Denied the Right to be a Mother: Israeli Surrogacy Law

In Genesis, Rachel cries for the plight of infertile women, saying: “Give me children – otherwise I am  dead.” Justice Barkai, of the Beer Sheva District Court, quoted Rachel’s cry for children in her eloquent and moving denial of the appellant’s petition (Family Court Appeal 59993-07-13) to be recognized as the mother of a baby, born of a complex surrogacy process.

The baby was born, in Israel, on Jan 14, 2013, to a surrogate mother, after undergoing a surrogacy implantation process at an IVF clinic in India, 9 months earlier. The appellant suffers from muscular dystrophy and was unable to carry a baby or provide eggs. The egg came from an unknown South African donor, while the sperm was donated by an Israeli married friend of the appellant. The surrogate was a family member of the appellant and also had no genetic relationship to the baby.

The precedental question before the Court was whether a woman can be declared the legal mother of a baby, based on her “production” of a surrogacy birth and deep desire to be a mother, despite the lack of genetic relationship to the child, and without any basis in Israeli law to support this mode of parenthood.

Attorneys for the Appellant argued on a number of levels including the application of Indian law to the case, since the implantation was performed in India. They also argued that the appellant was being denied her constitutional right to motherhood under the Israeli Basic Law of Human Dignity and Freedom. She finally asked the court to decide in her favor based on principles of justice, equality and compassion for her situation.

Unfortunately, despite the clear compassion of the Court for the Appellant’s plight the Court said that this is one of those cases that challenge the court in the face of technological advance that the law has yet to catch up with. First, the court found that the Israeli guardianship law applies to the status of the baby, as the baby was born in Israel and was intended to be raised in Israel, meaning the baby’s domicile is Israel (Section 77 of the Guardianship Law). This means that Israeli law in general, and not Indian law, would be applied to the case.

Israeli law recognizes three forms of parenthood: biological/genetic parenthood, via an adoption order, via a parenthood order under the narrow constraints of Israel current surrogacy law, in which there MUST be a genetic connection to one of the intended parents.

Since the Israeli surrogacy law is quite narrow and can only afford relief to a small number of married couples, who meet the criteria, some Israelis opt for foreign surrogacy. While it is legal to embark on a foreign surrogacy process, currently Israeli law determines the status of the child born of a foreign surrogacy process according to the tests of Israeli parenthood; namely a genetic connection is required. In May 2012, a comprehensive report prepared by the Mor Committee made some reccomendations as regards foreign surrogacy. Although the committee recognized the problem of foreign countries allowing parenthood based solely on surrogacy agreements and the consent of those parties that the intended parents become the parent/s, Israeli law DOES NOT recognize parenthood based on surrogacy arrangements alone and the committee found that even with a foreign surrogacy, there should be a genetic connection to the parent.

According to the Beer Sheva District Court, it is not for the Court to expand the modes of parenthood under Israeli law to include “parenthood via contract/consent”. Only the Israeli Knesset can do that. The Court found that while the positive right to become a parent is a basic right (constitutional right) under Israeli law, the Supreme Court is divided as to whether the right to adopt children and become parents via adoption is even an Israeli basic right. Even if that right to adopt were a basic right, the Court found that the right to become a parent via “contract” is not necessarily a basic right, and even if it were, a person’s constitutional right can be denied if it meets the criteria of Section 8 of the Israeli Basic Law. The Court found that in this situation the criteria of Section 8 are met.

This decision was given a over a year after the baby was born. In January 2013, immediately after the baby was born, the court issued an order that the Israeli adoption law will apply to this baby and within days, the baby was placed with a family. The case does not provide any further specifics about the baby.

It was hard to read this case without feeling the appellant’s pain, but I wondered what if any legal advice she had received before embarking on this painful and uncertain path. Maybe she was told that the legal situation was not in her favor, but felt that she must try to change her destiny. It is heartbreaking,  but I don’t think the court could have decided differently under current Israeli law.