Biological Mother Must Let Female Ex-partner See Son Born After They Separated, Israeli Court Rules

Experts said it was in the boy’s best interest to grow up with both mothers – just like his older brother, who was born before the couple split in 2016

A woman pushing a stroller on a kibbutz in northern Israel (illustrative).
\ Eyal Toueg

An Israeli court has ordered a biological mother to grant her former partner access to the boy who was conceived while the lesbian couple was together but born after the women separated.

The couple, Adi and Hagit (not their real names), lived together for six years. In 2012, Adi gave birth to their elder son, Tal (not his real name), who was conceived via a sperm donor, and the women raised him together. In July 2015, Adi became pregnant again by the same sperm donor, but in the seventh month of her pregnancy the couple separated. They agreed to raise the first-born son together, but Adi refused to let Hagit have contact with the second son, Gal (again, a pseudonym), who was born after they split.

Hagit filed a lawsuit in Haifa’s family court seeking custody of both children. She argued that the two boys were brought into the world in the same family unit and from the same donor who had chosen both her and Adi.

Hagit also claimed she had been a partner in the fertility treatments and pregnancies. She added that it was in the best interest of both children that they grow up together in the same family framework, with both parents having custody rights.

Adi, meanwhile, claimed Hagit was not Gal’s mother and that there was no genetic or psychological connection between the child and her former partner. There was also no emotional connection, she said, since Hagit had never seen Gal. Adi also noted that she had never signed a parental agreement giving Hagit access rights to Gal.

Two court-appointed experts – a social worker and a psychologist – said it was in Gal’s best interest to be raised with both mothers, like his older brother was and as had been planned prior to Gal’s birth.

The psychologist, Prof. Tomer Shechner, noted in his opinion that the family arrangements should be the same as if the court were dealing with a heterosexual couple.

Shechner opined that Gal should be given the same legal status “as a child born to a family headed by two women – one biological mom and a second mom who is the partner of the biological mother even if the life circumstances resulted in the two women separating prior to his birth.” The alternative – a situation in which one of the brothers had two mothers and the other only one – could be a source of confusion for the boys and prompt questions in their minds, Shechner added.

The judge, Hila Gurevitz-Sheinfeld, adopted Shechner’s recommendation and ruled that it was appropriate to permit Hagit to have contact with Gal. Noting that family life around the world is changing, she said the classic nuclear family is not exclusive.

The judge ruled that in the absence of any grounds to reject Shechner’s recommendations, she came to the conclusion that the best interests of Gal required that he and Hagit have contact with one another, adding that it was also in the interest of his older brother, Tal.

“[Gal] has the right to an identity and [a sense of] belonging reflecting his life story and his roots. This right is separate from the identity of his parents,” Gurevitz-Sheinfeld ruled.

Lawyer Ira Hadar, who represented Hagit, said the court’s ruling “delivered an important message that LGBT families should be treated just like heterosexual families. When partners decide together to bring a child into the world, the child should be viewed as both of theirs, even if they separate before the birth,” Hadar said.