High Court pushes deadline to fix surrogacy law after elections

"The High Court has rolled one hot potato to after the elections, and, if there is any consolation, it is that the state has now really run out of excuses," said Etai Pinkas, an LGBTQ+ activist.

High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020 (photo credit: COURTESY HIGH COURT OF JUSTICE)
High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020
(photo credit: COURTESY HIGH COURT OF JUSTICE)
The High Court of Justice gave the Israeli government an extra four months on Wednesday to fix the surrogacy law that it deemed unconstitutional due to its failure to include single men and same-sex couples in the legislation, meaning that the deadline will now be after the March 23 elections.
The state will now have until July 1 to fix the legislation to include single men and same-sex couples. The new government, or the interim government if a new government is not formed, will be responsible for meeting the deadline. After the government files an update on the status of the law by July 1, the petitioners will have until July 5 to respond.
“The High Court has rolled one hot potato to after the elections, and, if there is any consolation, it is that the state has now really run out of excuses,” said Etai Pinkas, an LGBTQ+ activist who filed the suit on the law and has in the past served as chairman of the Aguda – Israel’s LGBTQ Task Force. “We did not think it was right to accept the coronavirus excuse – it is not the real reason why the state has been dragging its feet in this petition for more than 11 years, as in many others. But now it is clear that if the government and the Knesset do not come to their senses, in about four months we will be able to see a final verdict for equality. We are waiting.”
The High Court had ruled last year that the government had until March 1 of this year to fix the law, but the government failed to do so and requested nine more months to fix the law, stating that it had been too busy dealing with the coronavirus outbreak to deal with fixing the law.
The government has shot down multiple attempts to fix the legislation in the past year. 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.
While the petitioners demanded that the High Court deny the government’s request, the court decided on Wednesday that it would partially accept the government’s request, but would only grant a four month extension.
According to the extension request filed by the government, Deputy Health Minister Yoav Kisch 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, Kisch 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 original deadline was set in a partial ruling last year in a suit filed by Pinkas.
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 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 judgment. 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.