Within the next six months, same-sex couples and single fathers will be able to undergo the surrogacy process in Israel, after the High Court of Justice ruled on Sunday that it would fix the unconstitutional Surrogacy Law, which has excluded these fathers and couples until now.
The court also ruled that the state would be required to pay NIS 30,000 to the plaintiffs for legal expenses.
The ruling comes after the government asked the High Court to fix the surrogacy law itself last Tuesday, after failing again to fix the law by a set deadline. The court deemed the law unconstitutional nearly a year and a half ago for excluding single men and same-sex couples.
The High Court had ruled last year that the government had until March 1 of this year to fix the law, but the Knesset failed to do so, requesting nine more months in March, stating that it had been too busy dealing with the coronavirus outbreak. The deadline was subsequently extended to July 1 and then to July 6, when the state filed its response.
The original deadline was set in a partial ruling last year in a suit filed by Etai Pinkas, an activist for the lesbian, gay, bisexual and transgender community who has in the past served as chairman of the Aguda – Israel’s LGBTQ Task Force.
In the ruling, Chief Justice Esther Hayut stressed that the first suit on the matter was brought before the court in 2010, over a decade ago, with the current suit filed in 2015. Hayut stated that despite the court giving the state ample opportunity to fix the law, there had been “no substantial progress” to do so.
“In these circumstances, it is not possible to come to terms with the continuing serious violation of human rights caused as a result of the existing surrogacy arrangement, and ‘once a constitutional right has been violated, constitutional relief derived therefrom must be recognized.’”
In response to the claims made by the state in the past about the inability of the Knesset to pass a constitutional version of the law, Hayut stressed that “‘the lack of political feasibility’ could not justify the continued serious violation of basic rights.”
The law will be fixed by deleting the current definition of “intended parents” and having the term interpreted as including same-sex couples and single fathers.
“THIS IS a historic day for the LGBT community in Israel and a historic day for Israeli society as a whole,” said Meretz leader Nitzan Horowitz in a press conference on Sunday afternoon. “The right to equality and the right to parenthood received their rightful place in the critical issue of establishing a family,” he said.
“I am happy to announce as health minister that the Health Ministry will follow the High Court’s ruling to the letter,” Horowitz said.
“We are immediately beginning to prepare so that in the time frame set by the High Court, we will be able to approve, here in Israel in our Health Ministry, surrogacy arrangements in an equal manner to same-sex couples and single fathers,” he said.
“In another six months, we in the Health Ministry will relate to ‘intended parents’ as couples of a man and a woman, same-sex couples, single women and single men. All of these are ‘intended parents’ according to the decision,” Horowitz said.
“An achievement like this gives us strength to continue struggling until we achieve fully equal rights for all LGBT people in all aspects of life.”
Horowitz explained during the press conference that the ministry can act according to the High Court’s ruling without requiring the Knesset to pass any changes to any laws.
“Now this issue is a professional issue within the Health Ministry,” he said. “We will act as the court ordered us to, within the time frame set for us – and we will allow access to surrogacy arrangements, exactly as the court ruled, to every citizen in Israel who will, of course, meet our conditions.”
“ANY PLACE in the law books that discriminates against us, whether it’s the LGBT community or any other group, is a stain on the law books of the State of Israel,” Pinkas said during the press conference. “Any day on which a stain like this is removed is a day of celebration for the state, a holiday for our society.
“The struggle is still sadly not over, of course, when it comes to the LGBT community,” he said, pointing to a number of standing issues, such as conversion therapy, discrimination against transgender people and the inability of lesbian mothers to have their motherhood recognized.
Etai and Yoav Pinkas-Arad, the original plaintiffs in the case, declared victory and expressed hope that thousands of children will be born to loving families due to the ruling.
Horowitz, who is gay, took credit for telling the Supreme Court that the Health Ministry he heads is ready to implement a positive decision. “We will prepare immediately to receive requests from men for surrogacy,” Horowitz said. “We will act responsibly to ensure equality.”
