Israel Must Remove the Discrimination Inherent in Its Surrogacy Law

Only then can the state regulate in a way that protects the rights of foreign surrogate mothers and doesn't heap bureaucratic obstacles before those who pursue surrogacy abroad.

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A family of two fathers at a three-day conference on surrogacy.
A family of two fathers at a three-day conference on surrogacy.Credit: David Bachar

Along with the serious reports about the earthquake in Nepal that has killed a huge number of people, the use of surrogate mothers in Nepal by Israelis has made headlines. When natural disasters occur in Third World countries, the risk to such parents and their babies is greater because these countries can only provide a partial response. But readers should know that those couples are there against their will, because of the discrimination inherent in Israel’s Surrogacy Law.

The Surrogacy Law allows a man and woman who are partners to go through the surrogacy process here in Israel. Anyone who doesn’t meet that definition must do it abroad. This situation harms all those involved in the process – the babies born in hospitals that aren’t necessarily equipped to care for them, the prospective parents who are forced to go abroad for the birth and remain there for a lengthy period, the foreign surrogates who are put at risk of exploitation, and the State of Israel, which is exposed to actions by Israelis in foreign lands without being able to anticipate the legal ramifications.

The previous government tried to regulate the matter and eliminate the discriminatory aspect of the law through a bill sponsored by former Health Minister Yael German; the bill passed its first reading but the Knesset dissolved shortly afterward without completing the legislation.

The bill has two parts: One corrects the discrimination by allowing single men and women to pursue surrogate births in Israel, while the second part seeks to set regulations for surrogate births that take place abroad. Both parts are important, but while the first section, which eliminates the discrimination, is relatively simple to legislate, the part that seeks to regulate foreign surrogacy is complex, controversial and the first bill of its kind in the world.

The earthquake and its reminder of the dangers facing Israeli parents and children in foreign lands is a warning sign of the urgency of legislation that would enable them to pursue surrogacy in Israel. Such a law is expected to reduce the number of those seeking surrogacy services abroad and would thus avoid many of the problems that make regulation of foreign surrogacy necessary.

The determination of various government ministries to link the elimination of the discrimination in Israel with the regulation of foreign surrogacy is delaying the legislation and putting both parents and babies at risk. The state must amend the discriminatory sections of the Surrogacy Law quickly, and deal with the regulation of foreign surrogacy separately.

Once the discrimination is dealt with, the state must go further and regulate foreign surrogacy in a way that protects the rights of the foreign surrogate mothers and doesn’t heap bureaucratic obstacles before those who pursue surrogacy abroad.

The writer was a senior adviser to the former health minister and coordinated the staff work on the bill to amend the Surrogacy Law.

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