Welfare Minister Yaakov Mergi rejected a legal opinion by Attorney-General Gali Baharav-Miara on Thursday advising the High Court of Justice that it could interpret Israel's adoption law in a way which would allow same-sex couples to adopt children, claiming that such a decision would be harmful to the welfare of the child.
The legal opinion was issued as part of the government's response to a lawsuit filed by two same-sex couples, the Israel Religious Action Center, the Gay Dads movement, the Agudah - The Association for LGBTQ Equality in Israel, and the Jerusalem Open House for Pride and Tolerance in 2021.
The petitioners have demanded that the law be interpreted in a way that allows same-sex couples to adopt in a way equal to that of heterosexual couples and that the court consider "reading in" a statute to the law to make it conform to the Basic Law - Human Dignity and Liberty.
The Adoption Law (Clause 3) states that "adoption shall not take place except for by a man and his wife together," although the courts are permitted to grant an adoption order for a single parent whose partner adopted a child or if the child's parents died and the single parent in question is a relative of the child.
More couples seeking to adopt than children waiting to be adopted
In Israel, there are more couples seeking to adopt than children waiting to be adopted.
The government's response, filed on behalf of the welfare minister, the justice minister, and the attorney-general by the State Attorney's Office on Thursday, included data showing that in 2019 (the most recent year with complete data) 238 heterosexual couples were registered as seeking to adopt children, while one same-sex female couple, three same-sex male couples, and 22 single men or women were registered.
In 2019, 97 children were adopted in Israel, with 84 adopted by heterosexual couples, one same-sex male couple, and five single women.
Justice minister says there's 'no political feasibility' to advance legislation on the matter
While noting that the ideal way to deal with the issue of allowing same-sex couples to adopt would be through legislation, the government's response stressed that Justice Minister Yariv Levin believes that "in the existing circumstances, there is no political feasibility in the near future to advance governmental legislation on the matter."
One of the issues with the Adoption Law is that it was passed before the Basic Law - Human Dignity and Liberty, meaning that it is not subject to the requirements of that Basic Law and cannot be nullified by the courts on the basis of that Basic Law. However, the courts can interpret the language of the law in a way that brings it closer to coming into line with the Basic Law.
The attorney-general noted that while the language of the law is fairly clear and hard to interpret in a different way in its statement that "adoption shall not take place except for by a man and his wife," she still believes that a deeper study of the clause does allow for an interpretation that would allow same-sex couples and common-law couples to adopt.
The attorney-general pointed to the law's use of the word "together" concerning a man and his wife and its use of the word "a single [parent]," stating that this shows that the legislator was making a distinction between adoption by a couple and adoption by an individual.
"Hence the legislator gave special weight and emphasis to the word 'together,' in a way that teaches about the internal purpose of the adoption law which is focused on the good of the child and on finding a stable family unit for him consisting of two parents, if possible."
The attorney-general stressed that if only a man and his wife could fit that purpose, then there would be no need to add the word "together," positing that the word "together" means that those adopting need to be spouses in a stable marital unit.
The attorney-general additionally noted that in 2017, the state recognized common-law spouses as a couple in this sense, providing another example that the interpretation of the law should be focused more on the issue of the stability or the "togetherness" of the family unit and less on its formal characteristics.
The attorney-general added that, in the 1980s, legislators were not considering the question of whether or not same-sex couples should be able to adopt, meaning that there is no indication that the legislator had any active or clear intent to exclude same-sex couples.
As further proof, the attorney-general noted in later legislation concerning foster families in 2016, legislators began using the more neutral term "spouses" which allowed same-sex couples to serve as foster parents. The attorney-general added that foster parents often end up adopting children, meaning that an interpretation of the adoption law that allows same-sex parents to adopt "ensures greater legislative harmony and coherence" between the two laws.
The attorney-general added that an interpretation of the law that creates harmony between the foster care law and the adoption law will also serve the best interests of children in the foster care system so that same-sex couples serving as foster parents will be able to continue the process and adopt their foster children.
