Family Law

Israeli Court Takes Step Forward In LGBTQ+ Family Protection

Similar to the United States, Israel has a long and mixed history struggling with where it stands on LGBTQ+ rights and families.

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Being LGBTQ+ parents and being parents of differing citizenship can each present significant legal risks for a family. Combine the two, and a number of cases have emerged where questionable interpretations of federal statutes have placed families in terrible positions. At times, this has resulted in governments not recognizing the parent-child relationship between one or more of the parents and the child, or denying a child citizenship. Probably the most famous U.S. example of this is the Dvash-Banks case where a child’s twin brother was granted U.S. citizenship, while he was denied.

In The United States, The Struggle Is Not Over

In the U.S., the nonprofit law firm Immigration Equality has recently publicly fought four such cases, making huge strides for the those who are stuck in the position of having to litigate the validity of their family. In the Dvash-Banks twin case, the federal government — represented by the Department of Justice — lost in the district court and before the Ninth Circuit Court of Appeals. You would think that would be enough for the government to let it go. Nope. The government recently filed a request for an en banc hearing of the Ninth Circuit’s decision, to reconsider the case of Ethan Dvash-Banks, and whether he is entitled to the same U.S. citizenship that his twin brother, Aiden, has. But, with any luck, the new Biden administration will tell its DOJ to rethink its losing legal position, and drop that request.

Positive Israeli Ruling

Similar to the United States, Israel has a long and mixed history struggling with where it stands on LGBTQ+ rights and families. Last week, we saw news of a positive step forward in Israeli courts. A female couple in Israel have been fighting since 2018 for judicial recognition of both women as parents of their child. The couple are in a common-law marriage, with one woman having Israeli citizenship, and one German citizenship.

The Jerusalem Post reported on the ruling, noting that the couple conceived via the help of a sperm donor from a California sperm bank. Israel has very specific regulations when it comes to sperm donation within the country, including that the donation must be anonymous. That strict rule has resulted in notorious American “sperm king” donor Ari Nagel being banned from donating in Israel.

In good news, the Tel Aviv Family Court granted the couple’s petition for the nonbiological mother to be recognized as a parent of the child. In bad news, the government appealed the decision in District Court. In good news, the government made what I’m told are some not-great legal arguments for Israeli courts.

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Losing Arguments

One of the state’s arguments in opposition to parental recognition of the nonbiological mother was based on her temporary Israeli visa continually being extended. The state argued that any decision on a parental order should wait until her residential status was set. Because — wait for it — the mother could be ordered to leave the country, and this could negatively impact the child. Well, yes, it would certainly negatively impact a child for one of her parents to be deported. But one thing that would *not* make deportation better -– rather than worse –- is for the state to refuse to recognize that parent-child relationship.

Another argument presented by the state was that a decision in the parents’ favor could encourage people to enter Israel and establish permanent residence status through judicial parenting orders. While I am sure that Israeli permanent residency is highly sought after by some people, is that a real fear? Would a person in the LGBTQ+ community really enter into a relationship with an Israeli citizen, commit to raising and being financially responsible for a child, in order to gain permanent residency in Israeli? If so, you sort of have to admire that kind of commitment. Seems like Israeli citizen material!

Last Monday’s denial of the state’s appeal was a victory for the couple and the LGBTQ+ community in Israel. The rejection means that the first instance court order -– granting recognition of the parental status of the nonbiological non-Israeli mother –- will stand for now.

Israeli family law and assisted reproductive technology law attorney Victoria Gelfand explained the setting of this decision: “It may surprise many people outside of Israel -– just as it has been unfathomable to our own community for a long while until this recent ruling –- that Israeli courts, on quite a few occasions, have found the State’s arguments reasonable (!) and have refrained from intervening in the State’s denial of recognition to such ‘mixed’ couples (in local jargon, meaning couples where one of the spouses is a foreigner without a permanent status in Israel).”

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Gelfand explained that in one of the previously denied cases, the parents fought unsuccessfully all the way up to the Supreme Court. The married gay mixed couple had a child via surrogacy in the United States, and only had a few months left until the non-Israeli spouse was entitled to receive Israeli citizenship. But, due to the Israeli spouse’s work, through the Israeli Security Forces, moving his taskforce to Europe, the family relocated and their gradual process to require citizenship for the non-Israeli parent ceased. All courts that have discussed their case “did not find strong enough grounds” to oppose the state’s arguments about the “negative impact on the child in the event of separation.” Gelfand explained that she and other legal experts, until this day, have wondered how the best interests of the child (which is the position expected of the Family Court judges) could weigh in favor of “a blind technical consideration over the basic instinct to protect a child from heartbreak if the father that had been raising her for years was be forced to be alienated from her upon separation or divorce, due to lack of acknowledgement of his parental rights.”

Gelfand described that it was refreshing and reassuring to read the court’s decision to separate immigration law from family law, and find a way to prefer the latter over the former. Hopefully, the Court’s rejection of the state’s twisted best-interests arguments in this case indicate that the luck — and legal support — of LGBTQ+ parents in Israeli is changing for the better.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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