Family Law

Israeli Supreme Court Rules In Favor Of Surrogacy For Gay Dads But Still No Marriage

Those same couples who are now permitted to use surrogacy-assistance to expand their families, are still not permitted to marry within the country. It's a little meshuga.

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On July 11, 2021, Israel took a significant step forward to protect LGBTQ+ parenthood equality. Its Supreme Court ruled that hopeful gay dads-to-be — just like heterosexual couples and single women — must be permitted to access surrogacy to have a child, and must be able to do so within six months of the ruling.

You see, the court had already ruled in favor of gay couples being able to engage in a surrogacy in Israel. A year earlier, the court found that the Israeli law that expanded access to surrogacy to single women but excluded single men and gay couples “disproportionately harmed the right to equality and the right to parenthood,” and was thus unlawful under Israeli law.

The court gave the legislature a year to rewrite the law. Initially, the deadline was March 2021. Then it was extended to September 2021. However, the legislature failed to make progress on the court’s mandate — not only under the leadership of previous Prime Minister Benjamin Netanyahu (recently ousted), whose coalition always included religious conservative factions who consistently opposed any form of LGBTQ+ equality but also under the recently formed government. The new leadership was supposed to bring winds of change, but it quickly concluded that it would not be able to do much better on this front.

The new government gave its official notice to the Supreme Court that it would be politically unfeasible to advance such a bill — and the court responded only a few days later by issuing the latest ruling that the surrogacy law must be read to include single men and gay couples. The court gave six months for the Ministry of Health to engage in any necessary rulemaking to effectuate the change.

For an excellent summary of the fraught road that led up to the ruling, check out this article by U.S. surrogacy attorney Rich Vaughn of the International Fertility Law Group.

First Comes Love, Then We Skip Straight To The Baby Carriage

Israel joins the list of countries that have a patchwork of laws treating LGBTQ+ families inconsistently, at best. The latest Israeli ruling is a positive step for hopeful LGBTQ+ parents-to-be, for sure, but fascinatingly, those same couples who are now permitted to use surrogacy-assistance to expand their families, are still not permitted to marry within the country. It’s a little meshuga.

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Israel does not even permit same-sex civil marriage. Marriage, in Israel, is considered a religious institution, and must be completed (same as divorce) under applicable religious rules. Gay couples may, of course, marry abroad in jurisdictions like the United States that permit it, and a foreign marriage does receive some level of recognition within the country.

Israel demonstrates that marriage equality and the right to parenthood by surrogacy do not always go hand-in-hand. In the United States we, of course, have both. Kind of. LGBTQ+ couples have a right to marry (as determined in 2015 to be a constitutional right in the Obergefell case) and are permitted to form their families by surrogacy in most states. There are exceptions, like Louisiana where the state’s questionable law permit only married heterosexual couples using their own gametes (no donor egg or sperm) to use a surrogate.

In other countries, like Spain and France, same-sex marriage is in, but surrogacy — for any sex, orientation, or marital status — is completely out. And in Russian and Ukraine, surrogacy is fine, and it is fine to compensate the surrogate, but only for married heterosexual couples.

So confusing!

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Victoria Gelfand, an Israeli family formation attorney, described her reaction to the court ruling in an interview. She found the ruling almost an “unbelievable” success. She explained that this lawsuit, fighting the discriminatory nature of the surrogacy law in Israel, started in 2010 — over a decade ago! Partial verdicts and various initiatives have come and gone, without much success.

Gelfand has assisted hundreds of couples forming families through surrogacy abroad since 2005. In 2014, with a hopeful initiative in the works then, she recalls asking couples if they were considering waiting for the law to change in Israel, instead of spending more money to go abroad. Some responded that they didn’t trust the government’s agenda to change any time soon. Their pessimism, of course, was right. Now, because of the Israeli judiciary, couples in the surrogacy process abroad have a big decision to make — keep going, or wait for six months to see if this really happens. Those hopeful parents will also have to weigh how feasible it will be to move forward when a surrogate-gestated baby boom strikes Israel with greater force than ever experienced in the country since the enactment of the law on surrogacy in 1996.

With many positive signs — including the support and positive reaction of the Ministry of Health — this looks like it is the real deal. Six months from now, single men and gay couples in Israel should be able to form their families through surrogacy without leaving the country. Let’s hope nothing goes fakakta in that time.

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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