Surrogacy

By advocating use of technologies such as artificial insemination, in vitro fertilization, egg donation, freezing ova for future use, posthumous sperm retrieval, and surrogacy, New Family offers people new ways to establish their families.

Surrogacy is an arrangement in which a woman agrees to become pregnant and deliver a child for a contracted party. Surrogacy enables infertile heterosexual couples and homosexual men to have children. Medically, two kinds of surrogacy are possible. Traditional surrogacy is not legal in Israel. A traditional surrogate acts as both egg donor and surrogate. Traditional surrogates are impregnated by a process called intrauterine insemination or IUI. A doctor transfers sperm from the intended father into the uterus of the surrogate so that natural conception can take place. In Israel, only gestational surrogacy is legal. A gestational surrogate carries a child that is not genetically related to her. The embryo can be created through the intended mother’s egg and intended father’s sperm using In Vitro Fertilization. If the intended mother’s ova are not viable, the embryo can be created from a donated egg and the intended father’s sperm. It is then transferred to the gestational surrogate, who acts as a human incubator, gestating the fetus and delivering the baby.  A gestational surrogate is not considered the legal mother.

New Family’s attorneys provide expert legal consultation and advice on surrogacy and surrogacy agreements. New Family advises and accompanies singles and couples of all genders and sexual orientations through the legal process of surrogacy. Agreements are prepared following a series of consultations, during which the individuals discuss their wishes and learn about all the potential issues affecting their agreement. Legal consultation is provided 40 hours a week, Sunday-Thursday, from 9 a.m-5 p.m. Call 972 3 566 0504 to schedule a consultation at the Family Rights Center in Tel Aviv.

Surrogacy in Israel

By law in Israel, only infertile heterosexual couples can use the services of a surrogate mother. Though the law does not distinguish between married or common-law couples, in practice, married couples are given priority. Single women and men or homosexual couples have to go abroad for surrogacy procedures. Heterosexual couples who would be eligible for surrogacy in Israel sometimes choose to do surrogacy abroad because of the lower costs in some countries and to avoid the Surrogacy Approval Committee.

In 1996, the Israeli government legalized gestational surrogacy under the Embryo Carrying Agreements Law. This law made Israel the first country in the world to legalize state-supervised surrogacy. Each instance of surrogacy must be approved by a state-appointed committee. The requirements are strictly governed. Surrogates must be unmarried women (single, widowed or divorced) who already have at least one child of their own. She can not be biologically related to either designated parent. The sperm has to belong to the designated father and the egg must not be that of the surrogate mother. The egg can belong to the designated mother or if her ova are not viable, be donated by an egg donor. Receiving egg donations should be eased by the passing of the Egg Donation Law in Israel in June 2010.

The question of who can become a parent by surrogacy in Israel is strictly regulated.  The 1996 Embryo Carrying Agreement Act (Authorization Agreement and Status of the Newborn Child) allows only heterosexual couples to enter into an agreement with a surrogate mother. The law states that only a man who has a female partner, irrespective of marital status, can be an intended father. Likewise, the law states that only a woman who has a male partner, irrespective marital status, can be an intended mother. The law also excludes single men or women and same-sex couples.

The designated parents and the surrogate mother must all share the same religion, so the child’s religious status will be clear. This is consistent with the legal philosophy of family law in Israel, in which individuals are accorded rights and status on the basis of their religious and family status, and, for two examples among many, forbids interfaith marriage and adoptions. The designated parents must meet age requirements, and the mother has to prove that she is infertile or that pregnancy would significantly damage her health.

After the birth, the designated parents must submit a request to receive legal parenthood, and upon the court’s confirmation, they will be the child’s sole guardians and his or her parents in every respect. The surrogate mother can only withdraw from the agreement and keep the child before legal parenthood is granted to the designated parents, and only if a social worker appointed by the court attests that the circumstances have changed in way that justifies the withdrawal and that the child’s welfare would not be hurt by the withdrawal.

The surrogate mother can be compensated for her services and expenses, including legal counseling, health insurance, time, pain, loss of earnings and earning capacity, and any other reasonable expense. Financial arrangements should be part of the agreement submitted to the Surrogacy Approval Committee.

New Family has been the most vigorous challenger of discrimination in surrogacy rights against single woman and men and same-sex couples. In 2002, New Family founder and executive director Irit Rosenblum litigated the case of a single, infertile woman over age 40. Prior to an operation that removed her uterus, she had her eggs frozen for future use. Irit Rosenblum applied on behalf of this and other women for permission to utilize a surrogate mother in order to bear children, but permission was refused because the law does not permit unmarried women to use surrogacy services. Irit Rosenblum appealed to the High Court of Justice, maintaining that single women have the same right to bear children as married couples. The High Court of Justice rejected the appeal, but recommended that legislative changes be made to permit single women to utilize surrogates. Following the High Court’s decision and recommendation, New Family drafted a legislative amendment to allow single men and women to use surrogacy services. Irit Rosenblum’s High Court appeal was chosen as one of the 10 most instrumental appeals of 2003 to be heard by the judicial system in Israel. In 2004, a High Court of Justice committee was formed to examine the expansion of the Surrogate Law for single people, lesbians and gay couples.

Surrogacy Outside of Israel

New Family pioneered the right of same-sex couples to parenthood through surrogacy and has helped dozens of couples realize their dream of becoming biological parents.

