Impact: Addressing discrimination in Israel’s surrogacy law

The challenge

Surrogacy allows individuals to have children with a genetic link to at least one of the prospective parents. For some, it provides an important route to realising their dreams of family, but what happens when the law denies particular groups access to this medical treatment?

In Israel, surrogacy has been legal for 25 years. Prospective parents can only enter into a contract with a surrogate and undergo the procedure if they receive the approval of a special committee in the Ministry of Health. Yet, only heterosexual couples are eligible to apply for approval. Single individuals and same-sex couples have, so far, been excluded.

What we did

Dr Haim Abraham first turned his thoughts to Israel’s surrogacy policies in 2011, while still an undergraduate at The Hebrew University of Jerusalem.

In 2013, Dr Abraham organised the Surrogacy in Israel conference, attracting a significant audience of parliamentarians, academics, campaigners, surrogates and intended parents, with the aim of facilitating legal reform.

In the same year, he presented his initial findings to the Minister of Health, and the Israel Parliament Public Petitions Committee, providing oral testimony and written evidence that influenced a Draft Bill for the amendment of the surrogacy laws.

In 2017, he published Parenting, Surrogacy and The State, the first academic paper to establish that the current law in Israel systematically discriminates against single and same-sex couples.

Looking at the history of petitions to the country’s Supreme Court, Dr Abraham was able to identify discrimination based on sexual orientation, family status and gender, and to show how the law should be changed.

In Israel, political opposition has traditionally made it hard to realise LGTBQ+ rights through legislation. Dr Abraham looked instead to constitutional law: “Israel doesn't have a constitution per se, but it does have Basic Laws, which are codified and interpreted in a way that gives them the ability to be bulwarks against certain types of abuses of rights.”

The discrimination identified by Dr Abraham infringes the right to family life and access to medical treatment, and fails to meet the constitutional norms of necessity and proportionality.

“In the context of surrogacy, the relevant Basic Law is Human Dignity and Liberty. Under this law, the courts have interpreted that there is a right to equality and that means there are certain things that the legislator has to do, and certain things that it can't do.

“There are proportionality requirements that any law that comes into conflict with the basic law has to meet. The benefit of the law must outweigh it costs and in this case I could show that it does not.”

Dr Abraham’s research also looked at social developments regarding parenting and surrogacy in Israel, and the legislative history of Israel’s surrogacy laws, their operation, and interpretation by the court for over 20 years. It further revealed a clear bias against non-traditional family structures and a perception that only women have an inherent right to parenthood. It called for legal reform to end discrimination in access to surrogacy treatments.

What we achieved

Dr Abraham’s paper has helped to promote a reform of Israel’s surrogacy laws that will put to an end the current discrimination against single and same-sex couples.

His paper has so far been cited in three seminal rulings at the Israel Supreme Court, the country’s highest court:

• In 2014, Justice Rubenstein cited the paper’s argument that a positive social attitude towards single and same-sex families had developed, and acknowledged the critiques developed in the paper regarding the discrimination of the current legal regime.
• In 2017, Deputy Chief Justice Joubran and Deputy Chief Justice (retired) Rubenstein both reaffirmed the argument that social attitudes towards surrogacy treatments and single and same-sex families had changed, making them much more acceptable and uncontroversial.
• In 2020, Chief Justice Hayut referred to the historical account of Israel’s surrogacy laws provided by Dr Abraham. More significantly, the Supreme Court ruled, for the first time, that Israel’s surrogacy laws disproportionately discriminate against single individuals and same-sex couples, based on sexual orientation, family status, or gender. The court held that the legislature must amend the surrogacy laws within a year, or that it will hold that the language of the existing legislation includes single individuals and same-sex couples as those who can undergo surrogacy treatments. Dr Abraham’s analysis of the existing surrogacy laws and the steps required to remedy the existing discrimination were echoed in the Supreme Court’s ruling.

The latest of these rulings has been celebrated as a significant achievement of the LGBTQ+ community in Israel in recent years. It ends nearly 30 years of clear discrimination in access to medical treatment and resources, and further entrenches the equality of the LGBTQ+ community.