Administrative Appeal Request 3222-05-25 Attorney General v. Anonymous - part 10

0Discussion and Decision

67. At the end of a lengthy litigation, the time has come for a decision, and it is not simple at all. Cases of the kind before us confront two sets of legal principles and rights head-on.  On the one hand, - the best interests of the minors and the desire to regulate their status vis-à-vis those who serve as their parents (and to a certain extent also vis-à-vis the siblings in the family unit); on the other hand - The rights of women who, in some situations of unsupervised surrogacy, are exposed to exploitation and even trafficking in their bodies.
68. The same is true in the case before us.  On the one hand, there are two minors who will soon reach the age of four, and who have grown up in the Respondents' bosom since their birth.  The four maintain a benevolent family life that is not controversial, but only the person who is the genetic father of each minor is officially recognized as his father - Therefore, the respondents seek to adopt each other's children mutually.  On the other hand, there is a grave concern about the existence of one of the most serious and difficult phenomena known to the human race - Trafficking in human beings, especially women - This phenomenon must be eradicated with all vigor.  In the background, doubts arise as to the validity of the surrogacy process in two main aspects: the protection of the rights of the mothers who give birth throughout the process and the severing of their ties to the minors.  All this, in circumstances in which the State of Israel does not recognize Northern Cyprus as a state and does not maintain official relations with it, so we stand behind "Iron Screen" This makes it difficult to clarify the law from the other side.  These Two Poles - The best interests of the children on the one hand and the difficulties related to the surrogacy process from the perspective of women giving birth on the other hand - Naturally, we are pulling in opposite directions.
69. Moreover, the case before us does not stand alone. The difficulty of deciding it is sharpened in view of the fact that there are other similar cases involving surrogacy proceedings in Northern Cyprus that may be affected by the decision here (and perhaps even in other places where surrogacy proceedings with similar characteristics are taking place).  Therefore, it is not possible to discuss the individual case without addressing the fundamental aspects it raises.  Accordingly, we have decided to grant the request for leave to appeal, and to discuss it as if permission had been granted and the appeal was filed according to it, By virtue of our authority under Regulation 149(2)(b) For the Regulations Civil Procedure, The Nine"T-2018, which commenced in our case by virtue of Regulation 44 For the Regulations Family Court (Procedures), 588"A-2020.
70. Alongside the broad aspects that arise in our case, it is important to emphasize that the unique characteristics of the present case place it within the fence "Group Closed" of cases: those in which surrogacy procedures began prior to the publication of the decisive travel warning on June 21,2023. As may be recalled, this warning was issued by the Coordination Unit for the Fight against Human Trafficking, Prostitution and Polygamy in the Ministry of Justice and for the first time, it included a concrete and explicit reference to surrogacy in Northern Cyprus as a distinct goal, while emphasizing the concerns regarding harm to the mothers of the mothers giving birth and doubts regarding the legality of the procedure.  It should also be noted that only more than a year later, on August 7,2024, an update notice was published to the travel warning, in which the state unequivocally clarified that it would not be possible to agree to the establishment of parenthood of the spouse of the genetic parent of a newborn born through surrogacy procedures in Northern Cyprus that began after June 21,2023.  This means that the state also considers the travel warning to be decisive "The watershed", and while submitting this fact, the Attorney General agreed to conduct adoption proceedings in these circumstances, subject to compliance with the requirements of the law.
71. There is no dispute that the surrogacy process conducted by the respondents was opened and completed at an early stage of the decisive travel warning, since the minors were born on August 17,2022. This fact delimits the circle of cases that may be affected by the decision here, and in any case the situation of intended parents who began such a process after June 21,2023, and all the more so after August 7,2024 - is fundamentally different.  Given that they chose to conduct surrogacy proceedings in Northern Cyprus after the publication of the late, explicit and clear warnings, it seems that the hurdles they will have to deal with will be higher than those facing the respondents before us.  In any event, we are not dealing with the situation of those about whom we have not heard arguments, and the rest of the discussion will focus solely on the matter of intended parents who began the surrogacy processes prior to the decisive travel warning.  For the avoidance of doubt, it should be clarified that this applies in situations where the surrogacy agreements were signed before June 21,2023.
