Netanyahu Rejected Request to Consider Allowing Surrogates for Single Men, Same-sex Couples

PM supported deputy health minister's stance that bill allowing single women to use surrogacy services should not be expanded, despite AG's request

File photo: Protesting for gay surrogacy rights in Israel.
Emile Salman

Prime Minister Benjamin Netanyahu and Deputy Health Minister Yaakov Litzman refused a request from Attorney General Avichai Mendelblit to consider including single men and same-sex couples in proposed legislation allowing single women to use surrogacy services.

Litzman told the attorney general he believed the version of the government-sponsored bill that was approved by a Knesset committee this week, clearing the way for its approval by the legislature, should stand.

The bill would allow single women who cannot become pregnant and who meets certain conditions to use the services of a surrogate mother in Israel.

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The Health Ministry confirmed Litzman’s position and said that Netanyahu supported it.

Mendelblit suggested that surrogacy in those cases will be of an altruistic nature, in which the surrogate is not paid, or when permission is granted by a special committee. His proposal is based on the recommendations of the Mor Yosef committee in 2012 that men should be able to use the services of an unpaid surrogate, which would significantly lessens concerns over financial gain and other problems stemming from expanding surrogacy options in Israel.

Mendelblit told Netanyahu that he made his suggestion in light of a partial ruling by the High Court of Justice in August 2017 stating that preventing gay couples from surrogacy constituted discrimination.

On Tuesday the Knesset Labor, Welfare and Health Committee approved proposed legislation on the issue. But despite the High Court ruling, the bill does not allow same-sex couples or single men to become parents through surrogacy in Israel. At present, the law allows only “a man and a woman who are a couple” to avail themselves of a surrogate in Israel.

Litzman informed Mendelblit that after examining the issue and its implications, the Health Ministry believes that the bill should remain as it is, allowing surrogacy only to a specific group of women with medical problems preventing their own pregnancy. The ministry said its decision was based on “the social, legal, medical and religious complexities” of the process, the expansion of which must be done with all due caution.

The Prime Minister’s Office did not respond to requests for comments.

The Justice Ministry said in a statement that although the attorney general believes that there is an advantage “in creating a legislative arrangement providing for other groups that are not included in the bill, and despite the difficulty in allowing the original bill to stand as it was presented to the Knesset” the law could be defended in the High Court.

In August the High Court gave the state six months to pass a surrogacy law, after it postponed its ruling on a petition by a same-sex couple seeking surrogacy in Israel. Since then, the state has asked for and received extensions to complete legislation. After the bill becomes law, the High Court will have to rule on the couple’s petition.

Etai Pinkas-Arad, who filed the High Court petition said: “The Knesset, like the government before it, responded clearly to the High Court clearly and said it did not intend to deal with discrimination in the law.”

Pinkas-Arad added that the High Court has done everything in its power “to allow the executive branch to make the amendment itself, but our politicians choose to ignore the will of the people and previous rulings and focus on coalition considerations. As long as Israel allows surrogacy, it cannot justify selective surrogacy.”

Pinkas-Arad said neither the public nor the court would allow this situation to stand.

Hagai Kalai, the lawyers represents the petitioners in the High Court case, said: “It is regrettable that the deputy health minister, who by law must respect the right to equality of single men and same-sex couples, choses for extraneous and unacceptable reasons not to amend the serious discrimination in the law. This choice not only contravenes the deputy minster’s obligation to the entire public in Israel, including same sex couples, it also goes against his obligation to respect the High Court.”