Case Number
HCJ 4293/01
Date Decided
3-24-2009
Decision Type
Original
Document Type
Full Opinion
Abstract
Facts: The institution of intercountry adoption of children in Israel, i.e. the adoption in Israel of children from abroad, is regulated by the Adoption of Children (Amendment no. 2) Law, 5756-1996. By virtue of his authority under this Law, the Minister of Labor and Welfare has issued “Rules and Professional Guidelines for the Operation of a Recognized Non-Profit Organization”, rule 4(b)(1) of which states that a person wishing to adopt a child in the framework of an intercountry adoption will not be deemed eligible to do so if the age difference between himself and the child exceeds 48 years on the date of submission of the application to adopt. According to the petitioners, this maximum age difference rule is unlawful and must be struck down, in that it is incompatible both with fundamental constitutional principles, and with proper administration. Alternatively, the petitioners are asking the Court to order that the rule be amended to the effect that the recognized non-profit organization – the adoption association – is granted discretion to approve eligibility for adoption even when the age difference between the prospective adopter and the child exceeds 48 years, when special circumstances justify so doing; and that it be possible to appeal the decision of an adoption association that refuses to approve an adoption due to the excessive age difference.
The High Court (per President Beinisch, Vice-President Rivlin concurring and Justice Procaccia dissenting), granted the petition in part.
Held: On the constitutional plane, the Court considered the question of whether people seeking to adopt a child had a constitutional right to do so; if so, what were the nature and origins of this right and did the state have a correlative duty to enable realization of such a right. Although the Justices in the majority were of the opinion that no such constitutional right exists, President Beinisch, writing the majority opinion, held that in the circumstances of the case, no ruling was required on this question, and in view of its sensitivity and complexity, it is best left with no firm determination.
On the administrative plane, the Court held that the rule is reasonable and does not discriminate unlawfully against prospective intercountry adopters vis-à-vis other groups such as persons adopting domestically, biological parents and people entering into embryo carrying agreements. Nevertheless, the majority Justices held that the negation of discretion to depart from the rule in special, justified circumstances was not reasonable. This conclusion does not, however, dictate that the private adoption associations be granted discretion in respect of the rule; rather, according to President Beinisch, the correct interpretation of s. 36A of the Adoption of Children Law, 5741-1981, is that the statutory appeals tribunal established by virtue of the Law is authorized to consider requests to depart from the rule in intercountry adoptions, in special circumstances. In this sense, the Court granted the petition in part by recognizing the possibility of departure from the rule. The Court dismissed the concern of the respondent that allowing exceptions to the rule would deflect the focus of attention from the best interests of the child to the interests of the prospective adopters, stating that no major breach of the bounds of the rule was entailed by the existence of a statutory mechanism for considering exceptional cases, and that suitable criteria would be formulated by the appeals tribunal for this purpose.
Keywords
Administrative Law -- Disclosure of information, Administrative Law -- Discretion, Constitutional Law -- Basic Law: Human Dignity and Liberty, Family Law -- Adoption
