wrong to take concrete actions regarding a child before its birth, like buying clothes or preparing its room.”
But this refusal means the non-biological parent will have no formal rights to the child until months after the birth. It also means they may never get parental status should the biological parent have a change of heart. It also could give leeway for the non-biological parent to abandon parental responsibility if the child has a birth defect.