An Israeli man holds his baby, born to a surrogate mother, after being evacuated from Nepal and landing at Sde Dov Airport in Tel Aviv on April 27..
(photo credit: NIR ELIAS / REUTERS)
The disastrous earthquake in Nepal has reopened the surrogacy dilemma: Whether the right to have children applies to Israeli couples who can’t have children naturally, including same-sex couples, and if so, how much responsibility the state and society have to enable them to do so.
The Nepalese earthquake illustrates the need to simplify the law, to ease restrictions and fulfill the public’s needs for surrogacy services – instead of making their lives harder. The surrogates in Nepal who bore the children for Israeli couples were Indian women, brought to the country because Nepal does not allow its own citizens to be surrogates.
Despite the hardship of high financial costs, the issue of conversion for newborns when they arrive in Israel and the welfare of the surrogate, surrogacy abroad remains the only option for certain segments of Israeli society wishing to have children.
Therefore, as it stands today, regulatory procedures for surrogacy in Israel and abroad are out of touch with reality.
The current Israeli surrogacy law, officially called “The Law for Carrying Fetuses,” enables only a minuscule number of surrogate pregnancies. The surrogacy law enables a heterosexual couple to have a child through a surrogate in Israel only when proven that they cannot have children naturally and when both partners are younger than 50. The surrogate mother must be the same religion as both parents, unmarried, yet having already given birth to a child, but not delivered through cesarean section, together with a number of other restrictions.
Few couples are able to find a surrogate under the conditions set by the law. Even when the requirements are met, the couples must appear before an approval committee that does not easily give the go-ahead for surrogacy arrangements.
Additionally, surrogacy proceedings overseas can only be carried out following the procedure established by the attorney-general, which also has serious flaws.
Legislation that does not accommodate the reality we live in does not serve the public. Reality proves the need to use a surrogate to have children is increasing.
Today in Israel, one in four couples cannot have children for reasons of infertility, accident, illness, disability or being in a partnership that isn’t eligible for surrogacy, such as spouses over age 50, interfaith and same-sex couples, alongside tens of thousands of single women and men who want a child but have no partners at all. The surrogacy law was created to serve citizens who are unable to bring children into the world naturally.
While it helps heterosexual couples, the law does not make accommodations for other sectors of society. The circumstances indicate that the situation will not improve – the very people who are in need of a surrogacy law are not being helped. Only a smattering of Israeli couples meet the criteria set by the law, and thus, over the 18 years since it was passed, very few people have benefited from this law.
The question arises: Why did the Israeli legislature pass this law if it is so adverse to the very people who need its support? To be sure, people who can have children naturally have no need for such a law.
The answer is simple: The legislature is playing a double game. On the one hand, it offers a smile and open arms to people interested in surrogacy and projects an image of enlightenment, while at the same time it pacifies opponents by including so many limitations that few people can actually fulfill the requirements and qualify for surrogacy. In this way, the politicians have maintained a clear conscience.
Today, spouses who don’t meet the definition in the law, older couples, interfaith couples, the disabled, singles and same-sex couples who want to bring a child into the world through surrogacy must travel abroad. Unfortunately, the current imbroglio in Nepal is the third crisis I’ve personally been involved in, and it is absolutely scandalous how problematic present-day procedures are for bringing surrogate babies back to Israel.
The Knesset legislated a politically correct law to show how we are an enlightened state that devotes himself to the weak. Now there is a law, but it is virtually impossible to meet its requirements. This is the double-game. The writer is founder and executive director of New Family Organization, and an expert on family law and fertility.