Defense Minister Benny Gantz vowed to pass a bill guaranteeing all citizens the right to have children through surrogacy, which was proposed by Blue and White faction chairman Eitan Ginzburg.
Ginzburg, who adopted children from a surrogate in the United States with his husband, lamented that the Court had to intervene and take a step that should have been done by the Knesset.
“To be a parent is a basic right and there is no reason to prevent me from exercising that right with a surrogate in Israel,” Ginzburg said. “There is no doubt that this is a significant breakthrough on the way to full equality, but we will not concede on guaranteeing this right via legislation.”
RELIGIOUS ZIONIST Party leader Bezalel Smotrich accused the Supreme Court and the new government of acting systematically to harm Judaism in Israel. He said the court only intervened because Horowitz told the judges there was no majority to pass surrogacy for men in the Knesset.
“We survived all those who tried to harm Judaism for thousands of years, and we will survive Lapid, Liberman and Bennett,” Smotrich said. “I have no doubt that the women’s organizations will fight the court’s decision to allow women’s bodies to be sold for surrogacy.”
In a letter to Attorney-General Avichai Mandelblit on Tuesday, Horowitz stressed that six years had passed since the suit first began and the High Court had already unequivocally ruled that the law unconstitutionally discriminates against single fathers and same-sex couples.
Horowitz stated that the Health Ministry “would not oppose” the court issuing a supplementary verdict to provide a solution that would express the state’s commitment to equal rights and the right to raise a family for such people.
The health minister explained that while the court had stated it preferred that the law be fixed by the Knesset, multiple attempts had failed – and he sees “zero chance” of fixing the law in the current government.
Horowitz expressed confidence that, once the High Court issues a decision to fix the law, he could implement guidelines that would ensure that the committee responsible for approving surrogacy cases provides equal rights to single fathers and same-sex couples.
THE PLAINTIFFS in the case welcomed the decision on Sunday, saying “now it’s final. The High Court ruling is a big step towards equality, not only for LGBT people in Israel but equality in Israel in general. The ruling is important to all of us because any arbitrary discrimination is a disgrace to the state.”
The decision “says the thing that the citizens of Israel have long understood: an LGBT family – as well as a single-parent family of a mother or father and other models – are all families. No one has the right to discriminate against parents and deny them access to anything, just because they are not ‘husband and wife,’” they said.
“The place of such primitive laws is in the history books and not in the law book of 2021,” the plaintiffs said. “Over the years, the High Court has exercised extreme restraint toward the state, which since 2010 until today has refused to do the simple, moral and just thing: recognize the blatant discrimination in the law and amend it.
“12 years after we set out, thanks to this ruling, thousands of children will be able to be born, in the arms of their loving families, here in Israel.”
“The High Court ruling is a historic milestone in our struggle for equality,” said Aguda. “High Court judges have been able to make the humane and just decision that the Knesset has had a hard time passing for a decade because of the political veto of extremist parties.
“This tremendous achievement gives us the strength to continue to fight until full equality of rights is achieved for all members of the LGBT community in all areas of life.”
HAVRUTA, an organization for religious LGBT men, welcomed the High Court’s decision on Sunday, stressing that it “puts an end to discrimination against the will of so many people and against such a basic Jewish principle – the establishment of a family and a home.
“God willing, many from our community will come even closer to keeping the commandment of ‘be fruitful and multiply,’” the group said.
The court issued a partial ruling more than 16 months ago on February 27, stating that the current form of the Agreements for the Carriage of Fetuses Law, commonly known as the Surrogacy Law, was discriminatory and violated Basic Law: Human Dignity and Liberty, specifically regarding the right to equality, since single fathers and same-sex couples were unable to carry out the surrogacy process according to the law.
Since the judges felt that parts of the law were important for protecting the rights of surrogate mothers, they decided that the Knesset should be given the opportunity to amend the law instead of the court making the adjustment itself, which led them to give the Knesset a year to fix it.
Over a year and a half after the deadline was issued and no progress was made, the High Court on Sunday made the decision to fix the law itself.
Gil Hoffman contributed to this report.