This past December, Israel’s Supreme Court ruled on whether a single Israeli mother with twins by gestational surrogacy, as well as egg and sperm donation, could be legally recognized under Israeli law as the children’s parent. The ruling rejected the mother’s arguments regarding parental rights. But while that outcome was not tragic for the mother at issue, it is disastrous for all others in a similar position.
As background, the facts went as follows: The children were conceived and born in the United States, where many states are legally supportive of both surrogacy and egg and sperm donation, as well as the combination. The mother was declared a legal parent of her children in the U.S., and when she returned home to Israel, she petitioned for an Israeli family court to also declare her a legal parent to the children. The family court agreed that the mother could be declared a parent by an abbreviated adoption process, but the state appealed. The district court ruled that Israel’s adoption laws actually applied to the circumstances, and that the mother would first need to have the children declared eligible for adoption. The mother then appealed to Israel’s Supreme Court. That is where things took a turn for the worse.
Chrometa: Turning Time Into Billable Value For Modern Lawyers
Adoption of Chrometa represents more than a technological upgrade; it reflects a professional philosophy that values accuracy, transparency, and efficiency.
The Supreme Court ruled that the mother, in this specific case, would be allowed to adopt her own children and have a path to Israeli recognition of parenthood (due to the fact that the state did not deprive her of that option in previous proceedings in lower instances). However, the Supreme Court declared that in future cases, no parental status should be recognized for parents of children by surrogacy without a genetic connection to the child or children. Wow. So everyone else in a similar situation as the mother and her children, are now in a bad place.
The Supreme Court’s opinion indicated sympathy for the petitioner mother and those who desire to have children, but who may suffer from obstacles to parenthood. However, the court noted that “it is not the place of the court to redraw the boundaries of the law in such a sensitive issue as determining new parental status.” The court invited the Israeli Knesset — the country’s legislative body — to fix the hole in the country’s parentage law.
I spoke with leading Israeli surrogacy legal expert attorney, Victoria Gelfand. I asked just how dangerous this ruling is. “It is a nightmare,” she explained. Gelfand went back to basics with me, explaining that there are only four ways to be legally recognized as a parent under Israeli law: 1) giving birth to the child; 2) being genetically related to the child; 3) adopting pursuant to Israeli adoption law; or 4) through surrogacy, pursuant to Israeli surrogacy law (which contains very specific requirements, including government pre-approval of the arrangement and a genetic connection to the child). Surrogacy arrangements recognized under other countries’ laws, but not following the Israeli rules, fall outside of the four recognized paths to parenthood.
Legislative Update?
Introducing LexisNexis Protégé™ in Lex Machina®
Lex Machina harnesses generative AI capabilities to revolutionize the way legal professionals interact with data to improve bottom line for their business.
I asked Gelfand whether she foresaw a legislative fix in the near future, as requested by the Israeli Supreme Court ruling. She laughed, sadly, in response! So, uh, that’s a “no.”
She reminded me that the Supreme Court previously required the legislature to fix the country’s surrogacy law to include single and gay parents, but the legislature failed to do it. After having waited in vain for legislature to revise the law for many years of a pending petition, the court was forced to “read down” the law, essentially pretending that the law says something other than what it actually says. Is that a possibility here? Gelfand said no. The previous reading down was to stop the discrimination of same-sex couples in comparison to straight couples. The genetic relation requirement, however, has steadily remained under the law in Israel throughout the years.
Adding context, Gelfand explained just how troubling the Supreme Court’s ruling is. The Israeli government invests heavily in all fertility-related aspects of its citizens through massive subsidies of IVF procedures. In Israel, Gelfand said, one’s social acceptance is often established through their parenthood — every man and woman is exposed from a young age to incessant questions: “So, when will you have a child?” or “When will you bring a grandchild to your parents?” Given this situation, Gelfand laments, “It is inconceivable to put a complete, hard, and insurmountable legal stop in a situation where one’s attempts to have a biological child have failed, adoption options are nearly nonexistent, and surrogacy with the assistance of a double donation is the only way to become a parent. This is an especially harsh line when excluding situations where the process is done ethically and in accordance with the law of the country where the surrogacy was carried out.”
Moreover, Gelfand explained that the ruling creates an incompatibility with international law, when children who are legally acknowledged and registered as the parent’s children in one country, are doomed to remain forever legally estranged in another. Gelfand explained that children in a similar situation, conceived through surrogacy without a genetic connection to the parent(s), are now without a substantial path to be recognized as Israeli citizens. That means that they remain tourists in their own country — having to renew their visitor’s visa every few months — indefinitely, unless another path is laid. Let’s hope that the Knesset experiences an epiphany and acts to miraculously change the status quo to embrace all of the children of its citizens.
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 [email protected].