I want to be a dad! Men fight for surrogacy rights

If Israel is indeed a Jewish state, and if the Bible explicitly bans homosexuality, is it not just and ethical to withdraw the right to children from gay couples and single gay men?

Protesters against the Surrogacy Law take part in a huge rally in Tel Aviv’s Rabin Square on July 22, 2018 (photo credit: CORINNA KERN/REUTERS)
Protesters against the Surrogacy Law take part in a huge rally in Tel Aviv’s Rabin Square on July 22, 2018
(photo credit: CORINNA KERN/REUTERS)
“There is no natural way to have children [when] from the outset they do not have a mother. This is unnatural, unethical, inhuman and un-Jewish…There is no equality between the sexes. There are men, there are women, there is the normative Jewish family, human, ethical, natural. The man has his role, his sexuality. The women has her role, her sexuality.”
The speaker is Col. (ret.) Moti Yogev, Knesset Member for the religious Zionist party Bayit Yehudi (Jewish Home), led by Naftali Bennett. Yogev, 62, was speaking at a Knesset committee meeting debating a proposed Surrogacy Law. Yogev served with great distinction in combat roles in the IDF for 25 years. His views are supported by his own party, the governing Likud party, the ultra-Orthodox Sefardi party Shas and the ultra-Orthodox United Judaism party.
On Monday July 9, the Knesset Labor, Welfare and Health Committee amended a 1996 surrogacy bill to extend eligibility for state-supported surrogacy to include single women, but denied same-sex couples the right to have children via a surrogate. The bill later passed its final reading, with 59 in favor, 52 opposed, and became law.
An amendment proposed by openly gay Likud MK Amir Ohana giving single men and gay male couples the right to state-supported surrogacy failed to pass. A firestorm of protest and controversy resulted. Some 100,000 protesters gathered on Sunday, July 22 to demonstrate against the law. Many straight supporters joined LGBT protesters and also stayed home from work.
As the bill stands, single women who are unable to have children for medical reasons will now be permitted to have a child through a state-supported surrogate. Until now this right has only been extended to married, heterosexual couples. So in a sense the bill is a major step forward.
But what single women can receive, homosexual single men and couples cannot. So the law is also two huge steps backward. And most Israelis cannot stomach the basic unfairness the law promulgates.
What is surrogacy?
It is a process in which a fertilized human ovum is implanted in a willing surrogate mother’s womb, when, for example, a woman cannot herself become pregnant. The process is complex. In one case, babies born to a gay Israeli couple arose from donor eggs from Ukraine, a surrogate mother from India, and her lying-in and giving birth later in Katmandu, Nepal.
Why has the complex surrogacy issue followed such a tortuous zigzag path through the Knesset? How did we get to this unfair 2018 Surrogacy Law?
We got here by a twisted zigzag path.
• The first surrogacy law was passed by the Knesset in 1996. According to the Ministry of Health, the law said that “a man and a woman who are in a partnership are permitted…to find a surrogate mother and to sign a surrogacy agreement with her.” No provision existed for single women, or lesbian and gay parents.
• In 2012, a committee on surrogacy headed by Prof. Shlomo Mor-Yosef, former CEO of Hadassah Medical Center, recommended state-supported surrogacy for single women and gay men, but only if the surrogate mother was motivated by “altruism” and not money.
• In 2014 then-Health Minister Yael German (Yesh Atid) proposed legislation offering surrogacy to all who sought it. The bill passed its first reading.
• But in late 2014 the Knesset dispersed and elections were called. German’s bill died. In the new coalition, Yaakov Litzman became Health Minister. Bye-bye, German law.
• In July 2017, Litzman backed a new surrogacy law banning surrogacy from homosexual men.
• In August 2017, the Supreme Court gave the government six months to enact a non-discriminatory law.
• In July 2018, the new surrogacy law passed the Knesset. Attorney General Avishai Mandelblit, who is Orthodox, declared that he could not defend in the Supreme Court Interior Minister Aryeh Deri’s decision that same-sex couples will not be registered officially as parents of their adopted or surrogate children. At Deri’s direction, the government is now asking all fathers to state they are the “biological father” of the child they are registering, not just “the father.” To be recognized officially as parents, gay couples need to appeal to the courts.
