If Daddy says no, ask Abba

Surrogacy is enabling more and more homosexual Israeli men to become parents.

By RENEE GHERT-ZAND
Gay couple with kids 521 (photo credit: Boaz Berney)
Gay couple with kids 521
(photo credit: Boaz Berney)
A tow-headed five-year-old boy plays with his Lego pieces on a hot summer day at his home in Herzliya, a comfortable suburb north of Tel Aviv. His two-year-old sister toddles into the playroom and joins him. As she messes up one of his carefully constructed creations, he calls for help. “Abba!” he demands, turning to Aviad Stier. But when Stier fails to respond immediately, he turns to his other parent. “Daddy!” he calls pleadingly, turning to Yosef Weinstock.
These young siblings are two of an estimated 150 to 200 children belonging to Israel’s recent “gayby” boom. Faced with the complexities and prohibitions of Israeli surrogacy and adoption laws, as well as Jewish religious rulings, homosexual Israeli men – mainly couples, but also some singles – are turning in increasing numbers to foreign surrogacy, primarily in North America and India, to build their families. They expend huge amounts of financial resources and emotional energy to have children using this kind of assisted reproductive technology involving an egg donor and a gestational carrier, but no mother in the conventional sense of the word.
These gay fathers face a complicated legal journey through territory that, until about four years ago, was still relatively uncharted. They also face animosity from Israeli feminists, and even other homosexuals, who accuse them of exploiting women in the process.
Despite the growth in the number of babies being born to gay couples, it wasn’t until the story of a Jerusalem restaurateur named Dan Goldberg hit the media in May 2010 that most Israelis learned of the “gayby” boom that has been taking place in their country over the past half decade.
Goldberg and his partner, Arnon Angel, decided on pursuing surrogacy. After fathering twins with the help of an egg donor and a gestational surrogate in India, Goldberg found himself stuck in Mumbai for two months trying to bring the Israeli government to recognize his paternity and grant the children Israeli citizenship so he could bring them home.
In order to get Israel to grant citizenship to a child born outside the country, the parents have to prove that the child is the biological offspring of at least one Israeli citizen. By law, this can only be done through a DNA test ordered by an Israeli court and performed in an Israeli lab. Until Goldberg’s case, most gay men in his situation had been able without much difficulty to get the necessary court order from an Israeli family court.
But Jerusalem family court judge Justice Philip Marcus refused to issue the order. According to Marcus, only a parent could ask for a paternity test, and he did not recognize any such relationship between Goldberg and the babies, Victoria Gelfand, a Tel Aviv-based attorney who specializes in foreign surrogacy, explains to The Jerusalem Report. Goldberg appealed to the Jerusalem District Court, which overruled Marcus’s ruling and ordered the DNA paternity test to be done. Finally, after burning through his savings while waiting in Mumbai, Goldberg was able to bring his twin infant sons home.
Goldberg was able to get attention through social media, including a YouTube video that he made, explaining his situation and showing his babies. But it was Marcus’s apparently homophobic remarks – “If it turns out that one of the people sitting here is a pedophile or a serial killer, these are things the state has to check,” he stated – that turned the case into a cause célèbre for gay and civil rights groups.
Since then, the press has been publishing more stories about gay parenthood by surrogacy, and a new group, “Surrogacy for Homosexuals in Israel” is demanding that Israel change its surrogacy law to allow gay men to apply for surrogacy in Israel.
In an interview with The Report, Gelfand explains that the doors in Israel to both adoption and surrogacy are effectively closed to homosexuals.
Despite legislation that prohibits discrimination on the basis of gender and sexual orientation in most areas of life, gay men are put at the end of waiting lists for Israeli children up for adoption – of which there are very few to start with, according to Gelfand. She also points out that while Israel does permit foreign adoptions, countries with adoption treaties with Israel have recently decided to reject adoptions by unmarried men.
Gelfand explains that straight couples have been legally allowed to have children by surrogacy in Israel since 1996. “Israel was the first country to have a surrogacy law on its books,” she says. “But it is for heterosexual couples only, not for same sex and not for single parents. In addition, it’s not for older parents, nor for parents with certain illnesses.”
Israel’s surrogacy law views the surrogacy agreement as a contract drawn up independently by the intended parents and the intended surrogate, who find one another on their own or with the help of commercial agencies or mediation centers. the contract must be submitted to an authorization committee set up by the Health Ministry, which ensures that it meets all the criteria set out by the surrogacy law, among them the restrictions mentioned by Gelfand.
According to the law, the authorization committee bears the responsibility for determining the “monthly payments [paid by the intended parents to the surrogate] to cover substantial expenses and to compensate for wasted time, suffering, loss of income or temporary loss of working capacity or any other reasonable compensation.” These payments amount to less than the cost of foreign surrogacy. Homosexual couples may not avail themselves of domestic surrogacy in any case, because it is legally limited to heterosexuals with legal couple status.
The surrogacy law also provides for the authorization committee to set restrictions with regard to the women who may act as a gestational surrogate. “A surrogate must be a single woman (usually divorced or widowed) under the age of 39, with at least one biological child. She must not have gone through more than four previous births, or more than two cesarean sections, and may not be biologically related to either of the intended parents,” Gelfand explains.
The insistence on the surrogate’s being single contradicts the requirement in other countries, where a surrogate must be married. This is because in Israel, the main concern stems from Jewish religious law – to avoid the possibility of mamzerut (the birth of a child of a married woman fathered by a man other than the woman’s husband). Among observant Jews, a mamzer is prohibited from marrying another Jew who is not him or herself a mamzer, thus severely limiting the person’s prospects for marriage and family life.
The couple from Herzliya, Israeli-born Stier, 39, a harpischordist, and Canadian-born Weinstock, 45, a lawyer, sit with The Report in their newly renovated duplex apartment, decorated with mementos from their travels to Europe, India, China, Indonesia and Madagascar. They met in Israel in 1995. Weinstock, bespectacled and with salt-and-pepper curly hair, grew up religious, but abandoned observance during law school, shortly before he came out as gay. Stier, sturdy with fair features, was raised in a secular home in Israel and came out about the time he started his army service.
The couple went abroad in 1999 to live in Brussels, then later moved to London, where they decided to have a baby by surrogacy in 2006. “But… we realized we wanted to return to Israel,” Stier recalls. “It was a matter of wanting to be near family, but I know that for me, it was also my wanting my son to grow up singing the same songs and playing the same games that I did when I was a boy.”
At that time, a homosexual couple could not legally have a child by surrogacy in Britain. They worked with egg donor and surrogacy agencies in California, since they did not know of anyone practicing foreign surrogacy law in Israel at the time. They were also able to get some advice from a few other Israeli gay couples who had babies through surrogacy and were living in the United States.
It was only a year later, in 2007, as Gelfand was working at New Family, a non-profit organization dedicated to advancing family rights, that the first gay couple looking into surrogacy approached her for legal counsel. It was from that point that she developed an expertise in this area, starting her own practice in 2008.
Although there are other lawyers who help couples through the naturalization process for their babies, Gelfand specializes in all legal aspects of the foreign surrogacy process. This expertise includes citizenship and naturalization as well the specialized contracts involved in surrogacy, especially in the US and Canada. These contracts are drawn up with the surrogacy agency that matches the intended parents with the gestational carrier and coordinates that relationship between them, with the egg donor agency (usually separate from the surrogacy agency), and with the individual gestational carrier. There is additional legal paperwork, including waivers and disclaimers, to be completed with the surrogate’s medical clinic or physician.
The surrogacy agency’s attorney represents the gestational carrier. The gay couples have Gelfand on their side. “It’s my job to check not only that the fees and conditions are reasonable and customary and to get the best terms for my clients, but also that these legal procedures balance with Israeli [citizenship] law.”
To that end, Gelfand says, prospective parents must take a number of issues into account when considering where and how to arrange surrogacy. Israeli gay men most definitely want to avoid a surrogacy birth in any state that will not immediately list them on the birth certificate as the parent, but rather require them to adopt the child. Since it is illegal for Israelis to adopt a foreign-born child without going through a licensed Israeli adoption agency, this would pose an insurmountable problem.
Gay Israeli couples seek a pre-birth or post-birth parental order listing them as the parents on the baby’s birth certificate. They then bring the child back to Israel as an Israeli citizen, based on its biological relationship with one father. Subsequently, the other partner can legally adopt the child once the family has returned to Israel, although the process can take years.
One of the obstacles is the intensive home evaluation performed by the authorities. Instead of relating to gay adoptions as comparable “to a family of a single person who had a child and then met a new person who wants to adopt the child,” Gelfand wishes the authorities would “compare them to couples in which one of the spouses is infertile and they have to use a sperm or egg donation... Why should their parenting abilities be checked more than a straight couple who had a genetic donation for their children?”
When Stier and Weinstock were ready to have a second child, they chose a surrogate in Canada, in order to be with Weinstein’s parents in Toronto while waiting for the parental judgment (which in Canada is issued post-birth and can take months) and to take advantage of Canada’s universal healthcare system. However, surrogacy in Canada can be more complicated, because the Assisted Human Reproduction Act, passed in 2004, allows only for altruistic surrogacy and therefore there are no for-profit surrogacy agencies to manage the relationships between surrogates and intended parents.
They used leftover embryos that they still had frozen from their first attempt with surrogacy, and sperm from the other man, so that their daughter, who was born three years after their son, is biologically his half-sister.
Surrogacy costs run high. The total cost can reach $120,000 with Circle Surrogacy, a Boston agency favored by Israeli couples. According to John Weltman, founder and president of Circle Surrogacy, 10 percent of his clients are Israelis, and he has helped approximately 50 Israeli gay couples have children, 16 in the past year. Weltman tells The Report in a phone interview that out of that total fee, his agency pays gestational carriers between $22,500 and $25,000 as reimbursement for pregnancy-related expenses. According to Gelfand, including transatlantic travel and medical expenses, the price can go as high as $200,000.
As a result, many gay couples seek surrogates in India (using Caucasian egg donors mainly from South Africa or Israel). Others go to Ukraine, Armenia, Georgia and Thailand, and, in a very few cases, to South Africa and Mexico. The costs involved in surrogacy in these other countries are considerably lower than in North America.
In India, for example, it is possible to find a surrogate through agencies there that charge between $20,000 and $60,000.
“Udi” (Not his real name), another gay father by surrogacy, speaks with The Report on condition of anonymity.
A resident of Holon, near Tel Aviv, who works in the software industry, Udi had his boys while living in the US. Unlike Stier and weinstock, Udi is a single father. “I really went into the whole surrogacy process because being a parent was important to me, whether or not i had a partner,” Udi says. He, too, moved back to Israel so his children could grow up near grandparents and other relatives.
Udi says that while there is much that is difficult about being a single father, the difficulty was compounded by the hurdles he faced in having his children recognized as Jewish by the Chief rabbinate. All of the families face this challenge, given that, as far as anyone knows, no Jewish women have come forth in any country to act as gestational carriers (a child born to a Jewish woman, regardless of whether the egg donor was Jewish or not, would be considered halakhically Jewish). “A very small number of Jewish women have donated their eggs, but they charge exorbitantly high prices for them,” notes Weltman of Circle Surrogacy.
“I was able to register the kids as Israeli citizens at the Israeli consulate because they were born to an Israeli father,” Udi relates. “But it wasn’t enough for them [the religious officials] to see the birth certificate. They wanted a DNA test to show I was the biological parent, and I had to show the surrogacy documents. According to American law, those documents are sealed once the judge declares me the parent. But i had to show them to the Israeli government, or else they would not agree to issue the citizenship.
“They became Israeli citizens, but they have no nationality [listed] on their identity cards,” he continues. His sons underwent circumcision with the intent of conversion in the US, but he wanted to wait to have them converted in Israel. “I wanted them to get the final stamp of being Jewish,” he says. To him, although he was brought up as a secular Jew, this meant an orthodox conversion that took place in Israel and was recognized by the Chief rabbinate.
In order to fulfill the demands of the orthodox conversion, Udi took on all the religious observances, including keeping Shabbat and kashrut, putting tefillin [phylacteries] on every morning, and studying Torah weekly for an entire year. And although he recently received conversion certificates for his sons from the Chief rabbinate, he wishes to maintain his anonymity because he is worried that publicity could rankle the rabbis and push them to revoke the conversions.
In what amounts to a “don’t ask, don’t tell” kind of situation, Udi says, “I never told them throughout the process that I am gay. they do know that I am a single parent and the children were born through surrogacy. And when they asked me why I am not married, I just said that I didn’t find the right woman. I might have been able to have gone through everything being openly gay, but I don’t know, so I don’t want to take the risk.”
Weltman, of Circle Surrogacy, is himself a gay Jewish father of two teenage boys born by surrogacy. According to him, most of his Israeli clients opt for reform or Conservative conversion while still in the US awaiting the issuance of the children’s Israeli passports.
Weinstock, Stier and Udi are members of a support network for Israeli gay families by surrogacy that connects through Facebook, as well as through organized social events in which they meet in person.
“A lot of the posts on Facebook are questions and answers about the legal aspects,” says Weinstock. “But issues about parenting and specifically about being a gay parent in Israel come up as well.”
“We have felt a sense of acceptance. We have felt that people have accepted us into Israeli society,” he reflects. “Overall, I think having children helps you go from the margins of israeli society to the mainstream of Israeli society. Having children, no matter who you are, is a gateway into Israeli society. for homophobic Israelis, it is probably easier to accept a gay couple with children than just a ‘frivolous’ gay couple who are making money and not having children,” Stier adds.