Left in Limbo for Months, Israeli LGBT Parents Not Legally Recognized Until After Birth

'It’s not a matter of legislation, regulations or budgets, only of goodwill and common sense,' rights group head says

FILE Photo: Protesters demonstrate against gay discrimination in surrogacy law, Tel Aviv, October, 2018.
Tomer Appelbaum

The state is refusing to grant Israeli LBGT couples parental rights during pregnancy, keeping parents with no official claim to the child in the months from birth until the authorities review their status request.

One reason the state gave for upholding the requirement that parents can only be legally recognized after their child is born is that some “cultural precepts” hold that actions like buying clothes or preparing a room for the newborn are also kept until after birth.

According to a report by a government-appointed task force investigating the circumstances under which a legal document recognizing a non-biological parent can be issued, there are “problems associated with a request for such document during a pregnancy, and this cannot be a binding ruling.”

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The report fails to secure the rights of a non-biological parent for several months after birth, and could subject them to losing their parental status if the biological parent so wishes. Alternately, during this period, the non-biological parent can dissociate from their partner and the baby with no legal responsibilities if some malformation or defect appears, or if childbirth complications arise. The committee argued that in the case of surrogacy overseas, the state would always oppose giving parental status to a partner “before a genetic link to the baby was established.”

The report also shows that the state did not accept arguments made by representatives of LGBTQ groups before the committee, demanding that same-sex couples prove they were in a relationship before the birth, in contrast to what’s required of heterosexual couples. Until recently, couples needed to prove they were in a relationship for at least one year and a half before the birth, but that has gone down to nine months. Straight couples are recognized as parents on the day of birth.

The committee, which included members from the ministries of social services, justice and health, and from the Population and Immigration Authority, was set up in April 2018 at the request of Attorney General Avichai Mendelblit. Social Affairs Minister Haim Katz appointed the members, asking them for recommendations that would reflect the state’s position on granting legal parental status. This process involves a non-biological parent registering as a parent before bringing a child to this world, by an anonymous sperm donation for women and by overseas surrogacy for men.

FILE Photo: Justice Minister Amir Ohana during Likud primaries, April 28, 2019.
Tomer Appelbaum

Mendelblit wanted the task force to address contradictions and non-uniformity in court rulings and instructed state attorneys to abide by the final document, which has been approved by Katz. It is now waiting for approval by Justice Minister Amir Ohana, Israel's first openly gay cabinet member.

Following the committee’s recommendations, 14 rights groups appealed to Katz, Ohana and Mendelblit, demanding a re-examination of its findings and the amendment of some of them, arguing that they have not yet been officially released. The organizations argued that the conditions for registering as parents be the same for LGBT and straight parents, noting that many of their arguments were rejected without being given any reason.

Ohad Hizki, head of the Aguda, the Association for LGBTQ Equality in Israel, noted: “It’s time to stop putting us under a magnifying glass, in a way that discriminates against an entire community. It’s not a matter of legislation, regulations or budgets, only of goodwill and common sense.”

The Labor and Social Affairs Ministry said, however that “The recommendations ... were approved by the Labor and Social Affairs Minister, adopted fully by the state attorney general and have been valid from the day they were accepted.”

Familial 'no-man’s land'

Currently, one can submit a request for registering as a parent within three months of birth, but not beforehand. The report shows that gay representatives and experts summoned to committee discussions agreed that partners should be allowed to submit a request for such a document in advance, so that it takes effect at birth.

Although the state decided that requests would be reviewed only afterward, female partners can file a request 60 days in advance (although their request would not be reviewed until birth) – and male partners relying on surrogate mothers may not submit a request in advance. Currently request can only be submitted after the birth of the child. Committee members wrote that while there is “importance to encourage establishing the parental connection as quickly as possible, the prevailing objective difficulty is impossible to ignore.”

FILE Photo: The gay pride in Jerusalem, 2018.
Olivier Fitoussi

Still, one of the arguments presented as a “difficulty” is “cultural attitudes,” by which it is not right to take any action anticipating birth.

