Supreme Court strikes down legislation barring LGBT surrogacy

“The Supreme Court has yet again demonstrated that it wants to wipe Jewish tradition out.”

Y Rabinovitz ,

Supreme Court
Supreme Court
Hezki Baruch

The Supreme Court ruled on Sunday that within six months, legal restrictions which exclude single men and same-sex couples from filing for a surrogacy arrangement must be repealed.

“For over a year, the state has done nothing to promote appropriate legislative amendment, and therefore the court has ruled that the continuing serious violation of human rights caused as a result of the existing surrogacy arrangement cannot be remedied and operative relief must be granted to petitioners,” the Court ruling states.

Last year, a partial Supreme Court ruling established that the current laws regarding surrogacy are unconstitutional, and granted the government a twelve-month period to advance an amendment that “expresses a commitment to the right to equality and parenthood of single men and same-sex couples.”

The judges unanimously decided that “the sweeping exclusion of the category of homosexual men from the primacy of the surrogacy is presumed to be a 'suspicious' discrimination, which attributes inferior status to this group, thereby imposing further severe degradation of human dignity on the basis of gender or sexual orientation.”

At the conclusion of the twelve-month period allotted, the government requested an extension, given the complexity of the issue – which was granted. However, last week, the government informed the Supreme Court that given the political situation, there is currently no practical possibility of advancing a Surrogacy Law to the Court’s satisfaction.

In a letter to the court, the State requested that the Supreme Court rule on the matter in accordance with an attached statement on the Health Minister’s stance.

In his statement, Health Minister Nitzan Horowitz (head of the extreme left-wing Meretz party who is openly gay) wrote that he has no objection to allowing the Court to rule on the issue and “express the State’s obligation to the rights of equality and parenthood for single men and same-sex couples.”

Upon learning of the Court's ruling, Horowitz said: "I am delighted to announce that the Health Ministry will be implementing the decision of the Supreme Court according to the letter of the law. This is an historic day - an extremely joyful day."

The stance of Prime Minister Bennett (who has yet to make a public statement on Sunday’s ruling) can possibly be inferred from his party’s political platform in 2019, as expressed by his number two on the list of the New Right party (which he then headed). Interviewed in the run-up to elections, Ayelet Shaked (now Interior Minister) expressed her party’s support for surrogacy for LGBT individuals:

“Surrogacy for LGBTQ individuals will be possible, but in an altruistic fashion. Meaning, if a couple has a friend who wants to do them a personal favor, that will be allowed. That’s our stance.”

Altruistic surrogacy has remained illegal until now, out of concern that “well-meaning” women could be pressured into “doing a favor for a friend” and in order to prevent it becoming a backdoor to exploitation of economically vulnerable women.

Responding to Sunday’s Supreme Court decision were MKs from across the political spectrum.

Foreign Minister Yair Lapid stated: “Becoming a parent is a basic human right. This was an appropriate and ethical decision.”

Blue & White party head and Defense Minister Benny Gantz stated: “Today’s Supreme Court decision states the obvious – that every person, man or woman, straight or LGBT, has equal rights. This amendment anchors the obvious in law. Blue & White will continue to advance draft legislation by MK Eytan Ginzburg that will legislate equality for surrogacy for all citizens while protecting human rights in the process.”

Also responding were opposition MKs from UTJ, Shas, and Religious Zionism.

“The judges of the Supreme Court have revealed themselves to be an additional ‘party’ in the coalition of Bennett-Liberman-Kariv-Lapid,” MK Yaakov Litzman, head of the United Torah Judaism party said. “They are endangering the future of the Jewish People and destroying the Jewish character of the State of Israel and severing its connection with Jewish tradition.”

Religious Zionism party head MK Bezalel Smotrich also condemned the Court’s decision. “This government, together with the Supreme Court, has set itself the goal of destroying everything Jewish about the State of Israel. For thousands of years we have survived despite attempts to destroy Judaism, and we will also survive Lapid, Liberman, and Bennett. I have no doubt that women’s organizations will fight against this Supreme Court ruling that permits trading in woman for surrogacy purposes.”

Shas party head Aryeh Deri echoed his sentiments, saying: “The Supreme Court’s decision strikes yet another severe blow to the Jewish identity of the State of Israel. A majority of the Jewish People wants to maintain Jewish tradition and Jewish family values. The Supreme Court has yet again demonstrated that it wants to wipe Jewish tradition out.”