Adoption law focused on welfare of the child, not personal status
The attorney-general additionally stressed that the adoption law is not a law that regulates personal status "in its essence," as it is focused on the welfare of the child, not the recognition of one or another family unit.
The attorney-general cited a High Court of Justice opinion which stated that "We will go back and state the obvious - in the field of child adoption, as in the context of dealing with the affairs of minors in general, the supreme principle and the 'North Star' is the principle of the best interests of the child."
"The welfare of the child is always the welfare of the concrete child based on the totality of his circumstances, his past, his characteristics, and his difficulties," continued the cited court opinion. "In this field, the optimal response is required for the child whose circumstances at the beginning of his life were not optimal and for whom the optimal correction is required."
The attorney-general noted as well that the Palestine Order-in-Council which was used as the "constitution" of Mandatory Palestine but remains partly in use in modern-day Israel, does not include adoption in the list of "matters of personal status." (While the first version of the order-in-council did include adoption in the list, the final version at the time of the establishment of the State of Israel did not.)
While in matters of personal status the explicit conditions referring to the family unit cannot be changed by way of interpretation, in other matters it can be changed by way of interpretation, as has already been done in property and economic matters.
Additionally, same-sex couples can already adopt in roundabout ways such as through both parents carrying out the adoption process as single parents on their own with the adoption service later treating the two separate files as one combined case.
The attorney-general concluded by stating that the ideal way to deal with this issue would be through legislation, but added that if the court determines that a solution is needed now without waiting for the legislature, there is a way to interpret the existing law in a way that provides for same-sex couples to adopt.
The attorney-general stressed that the government believes that the court should rule to continue the practice which is already in place in the child services of the Welfare Ministry which allows flexibility and discretion in each case of adoption in accordance with the principle of the best interests of the child. A number of investigations into the matter have found that child services continue to discriminate against same-sex couples nonetheless.
Welfare minister claims letting same-sex couples adopt would harm child's welfare
Despite the attorney general's position, the welfare minister expressed staunch opposition to allowing same-sex couples to adopt children, claiming that such a decision would harm the welfare of the child.
"A child that is given up for adoption carries on his back complexities and difficulties, both from the very fact that they are an adopted child and because of the circumstances of their life and the circumstances that led to them being adopted," wrote the minister.
"In this situation, a transfer [of an adopted child] to a same-sex family unit could add additional complexities to their life," added Mergi. "There is great importance in transferring a child to a family unit that is most similar to the one they came from, for a child given up for adoption there is no possibility of preserving the identity of the biological parents and therefore an effort should be made to preserve as much as possible the way of life and family framework in which they were born."
The National Council for the Child stressed on Thursday that "The examination of the child's welfare should be done individually with the aim of finding for him the most stable and most dedicated family that best suits his needs, and this certainly has nothing to do with the intended parents' sexual orientation. This is also the professional position of the service for the child at the Welfare Ministry, as published. Children in general and children at risk in particular have a right to stability, protection, and development and these do not depend in any way on the sexual orientation of the intended parents or their type of relationship."
The chair of the Agudah, Hila Pe'er, responded to the government's response to the lawsuit on Thursday, stating "there is no clearer example of the importance of an independent court that will protect the rights of the LGBTQ community. Faced with the shameful and homophobic position of the welfare minister, we see once again that only the High Court of Justice can act for equal rights. While the government openly says that it is depriving us of basic rights, we expect the High Court to abolish this discrimination once and for all - as the state promised six years ago and did not do."
Attorney Riki Shapira-Rosenberg from the Israel Religious Action Center welcomed the government's response which noted the need to correct the discrimination in the adoption system, stating that the petitioners hope "that the court will adopt this position shared by the petitioners and the state since it is no longer possible to put up with such severe and long-standing discrimination of LGBTQ couples, which seriously harms their right to parenthood and family."