Two male spouses performed surrogacy procedures abroad by which two children were born to two surrogates. The surrogates waived any contact or privilege regarding the minors and after conducting a tissue classification test, judgments were made abroad that determined paternity. About three months later a motion for parental orders were filed in Israel to recognize both spouses as fathers as of the date of birth.
The Court granted a parental order retroactively to the time of birth, even though a situation was created that for a short time the minors had three parents. A parental order is a constitutive order and not a declaratory order and therefore will apply as of the date of grant, but it may be granted retroactively to the date of birth. The pivot point for a parental order is the best interest of the child and the best interest of the child is that the parents will be recognized from the date of birth, unless the time that lapsed from birth to the filing of the motion for a parental order was due to immaturity, marital difficulties, or other facts that are inconsistent with granting a parental order with its dramatic significance for the child. Here the delay was only technical and therefore a retroactive order since the date of birth may be granted. The fact that in the short period of time until the parental bond was severed the child had three parents is irrelevant in the case of surrogacy.