A gay couple from Tel Aviv has petitioned Israel’s high court for the right to have a baby through a surrogate mother, an option now open only to heterosexual couples. The request by Tel Aviv spouses Etai Pinkas and Yoav Arad comes as the gay community in Israel is experiencing a small-scale baby boom.
In February some 2,000 people attended the four-day inaugural conference of Keshet (Rainbow) Families Foundation, an organization that provides support services and hosts events that are geared toward gay parents.
“While 20 years ago we received the right to be gay, and in the ’90s we were focused on basic legal rights for gay couples, in the last decade our attention turned to the right to become parents,” Keshet chairman Yossi Berg told the Forward.
Berg and other gay activists estimate that between 50 and 100 openly gay Israeli men are raising their biological children. Many have done so together with a partner who has gone through adoption proceedings to become the second legal parent.
Since the early 1990s, women — regardless of their marital status — have been eligible for state-funded fertility treatments. So while there have been plenty of lesbians raising children, there were almost no openly gay men fathering children until about five years ago.
Then, a handful of gay male couples tried surrogacy; others followed. Their sperm fertilized donated eggs, which were then carried in America by American surrogates. An Israeli law that has been on the books since 1996 and empowers the Health Ministry to approve requests for surrogacy on a case-by-case basis specifies that it is permitted only for “a man and a woman who are a couple.”
But the American option is expensive — costing up to $150,000. For Tel Aviv couple Doron Mamet and his partner, Doron Gidony, the process cost $140,000.
After the birth in America of their daughter, Talia, almost two years ago, Mamet, who had become familiar with the concept of delegating work overseas during his years in the technology sector, started a business to facilitate the “outsourcing” of surrogacy to India — cutting in half the costs involved with it.
He established a company, Tammuz, which offers to use sperm donated in Israel, for IVF in North America, using a locally donated egg, in order to create an embryo that is carried by a woman in India.
Tammuz, which has 50 clients to date, almost all of them gay Israeli men, is thought to be the first company to work in this way. “I feel it works for both sides,” Mamet told the Forward, referring to the $8,000 payment that his Indian surrogates receive.
Pinkas and Arad are currently trying for a baby with Tammuz, but they have their reservations about taking an international route. “We think that the right thing is to do it in Israel, not in India or [the] States. It’s not just a matter of how much. I grew up here, and want my child to be born here,” said Pinkas, who chairs the Tel Aviv LGBT Community Center and serves as the Tel Aviv mayor’s adviser on gay, lesbian, bisexual and transgender matters.
In addition to the emotional desire for his child to be born in Israel, Pinkas cites practical reasons. He considers Israeli technology and medical procedures to be more advanced than in other places. And he wants to have contact with the surrogate and wants a surrogacy arrangement that is more personal than either of the international options allows.
Pinkas is also keen on having his child be considered Jewish. Different authorities on Jewish law take different positions on whether the egg donor or the birth mother must be Jewish for a child to be Jewish, but the options currently on the table mean that neither is, while an all-Israeli surrogacy could mean that both would be Jewish.
Pinkas and Arad approached the Health Ministry last year, asking it to allow them the option of surrogacy. As expected, the request was denied. The ministry’s legal adviser, Mira Hibner-Harel, told the Forward that because the law specifies that surrogacy is for male-female couples, it had no choice but to refuse the request. But Hibner-Harel said that the couple was informed that this could change, as a Health Ministry committee is currently engaged in one-year-plus review of all laws related to fertility treatments.
The two men decided to take their petition to the high court. Their lawyer, Dori Spivak, deputy director of the law clinic programs at Tel Aviv University, said he hopes that it could prove a relatively simple case of interpreting the law.
In 2002, Spivak successfully convinced the high court that gay partners should have the same rights to inherit each other’s property after death as straight couples do, even though the 1964 inheritance law referred to male-female partners. His argument was that the wording of the law reflected social norms at the time, and did not intentionally exclude gay and lesbian couples. “If you cannot see any clear attempt in the [1996 surrogacy] law to not afford gay people surrogacy rights, I hope that could be enough,” Spivak said.
If this does not convince the court, he plans to argue that the existing law clashes with guarantees of equality in the 1992 Basic Law on Human Dignity and Liberty.
The government, submitting its initial response to the court at the end of March, indicated that it may be open to the idea of gay surrogacy, writing that social, cultural and scientific changes are “undermining the basic assumptions that prevailed regarding what a family is” and that the Health Ministry should review laws related to the modern family accordingly. However, it claimed that if there is to be a change in the law on surrogacy, it should come about by a decision of the Knesset, not the court.
Aside from resistance in some circles to their becoming parents, members of Israel’s gay and lesbian community said they are generally enthusiastic about the rights afforded to them. There is public funding for gay communal life — for example, the local municipality bankrolls Tel Aviv’s GLBT community center. Same-sex couples who wed abroad are registered as married couples in Israel, and same-sex couples who adopt children abroad can have those children registered as Israeli citizens while the couples are identified as the parents. “Perhaps this is the last law in Israel where there is discrimination between gays and non-gays,” Spivak said.
Contact Nathan Jeffay at email@example.com