Family Law, Gay, Health Care / Medicine, Kids

Hopeful LGBT Parents Fight Uphill Battle In Israel

The situation regarding surrogacy rights for LGBT individuals in Israel continues to look bleak.

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Many counties ban surrogacy altogether. And, as you know by now, I can be a little judgy when it comes to those countries. Fortunately, Israel isn’t on the list of countries with a total ban. It does, to be sure, allow many people to enter into surrogacy agreements in the country. Moreover, as a country where (1) heritage is important and (2) technology is at the cutting edge, it is unsurprising that assisted reproductive technology is flourishing in the country.

But Israel remains extremely involved in the determination of who can become a parent through the surrogacy process. The right to enter into a valid surrogacy agreement is limited, for now, to heterosexual married couples. An amendment to the surrogacy law, currently under consideration (and looking like it will pass), would at least allow a single woman to legally use surrogacy within Israel. Nevertheless, the situation regarding surrogacy rights for LGBT individuals in Israel continues to look bleak.

A Plea For Reform. In 2015, a group called the Association of Israeli Gay Fathers, along with another group called the Israel Religious Action Center, filed a petition challenging the prohibition on same-sex couples adopting children. A hearing was set for last Thursday, July 20, 2017. But against the background of significant protests, the Supreme Court of Israel postponed the hearing, which is now scheduled for September 19, 2017.

The Numbers Are Bleak. Currently, same-sex couples are technically permitted to adopt a child in Israel. But there is a catch that makes the situation difficult for such couples: they may only adopt a child if no heterosexual couple is willing to adopt the child. Harsh.

The petition before the Israeli Supreme Court cites the bleak numbers when it comes to adoptions by same-sex couples in the last decade. Between 2008 (the year same-sex adoption technically became legal in Israel) and 2016, only three same-sex couples have managed to successfully adopt a child. During the same time period, heterosexual couples completed 1,700 adoptions! That’s despite the fact that same-sex couples submitted 550 petitions for adoptions in that time period. Even as a lawyer, I can do the math to understand that means less than 1% of adoption petitions were successful. (Note: Gay or straight, the average time for an adoption in Israel is a depressing seven years.)

Stall Tactics. The Israeli Welfare and Social Affairs Ministry has indicated that it will take the position that the prohibition on same-sex surrogacy is not about discrimination, and that it is more “complicated.”

In that vein, the Ministry has stated that same-sex couples as parents create an additional “burden” for a child to bear. (I assume they mean the burden of being too awesome!) Nevertheless, Sharona Mann, the Ministry’s spokesperson, has stated that the Ministry is recommending a complete overhaul of the current system, unrelated to LGBT rights. But the Ministry has also argued that “only after the reform is implemented should lawmakers be asked to change the law in favor of additional groups.”

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The Israeli Supreme Court’s hearing delay was in response to the Ministry’s request for an extension to “reconsider the matter.” In response, the petitioners have noted that there has been a committee looking into the issue for the last ten years.

War on LGBT Families. Udi Ledergor, the chairman of the Association of Israeli Gay Fathers, described the ministry’s position as “bulls**t.” I guess you have to hand it to him for bluntness. Ledergor strenuously argues that “the Israeli government has declared war on LGBT families, nothing less.” But Ledergor, who has three children of his own through surrogacies in the United States, also declared that his organization “will continue to fight until we have removed the darkness and discrimination.”

Go get ‘em, Ledergor! In the meantime, we continue to welcome Israeli hopeful parents, gay or straight, in America. (But even then, stay out of Michigan and New Jersey, folks.)

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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