High Court of Justice, section 27 of the judgment.
See also: Clalit Health Services.
Thus, the right to a family and the right to parenthood, including the right derived from them to procreate by technological means, were recognized as having constitutional status.
- The members of the class in our case include single men and men who are same-sex couples. As ruled in the case of the Open House [Appeal Petition/Administrative Claim 343/09 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality, IsrSC 66(2) 1 (2010)], in a long list of legal provisions and judgments, the defense against discrimination on the basis of sexual orientation was anchored (for details of the legislation and the judgments, see the Open House case, paragraph 54 of the judgment). It was further ruled that "against the background of the provisions of the law established by the Israeli legislature and against the background of the case law that dealt with the matter of members of the gay community, ... And without setting any precedents, it seems that we are no longer dealing with 'islands' of rights, but rather a comprehensive constitutional conception of the right not to be discriminated against on the basis of sexual orientation." (Interest The Open House, paragraph 56 of the opinion of Justice Amit (as he was then called).
- A significant component of the right of members of the LGBT community to equality is the recognition of the family unit of same-sex couples, and the granting of same-sex family units equal rights to the rights of a heterosexual family unit. The process began in the Danilovich High Court case [HCJ 721/94 EL AL Israel Airlines v. Yonatan Danilovich, IsrSC 48(5) 749 (1994)], in which it was ruled that El Al's practice of granting free flight tickets to employees' spouses only when they are of a different sex, is invalid and illegal.
See: Dori Spivak, "The Danilovich Case: Between the Prohibition of Discrimination on the Basis of Sexual Orientation and Recognition of the Gay Family," 75 Years of Independence in Law (Dafna Barak Erez, ed., 2023), 157.
- The recognition of a same-sex family unit and the comparison of its rights with the rights of a heterosexual family unit is expressed in various aspects, and we will detail a number of examples: recognition of the right of same-sex couples to adopt children, whether the spouse's children or in general [Civil Appeal 10280/01 Yaros-Hakak v. Attorney General, IsrSC 59(5) 64 (2005); High Court of Justice 5158/21 Shai Gortler v. Minister of Welfare (December 28, 2023)]; Requiring the State to register in the Population Registry as a married couple a same-sex couple who performed a civil marriage ceremony recognized in that country outside of Israel [High Court of Justice 3045/05 Ben Ari v. Director of the Population Administration of the Ministry of the Interior (November 21, 2006)]; Recognition of the right of same-sex couples to inherit the spouse's assets [Civil Appeal (Nazareth District) 3245/03 M. v. Attorney General in the Office of the Custodian General (November 11, 2004)]; Recognition of the right of a same-sex spouse to a survivor's pension from a pension fund [E.A. (Tel Aviv) 38/6/01 Patrick Levy - Mivtachim (June 25, 2001)]; Recognition of the spouse of a serving in the army who died as an IDF widower for the purposes of various laws [Miscellaneous Appeal (Tel Aviv) 369/94 Adir Steiner v. Israel Defense Forces (December 5, 1996); High Court of Justice 5398/96 Adir Steiner v. Minister of Defense (February 27, 1997)]; Recognition of the right of a same-sex spouse to a survivor's pension under the National Insurance Law [Consolidated Version], 5755-1995 (hereinafter: the National Insurance Law) [National Insurance Institute (Tel Aviv) 3536/04 Giora Raz - National Insurance Institute (August 18, 2005)]. Further to the judgment in the Giora Raz case, the National Insurance Institute published a circular regarding the rights of same-sex spouses to benefit in various industries [Circular No. 116/090 of July 23, 2009]; recognition of a same-sex spouse as a "housewife" regarding the obligation to pay insurance contributions [National Insurance Institute (National) 74074-05-23 National Insurance Institute - Amir Hendel (July 3, 2024); petition to the High Court of Justice dismissed by consent [High Court of Justice 53191-09-24]; (hereinafter – The Handel Matter].
