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Israel: Supreme Court Authorizes Surrogacy Arrangements for Gay Men

On July 11, 2021, Israel’s Supreme Court, sitting as a High Court of Justice in an extended bench of five justices, unanimously accepted a petition to issue an operative remedy in accordance with an earlier decision by the court rendered on February 27, 2020 . The 2020 decision recognized that the surrogacy arrangement provided under the Surrogacy Agreements (Approval of Agreement and Status of Newborn) Law, 5756-1996 (Surrogacy Law) and related provisions under the Egg Donations Law, 5770-2010 were unconstitutional. In its 2020 decision, the court had postponed the issue of an operative remedy for 12 months. The purpose of the postponement was to allow the Knesset (Israel’s parliament) to advance “a detailed, meticulous and holistic arrangement that corresponds with all laws that deal with reproduction and fertility … that would express a commitment to the right to equality and parenthood of single men and same-sex couples.” Viewed as a landmark ruling in favor of LGBT rights , the 2021 decision repealed discriminatory provisions in the Surrogacy and Egg Donations laws effective January 12, 2022. The decision has thus ended an 11-year legal battle against the denial of surrogacy rights to same-sex couples and single men. (HCJ 781/15 Itai Arad-Pinkas v. the Committee for the Approval of Agreements for Surrogacy (decision rendered by Court President Esther Hayut with four justices concurring, July 11, 2021).) The 2021 decision provides the operative remedy the court had postponed for 12 months in its earlier decision . Delaying Implementation of Petitioners’ Human Rights In its July 11, 2021 decision, the court rejected the respondents’ request to further delay the grant of a remedy until December 1, 2021, “to enable the advancement of a legislative solution that would cure the constitutional flaws in the surrogacy arrangement.” Hayut reiterated her preference for a comprehensive legislative framework that would take into consideration issues such as [p]rotection of surrogate women; reducing harm to women who need a surrogate for medical reasons; comprehensive egg donation procedures; and consideration of options such as limiting the amount of payment to the surrogate, regulating an “altruistic surrogacy model,” or restricting the number of children that may be born through a surrogate. The Knesset had been given a stay of more than one year given this complexity but made no real progress in advancing a new arrangement. The petitioners had continued to experience severe harm to their right to equality and to their fundamental right to parenting—a right that Hayut maintained constituted the foundation of the existence of the human race. Noting that the initial petition had been submitted to the court in 2010 and that the petitioners’ case had been delayed multiple times thereafter, Hayut concluded that a continuation of the severe violation of the petitioners’ human rights resulting from the existing surrogacy arrangement could no longer be tolerated. Remedy Hayut ordered the repeal of the definitions in section 1 of the Surrogacy Law that excluded single men and same-sex partners from engaging in surrogacy arrangements. She opined that other provisions of the Surrogacy and the Egg Donations Laws should be interpreted in accordance with the criteria outlined in the 2020 judgment and the presumption that every piece of legislation seeks to promote, not infringe on, human rights. Recognizing the need for adopting criteria and procedures that would facilitate the Committee for the Approval of Surrogacy Agreements’ handling of approval requests, Hayut granted a stay of implementation for an interim period of an additional six months. She ordered that the interim period be excluded from calculations of the maximum age of prospective parents established by the Surrogacy and the Egg Donations Laws to avoid further violation of the basic rights of single men and same-sex couples. Hayut noted that the Knesset could legislate amendments in accordance with the criteria outlined in the 2020 decision any time before the enforcement of its 2021 ruling takes effect on January 12, 2022. She awarded the petitioners legal fees in consideration of the long period that had passed while their petition was being considered.

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