72. Having defined the group of cases in respect of which the litigation is directly relevant, it is necessary to clarify precisely what the question before us is. In this case, we must examine whether the respondents met the conditions required for the issuance of an adoption order following surrogacy proceedings that took place in Northern Cyprus prior to the publication of the decisive travel warning.  More precisely, this question splits into three interrelated sub-questions.  First, the question arises as to whether the waiver affidavits signed by the mothers of the mothers, along with the totality of the evidence that was brought before us, can be seen as a sufficient alternative to the letter of consent enshrined in the Adoption Regulations.  Second, and to the extent that the answer to this is no, the additional question arises as to whether and in what manner the respondents must act to locate the mothers who give birth in order to have them sign the required letters of consent.  Third, and to the extent that the respondents are unable to do so, it should be asked what are the circumstances under which the Attorney General will file a request to declare the minors adopted.
73. I will preface by saying that after considering the arguments of the parties, I have reached the conclusion that the appeal should be accepted. As may be recalled, the previous courts made do with the waiver affidavits alongside the additional agreements as a substitute for signing the letter of consent enshrined in the Regulations, and subsequently gave each of the respondents an adoption order in relation to the minor who is the genetic child of his spouse.  In my opinion, this result should not be left in place.  I am of the opinion that in view of the explicit provisions of the Adoption Law and the substantial differences between the wording of the letter of consent and the documents signed in the circumstances of the case - They cannot be sufficed as a substitute for the element of consent in the law.  Accordingly, the respondents must comply with the clear requirements of the Adoption Law, i.e., obtain the consent of the mothers who give birth to the minors for adoption accordingly To Section 9A to the law, by having them sign the letter of consent before a consular or diplomatic representative of the State of Israel, who will make sure that he recognizes them and that the letter of consent is written in a language they understand.  Everything is in accordance with the Adoption Law and the Adoption Regulations.  Afterwards, the respondents will be able to apply again to the Family Court with a request for an adoption order based on the letter of consent to be signed by the giving mothers.
74. To the extent that the respondents are unable to do so, and after they have taken practical steps to locate the mothers, they may apply to the Attorney General again in order for her to submit a request to declare the minors adoptive even without the consent of the mothers (in accordance with the Section 13(a) to the law). For this purpose, the respondents will be required to lay before the Attorney General a basis for the conclusion that it is not reasonable to identify, find or clarify their opinion (as stated) In section 13(a)(1) to the Adoption Law), or to point to some other cause of action that they believe exists in the circumstances of the case.  In this context, the respondents will be able to detail what actions were taken by them for the purpose of getting the mothers to sign the letter of consent and what their efforts were raised in this context.  The Attorney General will examine the application on the basis of the material that the respondents will place before her and decide whether it is possible to take such a proceeding.  If necessary, she will clarify to the respondents specifically what additional actions are required of them for this purpose and which have practical and legal feasibility.
75. This is the essence of things, and I will now turn to detailing them.

The complexity that arises from surrogacy procedures and the importance of adhering to the provisions of the law

76. The yearning for parenthood, which has been written extensively in the rulings of this Court, against the background of technological developments in the fields of fertility and procreation, has led to a trend of expanding the circle of parenthood, so that today there are other avenues that enable the realization of the right to parenthood even for those who in the past could not have children. When it comes to surrogacy, the process relies on the help of third parties: women who assist those who are unable to carry a pregnancy themselves.  The involvement of these women - alongside the fact that they are in the same category "The Bridge" Between Dream and Reality - Gives rise to many complex issues in legal, social, ethical and other aspects (see, for example: High Court of Justice 781/15 Bronze-Pinkas N' The Committee for the Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements Law (Approval of an agreement and the status of the newborn), התשנ"and-1996, Paragraph 13 of the Deputy President's Judgment S' III'And Bran [Nevo] (3.8.2017) (hereinafter: Matter Arad-Pinkas); Ruth Saffron: "The Family in the Genetic Age - Definition of parenthood in the circumstances of artificial procreation As a test case" Deuteronomy B 223,225-224 (2006); Nofar Lipkin and Eti Samama "From the Heroic Act to the Shelf Product: Normative A creeping creep of surrogacy in Israel"Law & Government 15 435,437 (2013) (hereinafter: Lipkin & Samama); Ayelet Blecher-Prigat and Ruth Zafran "'Children are joy': Parenting Assisted by Artificial Birth Techniques by Same-Sex Couples" The Rights of the Gay Community in Israel: Trial, Sexual Orientation and Gender Identity 395,397 (2016) (Hereinafter: Blecher-Prigat and Zafran)).
