Israeli Supreme Court recommends framework for same-sex surrogacy

The Supreme Court of Israel

On Sunday 3 February, Israel's Supreme Court recommended the State clarifies legal procedures for same-sex couples seeking to have a child via surrogacy.  Currently, a legal framework for such couples does not exist.  The Court decided that this lacuna amounted to discrimination.

The Court of seven Judges was considering two cases involving gay male couples asking to be recognised as the parents of children born to surrogate mothers in the United States.

In Judgment, Supreme Court vice-president, Miriam Naor, criticised the current situation as discriminatory against gay couples.  She said:  “the law blocks access of many couples to surrogacy, not only same-sex couples.

 

“They are forced to go abroad because Israeli law does not allow them surrogacy procedure at home.

“These people – who are good and productive citizens – are not given any solutions in the current legislation”.

Responding to the decision, the Israeli State said it would consider the court’s recommendations, and review how to shorten and simplify the surrogacy process.

This might seem all very quaint and an exercise in catch-up when viewed through Western eyes.  However, it ought to be borne in mind that the situation in this country was not so different until recently.

Surrogacy in England and Wales is regulated by the Human Embryology and Fertilisation Act 2008.  Amongst other things, the Act says who may apply for a Parental Order (that is, an order that confirms a child born via surrogacy is the child of the commissioning parents). 

Until April 2010, only heterosexual married couples could seek a Parental Order.

Now, in addition to such couples, civil partners and unmarried couples (whether hetero- or homosexual) living in an “enduring relationship” may ask the court to make a Parental Order.