Gay couple fights for right to contract surrogate mother

Couple’s lawyer stresses dangers of hiring child-rearer abroad.

February 10, 2010 23:40
3 minute read.
Gay couple fights for right to contract surrogate mother

gay marriage 88. (photo credit: )


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In a precedent-setting move, a homosexual couple on Wednesday petitioned the High Court of Justice for the right to have a baby in Israel through a surrogate mother.

According to the wording of the Surrogacy Law, the right to bring a baby into the world through a surrogate mother applies only to “a man and a woman who are a couple.”

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“All we are asking is for the state not to stand in our way and allow us to do what everyone else does,” said Itai Pinkas, who petitioned the court together with his partner, Yoav Arad. The two married in Canada 10 years ago.

Pinkas told The Jerusalem Post that for the past five years, he and his partner have made intensive efforts to have a child, but so far without luck.

In Israel, they planned to share a child with a female friend who tried unsuccessfully to have a baby. Afterwards, they made several attempts with surrogate mothers in India and these efforts are still going on.

But according to their lawyer, Dori Spivak, deputy head of the Human Rights Program at Tel Aviv University, having a surrogate child abroad raises several problems. In the petition, Spivak wrote that the procedure is very expensive (as much as $100,000 or more), and there are no mechanisms for avoiding the birth of a child who is considered a bastard according to the Jewish religion.

He also explained that there is no accepted way to guarantee that the baby will be recognized as Jewish and the prospective parents cannot continuously be on hand during the pregnancy; they must also spend money and be absent from work in order to visit the surrogate mother during those months.

Furthermore, the petition reads, in some countries, like India, the state does not supervise the surrogate agreement and the rights of the surrogate may not be properly protected.

Therefore, the couple decided to ask the committee established by the Surrogacy Law to approve surrogacy agreements for authorization to hire a surrogate mother in Israel. The committee rejected the request on the grounds that the law did not allow it. It also informed Arad and Pinkas that because the Health Ministry was aware that the law discriminated against aspiring parents such as homosexual couples or single men and women, the ministry planned to establish a committee to investigate the matter.

But Pinkas and Arad said it would take years before the committee comes to any conclusions. Meanwhile, Pinkas is 36 and Arad is 37 and they are not getting any younger, wrote Spivak. They could not wait for the outcome of the yet-to-be established committee.

“We are not asking for financial support, privileges or rights that others don’t enjoy,” said Pinkas. “We don’t want anything. All we ask for is to be able to do what any couple in Israel can do, to bring a child into the world through surrogacy in Israel. We are Israeli citizens. There is no reason why we should not be able to receive what every other Israeli citizen who wants a child receives, the right to a family, the right to be a parent. Why do I have to go abroad to realize this right?”

Spivak wrote that the petitioners were not asking the court to reject the Surrogacy Law on the grounds that it violates the basic human right to equality and to have a family. He wrote that the current law should simply be interpreted in light of the changing times. Since the law was approved in 1996, the once-phenomenon of homosexual couples in Israel has become commonplace and their status and rights have grown substantially. Therefore, the law should now be interpreted to include them. Furthermore, these basic human rights should be “read into” the current law so that it would be interpreted to apply to homosexual couples and others who want to be parents but who are not “a man and a woman who are a couple.”

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