Administrative Appeal Request 3222-05-25 Attorney General v. Anonymous - part 13

Dafna Barak-Erez

Judge

Vice President N.  Sohlberg:

1. I agree with the judgment of my colleague, Justice Barak-Erez; with the main points of the path she took, and with the result she reached.  As my colleague does well to show, the provisions of sections 8(a), 8a, 9 and 9a of the Adoption of Children Law, 5741-1981 (hereinafter: the Adoption Law), anchor the requirement of parental consent for the delivery of the child, including what is included therein, as a necessary condition for the issuance of an adoption order under this law (other than in the process of declaring the child adoptable).  The respondents do not comply with the requirements set forth in the Adoption Law and the Adoption of Children (Parent Consent) Regulations, 5772-2011, with regard to the letter of consent - requirements which, as my colleague noted, are not merely formal, are of real importance - and therefore, it was not possible to issue an adoption order in their case.  In these circumstances, the inevitable conclusion is that the appeal should be granted.
2. A few notes in the margins: As far as Didi is concerned, the very demand underlying the proceeding at hand raises a certain difficulty. Admittedly, as I have noted more than once in the past, "the universal human yearning for parenthood has existed since the dawn of humanity"; in this context, " the touching cry of our mother Rachel: 'Give me sons, and if there is no death, I will die' (Bereishit 30:1)" (LA 8236/21 Anonymous v.  Attorney General, paragraph 12 of my opinion [Nevo] (December 6,2022) (hereinafter:   8236/21)).  The respondents' desire to receive formal recognition of their parenting is clear and understandable.  Nevertheless, even with regard to this important aspiration, "the end does not sanctify the means" (CA 7799/22 Anonymous v.  Ministry of the Interior - Population and Immigration Authority, paragraph 32 [Nevo] (January 31,2023) (hereinafter: LA 7799/22)).
3. As my colleague notes, on their way to the long-awaited parenthood, the respondents in our case followed a crooked path, to the point that there is a grave concern, the severity of which is difficult to exaggerate, of the exploitation of women giving birth, in a manner bordering on human trafficking. They did not walk this path unknowingly, while taking a risk, against the background of the travel warnings published in 2018 and 2019, which warned against carrying out surrogacy procedures in countries that do not have a law regulating the execution of these procedures, or in countries wherethe State of Israel does not have diplomatic representation.  In fact, these warnings even explicitly referred to Northern Cyprus, which meets both of the aforementioned conditions, and it was noted that Israelis who intend to undergo surrogacy procedures there "are expected to encounter significant difficulties that may have an impact on the possibility of conducting a genetic test for family ties in order to prove a genetic connection between the baby and the Israeli citizen, on the registration of the newborn with the Population Authority, on its removal from the place of birth, and more." In these circumstances, it seems to me that an application to the court for an adoption order beyond the letter of the law, by those who did not comply with the explicit provisions of the law, and who did not follow the path of the law in the first place , raises a real difficulty.
4. Moreover, from the perspective of the women giving birth, the acceptance of the request was intended to 'add sin to the crime', since not only is there a real concern about their exploitation in the surrogacy process itself, but 'skipping' the requirement for consent according to the letter of consent would have led to a unilateral and unjustified infringement of "the rights that would have been granted to the mothers of birth had they signed the letter of consent in the regulations" (paragraphs 92-94 of my colleague's opinion). It seems that this request reflects the instrumental attitude reflected in the respondents' conduct towards the women giving birth, a treatment that began at the very beginning, as detailed in my colleague's statements, and continued, unfortunately, to the present point in time, as arises from their arguments in the present proceeding (see, for example, paragraph 95 of my colleague's opinion).  This attitude should not be consented to; not in theory, and not in practice.
5. Further to the above, I will note that there is no doubt that the acceptance of the appeal raises a difficulty in the matter at hand, since it is clear that it is in the best interest of the children, at the present time, that the adoption order be granted. However, as my colleague states (in paragraph 118 of her opinion), and as I have also had the opportunity to note in the past, "when we are dealing with the formulation of arrangements relating to parenting relationships, the principle of 'the best interest of the child' should not be examined [only] according to the best interests of the concrete child, whose case was discussed in a particular case that was brought before the court, but rather from a broad perspective, which looks to the future" (LA 7799/22, paragraph 24 [Nevo]; See also, and compare: LFA 69395-03-25 Anonymous v.  