Case Number
HCJ 1779/99
Date Decided
5-29-2000
Decision Type
Original
Document Type
Full Opinion
Abstract
The First and Second Petitioners (hereinafter: the Petitioners,) two women who have been life partners for seven years, are Israeli citizens. Their permanent residence is in the State of California, in the United States. On January 12, 1996 the Second Petitioner (hereinafter: the mother) gave birth to the Third Petitioner (hereinafter: the son,) after having become pregnant via sperm donation. The son was adopted by the First Petitioner (hereinafter: the adoptive mother,) with the mother’s consent, according to an adoption decree granted by a California court – where the son was born and where the three Petitioners reside. The adoptive mother was registered as an additional parent in the son’s birth certificate. The Petitioners, who wish to return to Israel and who have been staying in Israel for two years for the purposes of study, notified the registrar of the child’s adoption by the adoptive mother, relying on the birth certificate and the American court decision, and asked that the adoption be registered in the Population Registry. The Registrar refused, giving the reason that, biologically, the existence of two parents of the same sex is impossible, and that it has no duty to make registrations that are incorrect on their face. Hence the Petition.
The Supreme Court ruled:
A. 1. The rules of private international law demand, that the personal status of a person be recognized uniformly in all countries. Splitting a status may compromise both the public and the parties’ policy. Only in extraordinary cases, when the foreign status compromises the public policy in the state where the registration is requested, it shall not be recognized.
2. The public policy in the country where the registration is requested – which may be compromised should the requested registration be permitted – has been given a limited interpretation.
3. Not recognizing a foreign adoption decree releases the adoptive parents from their duties toward the adoptees and thus infringes the rights and interests of the children.
4. Therefore, it seems the foreign adoption decree is valid in Israel as long as it has not been voided through a judicial proceeding.
B. 1. According to the case law, the Registrar is not authorized to determine the validity of the registration, but it must register what the citizen instructs it to, unless the “incorrectness of the registration is apparent and unquestionable.”
2. The registration in the case at hand does not reflect the biological aspect but the legal aspect. But it is obvious that any adoptee has two mothers – a biological mother and an adoptive mother – and the adoption decree does not necessarily sever the legal link between the adoptees and their biological parents.
3. Therefore the Respondent’s claim that it may refuse to register because of an apparent incorrectness of the requested registration has no substance.
C. (According to Justice D. Beinisch):
1. The answer as to whether the Third Petitioner’s adoption by the First Petitioner would be recognized as valid in our law has yet to be pronounced upon by this Court, and it raises complex issues, including issues of private international law. However, the resolution of these issues is not in the hands of the Registrar.
2. The Respondent’s claim in the case at hand that the incorrectness of the requested registration is “apparent” due to the impossibility to recognize two mothers for the same child is but a different framing of the argument that an adoption based on a same-sex relationship between the biological parent and the adoptive parent must not be recognized. This position, which is one possible position on the merits of the issue, may not guide the Registrar when coming to exercise its authorities under the Population Registry Law, 5725-1965.
D. (Minority opinion of Justice A. R. Zuabi):
1. Insofar as the registration of parents’ names is concerned, the registration in the Population Registry is prima facie evidence of its correctness, according to section 3 of the Population Registry Law.
2. Therefore, protecting the Registry’s reliability requires granting the Registrar the authority to examine in depth the correctness of the facts requiring registration. Therefore, when a reasonable doubt arises as to the correctness of the registration or its validity, the Registrar may refuse to make the registration.
3. The meaning of the Registrar’s refusal is not that the Registrar is authorized to or capable of examining the validity of foreign judicial decisions or state certificates, and determine their validity. The registrar can only refer the matter to the appropriate court.
4. In the case at hand, a great doubt arises as to the validity of the foreign adoption decree and as to the chances of recognizing it because the Children’s Adoption Law. 5741-1981 seemingly prohibits the adoption of a child by a same-sex couple.
5. As apposed to the act of conducting a marriage ceremony, which is essentially a ceremonial act, a foreign court’s declaration of a minor’s adoption is a meaningful act that changes the status of those involved and impacts their fate and their lives. Therefore, a judicial decision granted in a foreign country that establishes the personal status of one as adopted, has no validity in Israel on its own and in order to be valid must be recognized.
6. Therefore, the Registrar acted reasonably when it refused to register, based on the foreign adoption decree, the First Petitioner as the Third Petitioner’s mother, and there is no room to intervene in its discretion.
Keywords
Family Law -- Adoption, Family Law -- Same sex parenthood, International Law
Recommended Citation
Dorner, Dalia; Beinisch, Dorit; and Zuabi, Abdel Rahman, "Berner-Kadish v. Minister of Interior" (2000). Translated Opinions. 94.
https://larc.cardozo.yu.edu/iscp-opinions/94
