Law Barring Gay Couples From Surrogacy Is Backed by Attorney General, Says Justice Ministry

Both Netanyahu and Deputy Health Minister Litzman oppose allowing single-sex couples to arrange surrogate births in Israel, claiming it would create a back-door method to allow single men to use surrogates

Attorney General Avichai Mendelblit
Tomer Appelbaum

If the Health Ministry does not change its position, then Attorney General Avichai Mendelblit will defend a proposed law denying single-sex couples the right to surrogacy arrangements in Israel if the case is taken to the High Court of Justice.

Mesada Matzlawi, an attorney from the Justice Ministry, told the Knesset Constitution, Justice and Law Committee on Monday that in light of the Supreme Court ruling in August 2017, the attorney general consulted with Prime Minister Benjamin Netanyahu, who also serves as health minister, and Deputy Health Minister Yaakov Litzman, and both oppose allowing single-sex couples to arrange surrogate births in Israel.

Last year, the High Court decided to postpone ruling on a petition demanding Israel permit single people and same-sex couples to arrange surrogate births in Israel. The court postponed ruling by six months to allow lawmakers to follow through with new legislation that might render the petition obsolete, the justices said. Nonetheless, the justices made it clear that the present Israeli law, which only allows surrogacy for heterosexual couples, is discriminatory.

A spokesman for Mendelblit issued a statement on Monday to clarify that the Justice Ministry does not support the bill restricting the surrogacy rights for single-sex male couples, but this is the Health Ministry’s position. After the Supreme Court ruling, Mendelblit asked the Health Ministry to reexamine the issue and noted the advantages of allowing surrogacy for all groups, said the spokesman.

But Litzman said the Health Ministry still wishes to leave the present situation unchanged, and provided various justifications – and this is the position Matzlawi explained to the Knesset on Monday – and if the Health Ministry chooses not to change the law then Mendelblit will defend this position in court, said the statement.

Mendelblit feels the proposed bill, which has government backing but does not include surrogacy rights for any additional groups, is constitutional and can be defended in the High Court, Matzlawi told the committee. The present bill, which is waiting for Knesset approval, does expand the right to surrogacy arrangements to single women who are medically unable to become pregnant.

Matzlawi referred to the conclusions of the committee, headed by Prof. Shlomo Mor-Yosef, which studied the matter and recommended permitting surrogacy for single women. The committee also suggested allowing surrogacy to single men, but only if the surrogate did it for altruistic reasons, and not for payment. The committee did say a difference exists between women who cannot become pregnant and others, such as single men or single-sex male couples, and this difference justifies the discrimination between them, she added.

“Opening the surrogacy market to other groups has very serious implications. Among them, an enormous increase in the demand for surrogacy, incredible price increases in the market and a fear that women will ask to be surrogates for foreign and inappropriate motives,” said Matzlawi in explaining the Health Ministry’s position.

The Law Committee’s legal adviser, Anat Maimon, said that it will be difficult to defend in court the discrimination between men and women when it applies to surrogacy. “It will be necessary to find weighty considerations to justify such a difference in order to defend the law in court,” she added.

A representative of the Health Ministry, attorney Shimrit Cohen Leshem, presented Netanyahu and Litzman’s position to the committee: “They feel that at this stage, mostly because of the sensitivity of processes that social, legal and medical importance, surrogacy arrangements in Israel must be limited and intended only for a defined group of women who have medical problems that prevent them from carrying a pregnancy, as exists today and is proposed in the law that is before the Knesset.”

Litzman and Netanyahu rejected the Mor-Yosef panel’s idea to set up a way to approve exceptions, saying it was wrong to create a back-door method to allow single men to use surrogates, she told the committee.