The government asked the High Court of Justice to fix the surrogacy law on Tuesday, after failing again to fix the law itself. 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 in March nine more months to do so, 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 LGBTQ+ activist who has in the past served as chairman of the Aguda – Israel’s LGBTQ Task Force.
In a letter to Attorney-General Avichai Mandelblit on Tuesday, Health Minister Nitzan 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.
“Surrogacy discrimination must end now, whether in the High Court or in the Knesset, and it would have been nice if it happened earlier,” the Aguda said in response to the state’s update. “We expect this to be the opening shot for additional LGBTQ+ rights that the government has pledged to promote.”
“After about 12 years, we have reached a stage where even the state is already hinting to the High Court to redeem it from... discrimination in surrogacy and to create equality on its own,” Pinkas and Association of Israeli Gay Fathers chairman Oz Parvin, the plaintiffs in the suit, said on Tuesday evening.
“We are waiting and hope that Chief Justice [Esther] Hayut and her colleagues will make this decision soon in the coming days, in accordance with their decision in the case from a year and a half ago,” they said. “It is time that it be clear to everyone that an LGBTQ+ family – and also a single-parent family of a mother or father – are all families.”
THE COURT issued a partial ruling more than 16 months ago on February 27, stating that the current formation 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 through the law.
The judges felt that parts of the law were important for protecting the rights of surrogate mothers and decided that the Knesset should be given the opportunity to amend the law instead of the court making the adjustment itself.
They therefore issued a deadline of 12 months after the ruling – for March 1, 2021. By that date, the Knesset was required to provide a notice on whether the constitutional defects had been remedied. But the law has not undergone any changes during that period.
The High Court ruled last year that after the deadline passed, the petitioners would have 30 days to respond to the government’s statement, and then the court would issue a final judgment. Hayut stressed in the partial ruling last year that the court had two options on how to remedy the situation, but that neither one was optimal.
The first option is for the court to “read into the law,” which would allow it to remove the unconstitutional parts without needing to repeal it. This would allow it to apply to all population groups and in all cases in accordance with its current wording.
This option would be difficult to carry out because it would require several changes in two pieces of legislation and may require reference to measures to protect the purpose of the law, such as setting a maximum price for surrogacy and the possibility of altruistic surrogacy, which could affect the fabric of the law.
The second option is for the court to annul the unconstitutional parts of the law, but that would also require relatively extensive use of judicial legislation to supplement the deficiencies that it would cause.