High Court: Ban on surrogacy for same-sex couples, single men to end in 6 months
After government said it was ‘unfeasible’ to change the law and asked justices to intervene, top court delivers landmark ruling that ends 11-year legal battle
Michael Bachner is a news editor at The Times of Israel
The High Court of Justice ruled Sunday that all legislation denying surrogacy rights to same-sex couples and single men will be null and void six months from now, in a dramatic ruling in favor of LGBT rights.
The decision brings to an end a legal battle that has gone on for more than 11 years, since Etai Pinkas Arad and Yoav Arad Pinkas first filed a petition on the matter at Israel’s top court in 2010.
Surrogacy as a route to parenthood is currently open to heterosexual couples and to single women who have a genetic connection to the baby. In February 2020, the High Court of Justice struck down a controversial law that blocks single men and gay couples from using surrogacy to have children, and gave the Knesset a year to pass a new law.
A summary of the decision publicized at the time said current surrogacy laws “disproportionately violate the right to equality and the right to parenthood of these groups and are illegal.”
The ruling left the restrictions intact for up to a year, setting a deadline of March 1, 2021, for the Knesset to change the law — later delayed until September 1 — and noting that the court would only step in and strike down the surrogacy limitations if the Knesset failed to do so.
Last week, the state asked the court to make a ruling on the matter since amending the law in line with the previous ruling was “unfeasible” in the current political situation.
The new coalition sworn in last month combines right-wing, centrist, left-wing and Islamist parties and only has a razor-thin parliamentary majority. The religious Islamic Ra’am party fiercely opposes gay rights, and opposition parties have been voting against even bills they ideologically support in an attempt to bring down the government.
“The current case has been going on for six years, and once it has been ruled that the current system is unconstitutional, the ‘lack of political feasibility’ can no longer justify the continuation of the grave violation of basic rights,” Chief Justice Esther Hayut wrote in the decision.
Within six months of the ruling, Hayut wrote, all conditions laid out in the current law for those with surrogacy rights will be canceled. The court said the six months were meant to allow authorities to prepare for the change.
“We won! And now it’s final,” the petitioners said in a statement. “This is a big step toward equality, not only for LGBT in Israel, but for everyone in Israel. The ruling is important to us all because any arbitrary discrimination is an embarrassment to the country. Nobody has the right to discriminate against parents and deny them access to anything just because they aren’t a man and a woman.”
The ruling was hailed by Health Minister Nitzan Horowitz, the first openly gay person to hold that position.
“Finally, equality!” Horowitz tweeted. “When I entered office it was clear to me that the foot-dragging must end and I told the High Court that the petition is justified and we are prepared for a binding ruling. We will quickly prepare to receive [surrogacy] requests from men. We will act with responsibility, evenhandedness and equality.”
However, the Knesset Guard ordered Horowitz’s office to remove LGBT flags that had been placed — apparently without approval — in a room where his Meretz party intended to hold a faction meeting on Sunday celebrating the ruling.
Foreign Minister Yair Lapid also welcomed the ruling, tweeting that “being a parent is a basic human right and this is a morally and socially appropriate decision.”
Defense Minister Benny Gantz similarly said the ruling “states the obvious: that every person — man or woman, straight or LGBT — is equal and deserves equal rights.”
The ruling was panned by religious opposition parties.
Aryeh Deri, head of the ultra-Orthodox Shas party, called it “a grave blow to the state’s Jewish identity,” and former health minister Yaakov Litzman of fellow Haredi party United Torah Judaism said High Court justices “are proving to be another faction in the Reform coalition of Bennett-Liberman-Kariv-Lapid, while endangering the future of the Jewish people and destroying the state’s character and Jewish tradition.”
He was referring to Prime Minister Naftali Bennett, secularist Finance Minister Avigdor Liberman, Labor MK and Reform rabbi Gilad Kariv, and Lapid.
Bezalel Smotrich, head of the far-right Religious Zionism, claimed the ruling “legitimizes the trafficking of women for the goal of surrogacy.”
“This government, together with the High Court, has set a goal of eroding Israel’s Jewishness,” he said. “The health minister asked the High Court to intervene in the Knesset’s laws after realizing he doesn’t have a majority in Israeli democracy, and as expected, the court willingly cooperated and knocked over another brick in the wall safeguarding the Jewish family.”
Attempts in recent years to expand access to surrogacy to the LGBT community, including initiatives supported by then-prime minister Benjamin Netanyahu, faced vehement opposition from his ultra-Orthodox political allies.
A July 2018 law that extended eligibility to unmarried women sparked nationwide protests for excluding gay men.