77. The recognition of the path of entering into embryo carrying agreements in itself provokes an extensive discussion regarding the challenges involved in general, and the difficulties that surrogate women may experience in particular (see the plural: Matter A new family, at p. 453; Lipkin & Samama, at pp.  480-485; Blecher-Prigat and Zafran, at p.  414).  The main concern in this context is the exploitation of women who carry pregnancies, and it is intensified when it comes to women who are characterized by economic and social disadvantages (see, for example: the Arad-Pinkas, in paragraph 3 of the judge's judgment Handel; Blecher-Prigat and Zafran, at pp.  397-398).  Against this background, in the Surrogacy Law, the Israeli legislature drew an orderly and defined outline that is carried out under close supervision - However, this does not apply to surrogacy procedures"30 (For more information, see: Additional Civil Hearing 1297/20, [Nevo] in paragraphs 3-4 of the judge's judgment D.  Mintz which was in the minority, but not in this regard).  As a parenthesis, it should be said that the absence of any legislation regarding surrogacy that takes place outside the boundaries of the state contributes to the fact that many questions in this area come to the courts.
78. The fear of commercialization and abuse of women in the surrogacy process intensifies when it is carried out outside of Israel, in developing and poor countries where supervision of the process is not tight (see: Matter Mamet-Megged, at p. 553; פנחס Shifman "The Legal Status of Couples Same-sex" The Rights of the Gay Community in Israel: Trial, Sexual Orientation and Gender Identity 309,327 (2016); Lipkin & Samama, at p.  445; Blecher-Prigat and Zafran, p.  398).  Thus, the absence of a defined and supervised arrangement in relation to the surrogacy process abroad")such as the one that exists in Israel), as well as the concerns about exploitation that arise from these proceedings in certain places - In my view, it is necessary to be very careful about all the relevant legal requirements, the sole purpose of which is to protect the parties involved in the proceeding.  This insight is the basis for the travel warnings that have been published over the years, the severity of which has increased over time.  Already in the years 2018-2019, travel warnings were published that emphasized the known importance of examining the legality of surrogacy procedures in the country in which Israelis wish to conduct them and the difficulties that may arise as a result of an improper procedure.
79. And now for our purposes: the State of Israel's lack of recognition of Northern Cyprus and the lack of diplomatic ties between them - which make it difficult to clarify the law that applies there - along with the concrete concerns raised regarding the exploitation of women in the framework of surrogacy procedures (perhaps even to the point of human trafficking), do not in themselves justify a relaxation or softening of the provisions of the law. On the contrary, - The surest way to protect all participants in the process, as well as with a forward-looking perspective, is to ensure that the relevant arrangements are upheld.  This is therefore the level of principle, and I will now turn to examine the three questions before us in their order.

Question 1: Was the consent given by the mothers to give the minors up for adoption?

80. As explained, in the circumstances of the case, the relevant legal arrangement is anchored in the Adoption Law. As may be recalled, the reference to the adoption laws in the present context is in fact an anomaly, but it seems that it is bound by reality, when no proceeding has been carried out to sever the relationship of the mother who is giving birth and there is doubt as to the possibility of doing so in accordance with the foreign law.  Counsel for the respondents also noted in the course of the litigation that The law in Northern Cyprus does not allow for the severing of ties between the mothers and the minors (See paragraphs 33 and 37 above), and it is not by chance that their registration on the birth certificate remains in place.  Therefore, without prejudice as to the law that applies in Northern Cyprus, the difficulty that arises with regard to the procedure of severing the connection there is not at all in dispute and is a background figure that must be taken into account.  As noted above, in this state of affairs one may wonder whether we are dealing with a real surrogacy proceeding, as this term is understood in Israeli law.  In any event, this is the reason for which the parties were directed to take proceedings under the Adoption Law.
