The government is asking for another nine months to fix Israel's surrogacy law to include single fathers and same-sex couples after it failed to fix the law within the year allotted by the High Court of Justice, which ended on Monday.
The deadline was set in a partial ruling in a suit filed by Etai Pinkas, an LGBTQ+ activist who has in the past served as chairman of the Aguda – Israel’s LGBTQ Task Force.
The High Court of Justice issued a partial ruling a year ago on February 27, stating that the current formation of the Agreements for the Carriage of Fetuses Law, commonly known as the Surrogacy Law, was discriminatory and violated Basic Law: Human Dignity and Liberty, specifically in terms of violating the right to equality, as single fathers and same-sex couples were unable to carry out the surrogacy process through the law.
The judges felt that parts of the law were important for protecting the rights of surrogate mothers and decided that the Knesset should be given the opportunity to amend the law instead of the court adjusting the law itself. They therefore issued a deadline for 12 months after the ruling – for March 1, 2021. By that date, the Knesset was required to provide a notice on whether the constitutional defects have been remedied. The law has not undergone any changes within that period.
The government is requesting an extension on the matter, claiming that the Knesset, government and Health Ministry were too busy dealing with the coronavirus outbreak to take the time to deal with fixing the law. An attempt to pass a bill that would allow for single fathers and same-sex couples to have children through surrogacy fell in a preliminary reading last December. An attempt to pass suitable legislation was also made in July but it was also removed from the agenda.
According to the extension request filed by the government, Deputy Health Minister Yoav Kish said in July that the government was committed to advancing the issue within two months. In December, five months after stating the government's commitment, Kish again rejected an attempt to pass legislation, stating that "this proposal must come the king's way, through government legislation. There are too many complexities here.”
The first government discussion on remedying the law was held in December 2020, when it was agreed that a "consultation process" should be initiated regarding the appropriate legislative outline.
"The state has long since lost its shame in this case,” said the petitioners. “Now it seems that even self-respect is something the state's representatives no longer have with the procrastination they are trying to carry out, in a disgraceful discrimination case in which everything has been said already for a long time. As is well known, governmental instability and the consistent spitting of the state in the face of the [LGBTQ+] community were not born in the coronavirus period."
The petitioners are demanding that the High Court stick to its original ruling and remedy the situation immediately, instead of allowing the Knesset to delay the issue even further. "Do not deviate from your just ruling a year ago. The time for abolishing discrimination in a final verdict is now. The state has proven for 11 years that it intends to drag on these proceedings forever," the petitioners said.
The Surrogacy Law, amended in 2018, allows married heterosexual couples and single women to have children through surrogacy, but not single fathers or same-sex couples. That same year, Prime Minister Benjamin Netanyahu stated that he would support a bill to allow same-sex couples to have children through surrogacy, but so far has failed to do so. At the time, the haredi (ultra-Orthodox) parties threatened to topple the government if such a bill was passed.
The High Court ruled last year that after the deadline passed, the petitioners would have 30 days to respond to the government's statement and then the court would issue a final judgement. High Court President Esther Hayut stressed in the partial ruling last year that the court had two options on how to remedy the situation, but that neither options were optimal.
The first option is for the court to “read into the law,” which would allow it to remove the unconstitutional parts without needing to repeal it. This would allow the law to apply to all population groups and in all cases in accordance with its current wording.
This option would be difficult to carry out as it would require several changes in two pieces of legislation and may require reference to measures to protect the purpose of the law, such as setting a maximum price for surrogacy and the possibility of altruistic surrogacy, which could affect the fabric of the law.
The second option is for the court to annul the unconstitutional parts of the law, but that would also require relatively extensive use of judicial legislation to supplement deficiencies caused by annulling those parts.