Who insisted the Surrogacy Law should apply only to mixed sex couples and women only, and not to gay men?
It was an unholy alliance between two key Haredi government ministers: Yaakov Litzman, Minister of Health (United Torah Judaism) and Aryeh Deri, Minister of the Interior (Shas). Litzman obeys edicts of his Rav, Rabbi Yisroel Alter, head of the Gur Hasidic sect. Litzman’s ministry administers the surrogacy law. And Deri’s ministry registers parentage of newborns. Basically, they each have invisible signs over their desks: Equality under the law stops here.
If Israel is indeed a Jewish state, as the new Nation State Law asserts, and if the Bible explicitly bans homosexuality [Leviticus 18:22], is it not just and ethical to withdraw the right to children from gay couples and single gay men?
No. Here is why. A father-and-son team – Bar-Ilan University computer science professor Nathan Dershowitz and his son Idan, a junior fellow in Bible Studies at Harvard – have developed a software algorithm based on artificial intelligence to examine one of the oldest and most authoritative manuscripts of the Hebrew Bible, the Aleppo Codex, written in Tiberias in the 10th century and verified by Maimonides. The algorithm identifies the parts of Bible written by separate authors – “priestly” linked to the Jerusalem Temple priests and “non-priestly.”
Writing in The New York Times, July 23, Idan claims that “there is good evidence that an earlier version of the laws in Leviticus 18 permitted sex between men. … [An] editor’s decision to neutralize old laws by writing new glosses [led to the ban against homosexual sex].”
For those who believe as I do that God wrote (or directly inspired) the Bible, there is no problem. Why cannot God write in several voices?
And if Dershowitz is right, and even if he is not, why cannot Halacha (Jewish law) be interpreted in light of modern social mores and values, as it has been through the ages, and as the Conservative movement proposes? The Bible itself reflects this process.
Why did Prime Minister Netanyahu say initially he would vote for the Ohana amendment, giving gay men the right to children, and then vote against it?
Netanyahu told Ohana that his “current amendment would topple the law and then [many] mothers would not have the right to surrogacy. [It would topple the law because, if it were included, the ultra-Orthodox parties would then vote no]. Despite that, I said that if he [later] introduces a law for fathers [right to surrogacy], I will support it.”
Why can’t gay male couples or single gay men simply have a child through surrogacy in another country, such as the United States?
Gay men who want kids have the option of paying for surrogacy abroad. But fewer and fewer nations permit this. And the cost is astronomical. For instance, the cost of a surrogate child in the US is at least $120,000. If the in vitro procedure fails to result in a pregnancy the first time, which happens often, repeating the procedure several times can make the total cost many times more. As one gay man said, we have to choose between buying a home and having a child (abroad).
Two and a half years ago, I wrote in The Jerusalem Report (“Outsourcing babies,” January 11, 2016) about a gay couple, Tal and Amir, and their saga of becoming parents to three surrogate babies in Katmandu, Nepal, during the horrendous earthquake there. Had there been a fair, equal surrogate law at the time, their children would have been born in safety, in their own country, as is their basic right.
By the way, Tal and Amir are outstanding parents, contrary to the opinions of Orthodox rabbis, who continue to claim healthy robust children cannot be raised by gay men.
Why did so many people support the demonstration on behalf of the gay and transgender community? Why did 100,000 people demonstrate on Sunday, July 22, in Rabin Square against the law?
In The Report (“Baby boom,” June 27), I wrote about why Israelis − unlike those in many other countries − think babies are cool and are having loads of them. The blatant agonizing unfairness of depriving a part of Israeli society of the basic right to be a father resonated with millions. As Prof. Mordechai Kremnitzer observed, this could well be a turning point.
Mordechai Kremnitzer is one of Israel’s foremost jurists. He is a former dean of the Hebrew University of Jerusalem’s Faculty of Law. His words in the daily Haaretz, July 24, are authoritative and are worth quoting at length. I bring them as a virtual interview:
The Report: Prof. Kremnitzer, why do you believe the LGBT-led protest is a turning point?