81. As stated, the default for granting an adoption order is based on the parent's consent to the delivery of his child.  In this context Section 8A The Adoption Law instructs that "A parent's consent to give their child up for adoption will be informed consent given after information has been brought to the parent's attention".  More specifically, when it comes to consent given outside of Israel, it must fulfill one of the prescribed alternative conditions In Section 9A to the Adoption Law.  It seems that the most relevant alternative for our case is that consent for adoption can be given outside of Israel by signing the letter of consent attached to the Adoption Regulations before a diplomatic or consular representative of Israel.  In accordance with the law, the representative must make sure that he recognizes the parent and that the letter of consent is given to him in his own language and in a way that he understands it.  These are substantive requirements designed to ensure that the consent given meets the binding requirement of "Informed Consent", one based on understanding and knowledge.
82. The detailed arrangements regarding the granting of consent for adoption are the result of past experience, and in particular the litigation in the 2004 affair, which at the time was known as the "Baby Fighter". It will be briefly explained that the same case dealt with an eight-day-old minor who was given up for adoption by his mother, and without providing details regarding his father.  The Family Court has already declared the child an adoption against his father by virtue of Section 13(a)(1) of the Adoption Law.  A few months later, the mother filed a motion to withdraw her consent to the adoption and at the same time provided details regarding the minor's father.  The father also filed a motion to cancel the declaration of the minor already adopted against him.  The proceedings were consolidated and the judgment of this court ultimately determined that the child, who was 20 months old at the time, would remain with his adoptive parentsm (P"m 377/05 Parents Intended for Adoption of the Minor v' The biological parents, פ"D.S.(‏1‏)‏ 124 ‏(‏2005‏) (hereinafter: Matter Baby Fighter‏)).‏
83. Following that affair, it was eventually enacted Child Adoption Law (Tax Amendment' 8), The Nine"A-2010, which among other things added the Sections 8a-8b and9a to the law, and replaced the wording of the Section 9 66. In the explanatory notes to the amendment, it was emphasized that since the adoption law was enacted, no significant changes have been made in it, and that the purpose of the said amendment is to establish arrangements on issues that were discussed before the courts and examined, inter alia, separately"Intermediate H of The Committee for the Examination of Child Adoption Law, התשמ"A-1981 and Child Adoption Procedures in Israel (2006) Headed by the Judge (Retired) Hello Brenner.  The main issues that were settled in the amendment are "The date and manner in which parental consent will be given for the delivery of their child for adoption and the possibility of withdrawing such consent, Declaring a child adoptable due to the fact that the parent cannot be identified or found and the efforts that must be made to locate him, as well as the cancellation of such declaration" (Explanatory notes to the proposal Child Adoption Law (Amendment No. 7), 5769-2008, which finally matured into the aforementioned amendment).  As part of the amendment, the first ways to provide parental consent for giving their child for adoption were enshrined in legislation for the first time - both in Israel and abroad, including the requirement to sign the letter of consent set out in the Adoption Regulations.  It should be clarified that legislative history shows that in the past, parents who gave their child for adoption were required to sign less detailed letters of consent than those currently prescribed in the regulations.
84. At this stage, the wording of the letter of consent and the matters clarified in it should be mentioned. Essentially, the letter of consent brings to the attention of the parent who gives his child for adoption the following aspects: the possibility of the parent leaving a letter or souvenir for the child who will remain in the adoption file; the termination of the rights and obligations between the child and the parent; the denial of the parent's right to receive information about the child; clarification that the adoption does not terminate the child's rights as the heir of his parents; the child's delivery for adoption is final without the possibility of retraction, except with the approval of the court in specific circumstances; the child's right to review the adoption register and to receive information about the parent who gave him up for adoption when the child reaches the age of 18; the possibility of consulting with any party before signing and accompanying another person at the time of signing.  Finally, the parent declares that he signs the letter of consent in a language that he understands out of understanding and free will, and that a diplomatic or consular representative of the State of Israel also signs for approval.  Needless to say, these matters are core to issues of adoption and are even mentioned mainly in the framework Section 8B to the Adoption Law (which instructs a social worker under the law to provide the same details to a parent who gives his child up for adoption).  Therefore, it is clear that it is necessary that these matters be brought before a parent who gives his child up for adoption as a condition for obtaining his consent under the law.
