Surrogacy for Same-sex Couples ‘Unfeasible’ for Now, Israel Tells Court

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LGBTQ Israelis protest and strike in Tel Aviv after the government voted against changing the surrogacy law, in 2018.
LGBTQ Israelis protest and strike in Tel Aviv after the government voted against changing the surrogacy law, in 2018.Credit: Moti Milrod

The state told the High Court of Justice Tuesday that it is not politically feasible at this time to advance a bill that would permit same-sex male couples or single men to have a baby using a surrogate.

In February 2020 a five-justice panel struck down a law barring gay couples and single men from using surrogacy services, but gave the Knesset a year to pass a new law. Now the state is saying it will not be able to pass such a law, and is asking the court to rule.

The court was ruling on a petition on behalf of Etai and Yoav Pinkas-Arad by the Association of Israeli Gay Fathers and attorney Hagai Kalai. When a year had passed, in March 2021, the state requested an extension; the court asked for an update at the beginning of this month.

In their February 2020 decision, Supreme Court President Esther Hayut and Justices Hanan Melcer, Neal Hendel, Isaac Amit and Uzi Vogel ruled that the current law is unconstitutional because it violates the rights of single men and same-sex male couples to equality in the exercise of their right to parenthood.

According to Hayut, the right to be a parent is given to any person independent of the person’s gender identity, sexual orientation, whether or not the person lives alone or in partnership with another, and with whom.

In addition to violating the right of members of the excluded group to parenthood, they continued, the current law also violates the provisions of the Basic Law on Human Dignity and Liberty.

Surrogacy arrangements in Israel are currently available to heterosexual couples who are residents of Israel as well as single women who are residents of Israel, in cases where the woman has medical issues that prevent her from becoming pregnant or carrying the pregnancy to term.

Israelis seeking to start a surrogacy procedure in Israel are required to obtain an eligibility certificate from the Health Ministry’s Surrogacy Committee.

In the first stage, the panel examines the applicants’ eligibility, in accordance with the Surrogacy Law. In the second, it reviews the agreement between the intended parents and the surrogate mother. Israeli residents who are ineligible for surrogacy in Israel or who wish to accelerate the process, which may take a long time due to the low supply of surrogates, usually seek surrogacy services abroad in countries that allow it.

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