What is a Judicial Parenting Order?
A judicial parenting order (referred to hereinafter as: “the order”), is an order issued by the Family Court (referred to here as: “the court”). The order addresses the plight of those function, for all intents and purposes, as parents to children to whom they have no biological relationship. This order is given, among others, to same-sex couples who want to become parents and start a family, and to parents after a surrogacy process, etc. The judicial parentings order is a product of the court’s rulings, as non-biological parents not by virtue of adoption have not yet been properly addressed by Knesset legislation.
What is a Judicial Parenting Order?
When same-sex couples decide to expand their family unit, they are required to undertake extra steps. A couple that consists of two men usually turns to surrogacy abroad, whereas a couple that consists of two women will require a sperm donation or in-vitro fertilization.
At the end of the difficult and arduous process, only one member of the couple will be the biological parent; in a male couple, the one who donated the sperm, in a female couple, the one who carried the fetus in her womb.
This begs the question, what is the status of the other spouse parent? Both parties began the process together as a couple wishing to become parents, so how would the rights over the child of the second, non-biological, parent be arranged?
The Different Ways of Determining Parenthood
Until a few years ago, in order to become a parent with rights and obligations for a child, one of the following conditions had to be met:
- Genetic linkl; the parents provide the sperm and ovum from which the child is formed. This link is valid even for surrogate pregnancy.
- Biological link – the mother who carried the child in her womb
- Receipt of an Adoption Order – in accordance with the Adoption Act, 1981.
In the last decade, concerns regarding overseas surrogacy and the parenthood of same-sex couples became prevalent. It was deemed necessary to address the parenthood of a spouse as a biological parent, and more. For example, in the case of separation between same-sex couples, the splitting up of a family when the child is still at a young age, and being raised by a new spouse, the court is also required to recognize the other parent as the father/mother.
The Judicial Parenting Order is Introduced
In Doron Mamet Maged v. Minister of the Interior, 2013, it was ruled that there is a fourth way to register as a parent in the Population Registry and receive the rights of a parent. This path involves obtaining a “judicial parenting order” from the court:
- Link to link – by virtue of being a spouse of the parent that has a genetic link to the child.
In the same judgment, the Attorney General’s position was given regarding the conditions for obtaining the order:
- Both members of the couple must be at least 21
- Both members of the couple must be residents of Israel
- A parenting agreement was signed between the couple before the birth took place
- The application for an order was submitted within 90 days of the birth
- Declaration of the applicant (spouse applying for the order), that they were never convicted of sexual/violent offenses
The court has full discretion regarding whether or not to grant the request for an order. It can choose to grant an order even when all the conditions listed above have not been met.
The Differences between an Adoption Order and a Judicial Parenting Order
One of the ways for the non-biological spouse to register as a parent and obtain child rights is to obtain an Adoption Order. However, obtaining a Judicial Parenting Order is a much faster and more convenient process.
- Judicial Parenting Order
Can be given immediately after birth if an application is submitted, even without the need for a review by the welfare services. Even when a review is required, the court can set a time for its preparation.
The order does not require registration in any registry. There is no difference in registration between the non-biological and the biological parent.
- Adoption Order
There is a waiting period of about six months after the birth until one can begin the process for obtaining an order. The spouse is required to contact the welfare services for a survey (which is mandatory), the welfare services are not limited in time.
The child will be registered as adopted.
Is a judicial parenting order constitutive or declaratory?
The application for an order is submitted to the court after the birth. The question that arises is, is the order “constitutive”? That is, is it valid from the date that it is issued and onwards, or is the order “declaratory”? Does order constitutes a declaration of parenthood? If so, it applies retroactively from the date it was given, to the date of birth of the child.
The Supreme Court (Ploni v. Attorney General) ruled that as a rule, the order is “constitutive”. However, there may be cases where the order will be “declaratory” and will apply retroactively to the date of birth. The main consideration is to determine what is in “the best interests of the child”.
Joint parenting and a Judicial Parenting Order
Another way for same-sex couples to become parents and expand the family unit is through “joint parenting“, which involves cases where one member of the couple gives birth to a child with another person of the opposite sex, with the desire for the spouse of the biological parent to also function as the parent of the child.
It is important to note that, as a rule, Israeli law does not recognize the parenthood of more than two functioning biological parents, and in such cases no judicial parenting order will be issued (AN v. DM). However, there are exceptions.
Interested in obtaining a Judicial Parenting Order? Our Law offices are at your service
At our Law offices, you will meet lawyers who specialize in family law, who are also qualified as mediators. Our lawyers will help you formulate an application for the provision of a judicial parenting order and will accompany you through the various processes until it is received.
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