Gay couple with kids 521.
(photo credit: Boaz Berney)
A seven-member panel of the High Court of Justice on Sunday pressed the state to
change the process for recognizing the homosexual parenthood of a child born
through the process of surrogate motherhood.
The court did not actually
issue a formal ruling, but aggressively pushed the state toward answering over
the next month if it would be willing to change its policies based on
suggestions from petitioners and the court.
Although the state expressed
certain formal reservations throughout the hearing, it did not contradict most
of the petitioners’ fundamental arguments about the alleged inefficiency and
unfairness of the current process.
Currently, the man from the homosexual
couple who is the child’s biological father must pass a paternity test in which
a sample of his genetic tissue is checked to prove he is the biological
Subsequently, the second man in the couple – who has no
biological relation to the child but was jointly involved in all of the
decisions and who expects to be equally involved in parenting – must go through
a lengthy process to legally adopt the child.
One of the two homosexual
couples who petitioned the High Court said that it had been through the process
once before and that it had taken three years.
The petitioners are asking
the court to alter the process such that it conforms to those in several Western
countries, such as Canada, where an order is issued declaring the homosexual
couple as parents after one of the men in the couple passes a paternity test
(even if administered overseas).
The Canadian system has no requirements
for additional adoption procedures or local paternity tests.
There is a
gag order on the petitioners’ names to protect their identities and to protect
the children involved, and the hearing itself was held behind closed
Both couples found surrogate mothers in the United States, where
the biological fathers have already passed paternity tests.
One of the
couples asked the court to recognize both of the two partners as the child’s
parents without undergoing a paternity test in Israel.
The couple stated
that the American medical documents and birth certificates in its possession
should be sufficient for automatic recognition of their status as the child’s
parents in Israel.
The male child in question is already two-and-a-half
The couple also has a five-year-old daughter who was born
through an American surrogate mother.
In the case of the daughter, the
couple did submit to the paternity test and went through the long adoption
The court’s suggestions to the state for streamlining
the process for homosexual couples included replacing the adoption procedure
with a process for recognition as parents, similar to the Canadian
Even if Israel does not fully use the Canadian model, the
justices seemed to indicate that the prerequisites for completing a parental
recognition process would be inherently simpler and quicker than the adoption
Another suggestion was recognizing paternity tests
administered in the foreign country where the surrogate motherhood process is
Currently, Israel requires a local paternity test.
was somewhat unusual for the court to express a clear policy preference to the
state, yet give it more time to alter its position, rather than openly order the
state to change.
The state, for its part, while not disagreeing
fundamentally with the unfairness and inefficiency of the current situation,
said that experts, including those cited in a government- sponsored report that
surveyed a number of cutting-edge medical issues, recommended the state refrain
from any major change in policy in this area absent new legislation from the
Essentially, the state argued that the social issues at stake
are too thorny for a major change in policy based on a mere executive decision.
The state highly preferred formal action from the legislative branch so that all
voices on the issue could be heard.
The court’s solution of pressing the
state with giving an official ruling suggested that it sympathized with the
state’s predicament, but was unconvinced that it could wait for legislation if
fundamental rights were being violated.