In a few days, the High Court of Justice is expected to hand down a ruling as to whether single fathers and same sex couples can be included in Israel’s Surrogacy Law. The deadline was set in a partial ruling in a suit filed by Etai Pinkas, an LGBTQ+ activist who in the past served as chairman of the Aguda – Israel’s LGBTQ Task Force.
The state’s current policy allows adoption by same-sex couples, but raises a number of hurdles that cause substantial delays and awkward transition periods, during which adopted children reside with their Israeli adoptive homosexual parents, but the parents lack full rights until obtaining an additional court order.
In a landmark decision last year, five Supreme Court justices ruled that the current policy was discriminatory and needed to be changed, and gave the Knesset 12 months to fix the existing legislation.
Ahead of the court’s ruling last year, Attorney-General Avichai Mandelblit objected, saying gay adoption should only be final after a court decision, which should only come after the relevant ministries weigh in to consider what is in the best interest of the particular child, as well as reviewing any disputed claims over the child.
Mandelblit’s office emphasized the need to balance keeping pace with the world’s progressive trend on this matter with the complex policy and social considerations the issue has in Israel, where the Knesset still has not passed clear legislation to deal with it.
When the court convenes – expected to take place in the coming days – it will face two options. The first, as Tzvi Joffre wrote in Friday’s Jerusalem Post, will be for the court to “read into the law,” which would allow it to remove the unconstitutional parts without needing to repeal it in its entirety.
This would allow the law to apply to all population groups and in all cases, in accordance with its current wording.
The second option would require greater judicial interference and lead the court to annul the entire Surrogacy Law as it exists today in Israel.
“The Israeli government violated the High Court ruling by failing to amend the Surrogacy Law in the past year,” said Ohad Hizki, Director-General of the Aguda.
“It is not our fault that the Israeli governments have failed time and again to eliminate discrimination against the LGBTQ+ community,” he said.
“The time has come for the High Court to grant the necessary relief and end the farce of discrimination in surrogacy,” Hizki said. “Everyone deserves the right to start a family, and we will continue to fight for it in surrogacy, adoption, parenting and marriage.”
Solving this issue is important for Israel to ensure that it does not discriminate against people due to their sexual orientation.
It is also important to highlight since it is an example of government incompetence. Back in 2018, Prime Minister Benjamin Netanyahu stated that he would support a bill to allow same-sex couples to adopt children through surrogacy.
At the time, however, his haredi (ultra-Orthodox) coalition partners threatened to topple the government if such a bill was passed. As a result, it never was. That is what led to the petition that was filed and ruled on last February.
Supporters of Netanyahu as well as other members of the right-wing camp often attack the court for what they refer to as “gross intervention” in the legislation process. They attack the justices when they overturn laws and claim that doing so undermines the legislature.
We don’t know what the court will decide. But when it makes its decision, these politicians have only themselves to blame. They were given a year to amend the law but failed to do so due to political considerations that have nothing to do with equal rights or other tenets of a liberal democracy.
While same-sex couples should be afforded the same rights as others to adopt children and should not face discrimination if and when they decide to do so, we should also make sure not to attack the court when its decision comes down.
If the government won’t pass legislation then this is the court’s role – to uphold values of equality in Israel and ensure that there is no discrimination against someone because of their religion, gender, sexual preference or race.