High Court rules access to surrogacy for same sex couples

The High Court gave the state 12 months to fix 'discriminatory' policy.

The rainbow flag, commonly known as the gay pride flag or LGBT pride flag, is seen during the first Gay Pride parade in Skopje, North Macedonia June 29, 2019 (photo credit: REUTERS/OGNEN TEOFILOVSKI)
The rainbow flag, commonly known as the gay pride flag or LGBT pride flag, is seen during the first Gay Pride parade in Skopje, North Macedonia June 29, 2019
In a landmark decision, the High Court of Justice on Thursday threatened the government that it will further empower homosexual couples to streamline gay adoptions even beyond the current situation if the state does not fix existing “discriminatory” laws within 12 months.
The state’s current policy allows gay adoption but raises a number of hurdles that cause substantial delays and awkward transition periods in which adopted children reside with their Israeli adoptive homosexual parents, but the parents lack full rights until obtaining an additional court order.
All five justices said the policy is discriminatory.
There was a split among the justices on the issue of timing, with four justices – President Esther Hayut, Deputy President Hanan Melcer, Yitzhak Amit and Neal Hendel – voting to give the state 12 months. Justice Uzi Vogelman dissented, saying the court should change the law immediately.
Itai and Yoav Finks Arad of the Association of Gay Fathers who filed the petition with the High Court, said: “We won! This is a dramatic and emotional day in which Israel will finally take a step toward the policies of progressive countries in the world regarding LGBT rights.”
Nothing about the decision was a foregone conclusion. On February 4, the High Court issued more of a middle-of-the-road ruling signaling that it did not want to have a conflict with the Knesset over the issue.
On February 4, the High Court continued a line of decisions dating back to 2014 recognizing gay adoption by Israeli citizens of children born through surrogacy abroad. But the justices said they still would require a court order before the adoption becomes final.
The homosexual couple in that case whose child was born through surrogacy in the US in 2016 had asked that the court make their adoption retroactive to the date of the child’s birth.
Attorney-General Avichai Mandelblit had objected, saying that gay adoption should only be final after a court decision, which should only come after the relevant ministries consider what is in the best interests of the particular child as well as reviewing any disputed claims over the child.
Mandelblit’s office emphasized the need of balancing to keep pace with the world’s progressive trend on the issue with the complex policy and social considerations the issue has in Israel, where the Knesset still has not passed clear legislation to deal with it.
In that case, Justices Neal Hendel, George Kara and David Mintz voted unanimously that because the High Court has jumped ahead of the Knesset in recognizing gay adoption, it should move slower about the details of how the adoption is effectuated.
The High Court had also taken a pass in the past on endorsing gay marriage within Israel, preferring to leave that issue to the Knesset.
In the case decided on Thursday, the issues the couple faced date back much longer and exposed the current system of checks and balances between biological parents’ rights and homosexual adoptive parents’ rights as more problematic.
While there have been different versions of the petition, the original case dates back to 2010.
Acting Justice Minister Amir Ohana, who is openly gay, said he supports the idea of streamlining adoptions for homosexual couples but did not support the High Court making the change. Only the Knesset is invested with such powers, he said.
Pressed that the chances that the Knesset would act were close to zero because of vehement opposition from haredi parties, a spokesman for Ohana said he would not change his principles of relying on the Knesset