Kremnitzer: “The popular protest over the damaging of LGBT rights just days after the Knesset passed the Nation-State Law could prove to be a turning point for Israel. Since the declaration of our independence [in 1948], brandishing the flag of egalitarianism, Israel has suffered from an irregular situation with respect to the right to equality, at a constitutional level. To wit, among the rights mentioned in the Basic Law for Human Dignity and Liberty, which is the most important chapter in the country's constitution, the right to equality does not appear.”
The Report: Why was the right to equality omitted?
Kremnitzer: “This was not an omission. It was the result of the need to reach a compromise with the religious parties about the wording of the law. To achieve this compromise, crucial basic rights became casualties, among them the right to equality, to freedom of expression, freedom of religion and also freedom to be free of religion. The religious parties were evidently worried that including the right to equality would dent their monopolistic status over religious affairs in Israel, and would – Heaven forfend – demand equal treatment of members of non-Orthodox denominations – Conservative and Reform Judaism.
“Equality is not just another basic right. It is the basis of the concept and principle upon which the structure of democratic rule stands. That structure is based on the equal right of all citizens to participate, by means of their elected representatives, in determining the norms that apply to them, which are binding upon them. A method of rule cannot be considered fair, even minimally, if it does not treat all citizens as being equal when it comes to their right to freedom and to human dignity.”
The Report: What is your opinion of the Nation-State Law, which passed final reading of the Knesset late Wednesday, July 18, 62 in favor, 55 against?
Kremnitzer: “The right to equality is not obvious in Israeli society. Not only is it not taken for granted, it is vehemently opposed. What the public may not realize is that a majority in the Knesset categorically refused to adopt Likud MK Benny Begin’s proposal to incorporate a provision in the Nation-State Law committed to ensuring equality, in the spirit of the Declaration of Independence. This fact did not prevent Prime Minister Benjamin Netanyahu, in his pseudo-Herzlian speech about the anti-Herzlian law, from relating to the right to equality as if it were included in the law.”
“… The underlying purpose of the Nation-State Law is to undermine the right to equality in the name of the state’s Jewishness. As long as the Knesset remains controlled by religious parties and nationalist parties competing with one another over the right-wing fringes, we cannot trust it to protect our basic rights.
“The coalition is not governed by the greater good, but by self-preservation. Since our elected officials are betraying their fundamental mission, the people have no choice but to speak out. That is why Israeli society as a whole will yet thank the organizers of the LGBT protest, and its participants, and the people who stood with them – among them employers and Israel’s biggest labor union, the Histadrut.”
“Perhaps Jews find it easier to identify with the LBGT struggle for equality, because that community is part of us – of our family, friends, neighbors. But we must not make a distinction between one type of
discrimination and another. All types are morally wrong.”
The Report: Do you believe gay men will ultimately gain their rights under the law?
Kremnitzer: “From the strategic perspective, the various groups discriminated against in Israel (except women) are pretty small, but together they stand tall. Their battle should be that of every decent individual. There is no struggle that is more just. There is no struggle that is more important. If the people, including labor organizations and employers, cry out for equality, the government will have to relinquish its unenlightened positions.”
I want to be a dad! How, in the name of the Jewish religion, can this plaintive cry be denied or ignored? For me, nothing on this earth comes close to the joy of being a father of four and grandfather of 15.
I am certain MK Moti Yogev feels the same. I know this because Yogev himself has 10 children.
How can those who profess to love Judaism and follow its precepts, built on justice, equality and righteousness, insist on depriving some of their fellow citizens of a basic human right, in the name of an obsolete Biblical edict that probably was created and inserted by its authors to suit the political climate at the time.
The Bible is no less political than the Knesset. This does not in the least diminish its beauty, inspiration and Divine teachings.
This injustice to gay men will not stand. The majority of Israelis will not tolerate it. As protesters return again to Rothschild Boulevard, for as long as it takes, justice will be done. 
The writer heads the Zvi Griliches Research Data Center at the S. Neaman Institute, Technion and blogs at timnovate.wordpress.com