A parental order in Israel will not be granted retroactively to a date before the surrogate parent’s relationship was severed

February 3, 2020
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Two married men entered into an embryo-carrying agreement with a U.S. citizen according to which two babies were born and two weeks later received a verdict in Minnesota, according to which one of the men is the father and the surrogate’s mother connection to the babies is severed. A week later, the Israeli Court recognized paternity based on the results of a tissue classification test and a motion for a parental order was filed for recognizing the spouse also as a parent retroactively from the date of birth.
The Supreme Court held that the parental order will only apply from the date of its grant and not retroactively from the date of birth because it is constitutive and not purely declarative, other than in exceptional cases. There are three parameters under which exceptions will be reviewed: the first, and the main one, is “the best interests of the child,” but not considerations of the interest of the parents or financial benefits; the second is the dimension of time – as time passes between birth and request for a parental order the less are the chances of a retroactive order; and the third – the lack of a third parental affiliation, so as ensure there is no situation for a child with three parents. Here, the Minnesota Court severed parental affiliation between the surrogate and children only two weeks after birth, so no order can be granted from the date of birth.