Israel Must Permit Local Surrogacy for Same-sex Couples

In this dance between the government and the High Court, everyone seems to be ignoring the assumption that the sole reason for the cabinet’s resistance to ending this discrimination appears to be homophobia and conservatism

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A demonstration on behalf of the right of same-sex couples to local surrogacy, in Jerusalem in March 2016.
A demonstration on behalf of the right of same-sex couples to local surrogacy, in Jerusalem in March 2016.Credit: Emil Salman
Assaf Weiss
Assaf Weiss

The relationship between the High Court of Justice and the government has been very tense lately, and here’s another issue about which they are in dispute, dancing around the topic as if at a masked ball. The time has come to end the masquerade and finally decide on the surrogacy issue.

Let’s start from the beginning: Israel’s Surrogacy Law was passed 20 years ago. It allows heterosexual couples who are unable to conceive to fulfill their dream of being parents using a surrogate mother.

For 20 years, straight couples — comprising one man and one woman — have been able to realize their right to parenthood. But for single women and same-sex couples, it has been 20 years of discrimination that has forced them to give up the dream of being parents unless they are willing to undergo complex and expensive surrogacy procedures abroad. All this is in addition to the endless legal struggles on the issue.

During her term as health minister, MK Yael German (Yesh Atid) formulated a bill that sought to end this legal discrimination and allow everyone access to local surrogacy procedures. At the same time, around two years ago, Etai and Yoav Pinkas-Arad and the Association of Israeli Gay Fathers petitioned the High Court against the discrimination inherent in the law.

The justices indeed criticized the state’s refusal to permit individuals or same-sex couples to use surrogacy in Israel and signaled that if a solution to the legal discrimination was not found soon, the court would be forced to rule on the issue. But it also gave the Knesset six months to either explain this discrimination or to change the law. Only three months after this extension was granted, the coalition voted down German’s bill.

In this ongoing dance between the government and the High Court over surrogacy, it seems that everyone is ignoring the assumption that the only reason for the government’s resistance to correcting this discrimination appears to be homophobia and conservatism.

But during the Knesset’s last vote on the issue, another mask fell from the face of Health Minister Yaakov Litzman, who in his remarks demonstrated ignorance of previous bills on the issue and the considerable work that the previous government had invested in trying to correct the bias in the Surrogacy Law. Thus, in addition to homophobia, he exhibited a lack of professionalism.

Had Litzman checked, he would have found that for more than a year the previous government, along with representatives from the foreign, health, justice, interior and labor, social affairs and social services ministries worked on a government-sponsored bill that passed in its first reading but was suspended a few weeks later, when the government was dissolved.

Litzman’s lack of familiarity with this legislative effort is a professional embarrassment. His opposition to a new and balanced surrogacy law implies that his objections are rooted in homophobia.

The High Court is part of this mix, after 15 years in which it has allowed the Knesset and the cabinet to continue this masquerade without correcting the legal discrimination.

Extensions of deadlines, committees, deliberations and various remarks by Supreme Court justices against this discrimination have all resulted in the perpetuation of the situation.

But now, in light of the recent government opposition to amending the law, the High Court has an opportunity to stop this charade and finally rule that there is no justification for this continued undermining of the right to parenthood and the right to equality.

Asaf Weiss was a senior adviser to Health Minister Yael German and coordinated her effort to amend the Surrogacy Law, during the previous government.

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