The woman granted the order, referred to as M. in the court decision, is in a common-law marriage with the biological mother of the child, referred to as K., but is a German citizen who is currently in Israel on a temporary visa waiting to receive permanent resident status. The biological mother and the child are both citizens of Israel.
"As spouses who share their lives, we intend to have children together. We hereby declare that we intend to raise our children together and serve them as two mothers for all intents and purposes, irrelevant to the question of the existence of a biological connection between any of the children and either of us," stated the two mothers in their declaration of their common-law marriage in 2013, according to the decision released by the court. "We hereby declare that we have agreed among ourselves that upon birth by either of us, we will work together for the official recognition of the institutions of the State of Israel and in our shared parenting."
The two also signed a parenting agreement specifying that they would share the duties of raising any children and would work to ensure that they would both be recognized as the parents of such children.
Their daughter was conceived through the use of a sperm donor from a sperm bank in California and was born in 2018. Later that year, the mothers filed a request for a judicial parenting order through the court, arguing that they both act as parents to the child and that receiving the order was necessary for the good of the child.While heterosexual couples can usually have their parenthood automatically recognized, same-sex couples must either apply for a judicial parenting order through a court or apply to adopt their partner's child in order to be recognized as a parent of a non-biological child born to their partner. Parenthood in general for same-sex couples is a controversial topic in Israel, with the topics of gay adoption and surrogacy causing political unrest and protests multiple times in recent years.
The state opposed the request, stressing that since M. was only in Israel on a temporary visa that was continually being extended and that any decision on a parental order should wait until her residential status was set, as she could still be ordered to leave the country and this could negatively impact the child in question.
The state also argued that such a decision could have an impact on issues concerning entering the state of Israel, as people could try and enter Israel and establish permanent residence status through judicial parenting orders.
The court rejected the state's position and issued a parental order effective from the date of birth of the child, but the state filed an appeal against the decision. The court's decision stressed that the "unequivocal best interest for the child is that M. be given a parenting order in relation to her. It is not proper for M.'s declaration as a mother to be postponed for years, until her status in Israel is permanently settled. Such a situation 'does not reflect reality and thus misleads the child.'"
"It is the minor's right to know who her parents are and when she grows up with two women whom she considers to be her mothers and in practice they serve in this role, it is to the child's benefit that such be recorded ... and the state will recognize the actual factual and emotional relationship between the child and the two applicants," added the court.
The court stressed that if M. does not receive a residence permit and is force to leave the country, then it will be hard on the child whether or not a parenting order is issued, adding that the same is the case when both parents are biological parents of the child.
The state's claim that a parenting order could be used to obtain permanent resident status in Israel was also rejected on the court, which stressed that in cases where the state believes that a residency application is in bad faith, they can have the court examine the situation. Additionally, a judicial parenting order does not obligate the state to issue a permanent residence permit, if there are good reasons not to issue one.
"The state likes to apply sweeping conditions and rules to LGBTQ+ people which are nothing but an expression of its suspicion and prejudice in relation to members of the community," said the attorney representing the parents, Daniela Yaakobi, calling the claims made by the state in its appeal against the parenting order issued by the court "particularly outrageous."
Yaakobi welcomed the decision on Monday, calling it "precedent-setting" and stressing that up until the decision this week, courts had generally avoided interfering with the state's position of refusing parental orders to LGBTQ+ non-permanent residents.
"We welcome the court's decision not to put M. in a 'mother on condition' situation, and to choose the true 'good of the child,'" said the Agudah - The Association for LGBTQ+ Equality in Israel in a response to the decision on Facebook. "The court granted M. a parenting order based on the fact that the two spouses are the parental figures caring for their daughter with full devotion equally, and to strengthen both of their commitments to raising a daughter, even if M. is still in the process of arranging permanent resident status in Israel, which could take a number of years."
"It is a pity that instead of promoting legislation that would put an end to systemic discrimination against LGBTQ+ people, the state once again tried to 'put sticks in the wheels' of LGBTQ+ parents, on an issue where the parenting of heterosexual spouses was not questioned," added the Agudah.