Out of consensus / Carl Hoffman , THE JERUSALEM POST Jul. 23, 2009

In recent decades, not only social scientists but lawyers, courts and national governments have had to broaden the definition of "family." New definitions are being crafted to include single parent families, as well as families resulting from same-sex unions, common-law marriages, couples' agreements, adoption, surrogacy and artificial insemination. In this country, lawyers and human rights activists are working to stretch the definition even further, to include families that result from unions of various types of people who are not allowed to marry according to the country's basic law.

Sixty years ago, Yale University anthropologist George Peter Murdock attempted to define the basic universal family unit, common to all human cultures around the world. The most elementary social unit, he said, "consists typically of a married man and woman with their offspring." Murdock coined the term "nuclear family" to describe this unit and said, "The nuclear family is a universal human social grouping. Either as the sole prevailing form of the family or as the basic unit from which more complex familial forms are compounded, it exists as a distinct and strongly functional group in every known human society."

However, from almost the moment his "definitive" declaration was published in 1949, Murdock was forced to lock horns with other anthropologists whose observations suggested that the universal nuclear family was neither "nuclear" nor "universal." Several anthropologists even pointed to the kibbutz, with its iconic children's house and its children being raised by the entire community, as the example par excellence of a culture in which the nuclear family had been dispensed with entirely.

In recent decades, not only social scientists but lawyers, courts and national governments have had to broaden the definition of "family." New definitions are being crafted to include single parent families, as well as families resulting from same-sex unions, common-law marriages, couples' agreements, adoption, surrogacy and artificial insemination. In this country, lawyers and human rights activists are working to stretch the definition even further, to include families that result from unions of various types of people who are not allowed to marry according to the country's basic law.

Perhaps no one is more fully engaged in broadening the definition of "family" here than New Family, a nonprofit organization established in 1998 to advance the legal rights of all forms of "alternative" and "nontraditional" families. Founded and directed by attorney Irit Rosenblum, New Family has pioneered the idea that the ability to have a family is a basic human right. Rosenblum met with Up Front recently to discuss the unique issues facing nontraditional families and New Family's activities.

• Would it be correct to describe New Family as a nonprofit legal aid organization that specializes in family law?

I think I created a new legal field. Because if you're speaking about family law, the first thing that jumps into your mind is divorce… But family law has always been about divorce, something that revokes the unit, cancels the unit. I've created the field of unification, of building a family. And I see it not as family law, but as human rights.

• You also seem to differ from regular family lawyers by defining family more broadly.

Creating a family can come from couplehood or parenthood, or both. The minute you are more than one person, you have a family unit.

The classic, nuclear family is changing. Even though conservative people don't want to see it, the changes are happening. I didn't create them. We [can] either deal with it or to stick our heads in the sand and [ignore] what's happening.

• Is this more of a problem in Israel than in other countries?

We have no constitution. We have what we call the "basic law." There are no provisions for family rights in the basic law. Civil rights are defined, but when they made the basic law, they did not touch family rights. This was because it was simply too complicated, what with all the various sectors of Israeli society – religious, secular, left-wing, right-wing, ultra-Orthodox and so on. They left family issues to the religious sector… Elsewhere in the world, they discovered that this was impossible.

• What made religious control of family issues impossible?

Because you had people who were adults, working and free, and the minute they wanted to choose their partner, they had to go to church. Beginning around 200 years ago, after the French Revolution, people stopped going to church and stopped getting legally married. So the first step was having marriages without going to a church – civil marriage.

But civil marriage didn't solve the problem. Because instead of the church and the clergyman, the interfering authority was now the local government. So then, starting around 50 years ago, people stopped getting civil marriages and stopped legally marrying again. They simply conducted their lives as a family unit with common-law marriage. So the laws were changed, in France and almost all over Europe. I think the last one to change its laws was Italy. As usual, they lagged behind, but at least they're more liberal than Israel. We're the only democracy in the world that has no civil marriage.

• So are you saying that Israel should go through the same process and institute civil marriage, as a first step?

We've already missed the bus. Right now we're moving more and more directly to common-law marriages. As a matter of fact, we're coming back to 2,000 years ago, when family issues were private. This is happening both among the secular and the haredi groups. Why do I say this? Because both groups are, in their own way, doing what they want – dealing with family issues privately, and ignoring the services of the state. We, the Jewish people, created the idea of the private contract between partners. I don't know why here it has become the state's property and the state's power to interfere.

• This didn't seem to bother most Israelis until recently. What do you think happened that began to undermine the status quo?

