High Court extends surrogacy rights to gay couples, single men

Ruling celebrated as ‘dramatic and exciting’ by activists; court gives Knesset one year to amend discriminatory legislation

Gay couples prepare for a same-sex wedding in Tel Aviv, Israel, June 4, 2019. (AP/Oded Balilty)
Gay couples prepare for a same-sex wedding in Tel Aviv, Israel, June 4, 2019. (AP/Oded Balilty)

In a dramatic development for same-sex couples in Israel, the country’s top court struck down on Thursday a law that blocks single men and gay couples from using surrogacy to have children — giving the Knesset a year to pass a new law.

A summary of the decision publicized by the High Court of Justice said current surrogacy laws “disproportionately violate the right to equality and the right to parenthood of these groups and are illegal.”

The decision was unanimous by the five-judge panel, led by Chief Justice Esther Hayut and including justices Hanan Melcer, Neal Hendel, Isaac Amit and Uzi Fogelman.

Current law only allows surrogacy for heterosexual couples or single women who are unable to have a child.

Attempts in recent years to expand access to surrogacy to the LGBT community have faced vehement opposition from Haredi political parties.

Illustrative: The High Court of Justice convenes for a hearing on the Regulation Law at the Supreme Court in Jerusalem on June 3, 2018. (Yonatan Sindel/Flash90)

A July 2018 law that extended eligibility to unmarried women sparked nationwide protests from the gay community and its supporters for excluding gay men.

In October 2018, the Knesset voted 49 to 41 to reject a bill extending surrogacy laws to same-sex couples, despite support for the bill by Prime Minister Benjamin Netanyahu.

Netanyahu, who ended up voting against the bill himself, said in a statement at the time, “I support surrogacy for the LGBT community, but up until this moment, we don’t have a majority in the coalition to pass the law. When we have a majority, we’ll pass the legislation.”

Thursday’s ruling will force the Knesset’s hand, or see the court strike down the restrictions on single men and same-sex couples next year.

The rights group Avot Ge’im, “Proud Fathers,” one of the petitioners in the case, called it a “dramatic and exciting” moment.

A welcome reception held for gay fathers returning from Thailand, where local surrogate women gave birth to their babies. February 20, 2014. (Gideon Markowicz/Flash90)

“We won!” the group said in a statement. “This is a dramatic and exciting day, in which Israel at long last strides toward the family of the world’s most advanced nations when it comes to LGBT rights. We’re delighted that after 10 years [of legal petitions], the High Court made the courageous and correct decision, which delivered economic and social justice for tens of thousands of LGBT couples. There is still a long way to go to complete equality, but as of today we can all establish beautiful families — just like everyone else.”

The statement added: “Now we have to make sure the next government passes a new, equal law.”

Blue and White party chairman Benny Gantz welcomed the ruling, saying in a statement, “The time has come to actually amend the surrogacy bill, rather than just talking about it. A Blue and White-led government is the only one that would amend the bill and ensure equality. Netanyahu has led the government for a decade and, as usual, has not kept his promises.”

Gantz made the statement in a Facebook video with Blue and White MK Eitan Ginzburg, the former mayor of Ra’anana who is openly gay and fathered children via surrogacy overseas.

Likud lawmaker Justice Minister Amir Ohana, who is also openly gay, welcomed the decision but lamented the court’s assertion it could overturn the law.

“I’m happy with the content of the ruling — but the decision needs to be made in the Knesset, and I’ll act to ensure that that happens. Obviously I support surrogacy access for same-sex couples with all my heart. Israel has the opportunity to be a pioneer, alongside the United States and Canada, in allowing everyone the freedom to have a family,” he said.

Protesters for LGBT rights march on Tel Aviv’s Ayalon freeway, July 22, 2018 (Tomer Neuberg/Flash90)

Israel’s largest gay rights umbrella group, Aguda, also welcomed the decision, hailing it as a “historic victory for the gay community.”

“This historic decision is another incredible milestone in our fight for equal rights,” it said.

The final ruling Thursday leaves the current restrictions intact for up to a year, setting a deadline of March 1, 2021, for the Knesset to change the law, and noting that the court would only step in and strike down the surrogacy limitations if the Knesset fails to do so.

The majority view by Hayut, Melcer, Amit and Hendel explained that the year-long delay was necessary because of “the complexity of the legal arrangements dealing with reproduction and fertility, and the fact that the existing arrangement is intended to help individuals who are not able to have children.”

In a minority opinion, Justice Fogelman noted the already lengthy legal proceedings the case has seen and asked that the discriminatory articles be ordered canceled by the end of the 12-month period whether or not the legislature successfully amended the law, in order to avoid a renewal of the legal proceedings if the legislature fails to comply.

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