Israel's Top Court: Non-biological Parents Have Same Rights as Birth Parents

The ruling, which says parenthood conferred by court order cannot be stripped from a non-biological parent after a breakup, is considered a victory for gay parental rights

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Demonstration supporting gay adoption rights, in 2017.
Demonstration supporting gay adoption rights, in 2017.Credit: Moti Milrod

The Supreme Court ruled Thursday that a non-biological parent who has been granted parenthood status by court order cannot be deprived of this status after the couple separates, with rare exceptions, finding that the status is equal to that of biological parenthood.

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“Our ruling in both cases will convey a clear message that parenthood status conferred by the court is not just a cloak that the parents can doff after their couplehood has withered,” the ruling stated. “This is a fundamental act intended to protect the rights of both parents, as it protects the welfare of the child, with the entire arc of parental obligations involved.”

Court-granted parental status registers a non-biological parent as the child’s parent in the Interior Ministry records, and also enshrines that parent’s rights and obligations.

In a statement for the attorneys who represented the non-biological parents, Michal Eden, Hagai Kalai and Gal Barir, attorney Ira Hadar called the ruling “another important step on the way to full LGBTQ parenthood. The Supreme Court justices have set out to protect the gay family unit, and ensured that in cases when couplehood ends, the status and rights of non-biological mothers and fathers will be protected.”

Thursday’s ruling, given by justices Neal Hendel, Daphne Barak-Erez and Yosef Elron, was handed down in two cases of same-sex biological parents who separated from their respective partners. One asked that a parenthood order not be conferred on his former partner, and the other asked that the parental rights of her partner be terminated. The court rejected both requests and ruled that parenthood status can be granted by the court after a couple separates, even if the biological parent objects and even if the request was filed long after the birth of the child.

“Parenthood is parenthood, and therefore the conditions for canceling court-conferred parental status must be made strict, and ensure that the gate to it not be locked in case of separation and disagreement between the couple,” Justice Hendel wrote. Barak-Erez added: “The relationship between the minor child and the parent, whether biological or legal, does not depend on the will of the parents. From the moment parenthood has been recognized as such, it cannot be made to disappear due to a change of heart."

LGBTQ Pride march in Jerusalem, in 2018.Credit: Olivier Fitoussi

In the first case brought before the court, the biological father asked to reverse his original consent to grant parental status to his former partner after the two separated. The couple had been in a relationship for about a decade, signed a property agreement, adopted a shared family name and embarked on a process of surrogacy abroad. During the first four years of their daughter’s life, they took care of her together.

“This case shows the clear advantages of turning to the judicial system to arrange parenthood status for the [non-biological] partner,” Barak-Erez wrote. "However, the timing of the request alone does not impact the decision to be made in this case."

In the second case, the biological mother asked to withdraw the parenthood status granted her former partner. Barak-Erez said the assumption at the basis of the biological mother’s argument is that legal parenthood status is a kind of conditional parenthood – an assumption Barak-Erez rejected.

“A legal grant of parenthood status, like an order of adoption, does not only create judicial status," she wrote. "First and foremost, it creates an emotional reality from the point of view of the children involved, and it impacts the adults who have taken upon themselves to serve as parents. Legal parenthood, like biological parenthood, cannot be untied. This is a responsibility for good and for bad, in life and in death."

"It is difficult to exaggerate the amount of pain and suffering that could be involved in a process that separates a minor child from the person who was supposed to be one of the two significant figures in their life," she added.

Barak-Erez wrote that the principle of the matter is equality in parenthood status, be it biological or not. “Humanity here overcomes nature, in the name of equality,” she stated.

A demonstration supporting gay adoption rights, in 2017.Credit: Moti Milrod

Justice Hendel wrote that the only way to annul legal parenthood status is in cases involving surrogacy or an adoption order, by means of principles set forth by legislation, adding that annulment of an adoption order would be “most extraordinary." That reaffirms a representative of the attorney general’s office, who likewise told the court that such annulments are extremely rare.

Israeli adoption law states that the court can annul an adoption order in the case of circumstances that were unknown or did not exist at the time the order was issued, or if it is proven that the order should be rescinded for the good of the child. One example, said Hendel, would be a person claiming that someone else had forged their signature on an order.

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