The High Court of Justice ruling on Sunday giving the same rights to gay couples and single fathers as it does to women to have children through surrogacy was dictated by reality.
A year ago, the court had determined that the status quo, which no government had dared touch for fear of the religious parties, was discriminatory because it did not give surrogacy rights to single men or same-sex couples. But, now that the court has adopted the obvious conclusion, attention should turn to the rights of surrogate mothers in Israel and overseas. The fervor with which Supreme Court President Esther Hayut defended the rights of the LGBTQ community cannot obviate a discussion over who is entitled to rent the womb of other women, and under what conditions.
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This new equality requires us to recognize that under some circumstances surrogacy can be harmful and exploitative, usually to disadvantaged women. Anyone celebrating the High Court ruling cannot make do with the claim that “I’m deserving, too.” Everything must be done to minimize the risk to surrogate mothers.
People supporting surrogacy tend to highlight success stories of happy couples and the women who helped them get there, but according to feminist activist Dr. Hedva Eyal, of the Isha L’Isha Haifa Feminist Center, 25 years after the surrogacy law was passed, there is a dearth of systematic information on the situation in Israel, including the apparently numerous cases in which the process did not end with a live birth. Facts and figures are lacking on the long-term mental, physical and family-related effects of surrogacy, or how often surrogate mothers make use of their right to seek counselling. Any semi-rational discussion on expanding access to surrogacy requires relevant and transparent data, which should be the government’s responsibility to provide (rather than the two sides involved in the process).
This is not just about the lack of information about what happens in Israel: A few years ago, Isha L’Isha was threatened with a lawsuit after it published a document that included testimonies by surrogate mothers from India.
There are surrogate mothers in Israel and overseas who say that the only reason they agreed to take part in the process was the wish to help others bring children into the world. However, this should not diminish in any way the need for establishing mechanisms for protecting them and other women who have other motives for donating their wombs.
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In her ruling, Justice Hayut refers to some of those mechanisms (at least as she sees it) by considering the possibility of limiting the amount paid to surrogate mothers, regulating the process of accepting ova donations and setting a ceiling on the number of children who can be delivered through surrogacy. These questions are piling up. How will the increasing demand affect costs? Should advertising and marketing of surrogacy services be allowed? How do you price an ovum and who will determine the limit on the number of children thus delivered? Will it be one, three, perhaps five?
With all the importance of putting into place such mechanisms, they are not the be-all-and-end-all. The more balanced the relations are between the surrogate and the person paying them, the greater the chances of engaging in an optimal process. Reciprocity is the key term in this context, including, for example, the sharing of relevant psychological information not only from the surrogate to the prospective parents, but in the opposite direction. Another issue that requires regulation and government monitoring is the agencies that serve as go-betweens for the two sides. Is it right for private agencies working for profit to operate in this (free) market?
It seems that the argument for and against surrogacy services has been settled in Israel. After gaining recognition of it as an almost “natural right,” the challenge of developing mechanisms for protecting surrogate mothers is greater than before. They should not be ignored.