Two profound changes are about to happen to the right to parenthood in Israel, both supported by the government. The Knesset is poised to vote, and probably approve, an amendment to the surrogacy law, which will enable a single woman – not only a married couple consisting of a man and woman – to enter into an agreement with a surrogate. In parallel, the state advised the High Court of Justice that it had decided to interpret the Adoption Law to enable common-law spouses to adopt as well – as long as they are a man and woman.
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With that, the state accepted the position of certain members of the state adoption committee, headed by retired Judge Yehoshua Gross, that “children should only be given for adoption to families that are not considered in Israeli society as irregular.” The state’s position, as presented to the High Court, despite the reservations of Labor, Social Affairs and Social Services Minister Haim Katz from the “unfortunate wording” that was submitted, is to agree, “taking into account the reality in Israeli society.”
Until now, the laws relating to parenthood – including adoption and surrogacy – were among the few places where Israeli law did distinguish significantly between married and common-law couples. The plight of same-sex couples was similar to that of other unmarried couples. The new policy drives a wedge between same-sex couples and unmarried women regarding surrogacy; and between them and common-law couples in the context of adoption.
The significance of the distinction cannot be underestimated. The battle of same-sex couples was relatively successful because it was not pursued in isolation: it was part of a battle by people who didn’t want to, or cannot, marry through the religious framework. Since Israel has no such thing as civil marriage, and a lot of people were affected by that, the institution of “common-law marriage” developed. A rule became established that enabled people who married abroad to register as such in Israel, even if their marriage is of a type not recognized in Israel.
When same-sex couples began demanding their rights in the 1990s, they based themselves on these models. Now the state is creating a separation between the struggle of same-sex couples and other couples who are outside the Israeli institution of marriage, in order to leave them isolated and weakened in their struggle.
The growing discrepancy between the recognition the state is willing to give in parenthood to unmarried heterosexual couples, and the refusal to recognize parenthood in the LGBT community, is particularly pronounced given Israel’s tendency to preen over the rights it supposedly gives to the gay community. Take Prime Minister Benjamin Netanyahu’s speeches at the United Nations, not to mention Israeli propaganda efforts.
The state’s position on LGBT parenthood, as reflected in the adoption and surrogacy issues, attests to the hypocrisy of pinkwashing – Israel exploiting LGBT rights for propaganda purposes, in order to create a liberal and enlightened image. Yet the right hand of government rejects any attempt to promote any LGBT rights perceived as “irregular,” while the left hand takes pride that the state, according to the Foreign Ministry website, is one of the most accepting of the LGBT community, recognizing the rights of its gay citizens – including, it claims, same-sex couples’ full and equal rights to adopt.
Thus, the state exploits the rights that the LGBT community achieved through enormous efforts in court, while deepening the discrimination against members of the community – and even inventing rights that were never actually recognized.