Thursday, February 27, 2020, the Supreme Court ruled that the surrogacy arrangement set out in the Embryo Carriage Act and the provisions of the Egg Donation Law, which prevent single men and same-sex couples from using surrogacy, disproportionately infringes upon the right to equality and the right everyone to parent, therefore deeming it unconstitutional.
President of the Supreme Court Esther Hayut, Vice President Hanan Meltzer, Judge Neil Handel, and Judge Yitzhak Amit ruled that if the legislature does not correct discrimination against same-sex men and spouses in the surrogacy arrangement within 12 months (up to 1.3.2021), the Supreme Court will provide operative relief by “reading into the law” an equitable arrangement or by repealing discriminatory law provisions.
Readers may remember that in July 2018 a second and third reading of the Embryo Carriage Act passed, which extended the circle of surrogate eligibility under the Agreements Act, so that the definition of “designated parents” in the law now includes women who are not able to give birth because of a medical problem, and pregnancy would be extremely dangerous to their health. The definition of “designated parents” has not been expanded in a way that allows same-sex couples and single men to take advantage of surrogacy.
Justice Minister MK Amir Ohana (Likud) wrote:
“Needless to say, I support with all my heart the freedom of surrogacy for same-sex couples. Israel has the opportunity to be one of the pioneers on this issue, alongside the US and Canada, which allows everyone the freedom to start families. Therefore, I submitted a reservation in this spirit and voted for it even when it was contrary to coalition discipline, and for that reason I voted against the discriminatory surrogacy law put forward by the Minister of Health (again, against the coalition). I have never voted against any pro-LGBTQ bill, and in fact I am the MK from the coalition who voted most often against the coalition line, always on LGBTQ issues. Therefore, in principle, I’m happy with the Bagatz ruling – which supports exactly the issues that I believe in. But I also have to stay true to my principles: those who are supposed to make the value-based decisions in democracy are the public through elected officials, that is – the Knesset. I haven’t read the verdict yet, but from what I’ve read about it, it seems that the right thing to do is to continue promoting the law that I submitted, which I also will support in the next Knesset, so this time it will pass – whether it is a Bagatz ruling or from the knesset, it is the right and just thing to do, and I will act in accordance with this.”
Blue and White Chairman MK Benny Gantz said:
“It is time to amend the surrogacy law equitably and stop talking about it. Only a Blue and White government will amend the law and make it equitable. Netanyahu has had a decade in power and as usual does not fulfill his promises“.
MK Yael German (Blue and White) wrote:
“Congratulations to Itai Finks, Yoav, and the proud fathers for the historic victory in the Bagatz. Bagatz recognized the principle of justice and equality for gay couples, now the Israeli government and the Knesset must pass the surrogacy law, which I tried to pass in the 19th and 20th Knesset. The decision to allow same-sex couples to bring children into the world through surrogacy is yet another proof of the Supreme Court’s centrality to democratic life and the war on equality in Israel”.
MK Eitan Ginsburg, (blue and white):
“The High Court ruling is a big victory for the LGBTQ community which will end the discrimination we have experienced for years and will preserve the fundamental right to family. But it’s still too early to rejoice. If Likud wins, the law is unlikely to pass. Netanyahu’s governments repeatedly opposed equality in the surrogacy law, the proud community needs to know that there is an alternative. Blue and white will make sure to amend the law and promote full LGBTQ equality in Israel”.
MK Itzik Shmuli said in response to the decision:
“I welcome the historic and obviously correct decision of the Supreme Court that the right to parenthood is a natural right and that the exclusion of LGBT community is unconstitutional and unfair. I intend to re-submit my bill to amend the Surrogacy Law, that for 25 years made it so that many people could not be happy. We will fix this discrimination”.
Meretz Chairman MK Nitzan Horowitz said:
“In the next government we will turn the High Court ruling into reality on the ground. The court decision is a triumph for our Proud community and anyone who believes in a free, equitable and sane state. I respect the court that finally does justice after years of discrimination led by the government. If we do not maintain the independent status of the court there will be no more such just rulings”.