In light of the information available in the unit, it is possible that due to various flaws in the procedures, especially with regard to the conduct of the foreign surrogate women, there is a reasonable chance that there will be difficulty, and perhaps even considerable difficulty, in advancing the genetic testing with the alleged Israeli parent, as well as the rest of the parenting procedures, registering the minor as an Israeli citizen and entering Israel, and all that entails...
It should be clarified that the purpose of the unit... In publishing this warning, it is first and foremost to prevent harm and damage to all those involved in these complex and sensitive procedures, the surrogate women, the intended parents, and of course - the babies that are being born, and to bring this information to the public when it comes to considering surrogacy procedures in these countries, so that it can avoid performing procedures whose legality is questionable, and so that it can make informed use of the information, if it wishes to conduct a surrogacy procedure abroad"and also in order to prevent difficulties and problems in the legal proceedings expected down the road, as stated above."
This announcement detailed indications attesting to the Unit's approach to the aforementioned concern. Among other things, there were cases in which the surrogacy agreement was signed after the birth mother had already begun the fertilization procedures; cases in which the mother was not a citizen of the country in which the procedure was performed; as well as agreements that included draconian stipulations regarding the freedom of the giving mother.
- On August 7,2024, an update notice was published to the travel warning. As part of this announcement, it was clarified that with regard to Israeli citizens who began surrogacy procedures in Northern Cyprus after June 21,2023 - "The state's position is that it will not be possible to agree to the establishment of parenthood of the spouse of the genetic parent in relation to children born as a result of these procedures".
Surrogacy Abroad - The Usual Case
- Before I address the adoption laws that govern the case before us, I will briefly present the provisions of the law that generally regulate the legal recognition of surrogacy proceedings carried out outside of Israel ("Surrogacy"30"). In doing so, I will explain why these do not apply directly to the present proceeding, even though they are relevant to our case.
- As is well known, striving to realize parenthood with the help of surrogacy procedures requires an appropriate legal arrangement that will ensure a clear and binding definition of the legal relationships in which the intended parents, the surrogate mother and the newborn are involved. When the process is carried out in Israel, there is a full and binding arrangement within the framework of Embryo Carrying Agreements Law (Approval of Agreement and Status of the Newborn), התשנ"and-1996 (Below: Surrogacy Law). In contrast, surrogacy procedures abroad"They have not yet been explicitly regulated by the Israeli legislature, despite the increasing appeal to take them. The Surrogacy Law does not apply to these cases, and their regulation is based on a combination of the laws of the place where the surrogacy and birth proceedings took place with the general family law of Israel, including procedures by the relevant authorities. Over the years, certain aspects of the issue have even been anchored in precedential rulings.
- In the past, As part of surrogacy procedures"30, A parent who lacks a genetic connection to the newborn is required to apply for an adoption process in order for his parenthood to be arranged. Up Next, The institution of the judicial parenting order, which was intended to legally recognize the parenting of the spouse of the genetic parent by virtue of the "Affinity for affinity". The Possibility of Granting a Judicial Parenting Order in Relation to a Parent Without a Genetic Connection to a Child in Proceedings Originating in Surrogacy"l was recognized for the first time in the case law of this court in the Mamet-Megged, and since then it has been re-anchored in a series of rulings (see, for example: Additional Civil Hearing 1297/20 Anonymous v. Attorney General, paragraphs 23-24 of the President's judgment A. Hayut [Nevo] (July 25,2022) (hereinafter: Additional Civil Hearing 1297/20)).
