Israel’s Double Game on the Surrogacy Issue

By Irit Rosenblum, Founder and Executive Director of New Family Organization, and an expert on family law and fertility.


The earthquake in Nepal reopened the surrogacy dilemma – whether the right to have children applies to Israeli couples who can’t have children naturally, including same-sex couples, and if so, how much responsibility do the state and society have to enable it to do so?

The Nepalese earthquake illustrates the need to simplify the law, to ease restrictions and to fulfill the public’s needs for surrogacy services instead of making their lives harder. The surrogates who bore the children for Israeli couples in Nepal were Indian women, brought to the country because Nepal does not allow its own citizens to be surrogates. Despite the hardship of high financial costs, the issue of conversion for newborns when they arrive in Israel, and the welfare of the surrogate, surrogacy abroad remains the only option for certain segments of Israeli society wishing to have children. As it stands today, regulatory procedures for surrogacy in Israel and abroad are out of touch with reality.

The current Israeli surrogacy law, officially called “the Law for Carrying Fetuses” only enables a miniscule number of surrogate pregnancies. The Surrogacy Law enables a heterosexual couple to have a child through a surrogate only when proven that they cannot have children naturally and when both partners are younger than 50 years. The surrogate mother must be the same religion as both parents, unmarried, yet has already given birth to child, but did not deliver through caesarian section, together with a number of other restrictions that make few couples able to find a surrogate under the conditions set by the law. Even when the requirements are met, they must appear before an approval committee that does not easily approve surrogacy arrangements. Additionally, surrogacy proceedings overseas can only be carried out following the procedure established by the State’s Attorney, which also has serious flaws.

Legislation that does not accommodate the reality we live in does not serve the public. Reality proves the need to use a surrogate to have children is increasing. Today in Israel, 1 of 4 couples can not have children for reasons of disability, infertility, accidents, illnesses, or partnership that isn’t eligible for surrogacy. These include couples over age 50, interfaith and same-sex couples, alongside tens of thousands of single women and men who want a child but have no partners. The surrogacy law was created to serve citizens who are unable to bring children into the world naturally. Yet, while it helps heterosexual couples, it excludes other groups such as singles, people with disabilities and same-sex couples. The circumstances indicate that the situation will not improve and the law will need to make it easier for people who want very much to have children, but are excluded by the law.

The very people who are in need of a surrogacy law are not being helped. Only a smattering of Israeli couples meet the criteria set by the law, and so, over the last 18 years since it was passed, very few people have benefitted from this law.

The question arises, why did the Israeli legislature pass this law if it is so adverse to the very people who need its support? To be sure, people who can have children naturally have no need for such a law. The answer is simple: the Israeli legislature is playing a double game. On the one hand, it offers a smile and open arms to people interested in surrogacy and projects an image of enlightenment, while at the same time it pacifies opponents by including so many limitations that few people can actually fulfill the requirements and qualify for surrogacy. In this way, the politicians have maintained a clear conscience.

Today, spouses who don’t meet the definition in the law, older couples, interfaith couples, the disabled, singles and same-sex couples who want to bring a child into the world through surrogacy must travel abroad. Unfortunately, the current imbroglio in Nepal is the third crisis I’ve personally been involved in, and it is absolutely scandalous how problematic present-day procedures are for bringing surrogate babies back to Israel. The Israeli Knesset legislated a politically correct law to show how we are enlightened state that devotes itself to the weak. Now there is a law, but it is virtually impossible to meet its requirements. This is the double game.

Improving the situation requires a change of legislation in Israel. This change must reduce the control of the State Attorney’s Office over the process. Currently, the Interior Minister and the State’s Attorney control the regulation and can do as they please, including the authority to prevent newborns born abroad to Israeli parents from entering Israel. The law should establish that an Israeli citizen whose child was born abroad and and was legally registered in the country of birth is the child of an Israeli citizen, the citizen is recognized as the child’s parent, and can bring the baby  to Israel. The requirement to establish paternity after the baby’s birth, while baby and parent are abroad, by sending DNA samples for testing in Israel, delaying the newborn’s entry into Israel, must be eased. Improved legilsation should also require the purchase of health insurance coverage for surrogagate mothers and newborns born abroad.

The law proposed by the former health minister in the previous government to regulate the surrogacy, did not pass, because she was very strict, and threatened to destroy all existing surrogacy arrangements.

Published in Jerusalem Post May, 5 2015


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