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Israel: Gay Couple Recognized as Parents Without Genetic Testing

(Aug. 30, 2016) On August 7, 2016, the Tel Aviv Yafo Family Court recognized for the first time, without genetic testing, the parentage of a child born to a gay couple from a surrogate mother abroad. While determining that the plaintiffs had successfully proved their parentage by other means, the court held that by refusing to use genetic testing the plaintiffs had wasted the court’s time, and therefore they were not eligible for reimbursement for court-related expenses. (File No. 32901-05-14 Anonymous v. the Attorney General (rendered by the Tel Aviv Yafo Family Court on Aug. 7, 2016), Takdin Legal Database (in Hebrew).)

Background

The plaintiffs are gay men who are residents and citizens of Israel. They have maintained a spousal relationship in a joint household for over 12 years and underwent a civil marriage ceremony in Canada in 2007. In May 2008, the couple had a baby girl born via a surrogate mother in the United States. In 2010 they contracted with a fertility clinic in the U.S. state of Connecticut to conceive a second child through a surrogate. Semen was taken from the first plaintiff, fertilized with a donor’s egg, and implanted in a surrogate, in accordance with a surrogacy agreement that had been previously signed between the surrogate, her husband, and the plaintiffs. The pregnancy resulted in the birth of a baby boy. (Id. Part A ¶¶ 1-5.)

Israeli authorities refused to register the plaintiffs as the child’s parents based solely on a decree previously issued by a U.S. court that recognized them as such, in the absence of genetic testing proving a genetic link between the first plaintiff and the child. (Id. Part A ¶¶ 6-7.) The plaintiffs petitioned the Israeli Supreme Court to order the authorities to register the child as the plaintiffs’ son based on the U.S. decree. The Supreme Court rejected their petition and referred the parties back to the family court for further evaluation of additional evidence and determination of the case. (Id. Part A ¶¶ 8-9.)

Supreme Court Decision

On January 28, 2014, an extended bench of seven justices issued a decision in response to petitions filed by the plaintiffs (HCJ 566/11) and by another same-sex couple (HCJ 6569/11). Both couples requested registration of children born from surrogates in the United States as their children, based on U.S.-issued birth certificates and declaratory judgments that had recognized them as parents of their respective children. (HCJ 566/11 & 6569/11 Meged & Tavak Aviram v. Ministry of Interior (decision rendered on Jan. 28, 2014), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew).)

According to Court Deputy President Miriam Naor, who wrote the main decision, in the circumstances of HCJ 566/11 registration was denied because of the absence of genetic testing. Unlike in HCJ 566/11, in the second case results of genetic testing indicating a biological link between the child and one of the petitioners had been submitted. Israeli authorities, however, refused to register the non-genetic parent as the child’s parent in the absence of an adoption decree recognizing parentage. (Id.¶ 1.)

According to Naor, the U.S. decrees recognizing parentage in both cases had been issued based on affidavits by the respective petitioners, surrogates, the surrogates’ husbands, and the physicians who performed the in-vitro fertilization and implantation of the fetuses in the uteruses of the respective surrogates. (Id. ¶¶ 2-3.)

Naor made the following determinations:

HCJ 566/11:

  1. Biological Link as a Basis for Establishment of Legal Status of a Child Born to Surrogates Abroad

The petitioners requested recognition of the child as an Israeli national by birth. Under the conditions enumerated by the Nationality Law 5712-1952, a child of an Israeli national who is born abroad may acquire nationality by birth. (Nationality Law, 5712-1952, § 4(A) (2), SEFER HAHUKIM [BOOK OF LAWS, the official gazette, SH] 1952 No. 95, p. 146, as amended). Such nationality therefore requires proof of a “biological-genetic link” between the Israeli national biological parent and the child born abroad. As surrogacy conducted abroad is not currently regulated under Israeli law, in the absence of a biological link to the child, the surrogacy arrangement by itself cannot serve as a basis for the creation of legal status and does not entitle the child to Israeli nationality. (Id. ¶ 14.)

  1. Genetic Testing

Genetic testing had previously been recognized by the Israeli Supreme Court as an efficient, simple and reliable way to prove biological parentage. A family court judgment recognizing biological parentage based on genetic testing may therefore constitute a “public document” that qualifies as evidence for the purpose of registering and granting the child Israeli nationality. (Id. ¶ 15.)

  1. Other Means of Proving Biological Parentage

Recognizing genetic testing as the main method of proving biological parentage, however, does not exclude other means of proof. According to Naor, the family court is authorized to determine that there exists a “biological link” where “… a substantive hearing on the affidavit of the treating physician was added to the petition, … while examining the quality of the treatment clinic and the medical terminology mentioned in the affidavit, including a cross-examination of the expert, if the state has requested this, would satisfy the family court that there exists a biological link between one of the petitioners and the child. (Id. ¶ 16.)

