Opening Up the Surrogacy Door in Israel

Heterosexual couples in Israel have had access to surrogacy (at the government’s expense for the most part) for more than a decade, but the existing law on surrogacy prohibits gay male couples from hiring a surrogate mother – even at their own expense. As a result, gay couples that want to raise a child have limited options there. One of them can co-parent with an unmarried woman, either straight or lesbian, or they can wait in a very long line to adopt a child there. An increasing number of gay couples prefer to raise a child that is biologically connected to one of them, without including a third person (i.e. the mother) in their lives over the long term. For these couples, hiring a surrogate outside of Israel – usually in India or the United States – has been their only option. This is a very difficult process, involving significant expense, complex legal procedures, and practical arrangements that are not easy to negotiate. It also raises concern on the part of many of the men that the women (especially those in India) may not be treated fairly or compensated appropriately. Many of these men would greatly prefer to hire a surrogate in Israel, and they would definitely like to benefit from the public health benefits of a government subsidized procedure. They also feel that the government regulations and practices in Israel would provide assurance that the surrogates were being treated properly and fairly.

A gay couple sued the Israeli government a few years ago, claiming that the ban on gay couples using surrogates violated the basic laws of Israel (equivalent to a constitutional claim). At a minimum, argued the couples, the government should reimburse the costs they had incurred of an overseas surrogacy arrangement, if it isn’t going to be allowed in Israel. In a procedural move that is rather unique to Israel, the government responded by commissioning a study of the issue, and in response the petitioners temporarily dismissed their legal claim.

Now, after a few years of consideration, a prestigious committee of lawyers, doctors and government officials has recommended that gay couples be allowed to hire surrogates in Israel. If the recommendation is adopted by the legislature (the Knesset), presumably the process would also be covered by the national health insurance and thus be free to the participants.

However, many more steps must be followed before gay couples can start arranging for hiring surrogates in Israel. A deputy minister must approve the report, and then it will be forwarded to the legislature. Unfortunately, the report’s conclusions are not binding on the Knesset, and if they fail to act promptly to amend the current laws to meet the committee’s recommendation, the petitioners will have to re-file their lawsuit, asking the court to order the legislature to follow the committee’s recommendation.

As frustrating as the process is, there is reason for optimism, however. Many legal observers believe that the court will eventually side with the government committee, and will invalidate the current laws limiting surrogacy to heterosexual couples. If and when the court reaches that conclusion, the government will have no choice but to allow gay couples to use surrogates in Israel, at the government’s expense.

It may take another two or three years before the surrogacy door is fully opened for gay couples – but an important first step has been taken.