A petition by a male, homosexual married couple to engage a surrogate mother in Israel raises profound social, philosophical and ethical issues and should therefore be decided by the Knesset and not the court, the state told the High Court of Justice late last week.

Because the state recognizes that there have been sweeping changes in the concept of what constitutes a “natural family” and because of the many technological innovations that have been made, it has decided to establish a public, professional committee to study the entire issue of fertility and birth and will include the issue of surrogate mothers in its investigation, the state added.

The response came in the wake of a petition filed on February 10 by Itai Pinkas and Yoav Arad, who married in Canada and for the past five years have been trying other ways to produce a baby they could raise. The two are represented by attorney Dori Spivak, deputy head of the Human Rights Program at Tel Aviv University.

The Surrogacy Law makes it clear that only a couple composed of a man and a woman are allowed to make use of a surrogate mother. But Spivak argued that the law should either be interpreted to include a homosexual pair in the definition of “a couple,” or that, because the current law violates the constitutional right to equality, the right of homosexual couples to engage surrogate mothers should be read into it.

The state rejected both these arguments on formal grounds. But it put greater emphasis on the underlying issues that were raised by the petition and the far-reaching implications they entailed.

“The petition places itself at the intersection of law and society and obliges all of us to reexamine the meaning of concepts that have permanently settled in our consciousness as having a certain importance,” wrote the state’s representative, Dina Zilber. “It invites us to examine the possibility of giving alternative significance instead of, or alongside, the conservative significance of concepts such as ‘family,’ ‘parenthood’ and ‘human dignity’ that we have become accustomed to think about in a certain way. It seeks to expand the boundaries of this awareness and the range of possibilities and choices.”

This was a legitimate challenge, Zilber wrote.

“It is very possible that the time has come to reexamine, perhaps also to refresh, basic conventions such as the ‘naturalness’ of the family institution and the meaning of this concept,” she continued. “The social and cultural changes, the technological developments, the separation between biological and social parenthood are all undermining the basic assumptions that prevailed regarding what a family is and offers a social, moral and even legal challenge to all of us. [But] it is a separate question whether the answer to these questions, in the circumstances before us, should or can be determined by the court. This is very doubtful.”

Another question raised by the petition was the role that surrogacy should play in society, Zilber continued. Originally, it was introduced as an extreme solution for couples who could not have children. Allowing homosexual couples to resort to this solution would expand the practice beyond what the legislator originally had in mind, she warned. “In this regard, the state argues that granting the petition means expanding the use of surrogate to an extent we cannot know in advance.”

The state also argued that the court in this case was not being asked to give official recognition to a situation that already existed, but to bring into a being a new family unit consisting of a father, a father and a child, a unit that does not exist today.

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