Top Court Rules Israel Must Allow Surrogacy for Same-sex Couples, Single Men

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People march to expand surrogacy rights, Tel Aviv, 2018.
People march to expand surrogacy rights, Tel Aviv, 2018.Credit: Tomer Appelbaum

The High Court of Justice ruled on Sunday that the state must allow same-sex couples and single men to become parents through surrogacy, after the government said last week that passing a law to this effect was politically "unfeasible."

The court also said that the state must make the requirements for same-sex couples and single men to become parents as those set for women.  

The panel of justices, headed by Supreme Court President Esther Hayut, said that restrictions barring same-sex male couples and single men from surrogacy must be nullified within half a year.

The ruling said that "[a]s it has been determined that the [current] arrangement is unconstitutional, 'a lack of political feasibility' cannot justify the connotation of severe harm to basic rights."

Hayut wrote that from now on interpretation of the existing law’s instructions should be expanded so that “the expression ‘intended parents,’ which appears in the law on [surrogacy] agreements, can be interpreted to refer to heterosexual couples, same-sex couples, single women and single men,” and the expression “recipient” of the egg, which now appears in the feminine form in Hebrew, can also be interpreted as referring to a male recipient.

Health Minister Nitzan Horowitz, who is gay, welcomed the ruling, saying. "Finally, equality!" he wrote on Facebook. "The high court rules that gay couples and single people can have children through surrogacy, inside Israel. When I entered my role, it was clear to me that the foot-dragging must be brought to an end and informed the court that the petition is just and that we are prepared for a binding ruling. We will immediately get ready to accept requests for surrogacy from men. We will act with responsibility, balance, and especially equality."

Itai and Yoav Pinkas Arad, who petitioned the High Court along with the Israel Association of Gay Fathers, welcomed the High Court decision, saying: “We won! And now it’s final. The High Court ruling is a great step forward toward equality not only to the LGBTQ [community] in Israel, but equality in Israel altogether. The ruling is important to all of us because arbitrary discrimination shames the state."

The Aguda – Israel’s LGBT Task Force, said of the ruling: “The High Court ruling is a historic landmark in our struggle for equality. The High Court justices wisely accepted the human and just decision, and the Knesset had difficulty making for a decade because of the political veto of extremist parties. This great achievement gives us the power to continue fighting until full equal rights are achieved for all members of the gay community in all areas of life.”

In February 2020, a five-justice panel struck down a law barring gay couples and single men from using surrogacy services, and gave the Knesset a year to pass a new law.

The court was then 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, when the government said it was unable to pass such a law. 

Up to now, only couples made up of a man and a woman who are residents of Israel have been eligible for undergoing the surrogacy process in Israel, as well as single women who are residents of Israel in cases in which they have medical issues preventing them from getting pregnant or carrying a fetus. Israelis seeking to start the surrogacy process must receive approval from a committee within the Health Ministry. 

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