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Israel: Family Court Rejects Request to Register Same-Sex Spouse of Biological Parent as a Third Parent or an Additional Guardian

(Nov. 14, 2019) On October 22, 2019, the Lod Central-District Court rejected a request to register a woman as the third parent of her same-sex spouse’s biological children or alternatively appoint her as a guardian of the children in addition to their biological parents. (Family Appeal 52550-10-18 Anonymous v. Anonymous (decision rendered Oct. 22, 2029, by Judge Zvi Weizmann with Judges Varda Plaut and Michal Brent concurring), draft copy available at LGBT & Law, Tel Aviv University Law School (in Hebrew) (all translations by author).)

Circumstances

The spouses (appellants) are Israeli citizens who married in 2013 (presumably outside of Israel where the celebration of same-sex marriages is invalid). On June 25, 2013, the mother and the father signed an “agreement for joint parentage,” which was approved by the Petach Tikva Family Court on December 10, 2013 (the agreement). The agreement referred to the parties as “the parents.” (Judge Weizmann opinion paras. 1–2.)

The parents noted in the agreement that they wished to bring children into the world together and serve as “a mother and a father” to them, while ensuring the children’s well-being. The parents clarified that they did not wish to share a joint household but to have separate family units where, in addition to their joint parenthood, each party would be allowed to maintain spousal relationships with other partners. They further agreed that the mother would have custody during the first two years after a child was born, after which they would jointly share custody. (Para. 3.)

The agreement states that decisions regarding the education, health, and property of the children would be made by the “parents” in consultation with the “mother’s spouse” and in the children’s best interest. Therefore, “[although the mother’s female spouse] is not a party to the agreement, she as well as the father’s partner are present in it in a real way.” (Para 4.)

The parents’ joint children were born in 2014 and 2016 through an IVF procedure. The biological father and mother are registered at the Israel Population Registry as the children’s parents.

Decision

Judge Weizmann noted that although the right to parenthood had been recognized as one of the fundamental rights of a person in Israel, Israeli law does not define the meaning of parenthood. The absence of a definition might have enabled the courts to “fill [the void] with content that corresponded to the temporary changes requiring immediate intervention by providing judicially created remedies even without waiting for the legislature’s say … ” (Para. 14.) These include recognition of spouses as “known to the public as married,” and judicial decrees recognizing parentage of same-sex spouses wishing to raise children jointly. Nevertheless, the judge opined,

[w]e must ensure that solutions such as these be devised with extra caution and according to … conditions that will allow proper oversight and supervision[.] … [T]he primary authority should be given to the legislature to create comprehensive legal solutions for substantive and central issues such as the family unit and allow it to examine in an educated and comprehensive manner the totality of the impact of its determinations and the normative direction it will issue. (Para. 14.)

The issue of the formation of the family unit and the relationship among its members, according to Weizmann, is an issue with very significant social, ethical, and economic consequences. In the absence of a specific difficulty requiring an urgent solution, when the children have their biological parents and can readily recognize the appellant’s presence in their life, there was no need for the Court to step in before the legislature addressed the issue. (Para 16.)

Ultimately the Court rejected the suit, holding that there was no legal basis under Israeli law for recognizing three parents for a minor child. The recognition of a third parent and the appointment of a guardian for a child who has two natural guardians are matters that, given their complexity and their social, moral, and economic implications, need to be decided by the legislature. (Paras. 22, 38.)