Adoption Rights of Israeli Same-sex Couples Still Up in the Air

Panel fails to reach a decision on whether to allow same-sex couples to adopt – despite working on the matter for nine years.

A rainbow flag and an Israel flag.
Ariel Schalit

A government committee has recommended making it far easier for couples in a common-law marriage to adopt children, but the panel failed to reach a decision on whether to allow same-sex couples to adopt – despite working on the matter for nine years.

Justice Minister Ayelet Shaked and Social Affairs Minister Haim Katz will have to decide which of the numerous recommendations to accept, including whether to make the rights of gay couples the same as those of heterosexual couples in adoption.

The committee, headed by retired Judge Yehoshua Gross, will present its report to the two ministers in the coming days. (Haaretz has obtained a copy of the report.) The committee will also present an encompassing draft of a bill that would reform Israel’s entire adoption system.

Among the many recommendations are to take into consideration the child’s opinion during the adoption process; to establish a database of potential adoptive families in order to limit the use of foster families; to require the courts to follow up on adopted children until age 6; and speeding up procedures for adopting at-risk children.

The committee wants to clarify the principles behind the adoption process as well, in order to limit the power of the welfare authorities in certain cases – including the opening of programs to rehabilitate the biological parents. Only after this process was completed would the authorities be allowed to take children away and put them up for adoption.

Most of the recommendations are expected to be adopted by the relevant government ministries, though the question of same-sex family adoptions is another matter. Instead, this will most likely be affected by High Court of Justice rulings on the subject.

The committee members, who could not agree on a recommendation for the issue, formulated two different proposals “in accordance with the changing times and entrance into Israeli society of ‘new families,’” the report stated.

One proposal would allow same-sex couples to adopt children through the exact same process as married, heterosexual couples. The adoptive parents would be required to be “a couple in a stable, long-term relationship, whose duration will be determined without any connection to the form of relationship between them.” This would apply to those living together in a common-law marriage, too.

The committee examined a large number of studies on the question of single-sex adoption, many of which found no advantage to those families with both a mother and father.

Yet some panel members felt that in the case of a single-sex couple, it would add “additional baggage” for the adopted child, who already has a feeling of being different. Instead, the committee formulated a second proposal, in which the law would not be changed specifically for gay couples, only for common-law couples. But same-sex couples would be able to adopt if they could prove the existence of a stable joint household over a period of time to be determined by law.

Shaked and Katz will not have long to decide on the matter. In September, in response to a petition filed against the Social Affairs Ministry and the attorney general – asking the court to order an end to the present policy that discriminates against same-sex families in adoption – the High Court of Justice agreed to a request by the government and postponed hearing the case until after the committee presented its report. The next hearing is scheduled for February.

Spokesmen said the two ministers have yet to receive the report, and so have yet to formulate their positions on the matter.

The committee’s conclusions are filled with prejudice, homophobia and cowardice, says Udi Ledergor, head of the Association of Israeli Gay Fathers – which is one of the plaintiffs in the petition. “The committee avoided explicitly writing that some of its members still think a female couple or male couple are not parents equal to any other couple, despite the endless testimony and research presented to them,” he said.

“It seems that deeply rooted homophobia is difficult to uproot, and it does not matter how much empirical testimony says otherwise,” said Ledergor. He added that he expects the two ministers to allow same-sex couples to become parents through adoption.

The adoption law was passed over 30 years ago, and has remained almost unchanged ever since. Single parents are allowed to adopt with court approval only in two cases: If the biological parents have died and the person adopting is an unmarried close relative; or if the adoptive parent is the partner of the biological parent, or a previous adoptive parent.

In 2008, then-Attorney General Menachem Mazuz decided that same-sex parents could adopt, too, as “individual adoptive” parents. But even after Mazuz’s precedent-setting decision, the adoption process is still not equal. Heterosexual couples are still given priority in adoption by the Social Affairs Ministry’s child welfare services, and gay couples are often only able to adopt children who have been turned down by heterosexual couples first – such as children with health problems, older children and those from at-risk families.

Today, adoptions are only allowed between adoptive parents and children of the same religion. A change recommended by the committee would not change this, but would allow interreligious adoptions in exceptional cases.

The recommendations also include shortening the time the court takes to approve adoptions for at-risk children. At the moment, it can take years. Under the committee’s recommendations, the entire process would take place in the family court, without a hearing in youth court, and appeals would be filed directly to the Supreme Court, skipping over the district courts. Children would also have their voices heard throughout the entire adoption process under the new recommendations, and not just after the matter reaches the courts.

The committee was established in 2007 by then-Justice Minister Daniel Friedmann and then-Social Affairs Minister Isaac Herzog. According to the Social Affairs Ministry, some 16,000 children were adopted in Israel in the 60 years between 1955 and 2014.