Case Number

HCJ 781/15

Date Decided

8-3-2017

Decision Type

Original

Document Type

Full Opinion

Abstract

This petition seeks to increase access to the surrogacy process in Israel, which is in major part regulated in the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996 (hereinafter: Agreements Law), such that it will also apply to single-sex couples and to single people, either with or without a genetic link to the newborn. On July 17, 2017, the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017, passed its first reading in the Knesset. Under this Bill, the circle of women eligible for the surrogacy process in Israel would be extended to include single women who are suffering from a medical problem due to which the process is necessary, on condition that the genetic link between the prospective mother and the newborn is preserved. According to Respondent 1, in view of the introduction of the Bill, the petition does not establish cause for judicial intervention. According to the Petitioners, there is no justification for waiting for an additional, lengthy period to allow for the progress of the legislative process. They emphasize that the Bill does not provide a solution for the Petitioners – single-sex couples and single men (Petitioners 1-4). Petitioner 5-6 are single women who, due to medical problems, are not able to carry a pregnancy nor to donate their own ova for fertilization and implantation in the womb of a surrogate. These Petitioners object to the requirement for a genetic link in the surrogacy process.

The High Court of Justice (per Deputy President S. Joubran, Justices H. Melcer, President M. Naor, Deputy President (emer.) E. Rubinstein and Justice E. Hayut concurring) ruled:

The petition with respect to the requirement for a genetic link is denied. As for expanding the scope of the circle of those eligible for surrogacy to single men and to male couples, this issue must remain without a final decision at present, due to pending legislation and in light of the principle of mutual respect between the branches of government.

The position of the High Court is that the passage of the Bill in a first reading and its being sent for preparation for its second and third reading has created a new situation that justifies granting the legislature a certain grace period to complete the legislative process with respect to extending access to surrogacy in Israel to family units that are not presently included, prior to deciding on the merits of the entire petition. This position stems from the judicial restraint that is required in sensitive matters such as this, and because implementation of such a decision at this time would raise difficulties.

In this context, the High Court of Justice is of the opinion that there is nothing wrong in the actual advancement of legislative initiatives as a response to or in connection with proceedings being conducted in the Court – as long as the motives are relevant and proper. The Court also believes, inter alia, that it must act with caution in postponing its decision on a pending petition due to a legislative initiative. There may be circumstances in which it is not appropriate to adopt this course, whether because the postponement is likely to cause serious harm to the petitioners or to allow a wrong that requires immediate correction to remain unaddressed, or whether because the chances of the legislative initiative actually changing the normative framework are slim. The position of the High Court is that the guiding considerations in this matter are similar to those on the basis of which ripeness is examined in constitutional law. A decision on the matter of this cause should be made by balancing the benefits of adjudicating the matter before the Court in another forum (in this case – the legislature), against the anticipated harm to the petitioners due to allowing the existing normative situation to remain unchanged.

In the circumstances of the case, the High Court is of the opinion that the Respondents should notify the Court of the progress of the legislation within six months. If the legislative process in the Knesset is not completed within a reasonable time, the subject will be revisited by the Court, which will deliberate and decide on it as it sees fit.

At the same time, the Court is of the opinion that it is already possible to decide on the part of the petition that concerns the argument of Petitioners 5-6 (hereinafter: the Petitioners) that surrogacy should be permitted without the existence of a genetic link between the prospective parent or prospective parents and the newborn. In this context the Court ruled that the requirement of the Israeli Law for a genetic link in the surrogacy process is not discriminatory, but is based on relevant, practical considerations. The main reason for this position is the recognition (in Israel and in the Western world) of the importance of a genetic link between parents and children in general, and the importance of this link in the surrogacy process in particular.

As opposed to this, there is merit to the Petitioners’ argument that the requirement for a genetic link breaches their right to become parents. The Court’s position is that the scope of the right to become a parent extends to all the various medical techniques that assist reproduction, including the possibility of becoming a parent by way of surrogacy.

However, the Court held that this violation complies with the conditions of the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty. Therefore, a partial judgment was handed down rejecting the arguments with respect to striking down the requirement for a genetic link in the surrogacy process.

Nevertheless, the opinion of the Court is that the present regulation of surrogacy gives rise to fundamental difficulties that are not insignificant, and the various opinions presented considerations that the legislature should take into account in preparing the Bill for its second and third readings. The Court also explained that a decision on the issue of the requirement for a genetic link does not, of course, prevent the legislature from considering this matter, like any other matter, in the framework of the pending legislative process.

Inter alia, Deputy President Joubran was of the opinion that a legislative arrangement that grants a constitutional right to one group, but excludes another group due to its identity, its preferences, its orientation or way of life, is an arrangement that appears to be discriminatory, which is hard to accept. Such unfounded preference turns its back on the value of human dignity, which is guaranteed under the Basic Laws of the State of Israel, and the principle of equality that derives from it. In addition, the distinction between heterosexual parenthood and single-sex parenthood lacks any basis in academic research that has investigated the well-being of the child. Deputy President Joubran also found it difficult to identify any relevant reason for the distinction between single women and single men with respect to realization of the right to become a parent. Those who will be deciding the fate of this weighty matter should consider this point.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Judicial Review, Constitutional Law -- Parenthood, Family Law -- Surrogacy

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