13 Jul 2021 Israel Supreme Court Legalizes Surrogacy for Gay Men

The government of Israel must end its ban on surrogacy for gay men and single men within six months, the nation’s top court ruled on July 11. The ruling follows a years-long campaign by LGBTQ and reproductive rights activists to give Israeli same-sex couples and single people the equal rights to parent and build families in Israel.

In the decision, Supreme Court President Esther Hayut wrote that Israel must expand existing laws so that “the expression ‘intended parents,’ which appears in the law on [surrogacy] agreements, can be interpreted to refer to heterosexual couples, same-sex couples, single women and single men”; and so that the “recipient” of the egg can be interpreted as either a male or female recipient, as reported by Haaretz.

‘Gay-Friendly’ Israeli Policies Fall Short of Reproductive Equality

Because marriage in Israel is considered a religious institution rather than a civil one, many people are restricted from marrying, including people of different faiths. As we wrote in July 2018, “[w]hile the LGBT civil rights movement in the U.S. and much of the world focused in recent years on legalizing same-sex marriage, in Israel the push has been for equal parentage rights for LGBT people.”

Israel initially banned surrogacy in 1988. In 1995 an Israeli couple, who could not conceive due to the wife’s cervical cancer, successfully challenged the ban, leading to the formation of a commission to study the issue. The commission’s official report recommended that surrogacy be legalized. A short time later, the Israeli Supreme Court overturned the surrogacy ban, forcing the Knesset, Israel’s legislature, to enact a new law.

The new law allowed surrogacy in Israel, but only under tight restrictions: the surrogate must be unmarried, unrelated to either intended parent and of the same religious faith. Use of donor eggs or sperm was prohibited. And surrogacy was available only to married couples—completely excluding single or LGBTQ intended parents.

In 2010, a male same-sex couple petitioned the court to overturn restrictions preventing them from using surrogacy to create a family, The Washington Post reports, but were unsuccessful. In 2015, supported by LGBTQ advocacy groups, they petitioned again.

In July 2018, the Knesset passed a new surrogacy law that extended eligibility for surrogacy to single women. However, an amendment that would have extended eligibility to single men and LGBTQ intended parents was defeated, after then-Prime Minister Benjamin Netanyahu pulled his support in the face of ultra-Orthodox opposition.

The country was rocked with protests, tying up traffic and sparring with police in a daylong, nationwide strike widely supported by companies and organizations. In a show of support, rainbow lights and the Star of David were projected on Tel Aviv’s city hall, The New York Times reported.

In February 2020, Israel’s high court ruled that banning LGBTQ intended parents from participating in surrogacy “disproportionately harmed the right to equality and the right to parenthood of these groups and [is] illegal.” But it gave Israeli lawmakers a year to draft and pass a new, inclusive law, with a deadline of March 2021.

Religious Conservatives Block Surrogacy Law Reform

Following the court’s February 2020 decision, ultra-Orthodox lawmakers blocked legislative attempts to expand surrogacy access. Members of the country’s new governing coalition, formed just a month ago in an alliance between conservative and progressive factions and holding a very slim majority, fundamentally disagree on LGBTQ and reproductive rights.

The legislative deadline was later extended to September 2021. But earlier this month, the government informed the court it was “unfeasible” to pass a new law in the current political environment and asked the court to rule.

In its decision, the court wrote that “[a]s it has been determined that the [current] arrangement is unconstitutional, 'a lack of political feasibility' cannot justify the connotation of severe harm to basic rights.”

Israel, considered a bastion of LGBTQ acceptance in the Mideast, is typical of many Western countries still grappling with conservative resistance to LGBTQ equality. LGBTQ people serve openly and proudly in Israel’s military and in elected office, and Tel Aviv is known as a mecca of LGBTQ tourism. But religious conservative factions continue to hold enormous political power and are stridently opposed to any form of LGBTQ equality. That opposition has centered on the rights of LGBTQ people to become parents.

As we wrote, LGBTQ activists sued the government in 2017 over Israel’s discriminatory adoption policies, which historically gave priority to heterosexual couples. As a result, between 2008 and 2017, of 550 same-sex couples who applied to adopt, only three succeeded—compared to more than a thousand heterosexual couples allowed to adopt during the same period, according to The Jewish Journal.

With this week’s ruling, giving gay men and single men another option to become parents, the Middle East and the world have a new role model for LGBTQ equality and reproductive rights for everyone.