Israeli Family Court Breaks New Ground in Paternity Law

Netael Bandel
Netael Bandel
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File photo: Documents are seen on a table at the Tel Aviv District Court.
File photo: Documents are seen on a table at the Tel Aviv District Court.Credit: Eyal Toueg
Netael Bandel
Netael Bandel

For the first time in Israel, a court has retroactively recognized a man as the father of a child after the man died, even though the baby was not his biological child and he did not officially marry the baby’s biological mother.

Attorney General Avichai Mendelblit had opposed declaring the man as the father, saying there was no basis for it in Israeli law. After the court sought to find a legal basis for such an order, however, Mendelblit withdrew his objection.

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The case involved a woman identified as A. and a man identified as G., who were recognized as a couple for many years but had not been formally married. In 2017, G. was diagnosed with cancer and received treatment that rendered him infertile. The couple then decided to seek a sperm donor.

In the written agreement with the donor, G. stated that he would be registered as the baby’s father. After several fertility attempts, A. became pregnant with the donated sperm, but G. died during A.’s pregnancy.

Because he died before the child’s birth and because the couple had not been formally married, the Interior Ministry refused to register G. as the biological father, and on the child’s Israeli ID card, the only parent mentioned was the mother. A.’s lawyer filed a request with the Petah Tikva family court for an order directing the Interior Ministry to record G. as the child’s father, even though he was not the biological father and died before the child was born.

Never before had a court issued such an order under such circumstances, and the district prosecutors office filed an objection on behalf of Mendelblit, saying there was no legal basis for such a request.

The objection noted that Mendelblit did not wish to compound the loss that A. has suffered, but added that a legal analysis of the situation required him to oppose her request because Israeli law does not provide a basis for registering G. as the father. “In circumstances in which there is no genetic connection between the deceased and the minor child, according to applicable law in Israel, it is not possible to declare [the father] a parent,” the objection stated.

Attorney General Avichai Mendelblit at a conference in Herzliya, March 9, 2020.Credit: Meged Gozani

When the matter came before Judge Nava Gadish of the family court, she appeared to side with A. and suggested that the attorney general consent to the request, and that to circumvent the legal difficulties, the case would be changed from a lawsuit seeking a declaration of paternity to a somewhat different request in which the court would declare G. the father.

“The court is asking [Mendelblit and the prosecutor’s office] to make an effort to find a way to assist in this case to enable a paternity order to be issued as a court decision in the tragic circumstances of the family, taking into account that [A.] and G. led their life together and held themselves out as a couple,” the judge wrote. “There should be no doubt that it is in the interest of the baby that G. be registered as his father, which requires a court order of paternity, [and] it seems to me that that’s the way it should be,” the judge wrote.

Mendelblit then withdrew his objection and announced that, due to the special circumstances of the case, he would not oppose a court order of paternity, effective from the date of the child’s birth. Judge Gadish issued the order, the first of its kind in Israel, on November 19.