We sat silently for a long time. But I think people finally began to feel that the state had too much power during the big Russian immigration during the 1990s. More than a million people came here. And many of them soon realized that they were second-class citizens who for one reason or another were not allowed to get married. For the Ethiopians, it was easier because their problem was solved by the rabbinate, which simply converted them all. But for the Russians, the only way that many of them could marry was to go and get married in Cyprus.

First of all, I think it was humiliating for the State of Israel that people had to go to another country to get their civil rights. Who had ever heard of such a thing, being a citizen here and having to buy your rights in Cyprus? Do you know that statistically there are more Israeli marriages in Cyprus than local marriages?

Secondly, it showed that we had to fight to equalize the rights for common-law marriages in marriage law. Since we established New Family in 1998, we stopped the religious courts from investigating people's Jewish status. We achieved this through a High Court verdict in 2004. We equalized the rights of common-law marriages in mortgage benefits, social benefits and National Insurance and economic benefits.

We went to court with specific couples not to change the law, but to broaden the interpretation of the law. That's how we operate. We don't push for new laws. With our unstable political coalitions and governments that change every couple of years, government cannot legislate. So we go through the courts to broaden the interpretation of existing laws.

• Is there any other reason why you would rather interpret existing family laws instead of legislating new ones?

Well, with the general atmosphere shifting rightward and becoming more conservative, any new law would most likely be about legislating Jewish family law. I don't see this as an ordinary state. The problem here, specific to Israel, is that family law is religious law. Civil family law adopts religious law.

• So you are saying that the crux of the problem is that our national family law is Jewish family law?

The world right now is dealing with gay families and one-parent families. Here, we have other family units that are seen to be new and excluded from the norm. Single-parent families, non-Jewish families, foreign worker families, interfaith families, civil marriage families. All over the world, interfaith families are not a problem. Here, they are. We're the world's only Jewish country, and we have so much Jewish family law. This means that 800,000 families are out of consensus here… 42% of the families here fall outside of legal status. That means the state is tolerant of only 58% of the families.

The [only] kind of family the system understands is a man and a woman, Jewish, married according to Halacha and registered in a rabbinical court. If so much as a single part of this formula is different, you're out of consensus. Out of consensus means that you lose civil and human rights.

American Jews don't know, don't realize, that more than half of them would be treated as second-class citizens here… They would suffer if they came here, because they wouldn't be considered Jewish. American Jews really don't understand the problems here. They give money. They support Israel, they see themselves as part of the Jewish nation, but they're not. Because the decisions about that are made in Israel, and the decision right now is to exclude them. And these problems of exclusion come basically from family law controlled by religion.

• You mentioned gay families. Do you envision same-sex marriages getting legal status here?

Again, this is strictly a matter for the courts. Legislators behave as though they have never heard or even thought of the phenomenon. For Knesset members from Shas, for example, being gay is a disease that must be treated and from which people should try to recover. That's the mind-set of much of our Knesset, so it's best not to even go there. All the victories that we have achieved have happened through the interpretation of laws in the courts.

In 2002, I went to court on behalf of two lesbians. We sued the state to confirm their existing common-law marriage. The judge was religious, the lawyer representing the state was haredi, and I came with my lesbians. What kind of a chance did I have? But it was a beginning. We opened the door. And a year after, we had the first legal confirmation of a same-sex wedding contract.

After this, the next step was our being able to confirm same-sex marriage property rights. In 2003 we had a few verdicts in court. The State Attorney's Office agreed to confirm the legal property rights of same-sex marriages. Then came adoption for same-sex couples. This month, for the first time, we won the right to same-sex marriage maternity leave. And step by step, we're getting all of the benefits – everything except actual, legal marriage.

• What lies ahead for family law in the foreseeable future?

The future is a brave new world. Everything we've been talking about up until now is really ancient history. Because now, in our century, we're going to have to deal with something different under the huppa. We might find standing there the adoptive father, the adoptive mother, the biological father or the donor of the sperm, the biological mother or the donor of the egg. Who are the parents? This will be the question for this century.

New Family is the only organization in the world that helps people write a biological will. We already have a biological will "bank" of people who want to donate to a partner, or any partner, so they can have children after their death. This is going to change the world.

We were practically the first organization to succeed in court with this issue. A couple whose son was killed in Gaza in 2002 were granted the right to use his sperm to produce his children… We have a woman who has been fertilized with his sperm, and hopefully the couple will have a grandchild from their late son. I think this is a world precedent.

These are the issues that are going to confront us as a society in the years ahead. We will have different kinds of families and we will have to deal with this philosophically and legally with creative new approaches.