85. The purpose of the requirement to sign the letter of consent in a fixed form before an official representative of the State of Israel is clear. As it appears Section 9A(1) The Adoption Law and the letter of consent itself are intended to ensure that the signatory parent understands the implications of the consent he gives and that he does so of his own free will.  There is no dispute that "Consent to adoption, which is fateful, must be free, considered and genuine" (Civil Appeal 5225/94 Anonymous v.  Attorney General, פ"48(5) 820,832 (1995) (hereinafter: Civil Appeal 5225/94)).  These words, which were said in relation to the consent given in Israel, are of course also appropriate when we are dealing with consent given outside of Israel - and the mechanism set forth in the Adoption Law seeks to realize this.  It is not needless to say that the existence of free consent can also guarantee the best interests of the child - The main purpose underlying the Adoption Law - as well as the best interests of the adoptive parents (see and compare: P"m 4486/13 Anonymous' The Attorney General - Ministry of Social Affairs and Social Services, paragraphs 13-14 of the judge's judgment A' Arbel ‏[Nevo] (‏27.8.2013‏)‏; LLC 4224/15 Anonymous v.' Department of Social Services, paragraph 3 [Nevo] ‏(‏2.12.2015‏))‏‏.  In this sense, this is a provision that is consistent with the best interests of the three parties involved in the proceeding: the parent who gives his child up for adoption, the adoptive parent, and the minor himself.
86. It goes without saying that the wording and content of the letter of consent are of great importance. It is not a procedural requirement or a mere formal form, as claimed by the respondents' counsel.  The clauses presented therein are intended to clarify to the signatory parent his rights and obligations from the moment the consent for adoption is given.  Therefore, the question arises as to whether, and under what circumstances, it is possible to recognize the consent given on a document different from that attached to the adoption regulations, to the extent that it is indeed done before a consular representative.
87. The respondents raised arguments regarding the possibility that the judgment given inעניין Consensual Parenting It is an example of a case in which consent can be obtained other than through the letter of consent in the adoption regulations. There, the proceeding dealt with a woman who alone brought two children into the world in a surrogacy process in the United States through anonymous sperm and egg donations, in a format described in that case as"Consensual Parenting" (So that the woman had no genetic or physiological affinity with the minors, nor was there any connection of the "Affinity for affinity").  The Family Court and the District Court ruled that in this situation there is no reason to issue a judicial parenting order, but they were of the opinion that it is possible in the circumstances of the case to apply the provisions of the Adoption Law to a certain flexibility and to recognize the adoption by the woman as a single mother.  In the judgment of this court, it was clarified that "Consensual Parenting" is not recognized in Israeli law and that the Adoption Law cannot be applied in this case.  At the same time, it was held that in the unique circumstances of the case, the operative result reached by the District Court appears to be "Kneeling in the minority" And it must be left intact.
88. Indeed, inעניין Consensual Parenting This court did not accede to the Attorney General's request to instruct the woman to return and have the mother sign the letter of consent anchored in the Adoption Regulations, and even recognized the Applicant's parenthood in that proceeding. However, the case is not at all similar to the evidence and it is not possible to learn from that case for our purposes.  First and foremost, it should be emphasized that the principled determinations in that matter were completely opposite to the position of the respondents here.  In the judgment in the case Consensual Parenting It was explained as follows:

"There is no room for the creation of a kind of judicial 'basket clause' that allows for a variety of creative solutions in situations where the provisions of the Adoption Law do not apply, while bypassing the strict arrangements that the provisions of the law outline.  The sensitive act of establishing parenthood that is not based on a genetic or biological connection, which is valid and recognized by third parties and has many implications in a variety of areas of life, requires precise and clear regulation.  There is no room for creating an alternative route to the law while circumventing its provisions...