High Court
High Court Yonatan Sindel/Flash 90

The High Court of Justice on Thursday ruled that the provisions of the law that prevent single men and same-sex couples from using surrogacy, disproportionately infringe on the right to equality and parenthood of these groups, and are unconstitutional.

High Court Supreme Justice Esther Hayut and Judges Hanan Meltzer, Neil Handel and Yitzhak Amit have ruled that since the legislature will amend the discriminatory provisions for single men and same-sex couples in the surrogacy law within 12 months, by March 1, 2021, the court will provide equitable relief by 'reading into the law' equitable arrangement or by repealing the discriminatory law provisions.

Justice Uzi Fogelman wrote a minority opinion that the discriminatory clauses in the law should be suspended, so that it will take effect if the law is not amended at the end of the 12 months from the date of the judgment, given the magnitude of the damages and the ;length and continuation of the proceedings so far.

The court insisted that reducing the right of access in Israel to the surrogacy arrangement in a way that would deprive populations of single men and same-sex couples even though they could have a genetic connection to the child, violates the constitutional rights to equality and parenting.

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."

The court added that other methods could be found to fulfill the purpose of the law, including protecting the dignity and well-being of surrogate women, in a way that would not discriminate against single men and same-sex couples. The judges ruled that the law's violation of the right to parenthood and the right to equality is significant and damaging, and that the benefits of the law are marginal.

Given the complexity of the legal arrangement that deals with reproduction and surgery, and given that the existing arrangement is designed to better the situation of individuals who can never have children, the court gave the legislature a year's time to amend the law.