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Israel: Court Rejects Request for Recognition of Contract-Based Parenthood

(Apr. 15, 2015) On April 1, 2015, Israel’s Supreme Court, in a unanimous decision by an extended bench of seven justices, rejected a petition by an unmarried woman with a muscle atrophy disease to adopt a child born to a surrogate mother. The child was born in Israel from a donated sperm and a donated egg that had been fertilized and transplanted in the surrogate, the petitioner’s niece, in India prior to the niece’s return to Israel to carry her pregnancy to term. (Request for Family Appeal No. 1118/14 Anonymous v. Ministry of Welfare and Social Services, STATE OF ISRAEL: THE JUDICIAL AUTHORITY (Apr. 1, 2015) (in Hebrew).)

The petitioner chose to engage in this complex transaction in view of her inability as an unmarried woman to adopt a child under Israel’s Adoption of Children Law, 5741-1981 (SEFER HAHUKIM (BOOK OF LAWS, the official gazette) 5741 Issue No. 1028, p. 293, as amended). This Law authorizes adoption only for married couples, subject to two exceptions. An unmarried person may adopt a child who has been previously born to or adopted by his/her spouse or a child whose parents are deceased relatives of the adoptee. (Id. § 3.) The Israeli Center for Person with Disabilities joined the petition, claiming that the petitioner’s inability to have a child reflects a common problem among people with disabilities, who are prevented under Israeli law from being parents. (Request for Family Appeal No. 1118/14, ¶ 3.)

In rejecting the petition, Justice Neal Hendel determined that the law applicable to the circumstances of the case was Israeli and not Indian law. (Id. ¶¶ 5-6.) Israeli law, according to Hendel, recognizes parenthood on the basis of four types of ties: genetic, physiological, legal (adoption processed under the Adoption Law); and derivative (based on a spousal or family relationship with the child’s parent). Hendel determined that the petitioner did not qualify as having any of these links. (Id. ¶¶ 7-9.)

Justice Hendel further rejected the petitioner’s claim that, in the absence of the express recognition of a contractual relationship among the parenthood ties recognized by the Israeli legislature, the type of parenthood alleged to exist in this case would have to be recognized by a court based on a judicial decree. (Id. ¶ 26) According to Justice Hendel, given the complexity of the circumstances of the case, the important status of parenthood in society, and the potential broader implications of a ruling on the matter, it would be improper to provide a judicial instead of a statutory response to the questions raised. The recognition of parenthood under the circumstances of the case, he decided, may impact social norms and requires that possible abuses such as child trafficking be addressed. The Justice concluded that such recognition, therefore, should not be left to private, unsupervised initiatives; rather, it needs to be dealt with by a legislative solution. (Id.)