- Another aspect relevant to our case is the rights of single men or men who are spouses to rights in the maternity insurance industry under the National Insurance Law. The National Insurance Institute has recognized the entitlement of single fathers and same-sex couples to a maternity grant and maternity allowance by way of interpretation, but has not recognized the entitlement to a hospitalization grant. In the Reuveni case , it was ruled that a male insured who brought a child into the world outside of Israel through a surrogate while requiring hospitalization services is entitled to a hospitalization grant paid to the insured or the wife of an insured who gave birth abroad. Among other things, it was ruled that the National Insurance Institute's position denying eligibility to a hospitalization grant from men who have undergone surrogacy procedures abroad creates groups among which there is no relevant difference, and is therefore tainted by improper discrimination. In the Argaman case [National Insurance Institute (National) 66181-05-20 Ofir Argaman - National Insurance Institute (October 17, 2021)], it was ruled that the arrangement that began in the National Insurance Law, which allows an insured woman to receive a maternity allowance for a period prior to the date of birth, also applies to a man who is an independent parent who brought a child into the world through a surrogacy process abroad. It was further ruled that the entitlement to an increased maternity allowance for a single birth in which more than two children were born will be given in circumstances in which a pair of same-sex parents gave birth to three children in two surrogacy proceedings at close times [National Insurance Institute (Tel Aviv) 12398-05-11 S.H.K. - National Insurance Institute (September 7, 2012)].
- As noted, in accordance with the provisions of the Surrogacy Law, access to the surrogacy arrangement in Israel was initially only possible for couples who are a man and a woman. Against this background, the Supreme Court addressed petitions that sought to apply the surrogacy arrangement in Israel to additional groups – single women and men and same-sex couples. In the partial judgment in the Arad-Pinkas High Court case, it was ruled that the hearing on this matter would be suspended for a period of six months in view of the legislative proceedings that began in the Knesset. However, Deputy President Justice Jubran noted that the existing arrangement in the Surrogacy Law, which denies single women, single men and same-sex couples access to surrogacy arrangements, as "a legal arrangement that grants a right of constitutional status to one group, and excludes another group from it due to its identity, preferences, tendencies, or lifestyles, is an arrangement that is projected to be discriminatory, which is difficult to match. I see no justification for preferring heterosexual parenthood over same-sex parenting in general, and with regard to the realization of the right to become a parent – with all the various techniques for its realization – in particular.... This baseless preference turns its back on the value of human dignity, which is enshrined in the Basic Laws of the State of Israel, and the principle of equality derived from it" (paragraphs 46-50 of the opinion of Vice-President Gibran; see also paragraph 6 of the opinion of President Naor).
- As mentioned, after the partial judgment was issued, the Surrogacy Law was amended in 2018, so that the circle of those eligible for a surrogacy arrangement in Israel according to the law was expanded to include single women who, due to a medical problem, are unable to conceive and carry a pregnancy or that pregnancy may significantly endanger their health. Since the circle of eligible persons did not include single men and same-sex couples after it was expanded, the Supreme Court was required to rule on the petition.
In its ruling, the Supreme Court reiterated that the scope of the right to parenthood – which derives from the right to family life and the right of every person to dignity – also extends to all medical technologies that assist childbirth, and that denying access to the surrogacy arrangement for single men and same-sex couples violates their constitutional right to parenthood. The Supreme Court noted that already in the case of the New Family High Court of Justice, it was ruled that the provisions of the law that single out the surrogacy arrangement for heterosexual couples only ostensibly discriminate against single women, whose matter was discussed in the same proceeding, but was of the opinion that the recognition of such discrimination should not be inferred that the court must intervene immediately in the law, and instead chose to appeal to the legislature to give its opinion on this matter. As noted, in the judgment in the Arad Pinkas High Court case, when the Supreme Court was required to rule on the petition, the Supreme Court rejected the argument that the existence of a medical problem that prevents women from conceiving or carrying a pregnancy, as well as the physiological differences between women, who are naturally able to carry a pregnancy and have children, and men, who are unable to do so, are within the scope of a relevant difference that justifies a different arrangement in allowing access to the surrogacy arrangement. It was held that this approach, which is based on a "natural" perception of the role of fertility and childbirth procedures, is capable of establishing inequality in the right to genetic parenthood due to gender identity, and this perception may also lead to discrimination against women. In view of the aforesaid, it was ruled that: