Surrogacy: The Meaning of Parenthood

Once upon a time it was easy to define parenthood. Today, reproductive technology is forcing Israeli courts to re-examine notions of parenthood in ways only imagined by the likes of Aldous Huxley in Brave New World. Over the last years Israeli courts have heard a plethora of cases challenging Israeli surrogacy law. These involve parties which run the gamut of Israeli society and include married couples wanting to hire a surrogate to expand their existing family, single women, single men and gay couples of both genders. I'd like to look at the recent case on Israeli parenthood and the proposed surrogacy bill.

The case of Jane Doe v. the Ministry of Social Affairs and Social Services (LFA 1118/14) compelled the Supreme Court to analyze Israeli parenthood. The Israeli Court was asked by the Petitioner, Jane Doe (a pseudonym used to protect the Petitioner's privacy), to recognize "parenthood by agreement". In that case, Jane Doe entered into a series of agreements for a donor egg and donor sperm to create embryos, which were then implanted into a surrogate mother, her niece. Jane Doe is a single disabled woman and was unable to get pregnant or sustain a pregnancy. The procedure was performed in India, as it does not comply with Israeli law, though the baby was born in Israel. The Petitioner, however, was refused a court order declaring her the baby's parent as she is not related to the baby in any of the ways recognized under Israeli law.

This case started in the Beersheba family court, with that court refusing to declare her the baby's parent and her appeal to the Beersheba District Court was denied. The case reached the Supreme Court with seven Justices presiding. The Justices were sympathetic to the woman's plight and Justice Handel even quoted from the Bible, citing Rachel's cry for children. However, the Court emphatically would not agree to sanction the "production" of a child and denied Jane Doe's petition to be named the baby's parent.

Justice Handel ruled that current Israeli law recognizes four types of parenthood:

1. Genetic parenthood – the child is genetically related to the parent

2. Adoptive parenthood – according to the Israeli law of adoption

3. Relational parenthood – being married/in partnership with the genetic or adoptive parent

4. Physiological parenthood – the recognition of a gestational surrogate's connection if the child isn't wanted by the intended parents.

It is helpful to understand the background to the surrogacy law legislated in 1996. It was one of the first comprehensive surrogacy laws in the world. It covers three main areas: the criteria of application for authorization of a surrogacy agreement, the creation and central role of the statutory Ministry of Health authorization committee and the status of the child. The law was passed to help a very small and specific group of people: married heterosexual couples, in which the woman cannot sustain a pregnancy or the pregnancy would endanger her health. The couples who have been approved for surrogacy have been through many years of failed fertility treatments with multiple miscarriages. Surrogacy is either approved or denied by the statutory committee. Israeli surrogacy wasn't born to create custom babies or to outsource pregnancy.

It is extremely difficult to find a surrogate mother and just as difficult to make a "shidduch". The couple and the surrogate (at least in Israel) must feel a connection and ability to get through this process together. Without this trust the process is not likely to succeed and the surrogate might choose to drop out after the first attempt is made. There is an extensive list of physical, emotional, and mental qualifications that the surrogate must meet to qualify (see table). There is also a long list of qualifications that the intended parent must meet. The surrogate mother is exposing herself to invasive medical procedures, including high levels of hormones, implantation of embryos and pregnancy. It is easy to identify with the longing for a child and to relate to the rights of intended parents. It is just as important to remember that surrogate mothers are mostly single and divorced mothers. They and their children need the protection of the law to preserve their dignity and health, and there is good reason for Israeli law to impose strict supervision on the surrogacy process.

Couples and singles who have not been able to utilize Israeli surrogacy choose foreign surrogacy, which raises a host of moral and legal questions. Until now, there hasn't been any supervision or regulation of Israelis entering into foreign surrogacy, though some of these cases have made headlines, with fathers waiting in India or Nepal for passports so that their newborns could enter Israel with them. These intended fathers have to prove that they are genetically related to the baby born of a foreign surrogate, before the baby is issued an Israeli passport.

A proposed surrogacy bill revamps much of the surrogacy and in particular would regulate foreign surrogacy and expand the pool of intended parents to include single men and women. The proposed Israeli bill and the Israeli courts have given much thought to balancing the rights of intended parents as against the rights of surrogate women. The proposed surrogacy law does not in any way legitimize creating a "custom baby". Instead, the law has expanded the pool of intended parents to include single men and women, but has maintained that there must be a genetic connection to at least one intended parent, which for the moment would keep the notions of Israeli parenthood in line with Justice Handel's definition in the Jane Doe case.

Justice Handel opens the Jane Doe case with an apt description of the complexity of surrogacy:

"This case lies at the crowded intersection where advanced technology, limitations of the individual, the universal longing for a child, the development of Israeli family law in general, and the definition of parenthood in particular." (translation by author)

I have a feeling that this intersection is going to get a lot more crowded over the next years.

Table 1: Criteria for Israeli Surrogate

1. Israeli citizen and resident

2. Unmarried

3. Between the ages of 22 – 38

4. Healthy and no history of pregnancy difficulties

5. Passes a psychological evaluation that she is suitable to be a surrogate (for example, a surrogate who has just gotten divorced or lost her husband is unlikely to be considered psychologically able to be a surrogate)

6. Passes a medical evaluation that she is suitable to be a surrogate

7. Is not the egg donor

8. Is the same religion as the intended mother

9. Has at least one child of her own

Table 2: Proposed Surrogacy Bill and Regulation of Foreign Surrogacy

1. Will allow single men and women to apply for surrogacy

2. Will allow a cousin to act as a surrogate if she meets other criteria

3. Caps payment to Israeli surrogate at NIS 160,000

4. Foreign surrogacy only through recognized Israeli agency

5. Criminal offense to enter into foreign surrogacy unless through Israeli law

6. Contract with foreign surrogate must be in writing

7. The signing of the foreign surrogacy agreement must be PRIOR to any treatments

8. Foreign surrogate must be a resident of the country where the implantation/birth occurs

9. The law of the foreign country must allow surrogacy

10. The child born of foreign surrogacy must be genetically related to the intended parent in order to be allowed to enter Israel