Israel Must Abolish Discrimination in Access to Surrogacy

Many of those who arrange surrogate pregnancies overseas do so out of lack of choice, because the doors are closed to them in Israel.

Tali Meir

The earthquake in Nepal brought disaster upon both residents of the country and visitors to it. Among those visitors were Israelis who were seeking to bring a child into the world via a surrogate mother, something homosexual couples are legally barred from doing in Israel. The fathers and their babies are now in distress not only because of conditions in the wake of the earthquake, which are liable to endanger the babies’ health, but also because, unlike other Israelis there, they don’t have the option of returning to Israel immediately: A child born to a surrogate mother abroad cannot enter Israel before undergoing a paternity test.

The interior minister was right to announce that he will try to fly the parents and children to Israel promptly, while deferring the legal formalities. Israel, along with the parties directly concerned, also has a responsibility to ensure the welfare of the women who contracted surrogacy agreements with Israelis – both the women who have already given birth and those who are still pregnant.

Nevertheless, these steps offer only an immediate solution to the critical problem that has arisen right now. The underlying cause of this problem is the discriminatory legislation that governs surrogacy procedures in Israel. Under Israeli law, only a married heterosexual couple can contract an Israeli woman to serve as a surrogate mother. The law thereby discriminates against both single people and same-sex couples.

The High Court of Justice has previously voiced concern over discrimination against single women on this issue, but it handed the problem back to the legislature. In response to another High Court petition that dealt with discrimination against same-sex couples, the Health Ministry promised to look into the matter.

The previous health minister, Yael German, proposed an amendment to the surrogacy law that would have ended this discrimination while also regulating surrogate pregnancies arranged by Israelis overseas. The bill passed its first reading, but then the Knesset dissolved itself. Recently, German resubmitted part of this bill – the part that would end discrimination in access to surrogacy services in Israel.

Abolishing discrimination in access to surrogacy would benefit not only the would-be fathers, but also the surrogate mothers. When surrogacy takes place in Israel, it does so under the watchful eye of a committee that investigates the fitness of all the parties concerned, the surrogate mother’s informed consent and the legality of the contract she signs.

The Knesset ought to enact the portion of the surrogacy bill that ends this discrimination without further delay. The incident in Nepal underscores the need for it. Many of those who arrange surrogate pregnancies overseas do so out of lack of choice, because the doors are closed to them in Israel.