- Granting a Judicial Parenting Order in Cases of Surrogacy"30 is subject to compliance with certain requirements, which this is not the place to elaborate in full. Suffice it to note that in the circumstances of the case, the threshold conditions that require a positive determination by an Israeli court regarding the severance of the relationship between the surbearing mother and the newborn in accordance with foreign law are of great importance, including obtaining her informed consent to the proceeding and the removal of the newborn to Israel (see: P"m 3518/18 II"Attorney General v.' Anonymous, paragraph 14 of the judge's judgment v. Hendel [Nevo] (3.2.2020); Additional Civil Hearing 1297/20, in paragraphs 48-49 of the President's judgment Animals). In the absence of such a determination, it is not possible to grant a judicial parenting order, inter alia due to the concern of creating a situation of "Triple Parenting", i.e.: "A situation in which the child has three parents, i.e., three characters who relate to him (and themselves) as his parents, or as three characters who have rights and obligations towards him" (Name, in paragraph 49 of the judgment of the Deputy President A. Fogelman, which remained in the minority, but not in this regard). It should be noted that in essence, this is also the case in the context of the Israeli Surrogacy Law, which requires the issuance of a statutory parenting order, whose function is "Definitively regulating the various ties to the newborn: severing the surrogate's connection to him and determining their parenthood The Exclusive of the inviting parents" (Name, in paragraph 37 of the President's judgment Animals, emphasis in original).
- So, in the usual course of things, after the completion of surrogacy procedures abroad"The parents turn to the Family Court so that the spouse who does not have a genetic connection to the newborn will also be officially recognized as his parent, by means of a judicial parenting order. However, due to the unique characteristics of surrogacy procedures in Northern Cyprus, and although the issuance of a judicial parenting order is "The King's Way" that was formulated in Israeli law for the recognition of parenthood in the circumstances of surrogacy"In this case, it is not possible to walk in it. The main reason for this - which is both technical and substantive - it is rooted in the registration of the mothers giving birth on the birth certificates, without subsequently severing the connection between them and the minors.
- In this context, it should be emphasized that since the State of Israel - like most countries in the world - does not recognize the political entity of Northern Cyprus and its institutions, we are unable to learn directly about the law applicable there in the manner required to ensure the proper and legality of the surrogacy procedure. In any event, in this state of affairs, it is not possible to prove that a process of severing the connection was lawfully carried out, and in any event, in the circumstances of the present case, as a matter of procedure, there is no dispute that this was not done. To this, it should be added that there is a lack of clarity with regard to the questions of whether the authorities there recognize that this is a surrogacy procedure and what is the degree of supervision and regulation of the process, and in particular with regard to the rights of pregnant women. According to what is argued before us, these doubts also raise concerns about the commission of criminal offenses that amount to human trafficking. As stated, in these circumstances, and there is no dispute between the parties, it is not possible to initiate a proceeding for the issuance of a judicial parenting order. At the same time, since the surrogacy process conducted by the respondents began before the publication of the decisive travel warning, the Attorney General is of the opinion that in an exceptional manner and beyond the letter of the law, in our case, it is possible to initiate an adoption proceeding. It should be noted that it can be understood that the Attorney General took this position with respect to the characteristics of the case, but not only with respect to it, in the sense that even according to her, there are other couples in the special situation of the respondents here. In other words, Ostensibly, in other cases with similar characteristics, it will be possible to follow this path, based on the implementation of the provisions of the Adoption Law.
The Normative Framework: The Arrangement Established in the Adoption Law
- The Adoption Law outlines the legal framework that governs adoption proceedings in Israel. Among other things, the law states In Section 1 If an adoption was made by a court order upon a request on behalf of an adopter (in our case - Respondents) and that an adoption order and any other decision in adoption proceedings will be made if the court finds that they are in favor of the adoptee (in our case - minors). In addition, the Fixed Provision should be mentioned In section 3(1) to the Adoption Law, according to which the court may issue an adoption order for an individual adopter (as opposed to a couple) only if the applicant's spouse is the adoptee's parent or has adopted him beforehand.
- Subsequently, the Adoption Law instructs that the court will issue an adoption order only in cases where a parent's consent is given to give their child for adoption, or when the minor has already been declared an adoption at the request of the Attorney General. In the words of Section 8(a) To the law:
"A court shall not grant an adoption order unless it is found that the adoptee's parents have consented that the child will be adopted or that the child has been declared adoptable under section 13."