Naor noted, however, that “…the [petitioners’] refusal to perform a genetic test remains puzzling.” (Id. ¶ 16.)

Naor further stated that although the petitioners’ wish not to know or disclose which of the partners was the biological parent was understandable, such a wish could not negate the need for proof of a biological link of at least one Israeli parent for the purpose of the child’s acquisition of Israeli nationality by birth. While it may be possible to obtain a “blind test” that does not identify the specific parent but that indicates that at least one of the petitioners was a biological parent, this solution does not resolve all problems that may arise. Such problems include a situation where the child needs genetic information for medical purposes. (Id. ¶ 21.) However, a “blind test” is not necessary in either of the current petitions, Naor concluded. This is because in HCJ 566/11 the petitioners themselves knew who gave semen for the in-vitro fertilization, and in HCJ 6569/11 the petitioners conducted genetic testing. (Id.)

HCJ 6569/11:

  1. Registration That Does Not Create Legal Status Does Not Require Proof of Biological Link

Unlike HCJ 566/11, HCJ 6569/11 does not involve recognition of legal status in Israel. The child subject of this petition had already received Israeli nationality by birth based on the biological parentage of one of the petitioners, which had been proven by genetic testing. The petition centers on the registration of the non-biological parent as the child’s other parent. (Id. ¶ 26.)

According to the Population Registry Law 5725-1965 (SH 5725 No. 466 p. 270), registration can be based on presentation of a “public document” or other documents as prescribed by the law. According to Naor, the birth certificate and the court decree presented by the petitioners constitute “public documents,” the presentation of which requires the registering official to register the non-biological parent without the need to present a decree of adoption. The documents would not be sufficient, however, for registration of the biological parent, because such registration would create for the child, rather than reflect, a legal status in Israel, such as that of citizenship. (Id. ¶ 36.)

  1. Judicial Determination on the Status of the Non-Biological Parent

Although a decree from the family court was not necessary in order to obtain registration of the non-biological parent, such a decree may offer real benefit as it may eliminate possible future legal conflicts regarding inheritance, custody, alimony, and other matters. (Id. ¶¶ 33-44.)

Supreme Court Conclusion

Naor rejected petition HCJ 566/11 and directed the petitioners to the family court to prove biological parentage either by genetic testing or other means. After biological parentage is proven, she held, the petitioners may reapply for “receipt of [legal] status for their son in Israel and for their registration as the child’s parents in the population register.” (Id. ¶ 50.) This conclusion was supported by all the justices.

Naor accepted petition HCJ 6569/11, however, insofar as the non-biological parent should be registered as the father of the child in the population register based on the foreign birth certificate and court order that recognized him as the child’s parent. (Id.) This decision was supported by five justices with two dissenting. Justice Amnon Rubinstein opined that registration based on presentation of foreign legal documents, without a determination by an Israeli family court, may be “misleading.” (Id. Rubinstein ¶ J.)  Similarly, Justice Hanan Melcer held that foreign-issued documents cannot constitute a basis for registration in the absence of prior authorization by an Israeli court.  (Id. Melcer ¶¶ 6-7.)

Family Court Decision

The family court decision was rendered on August 7, 2016, by Judge Naftali Shilo. Shilo noted that based on the Supreme Court determination in HCJ 566/11, in special cases it is possible to prove paternity without genetic testing. (File No. 32901-05-14 Anonymous v. the Attorney General, supra, Hearing and Determination ¶ 1.) According to Shilo, the plaintiffs submitted numerous legal and medical documents to prove the child’s genetic link to the first plaintiff. These included a surrogacy agreement, a U.S. court decree recognizing the plaintiffs’ parentage of the child, confirmation of their involvement in the fertilization procedures conducted by the clinic, medical records, blood test results, and the surrogate’s ultrasound test results. (Id. ¶ 2.)

Evidence Needed to Prove Parentage

Although the best and strongest evidence under the circumstances was undoubtedly genetic testing, Shilo noted, as a general rule the Israeli legal system does not require presentation of the best possible evidence. (Id. ¶¶ 5-6.) Shilo determined that the plaintiffs met the burden of proof needed to prove that the first plaintiff was the biological father of the child. As indicated by the medical expert in the case, the chance that plaintiff No. 1 was not the child’s parent was only about one percent. According to Shilo, even if it was only 60%, such evidence would be sufficient for a civil procedure. (Id. ¶¶ 10-11.)

 Court Fees

While accepting their request for recognition of parentage, Shilo rejected the plaintiffs’ request for compensation for their trial expenses. He held that the delay in the procedures and the costs associated with bringing to Israel twice the head of the U.S. clinic and recruitment of a court-appointed medical expert were all necessitated by the plaintiffs’ refusal to resolve the matter in a direct and inexpensive way of genetic testing. The plaintiffs’ request for payment of expenses was therefore denied. (Id. ¶ 6.)