“We don’t demand that parental rights be granted before birth,” attorney Or Keshet, the director of government relations for the Israel's LGBT organizations, wrote to the ministers. “Our demand is to allow the submission of a request for parental rights before the birth, and lacking objection – to rule in principle that the order goes into effect on the day of birth.”

He stated that such a step would free couples of “the need to deal with troublesome legal matters” after birth, as well as to prevent a “no-man’s land” regarding responsibility of the partners regarding the family household they seek to establish. In the past, he noted, LGBT organizations encountered instances in which the partner of the biological parent renounced the child after birth because of a birth defect, and because a parental order had not been issued – had no legal responsibility.

The Justice Ministry said it has "yet to learn" the organizations' petition, which "will be answered directly, as normal, and not via the press.”

LGBT organizations and experts also pointed to the lack of relevance that couples are required to prove that they had had a relationship for the previous 18 months before submitting the parental rights’ request. Moreover, straight couples seeking to have a child through a sperm donor sign a document at the sperm bank stating that the two will be the parents – and they need no proof of a prior relationship. The organizations and experts called for changing the criterion of the couple’s declaration regarding the quality of their relationship, but the committee only agreed to shorten the period to nine months because “there is importance in proving a stable relationship, maintaining a joint life and running a joint household.”

Prof. Tomer Shechner of the University of Haifa’s Developmental Psychopathology Lab, told the committee, “There is little importance in conducting a long and stable relationship among a couple before parenthood” and that being a couple before birth doesn’t necessarily mean it will remain stable. Prof. Shahar Lifshits of Bar-Ilan University’s Faculty of Law stressed that the matter is rooted in a couple understanding the repercussions of joint parenthood. LGBT organizations said that the fear of the state that a child will be born out of a spontaneous decision is actually characteristic of heterosexuals, who don’t need at all to rely on fertility techniques to give birth.

Attorneys Daniella Yaakobi and Michal Eden, who appeared before the committee after representing the LGBT community in dozens of cases on the issue, protested against the recommendations. “It is very regretful that the committee, which sat for half-a-year, completely ignored the best interests of the children of LGBT parents and recommended to continue to deprive us of our rights,” Eden said. “Objecting to the granting of parental rights before birth exposes the children to superfluous dangers that leave the mothers with completely unnecessary uncertainty. Therefore, there is no need for draconian conditions.”

Yaakobi added: “The clear expectation was the committee staff would give decisive weight to the clear rulings of the courts, and that its recommendations would allow single-sex families to easily arrange parental rights for the non-biological parent. Most regretfully, the publication of the recommendations made it clear that such is not the case and that they don’t offer good news but rather the opposite. They seal one’s fate based on technical-formal criteria such as the date of filing the request, the age of the parents or the duration f the relationship, ignoring the best interest of the child.”

'Cosmetic changes'

The report also recommends not to apply parenting rights retroactively if the request is submitted in the first three months after birth. LGBT rights groups demand allowing application of the law in cases of surrogacy, too, and to drop the arbitrary requirement regarding the date of filing the request. An appeal on the subject reached the Supreme Court. The committee calls for ratifying Mandelblit’s guidelines from 2015, which forbid granting parenting rights when the sperm donor is not anonymous, while the organizations oppose this prohibition if there is a formal agreement involving all sides that serves the child’s best interest.

The community did welcome some of the committee decisions, including the recommendation to cancel the requirement that partners draw up a parenting agreement before fertilization. The committee recommended sufficing with a declaration by couples of their intention to raise the child together, a document that can be validated without payment at the courts or the sperm bank. The committee also recommended dropping the requirement to prove a lack of a criminal record and deciding that it is sufficient that the state can check whether a petitioner has a history of convictions that call their fitness to be a parent.

Still, officials at the Aguda said that most of the changes the committee suggested are cosmetic or obvious, like lowering the minimum age for receiving parental rights from 21 or 18, based on family-court rulings in recent years. It was precisely the issues in which the committee could have brought significantly good tidings, they added, that it made conservative decisions.