New Family is the recognized authority on foreign surrogacy and the only entity with proven experience in bringing babies born through foreign surrogacy to Israel and getting one or both partners recognized as legal parents.

New Family provides legal consultation and expertise on all the legal aspects of foreign surrogacy and arranging the family’s legal status after birth. Our attorneys accompany the intended parents through the process of consultation, draft or check surrogacy agreements drafted by surrogacy agencies abroad, arrange legal status for the babies born, and attain recognition for both partners as legal parents when possible. New Family works with reputable agencies that match the couple with a surrogate, arrange the medical procedures in the country where the surrogacy will take place, and in some cases, drafts the legal agreement with the surrogate.

Surrogacy for Israeli same-sex couples is legal in several countries around the world, but most couples choose to do surrogacy in the United States, Canada, India, Russia, Kazakhstan, Ukraine, Georgia and Armenia.  The legal requirements and cost of foreign surrogacy vary from place to place and should be carefully considered before a country is chosen. Surrogacy is possible for same-sex couples in the United States, Canada, and India. Russia, Kazakhstan, Ukraine, and Georgia provide surrogacy services only to heterosexual couples, and some countries require that the couple be married.

In India, two heterosexual partners may be listed on the birth certificate, even when only one is the biological parent. When the biological father is a homosexual man, only the father will be listed on the birth certificate. In the US, two men can be listed on the birth certificate following a legal process, but depending on the district, they may be required to be married.

The cost of foreign surrogacy in some countries can exceed the cost of surrogacy in Israel and can range from $ 30,000 to more than $ 200,000 in some places.

When a couple has a child through foreign surrogacy, and only one partner is the biological parent, the second partner can make an adoption request. Thanks to precedents set by New Family, a same-sex partner now can adopt his partner’s child and be the second legal parent.

With the exception of the United States and Canada, where the baby is born a citizen, usually babies born to surrogate mothers have no legal status in the country of their birth.  Legal status must be arranged in Israel for the baby, or babies, since surrogacy often results in multiple births. Before the child’s birth, the parent or parents of babies born to a surrogate mother abroad must petition a court to obtain a court order to have a DNA test. Due to concerns of ‘mamzarim‘, genetic testing in Israel is strictly regulated and can only be performed with a court order. The tests must be performed in the country of the child’s birth, according to the process dictated by law, and then be sent to Israel for the results to be analyzed by an Israeli hospital. If indeed, the test proves that the baby is the biological child of an Israeli citizen, Israeli citizenship and passports will be issued from the Ministry of Interior by court order and the baby can be flown home for the first home.

Legal Precedents

In a series of ground-breaking legal victories, Irit Rosenblum fought for the rights of same-sex couples to have children through foreign surrogacy and then won the right for both spouses to be registered as parents by biological parenthood or adoption.

Following a petition filed by New Family on behalf of a male couple, the parents of twin girls born via surrogacy, the National Insurance Institute decided to form a committee to examine the question of parenting rights and benefits awarded to women for male couples. In 2009 the Israeli National Insurance Authority recognized surrogacy indirectly by granting ‘paternity leave’ to a homosexual father who had used the services of a surrogate mother abroad to give birth to children.

New Family’s groundbreaking petition to the Tel-Aviv Labor Court following the NII’s initial refusal to recognize G’s right as a parent of twins to receive parenting leave and grants. G. and D., who sought children of their own, traveled more to the United States, where they, in accordance with the law, had twin girls with the help of an egg donation and a surrogate mother. The twins were lawfully registered in Israel as the couple’s daughters, and immediately following, G. submitted a request to the National Insurance Institute to receive his rights as a new father of twins to parenting leave and grants. The National Insurance Institute rejected all his requests, but claimed that he would be eligible for these same rights if he were a woman.

Immediately following the filing of New Family’s petition, the NII informed the Labor Court that it was establishing a committee to examine the subject. In its response to the petition, the NII stated that, ‘the National Insurance Institute decided to thoroughly examine the dilemma and to consider necessary policy changes, including changes in legislation.’ Subsequently, a second male couple, also parents to a child born via surrogacy, Y. and R., represented by New Family, requested to receive parenting leave and grants. The NII responded positively to the request and awarded Y. and R. parenting leave and grants.  Thus, the precedent for same-sex couples’ entitlement to parenting leave and benefits was established, paving the way for other couples to exercise their rights to equality in parenthood.

Subsequently, following other groundbreaking petitions to the National Insurance Institute in 2009, the NII recognized other rights for same-sex couples, including shared maternity leave for lesbian couples, and survivor’s benefits for same-sex widow/ers.

The Dan Goldberg Case

In a dramatic confrontation with the legal system in 2010, Advocate Irit Rosenblum reversed institutional discrimination against infant twins born to a gay father through surrogacy in India. She fought the court system and the Minister of Justice to bring them home after spending the first three months of their lives in Mumbai when the twins’ right to be recognized as Israeli citizens was blocked by an obstinate judge, who refused to order the paternity test required to prove the twin’s eligibility for Israeli citizenship. Irit Rosenblum led New Family’s legal team to appeal the decision to the District Court, which ordered the judge to give the court order for the test. Prime Minister Binyamin Netanyahu and President Shimon Peres expressed their support. New Family mobilized wide public support for the families from across the social spectrum. The case attracted massive media attention from around the world.

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