Administrative Appeal Request 3222-05-25 Attorney General v. Anonymous

Administrative Appeal Request 3222-05-25

Judgment

Judge Dafna Barak-Erez:

1. What are the conditions for granting adoption orders in relation to minors born in the form of a surrogacy procedure in Northern Cyprus? This question arose before us in the case of two minors who came into the world in this way, in circumstances in which the mothers who gave birth to them did not sign the letter of consent for adoption in the form that appears in the relevant regulations.  Subsequently, the question also arose as to whether, in the circumstances of the case, the minors could be declared adoptive to the mothers who gave birth in the absence of a reasonable possibility of finding them.  Ostensibly, the proceeding focused on a concrete case.  However, in fact, the case underlying the proceeding does not stand alone, but rather represents, to a large extent, questions that may be repeated in other couples who conducted surrogacy proceedings in Northern Cyprus.
2. I will begin with a concise description of the main facts. The respondents are a couple of common-law men who applied for surrogacy procedures in Northern Cyprus.  Together, the two carried out a double process: each of them provided sperm samples for fertilization of an egg originating from an anonymous donation, and later each of them was assisted by a foreign woman who carried the pregnancy for him at the same time.  The two women gave birth on the same day, August 17,2022.  Since then, the respondents have been raising a son and a daughter together, both citizens of Israel (hereinafter: The Minors), and the four lead a family life for all intents and purposes, in which, functionally, both spouses serve as the parents of the minors.  However, in the birth certificate of each minor, only his genetic father is listed alongside the mother who gave birth to him - although in practice the respondents and the minors are no longer in contact with the two women beginning shortly after the birth.  Moreover, in the circumstances of the case, there is no dispute that so far no formal procedure has been carried out to sever the relationship of the mothers who give birth to the minors, and that to the best of our knowledge this is not possible in accordance with the law applicable in Northern Cyprus.
3. The respondents are interested in formal status that will give both of them recognition as the parents of the minors.  The main way to do this should have been to apply to the Family Court for a judicial parenting order, as is routinely done in circumstances of surrogacy in other countries of the world.  However, since a judicial parenting order is contingent on the severance of the mother's relationship with the minor, in our case it is not possible to follow this path.  Therefore, the only path open to the respondents is an adoption proceeding in accordance with the instructions of the Child Adoption Law, התשמ"A-1981 (hereinafter: The Adoption Law or The Law).  To be more precise: the consent of the giving birth mothers to the delivery of the minors for adoption must be obtained, or alternatively, they must be declared adoptive towards them, and subsequently an adoption order must be issued in relation to each of the minors against the respondent who is not his genetic father.

Ottoman Settlement [Old Version] 19164.        The difficulty in this case lies in the poor regulation of surrogacy procedures in Northern Cyprus, whose legal status is exacerbated by the fact that the State of Israel does not recognize this territory as a political entity and does not maintain diplomatic or consular relations with it.  Added to this is the fact that over the years, doubts have arisen regarding the guarantee of the rights of those who serve as surrogate mothers in this territory, doubts that arise to the extent that the use of women for this purpose is tainted by human trafficking.  From time to time, the Israeli authorities have even published "Travel Warnings" with regard to proceedings of this kind, which have become more and more intense in their wording.  In any event, the question of the status of those who raise children who have already come into the world in this way, such as the respondents here, still arises.