Court: Gay adoption of child born through surrogacy possible without paternity test

Court ruling to advance state policy regarding recognition of adoption of children born to homosexual couples through surrogacy abroad.

August 9, 2016 20:09
3 minute read.
A baby playing

A baby playing (illustrative). (photo credit: INGIMAGE)


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Children born through surrogacy abroad can be adopted by homosexual couples without a paternity test, the Tel Aviv Family Court says in a ruling that jumped into a gap left by a 2014 decision by the High Court of Justice.

The decision, handed down on Sunday but announced by the court spokesperson only on Tuesday, potentially streamlines in a substantial way the legal process for homosexual adoption of children born through surrogacy abroad, an increasing trend for gay couples to avoid Israel’s more complex and drawn out process.

However, its lasting impact is still unclear because of the High Court’s vague ruling on January 28, 2014, when it endorsed a gay couple’s adoption of a child born through surrogacy while rejecting another’s, and left up in the air the issue of whether a paternity test was required for a successful adoption.

The case in which the adoption was accepted included the registration of both the biological father and his partner as the fathers; they won their case because they had done a paternity test. The rejection in the second case was at least partially due to the fact that no paternity test had been conducted. However, the court noted that theoretically, a couple could have its adoption recognized even without a paternity test if it presented highly convincing alternative medical and legal evidence of paternity.

Both of the couples involved in that ruling had also based their claims on a birth certificate and declaration from the US that they were the child’s parents.

The homosexuals in the current case, who sought to formally adopt the child they have been raising for over 10 years and whose names are being withheld under a gag order, are somewhat unique: Due to meticulous record-keeping, they have extensive medical and legal documentation backing their claim to a biological connection with the child even without having undergone a paternity test.

With Sunday’s ruling, the Tel Aviv Family Court became the first lower court to jump into the High Court’s theoretical case by recognizing an adoption without paternity test. The question is whether the state will appeal, whether the High Court will agree whenever it is presented with such a concrete case, and whether this case will become a new paradigm or remain an exception to the rule because of the unusually long history of raising the child prior to applying.

In May 2013, former attorney- general Yehuda Weinstein announced what was then a game-changing and progressive policy shift for how the state would address homosexual parenthood of a child born through surrogate motherhood.

According to pre-2013 policy, the man who was the child’s biological father had to pass a paternity test in which a sample of his genetic tissue proved he was the biological father. The partner who had no biological connection to the child but was equally involved in parenting had to go through a lengthy process – sometimes taking up to three years, according to complaints – to legally adopt the child.

Under the new policy, Weinstein assumed that the biological father still needed to pass a paternity test. But one this was done successfully, family courts could immediately issue a special parenthood order and the partner would be able to become a full-fledged trustee of the child until the adopting process concluded.

Effectively, this granted the two men full parental rights and powers at a much earlier point.

The latest court ruling, in which a paternity test might not be required, would advance state policy that much farther toward quick recognition of adoption with children born to homosexual couples through surrogacy abroad.

The Justice Ministry responded that it would review the ruling and might consider an appeal, but was as yet undecided.

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