Mazuz: No legal grounds to prevent gays, lesbians from parenting; Herzog to raise issue in Knesset.
By DAN IZENBERGmazuz 298.88(photo credit: Ariel Jerozolimski )
In a landmark decision, Attorney-General Menahem Mazuz on Sunday handed down a legal opinion that homosexual couples may adopt children in Israel "in the proper circumstances and when it is in the best interest of the child."
Until now, the government has not allowed homosexual couples in Israel to adopt children through the Welfare and Social Services Ministry's Child Welfare Service.
In December, newspapers reported that Welfare and Social Services Minister Isaac Herzog had decided to change the ministry's long-standing policy and allow homosexual couples to apply to adopt children through the regular state channel.
Until 2000, the state refused not only to allow same-sex couples to adopt children, but also declined to register adoptions that had been certified abroad. That year, however, the High Court of Justice accepted a petition by Nicole and Ruti Berner-Kadish to register Nicole as the adoptive mother of Matan, Ruti's biological son.
The state then asked the High Court to hold another hearing before an expanded court to overrule its previous ruling. Although the panel of nine justices has not yet handed down a final ruling on the state's request, it held a hearing on December 9, in which it ordered the state to register all adoptions by one partner in a homosexual couple of the other partner's children, that had been certified abroad. Even after the original ruling in the Berner-Kadish petition, the state had refused to register foreign adoptions by other same-sex couples.
In another landmark ruling handed down in 2005, the court ordered the state to register the adoption of each partner's biological children by the other partner in the same-sex relationship between Tal and Avital Yarus-Hakak.
As a result of the two court cases, and particularly the order of the expanded High Court panel to register all adoptions by homosexual couples certified abroad, Herzog decided to take the process one step further by allowing homosexual couples to adopt children who were not the biological offspring of either partner.
According to a statement issued by Mazuz Sunday, "there is no legal reason to prevent a same-sex couple, or either one of them, from adopting a child who is not the biological offspring of one of the partners, according to the same criteria applied to a single person who wants to adopt a child and conditional, as is customary, on considerations of the best interests of the child."
Mazuz added that his directive established the principle of the legal right for homosexual couples to adopt, but that each request by a couple had to be investigated on its own merits. However, he emphasized that the authorities could not reject an adoption request by a homosexual couple solely on the grounds that having two parents of the same sex was by definition bad for the child.
"In accordance with the High Court ruling," Mazuz wrote, "'the well-being of the adopted child' is a complex principle that includes many aspects, and one may not say a priori that because the couple is same-sex, it will be bad for the child to be adopted by it. Therefore, the question of the identity of the couple is only one of the relevant considerations that must be taken into account together with all the other relevant circumstances and considerations."
MK Avraham Ravitz (United Torah Judaism), a former deputy minister of the Welfare and Social Services Ministry who is intimately familiar with the adoption process, called Mazuz's decision "hallucinatory."
"The attorney-general completely missed the point," said Ravitz. "This is not an ideological question of whether or not a same-sex couple should be recognized before the law. Rather, this is a question of education. This is a question of what is best for the orphan child.
"Two women cannot take the place of a normative mother and father," he continued. "A woman cannot take the place of a father, and a child needs a father. In a normative family, a child has a better chance of growing up healthy. Don't we want the next generation to build normative families? How will they learn to do it if they don't have someone to learn from?"
Herzog is due to discuss the issue of adoptions by homosexual couples in the Knesset today. At the time he announced his intention of allowing homosexual couples to adopt - pending approval by Mazuz - there were four couples who had applied to the Child Welfare Service to adopt a child. Herzog said he would not bar them from applying.
Ha'aretz quoted him as saying, "We must act in the spirit of the High Court rulings in the Berner-Kadish and Yarus-Hakak rulings and allow same-sex couples that fulfill all of the criteria of parenthood to enter the lineup for adoption. The concept of the modern world, in which there are various family structures, shows us that the state must also accommodate itself to such possibilities. A progressive state has no choice but to recognize this fact and examine whether such parents are able to raise the child with love and affection, according to the customary standards."
Matthew Wagner contributed to this report.
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