A parental order – life when state approval is required to be a parent…

A parental order – life when state approval is required to be a parent…

Doron Afik, Esq.
September 21, 2019

In many cases when you see how parents deal with their kids you cynically say to yourself, "If only one needed a license to be a parent." However, there are cases where such a "license" is actually required such as when two people both seek to be recognized as the child's parents, with only one being the genetic parent. When it comes to same-sex spouses, a "parental order" is, unfortunately, the only way in which the State will recognize a non-genetic parent as a parent in common.

As early as the year 2000, the Israeli Supreme Court recognized a US Court-approved adoption, the adoptee being a woman co-habiting with the genetic mother. About five years later, the Supreme Court also allowed a spouse to adopt her life-partner's son even without an adoption order first having been made outside of Israel. However, until 2012, same-sex couples were not able to be considered as joint parents in Israel except by way of adoption. In 2012, for the first time in Israel, a Court issued a "parental order" - an order whereby the Court recognized two spouses who lived together as the mothers of a child, one being the genetic mother who produced the egg and the other the physiological mother who carried the pregnancy. Two years later, the Supreme Court also recognized joint parenting in the case of surrogacy procedures performed outside Israel, thus allowing both same-sex spouses who have given birth to a child through surrogacy procedures outside Israel to be recognized in Israel as the baby's parents. It is the order that creates the parenthood (and not only declares it) and therefore (and in contrast to other countries in the world), it is not possible to seek the parental order before birth, however, it may grant retroactive recognition. Thus, for example, in a March 2018 Tel Aviv District Court case, two spouses who entered a surrogacy agreement with a U.S. citizen mother were recognized as the fathers, with the recognition retroactive to the date the U.S. ruling severed the surrogate mother's relationship with the newborn.

A parental order will only be issued when it is in the best interests of the child and, among other conditions, the couple are Israeli residents of at least 21 years of age, have been in a relationship for at least 18 months before entering into a "parenting agreement"; the parenting agreement was made before the fertilization procedures were carried out; and the process for the parental order was commenced within 90 days from the date of birth. The Court has discretion even when these conditions are not fully met. For example, in a case discussed in the Haifa District Court in July 2019, two spouses shared the fertilization process and behaved as two mothers from the birth of the baby but did not file the motion for about three years due to health circumstances of one of the mother's parents. In that case, the court recognized both as mothers retroactively as at the date of birth. However, when spouses seek to bear a child by a surrogacy process, they should prepare ahead of time and ensure that the Courts consider them a couple in a manner that would allow parental recognition as of the date of birth. For this reason, it is recommended to be accompanied by the Israeli lawyer who will later file the motion for the parental order and do so as early as the commencement of the surrogacy procedure. That Israeli lawyer will draft the parenting agreement, instruct the lawyer in the jurisdiction of birth as to the documents required for the process in Israel (and for this purpose it is recommended that the Israeli lawyer will also be admitted in the U.S, for example, if a U.S. surrogacy is sought) and will finally deal with the parental order motion and the motion for citizenship of the child in Israel.