The Supreme Court on Wednesday ruled that a lesbian mother must let her former partner forge a relationship with her son, even though he was born after the partners had separated. This is a precedent-setting ruling because it recognizes family relationships that are not blood relationships in families headed by LGBT persons, even after they break up.
The two women, Adi and Hagit (pseudonyms) were together for six years. In 2012, Adi had their oldest son, Tal (not his real name), conceived with a sperm donor, and the women raised him together. In July 2015 Adi got pregnant again, but the couple split up when she was in her seventh month. They agreed to joint custody of the older boy, who had been adopted by Hagit, but Adi refused to allow Hagit contact with Gal, who was born after the breakup.
Hagit, represented by attorneys Ira Hadar and Michal Eden, who specialize in LGBT issues, filed suit in Haifa Family Court demanding joint custody of both children. She argued that the brothers had been born into the same family unit and from the same donor who had been chosen by the partners together.
In January the Haifa Family Court ruled that Hagit must be given immediate access to the baby. The decision was based on the opinion of an expert psychologist who said that since the children were brought into the world by the couple’s joint decision, their wellbeing is best served by having the same family story.
Adi appealed the decision to the district court, arguing that allowing Hagit to spend time with the baby would create a permanent and irreversible situation, and claimed that a relationship between the siblings could not establish a parental connection between Hagit and the younger child.
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The district court affirmed the family court decision, but Adi pursued it to the Supreme Court, which dismissed her appeal. “This request touches on the most human and sensitive issues, and is not a ‘typical’ or ‘routine’ discussion of a temporary remedy. I don’t think there is any reason to intervene in the detailed and reasoned decisions of the previous courts in this matter,” wrote Supreme Court Justice Daphne Barak-Erez.
“This is another step in our ongoing struggle to recognize LGBT families and the relationships between children and their non-biological mothers,” said Hadar.
Hagit’s argument stressed her involvement in the fertility treatments and pregnancies. She further argued that it is in the best interests of the children to grow up together with the same family arrangements. Adi countered that Hagit and Gal have no genetic or physiological link. They were not emotionally connected either, since he had never met Hagit. Adi added she had not signed a parenthood agreement with Hagit that grants her any rights to Gal.
The expert psychologist, Prof. Tomer Schechner, said he believed the court should act as it would with a heterosexual family. Haifa Family Court Judge Hila Gurevitz-Sheinfeld accepted this opinion, and ruled that Hagit should be allowed to meet Gal. “Although there is no parenthood question here in the classic nuclear [family] sense, we cannot ignore the trend that families across the world are changing,” she wrote. “The interests of the child Gal require a continuation of the ‘family story’ into which he was born, and this is also what’s best for Tal. A connection between Hagit and Gal will be a strengthening factor for both minors and will contribute to their proper development.”