The Bennett government and the new Knesset have until July 1 to amend Israel’s Surrogacy Law to include single fathers and same-sex couples after the previous government failed to do so within the year allotted by the High Court of Justice. We urge them to do so to correct a historic injustice and not force the High Court to rule on the matter.
The deadline was first set after a petition presented by Etai Pinkas, who served as chairman of the Aguda, Israel’s LGBTQ Task Force. The High Court issued a landmark ruling on February 27, 2020, stating that the Agreements for the Carriage of Fetuses Law, commonly known as the Surrogacy Law, violated the Basic Law: Human Dignity and Liberty because single fathers and same-sex couples were unable to carry out the surrogacy process legally.
The High Court struck down the legislation that blocks single men and gay couples from using surrogacy to have children – and gave the Knesset 12 months to pass a new law. The ruling, which stated that the current laws “disproportionately violate the right to equality and the right to parenthood of these groups and are illegal,” was passed unanimously by a five-judge panel, led by Chief Justice Esther Hayut.
The judges said that parts of the legislation were key to protecting the rights of surrogate mothers and decided that the Knesset should be given the opportunity to amend the law. They issued a deadline for 12 months after the ruling – March 1, 2021. By that date, the Knesset was asked to inform the court whether the constitutional defects had been remedied.
The Netanyahu government requested a further extension on the matter, claiming that the government and the Knesset were too busy dealing with the coronavirus outbreak 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. Another attempt to pass legislation was also made in July but it was also removed from the agenda.
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, then-prime minister Benjamin Netanyahu announced that he would support a bill to allow same-sex couples to have children through surrogacy, but he failed to honor that promise.
“The Israeli government violated the High Court ruling by failing to amend the Surrogacy Law in the past year,” said Ohad Hizki, director-general of the Aguda. “It is not our fault that the Israeli governments have failed time and again to eliminate discrimination against the LGBTQ+ community.”
The government first legalized gestational surrogacy in 1996, making Israel the first country in the world to implement a form of state-controlled surrogacy in which every contract must be approved directly by the state. The numerous restrictions on surrogacy caused many who were planning parenthood – especially single fathers and same-sex couples – to turn to surrogates abroad.
The first cabinet 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. Ahead of the court’s ruling last year, Attorney-General Avichai Mandelblit objected to new legislation, saying gay adoption should only be finalized following a legal ruling by a court, which must come after the relevant ministries consider what is in the best interest of the child, as well as reviewing any disputed claims over the child.
Israel’s current policy allows adoption by same-sex couples but raises a number of hurdles that cause substantial delays and awkward transition periods, during which adopted children may reside with their Israeli adoptive gay parents, but the parents lack full rights without obtaining an additional court order.
If the government does not act on the legislation, the ball would return to the High Court, which could annul the entire Surrogacy Law as it exists today in Israel. That would be unfortunate.
Resolving this issue is critical for Israel as a liberal democracy to guarantee that the state does not discriminate against people over their sexual orientation or marital status. Same-sex couples and single fathers should be granted the same rights as others and not face discrimination.