The Supreme Court’s recent ruling on the parental status of nonbiological parents in same-sex couples depressingly set the judicial system’s position on this issue back by years.
The ruling was on a gay couple’s request for a parental order for the non-biological father of their children, retroactive to the date they were born through surrogacy abroad. The court ruled that a parental order creates parenthood rather than merely recognizing it. In other words, that there is no parental connection between the nonbiological father and his children until the court decides otherwise.
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Years of living together as a couple, building a shared household and opening joint accounts at sperm banks and surrogacy agencies didn’t convince the justices that an LGBT couple that brings a child into the world is comparable to a heterosexual couple that undergoes medical procedures for the same purpose. After all, sperm banks and surrogacy regulations weren’t created for LGBT couples, but for heterosexuals who have trouble becoming pregnant the “natural way” that the ruling treats as holy.
As long as the couple is straight, legislators and the Supreme Court justices are compassionate in regard to this difficulty. Straight couples that use a sperm bank don’t need to go through a legal process to enshrine the status of the nonbiological parent – unlike lesbian couples, who are forced to initiate exhausting legal proceedings as soon as their child is born, regardless of their or the child’s condition. And straight couples that use a surrogate mother in Israel – an option that is not legally available to gay couples – quickly obtain parental orders that are retroactive to the date of birth.
Justice Neal Hendel, who at least left a window open by giving the parents of newborns a 90-day window in which to run to court and request a parental order retroactive to the date of birth, was outdone by Justice David Mintz. He saw no need at all to make parental orders retroactive to the date of birth, and even questioned the need for such an order.
The impression left by this ruling is that LGBT families are inferior to “normal” families. Yes, this is the position of Israeli Supreme Court justices in 2020. And it rides roughshod over rulings by many lower-court judges, who, step by step, have recognized LGBT families and their plight, which stems from a lack of legislation governing their situation due to the political power of the ultra-Orthodox.
After the legal and social breakthroughs of the past two decades, we are entering a reactionary era. It is expressed in numerous ways, from this ruling to – not to compare them – the homophobic remarks of Education Minister Rafi Peretz or the decision to award the Israel Prize to Rabbi Yaakov Ariel, who has called LGBT people handicapped and in 2014 issued a religious ruling urging a landlord not to rent an apartments to a lesbian couple.
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But this is mere reactionism. Unlike in many other areas, where there are grounds for pessimism, the LGBT battle is the great light of the liberal world. There is a broad consensus around it, from left to right, from former MK Dov Khenin and current MK Aida Touma-Sliman on the left to Culture and Sports Ministers Miri Regev and Justice Minister Amir Ohana on the right. That’s also why the religious Zionist community, especially its ultra-Orthodox wing, is so obsessed with LGBT issues.
In conversations with Transportation Minister Bezalel Smotrich and Rabbi Yigal Levinstein, both of whom are famous for homophobic remarks, I discovered their confusion: They have nothing against me and my family. Within seconds, we were all reaching for pictures of the kids on our cellphones and exchanging the standard lines about our spouses and families. My impression was that they themselves don’t know how to reconcile the gap between their private equanimity and the public positions they present in order to preserve some collective or another.
And for good reason. Depriving these families of rights is seen by people across the political and religious spectrum as despicable abuse. Most Israelis simply don’t understand why LGBT parents and their children aren’t treated like all other families.