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Israel: Exclusion of Single Men and Same-Sex Male Spouses with Genetic Affinity for the Newborn from Surrogacy Agreements Held Unconstitutional

(Mar. 24, 2020) On February 27, 2020, Israel’s Supreme Court, with an extended bench of five justices, unanimously ruled that same-sex couples and single men with genetic affinity for the newborn should have access to surrogacy agreements in Israel. ( HC 781/15 Arad-Pinkas v. Committee for Approval of Surrogacy Agreements , State of Israel: Judicial Authority (all sources in Hebrew unless otherwise noted).)
Background
The petition centers on the constitutionality of restrictions on eligibility to enter surrogacy agreements under the Surrogacy Agreements (Approval of Agreement and Status of Newborn) Law, 5756-1996. Under this law, eligibility is limited to heterosexual spouses and single women who cannot get pregnant or carry a pregnancy for medical reasons, or whose health may be significantly endangered by a pregnancy. ( Surrogacy Agreements (Approval of Agreement and Status of Newborn) Law, 5756-1996 , Sefer HaHukim [SH, Book of Laws] 5756, No. 1775, p. 176, published in Reshumot (official gazette), as amended by Surrogacy Agreements (Amendment No. 2) Law, 5768-1918 , SH 5768, No. 2748, p. 41.)
The petitioners were two same-sex male couples. They argued that the exclusion of gay male couples from eligibility for surrogacy agreements violated their right to family life and parenthood, as well as their right to equal treatment and freedom of contract. (HC 781/15, Court President Justice Esther Hayut’s opinion, para. 11.)
Decision
The Court held that the current Surrogacy Agreements law is unconstitutional because it violates the rights of single men and same-sex male couples to equality and to parenting. Hayut cited the Court’s previous decision that the right to become a parent derives from the right to family life and from the right of every person to dignity, which extends to “the totality of different medical techniques that assist in giving birth, including the possibility of becoming a parent by way of surrogacy.” (Para 15, citing Justice Salim Jubran in an earlier partial decision rendered in this case.) According to Hayut, the right to be a parent is given to any person independent of the person’s gender identity, sexual orientation, whether or not the person lives alone or in partnership with another, and with whom. (Para. 15.) The exclusion of an entire population of men who have a genetic affinity for the newborn violates the right of these men to equality in the exercise of their right to parenthood. (Paras. 19–20.)
Such an exclusion, according to Hayut, also violates the right of the above group of men to dignity in accordance with Basic Law: Human Dignity and Liberty. Under the basic law, harm to a constitutional right that is protected under the basic law could be justified if it was based on a law that corresponded to the values of the State of Israel, served an appropriate purpose, and did not exceed what is required. ( Basic Law: Human Dignity and Liberty § 8, SH 5752, No. 1391, p. 150, as amended (unofficial English translation).)
In Hayut’s opinion the provisions that prevented single men and same-sex male partners from engaging in surrogacy agreements inflicted disproportional harm on these groups’ right to equality and parenting, and therefore did not meet the requirements under the basic law and could not be upheld. (HC 781/15 paras. 25–31.)
Legal Remedy
Hayut, with Justices Hanan Melcer, Neal Handel, and Isaac Amit concurring, held that if the discriminatory provisions were not amended by the Knesset (Israel’s legislature) within 12 months from the date of judgment—that is, by March 1, 2021, the Supreme Court would provide an operative remedy by either reading into the law an equitable arrangement or repealing the discriminatory provisions. Dissenting with regard to the remedy only, Justice Uzi Fogelman stated that he would order the discriminatory provisions void at the time of the judgment but with effect 12 months later to allow the Knesset to complete legislative requirements “in a way that expresses a commitment to the right to equality and parenthood of single men and couples.” (Justice Fogelman’s opinion, para. 44, translation by author.)

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