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Nepal quake gives birth to hopes for Israeli surrogacy reform

Experts see opening for Knesset, rabbinical court to reexamine law which forces homosexual couples to seek carriers for babies abroad

Renee Ghert-Zand is a reporter and feature writer for The Times of Israel.

Interior Minister Gilad Erdan (2nd R) and Director General of Magen David Adom Eli Bin (3rd R) greet parents carrying their newborn babies as they arrive in Israel from Kathmandu, April 27, 2015. (MDA)
Interior Minister Gilad Erdan (2nd R) and Director General of Magen David Adom Eli Bin (3rd R) greet parents carrying their newborn babies as they arrive in Israel from Kathmandu, April 27, 2015. (MDA)

Legal and religious experts working with Israeli couples having children by surrogacy in foreign countries hope that Saturday’s devastating earthquake in Nepal will move Israel to reexamine its surrogacy laws.

Israeli rescue teams were in the process of retrieving 26 babies born to surrogates in Nepal from the ravaged country. The babies and their prospective Israeli parents had been waiting in Kathmandu for DNA test results that would have confirmed their parenthood and granted the adults permission to bring the babies home with them.

In addition, the Justice Ministry has cleared the way for surrogate mothers in Nepal carrying babies for Israeli couples — these are Indian nationals — to be brought from Nepal to Israel as soon as possible. Most of the surrogates are in advanced stages of pregnancy.

The 7.8-magnitude quake that has left 4,438 confirmed dead — as of Tuesday afternoon — and 8,000 injured also severely damaged Nepal’s medical infrastructure, putting the pregnant surrogates and the babies they are carrying at serious risk.

A Magen David Adom paramedic holding a newborn baby born to a surrogate mother in Nepal, on Tuesday, April 28 2015. (Photo credit: Courtesy Magen David Adom)
A Magen David Adom paramedic holding a newborn baby born to a surrogate mother in Nepal, on Tuesday, April 28 2015. (Photo credit: Courtesy Magen David Adom)

“I am certainly hoping that the Nepal earthquake will encourage Israel to take another look at its approach to surrogacy, to look at it with an eye to the moral and social issues of today,” said Rabbi Seth Farber, founder of ITIM, an organization that helps people navigate the byzantine depths of the religious authorities’ bureaucracy in Israel.

Attorney Victoria Gelfand specializes in foreign surrogacy. (photo credit: Lev Marcovitz)
Attorney Victoria Gelfand specializes in foreign surrogacy. (photo credit: Lev Marcovitz)

Israel’s first surrogacy law came on the books in 1996, and it has not been amended since then. Only heterosexual couples are legally able to use surrogacy in Israel, and there are many restrictions on who can serve as a surrogate. While straight couples must go through an onerous committee process in order to qualify for surrogacy, homosexual couples are left completely out of the system. Consequently, they must look to foreign surrogacy as a means of producing a child biologically related to one member of the couple.

According to Victoria Gelfand, a Tel Aviv attorney who specializes in foreign surrogacy, there are few countries in which gay couples can pursue the surrogacy option. Currently, only the United States, Nepal and Mexico are options. India used to be a possibility, but it recently decided to stop issuing visas to homosexual couples. As a result, many of them have turned to neighboring Nepal.

‘I am certainly hoping that the Nepal earthquake will encourage Israel to take another look at its approach to surrogacy, to look at it with an eye to the moral and social issues of today’

(It should be noted that the South Asian surrogates, who are paid the life-changing sum of $5,000-$10,000 for their services, are gestational surrogates only. Israeli gay couples usually use donor eggs from European or South African women.)

The costs involved drive the couples — both gay and straight— to choose South Asian countries. Surrogacy costs around $40,000 in those countries, as opposed to $150,000 in the US, where only 10 percent of foreign surrogate births for Israeli couples took place in 2013. Heterosexual couples also have the choice of Georgia or Ukraine, where the bill runs somewhere in the middle, around $65,000.

Farber would like the government to revisit the recommendations of the Mor-Yosef Committee, tasked in 2010 with examining public policy options relating to fertility and childbirth. In December 2013, Health Minister Yael German announced that she would put forth legislation based on the committee’s recommendations to open up the opportunity to use surrogate mothers for singles and homosexual couples.

But last year, a bill based on the recommendations failed to make it past a first reading in the Knesset. The bill also aimed to provide stronger regulation and more supervision of the foreign surrogacy process so as to avoid the type of problems Israelis have run into in the past when trying to leave various countries with children born by surrogates.

A welcome reception held for gay fathers returning from Thailand, where local surrogate women gave birth to their babies.  February 20, 2014. (photo credit: Gideon Markowicz/FLASH90)
A welcome reception held for gay fathers returning from Thailand, where local surrogate women gave birth to their babies. February 20, 2014. (photo credit: Gideon Markowicz/FLASH90)

Farber, who said he is empathetic to those in the homosexual community who want to bring children into the world, acknowledges that this still may be problematic for some people.

“However, even those who have an issue with gay surrogacy need to realize that two-thirds of surrogacy births are for heterosexual families,” he said.

Gelfand backed up that assertion with statistics from 2013. In that year, Israelis had 227 births (either a singleton or multiples) by surrogacy. Of those, 58 took place in Israel, and by law were to heterosexual couples. There were 169 surrogate births abroad, and of those, 82 were for heterosexual couples.

As an attorney, Gelfand approaches the surrogacy issue from a legal angle. As a rabbi, Farber is more concerned about the application of halacha, Jewish law, in surrogacy cases. Both, however, would like to see a more open approach to the subject.

Rabbi Seth Farber, founder of ITIM. (photo credit: Courtesy)
Rabbi Seth Farber, founder of ITIM. (photo credit: Courtesy)

“People in Israel are still not open-minded about surrogacy,” said Gelfand. She hopes that an eventual loosening of the restrictions on who can serve as a surrogate will bring more women to consider serving as one.

Farber would like to see the rabbinical courts take a more sensitive approach regarding the Jewish status of children born by surrogacy. Currently, all children born by surrogacy — even those who were conceived using an egg from a Jewish woman — must undergo conversion.

Farber thinks that in the cases where the egg was from a Jewish woman, the conversion should just be procedural. Where it concerns other children born by surrogacy (such as virtually all foreign surrogacies using donor eggs), he believes there is justification for individualizing the conversion standards.

“We call on the rabbinical court to come up with a solution that is more user-friendly,” he said. “We should congratulate these families, not make things more difficult for them.”

Gelfand is somewhat skeptical that the Nepal earthquake will quickly revive the proposed bill from 2014, which she believes is unfortunate given that she predicts that embryo transfers for surrogate births in Nepal will stop for the next months, as prospective Israeli parents wait to see how the situation there develops.

By contrast, Farber thinks the quake could serve as a wake-up call — if only the coalition negotiations would be over.

“If there were a government, they’d be hearing about this already,” he said.

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