Case Number
CA 10280/01
Date Decided
1-10-2005
Decision Type
Appellate
Document Type
Full Opinion
Abstract
Facts: The appellants are two women who live together in a single-sex relationship. The appellants gave birth to two children and one child respectively, by means of anonymous sperm donations. They are raising the three children jointly. The appellants applied to the Family Court for adoption orders, so that each of the appellants could adopt the other’s children. The applications were dismissed in limine by the Family Court and, on appeal, by the District Court (by majority opinion), on the grounds that the appellants were not competent to adopt under the provisions of the Adoption of Children Law. The appellants applied to the Supreme Court for leave to file a further appeal, and leave was granted.
Held: (Majority opinion — President Barak and Justices Cheshin, Türkel, Beinisch, Rivlin, Grunis and Naor) The appellants should each be regarded as competent to adopt the children of the other, in the capacity as single adopters, within the framework of s. 3(2) of the Adoption of Children Law; the conditions of this section can be relaxed by virtue of s. 25 of the law, if the adoption is in the best interests of the adoptee and there are special circumstances. An individual rather than a principled approach should be adopted, so that the applications are not dismissed in limine but are considered on the facts of the specific case. Since the facts of the case were not examined by the Family Court (which denied the applications in limine), the case should be returned to the Family Court to consider whether the adoptions sought are in the best interests of the adoptees and whether there are special circumstances that justified making the adoption orders.
The majority justices rejected the argument that recognizing the competence of the appellants to adopt in the specific circumstances of this case implies a recognition of a new status of single-sex couples. The question of the appellants’ status does not arise in this case. The case only concerns the question of adoption, which focuses on the children.
(Minority opinion — Vice-President Emeritus Mazza) Recognizing a possibility of granting the requested adoptions cannot but constitute a normative recognition of the existence of a single-sex family unit, which is a matter for the legislator to decide.
(Minority opinion — Justice Levy) The interpretation proposed by the majority opinion makes s. 25 of the law, which was intended only for exceptional cases, into a means that allows many persons, who could not otherwise adopt, to become competent to adopt. This is contrary to the purpose of the section, which was only intended to apply to cases that are not addressed by the provisions of s. 3, and therefore this interpretation should be rejected.
Keywords
Family Law -- Adoption
Recommended Citation
Barak, Aharon; Naor, Miriam; Rivlin, Eliezer; Cheshin, Mishael; Beinisch, Dorit; Grunis, Asher; Turkel, Jacob; Mazza, Eliahu; and Levy, Edmond E., "Yaros-Hakak v. Attorney General" (2005). Translated Opinions. 401.
https://larc.cardozo.yu.edu/iscp-opinions/401
