Top court rules for gay parents in birth certificate fight

Interior Ministry had refused to record two adoptive fathers as parents in son’s birth record; ruling could influence separate appeals brought by lesbian and transgender parents

Thousands protest in support of the right of LGBT couples to adopt children at a demonstration in Tel Aviv on July 20, 2017. (Tomer Neuberg/Flash90)
Thousands protest in support of the right of LGBT couples to adopt children at a demonstration in Tel Aviv on July 20, 2017. (Tomer Neuberg/Flash90)

In a victory for same-sex parents, the High Court of Justice ruled on Wednesday that the Interior Ministry cannot refuse to write an adoptive parent’s name on a child’s birth certificate because of the parent’s sex.

The ruling came in an appeal by two gay men who jointly adopted a son. They attempted to procure a birth certificate from the Interior Ministry for the child, but ministry officials refused to write both the men’s names as the boy’s parents on the certificate, the Haaretz daily reported.

The couple, who filed their appeal together with The Aguda – Israel’s LGBT Task Force, a major gay rights advocacy group, argued that the refusal to record both legal guardians in the certificate could hurt both parent and child in the future, as it would make simple administrative and legal actions that required proof of the parent-child relationship more difficult in the case of the unrecorded parent.

The ruling was delivered by a three-judge panel headed by Justice Neal Hendel, who wrote the unanimous opinion, and including justices George Kara and Meni Mazuz.

The judges noted that the case did not only concern the parents’ right to be recognized as parents irrespective of their same-sex relationship, but also, and more importantly, the child’s right to recognition as their child.

Supreme Court Justice Neal Hendel at the Supreme Court in Jerusalem on April 23, 2018. (Yonatan Sindel/Flash90)

“The principle of ‘the good of the child’ argues for the recording of his entire family unit,” Hendel wrote, “and doesn’t permit us to limit ourselves to only one of his parents in the birth certificate…. The contrast with the treatment of a child adopted by a heterosexual couple, who has the right to have both adopted parents written in a birth certificate, is a contrast that applies both to the child and to the parents.”

From a simple administrative perspective, too, Hendel wrote, “it is unreasonable for the couple to be [legally] recognized as parents but for the certificate not to give expression to that fact.”

The court ordered the Interior Ministry to produce a birth certificate with both fathers’ names.

The ruling puts to rest an ongoing dispute between Interior Minister Aryeh Deri, of the conservative Haredi political party Shas, and Attorney General Avichai Mandelblit over the question. Deri has defended his ministry’s refusal in recent months to register same-sex couples on their children’s birth certificates, leading Mandelblit to openly come out against the policy. Once two individuals legally adopt a child, Mandelblit has argued, there are no legal grounds for refusing to register both parents on a birth certificate on account of the parents’ sex or sexual orientation. The policy amounted to illegal discrimination, Mandelblit has told Deri.

Illustrative: The High Court of Justice in session. (Miriam Alster/Flash90)

Wednesday’s ruling is expected to influence two additional cases before the court, Haaretz reported. In one, a lesbian couple is appealing to force the Interior Ministry to have both women listed as parents on a birth certificate, for a child born to one of the women. In the other, a transgender man who was born a woman is asking the court to force the ministry to change his designation in his child’s birth certificate from “mother” to “father.”

“We’re happy that the court reminded the Interior Ministry of something that should have been self-evident — that parents are parents, no matter their sex, sexual orientation or gender,” the couple’s attorneys, Hagai Kalai and Daniella Yaakobi, said in a statement Wednesday.

“The court clarified that this policy of nitpicking, which abridges the rights of LGBT parents for no reason, cannot stand. We can hope that the court’s clear statement will lead the Interior Ministry to reconsider its policy of refusing to register two parents of the same sex in their children’s birth certificate, and refusing to register transgender parents in their children’s birth certificates with their correct gender.”

Hen Arieli, chair of Aguda, said the decision “pulls the rug out from under the state’s strange arguments whenever LGBT parenthood comes up. It’s time to end the illegitimate discrimination against us. We will continue to fight in the streets, in the courts and in the Knesset until we are no longer second-class citizens.”

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