Anonymous, para.  62 [Nevo] (May 11,2025)).  Thus, indeed, in most cases in which a person brings a child into the world in a foreign country, in a way that is inconsistent with the provisions of Israeli law or with the parenting principles recognized therein, the best interest of the child, ex-post, will be to recognize the parenthood of the person who brought them to Israel, by virtue of his connection to the minor (which in many cases may be exclusive).  However, if we had decided on the basis of this consideration alone, we would have incentivized such conduct, and therefore undermine the principle of the best interests of the child in the broadest sense; This, inter alia, because this would have been tantamount to giving permission to bring children into the world without proper regulation and supervision, such as was intended to ensure that the best interests of the children would be preserved from the outset (ibid., paragraphs 24-25).  As has already been ruled in a variety of relevant contexts, regulatory legislation and proper supervision of the process of 'creating' parenthood are essential for the purpose of safeguarding the rights and interests of the child (see, for example: LA 1118/14 Anonymous v.  Ministry of Social Affairs and Social Services, paragraphs 21 and 25-26 [Nevo] (April 1,2015); CA 4880/18 Anonymous v.  Attorney General, paragraph 16 [Nevo] (January 24,2019) LA 3518/18 Attorney General v.  Anonymous, paragraph 10 of the judgment of Justice   Hendel, and paragraphs 14-15 of the opinion of Justice D.  Mintz [Nevo] (February 3,2020); High Court of Justice 4293/01 New Family v.  Minister of Labor and Welfare, paragraph 5 of the opinion of Vice-President E.  Rivlin [Nevo] (March 24,2009)).  In our case, the matter is even more lenient, since, as my colleague points out (in paragraph 85 of her opinion), the requirement of consent established by the Adoption Law, with its details and terms, is consistent with the best interests of all those concerned: the child, the parent who gives his child up for adoption, and the adoptive parent.
6. I also saw fit to emphasize that the respondents' stubborn refusal to take action to locate the women giving birth, even if it was the beginning of an action, is puzzling, to say the least (and as my colleague noted, it even strengthens, at least to a certain extent, the concern regarding the nature of the engagement with them and the concern about their exploitation). The main argument brought by the respondents in this context lies in the costs involved in locating them.  Apart from the fact that, as my colleague noted, this argument was brought without foundation, it seems to me that it is possible to wonder whether the amount of resources involved in conducting a complex legal proceeding over a period of about four years, in three instances, is much lower.  Moreover, it is not possible to accept the argument that the solution for those who must bear the costs as a result of the conduct that was conducted in accordance with the requirements of the law, is to waive the necessary and essential requirements set forth in the law.
7. Finally, my colleague saw fit to relate, with a view to the continuation of the proceeding, to the possibility of declaring the minors as adoptive children, under section 13 of the Adoption Law. Although, from a practical point of view, the logic of my colleague's words on their side implies a kind of assumption that if it is proven that the respondents were indeed unable to locate the women giving birth, after they had invested reasonable resources in doing so, the Attorney General would most likely be required to accede to the respondents' request and submit an appropriate request to the court.  As for myself, I would like to be a little more careful.  This, inter alia, is in view of the fact that, as my colleague also points out, the matter at hand is not the type of case that section 13 is intended to deal with (for the avoidance of doubt, I do not rule out the possibility of using it in the circumstances at hand, but merely points to a possible difficulty); and taking into account that the legislature entrusted the exclusive authority to submit such an application to the Attorney General, with the assumption that this was done, as a rule, on her own initiative.  I would like to emphasize in this context that as far as I can reach, the issue of an application to an advisor by applicants for adoption for the purpose of submitting such an application, as well as the question of how she should exercise her discretion in such a case, have not yet been discussed by this court; It is therefore difficult at this stage to understand the broad ramifications that such a decision may have.  Therefore, and given that this issue is not required for a decision at hand, it is preferable that we leave the decision on it to the future, should it arise (whether with respect to the Respondents' case, or in another case), and we will discuss it when we have before us an orderly argument on the issue on behalf of the Legal Advisor to the Government, which also includes reference to the possible broad ramifications of the 'opening' of this track.

In summary, I am also of the opinion that the appeal should be accepted.