Surrogacy for same-sex couples in Israel – How to register a child born to two fathers?
Surrogacy for same-sex couples in Israel and the 2018 Israeli Surrogacy Law are both a matter of considerable controversy. The law arguably discriminates against single women who cannot conceive without egg donation, and male couples. Neither can become biological parents unless they employ the services of a surrogate mother outside Israel.
Even after the surrogate baby is delivered to the parents, acquiring Israeli citizenship requires a lot of work. Currently, no Israeli legislation regulates the registration of a child who was born by surrogacy to same-sex couples. All precedents of registering someone as having two dads / moms to date are based on Israeli court rulings.
Our law firm specializes in acquiring legal status and citizenship in Israel. This article by attorney Joshua Pex will explain how a child born as a result of a surrogacy procedure can be registered as an Israeli citizen.
Why undergo a surrogacy procedure abroad in the first place?
Israel is not a secular state. Israel if defined in it’s basic laws as a “Jewish and democratic” state. Laws dealing with personal matters often draw heavily from Jewish religious tradition. The relevant legislation regarding surrogacy for same-sex couples in Israel is the Surrogacy Contracts (Approval of Agreement and Status of the Newborn) Law, enacted in 1996. The law was recently amended in July 2018, but still draws much from Rabbinical tradition and input by Ultra-Orthodox parties.
This law makes surrogacy within the borders of Israel possible only for partners who are not of the same sex (“a man and a woman”) or a “single mother” – provided that it is the single mother who contributes the egg, not the surrogate mother. As a result, surrogate parenting in Israel is impossible for male couples, or single mothers whose egg cells are damaged.
The practical solution for those who can not conceive a child in Israel is to find a surrogate mother abroad. There is a certain analogy to same-sex marriages – same sex couples cannot marry in Israel and require a “public marriage certificate” attesting to marriage abroad. The same applies to surrogate parenthood – once the surrogate child of an Israeli citizens is born, the Population Registry registers them as an Israeli citizen.
How to register a child born from a surrogacy procedure to same-sex couples?
The surrogacy procedure itself is complicated, expensive and long. First, a surrogate mother needs to be found and an agreement with her signed. Second, the pregnancy is completed peacefully. Third, the couple travels abroad and returns to Israel with a baby. Fourth, the baby must be registered by the Israeli Population Authority. Unfortunately, Israel still has no legislation properly regulating the registration of children born of a surrogacy for same-sex couples. At present (2019), the Family Court must be approached and asked to order a paternity test . The procedure is similar (but not identical) to a regular registration of paternity for a minor who is a citizen of Israel.
The Family Court orders a DNA test (paternity test) for the child
The Family Court is the only institution in Israel that is authorized to order a paternity test (and the rabbinical courts are not relevant to this specific issue for obvious reasons). We emphasize that the Israeli authorities and institutions do not accept DNA tests carried out without a court order. Anyone who wants to prove his fatherhood through tissue testing is required to do so by means of an Israeli Family Court order.
What about the “other” father? Should he adopt the child?
The second father is registered as the child’s parent in the Population Registry on the basis of the declarative court order. The order is issued after the DNA test result is received, granting parental status to the biological father and their spouse. There is no need for adoption for the purpose of registering paternity in this case. The order is based on the DNA test proving a genetic affinity between the parent whose sperm had impregnated the egg and and the child, and a public certificate that verifies the fatherhood (for example, birth certificate and / or court ruling) from the country where the surrogacy procedure took place.
It should be emphasized that the precedent for registering paternity for a child born in a surrogacy for same-sex couples in Israel is based purely on court rulings and may change if a new amendment to the surrogacy law or other legislation is passed by the Knesset.
As noted by Israeli Supreme Court Vice-President (at the time) Miriam Naor in her ruling on the matter, “Surrogacy procedures abroad are not regulated by any international legislation or convention, in contrast to surrogacy procedures in Israel, which are regulated by law … In view of the extent of surrogacy procedures undertaken abroad, there is a validity to the complaint that the Israeli authorities act in this matter according to a procedure that is not written and is not publicized.” This complaint is from a High Court of Justice case from 2014, but to date there is no written or published procedure according to which the citizens of Israel can register a child born of a surrogacy abroad in a well regulated and explained manner.
Contact our Israeli immigration and paternity registration experts.
Our Israeli law office has offices in Jerusalem and Tel Aviv. We specialize in the field of paternity registration in Israel and abroad. If you need help with arranging a DNA test or paternity registration in Israel, contract us.