New Surrogacy Legislation In Israel

06.02.2012

How many children is enough? That is the question that the Israeli High Court grappled with in HCJ 625/10, when a couple with three healthy children-submitted an application, to the Ministry of Health, requesting approval of a surrogacy agreement, in order to try to have a fourth child.
The intended mother had undergone a hysterectomy, at the young age of 30, due to complications, when giving birth to her third child. The Ministry of Health committee rejected their application twice, without giving them the opportunity to present their medical opinions and full case, stating that the Surrogacy Law was designed for childless couples, or couples with only one child. Not satisfied with being told how many children comprise a family, this couple challenged the Ministry of Health position, and won the right to be considered for surrogacy.
This in no way guarantees that the couple's application will be approved, but it is the first time that the Israeli High Court of Justice interfered in the broad decision making power of this Ministry of Health Committee, mandated with approving surrogacy agreements. There are a host of factors that the Committee may consider, at a later stage, including the number of children that a couple has. The court ruled though, that the number of children is just one of many factors; it cannot be a deciding factor that prevents the couple from being heard. In addition, the Court stated that the couple's religious and social milieu is relevant and that a couple living a religious lifestyle, in which large families are the norm, must be viewed in the context of their belief system. This case, like others in recent years, tests the limits of Israel's continually evolving surrogacy law.
Israel's brand of surrogacy is not designed to save a woman's figure, create a custom baby, or help untraditional families become parents. The law was passed to help a very specific group of people: married heterosexual couples, in which the woman cannot sustain a pregnancy, or a pregnancy would be dangerous for her health. Balancing between the keen desire of these couples to become parents and the fear of exploiting a possibly weaker segment of the population (women who become surrogates for pay) was clearly on the legislator's mind, when it narrowly restricted the surrogacy option.
The Surrogacy Law (aptly entitled: "The Law of Agreements to Carry Embryos-Authorization of the Agreement and the Status of the Child," 1996), was passed in the Knesset in March 1996 and it covers three main areas: the criteria of application for authorization of a surrogacy agreement, the creation and central role of the statutory Ministry of Health authorization committee and the status of the child. Surrogacy is either approved or denied by the statutory committee, which is comprised of seven members: two gynecologists, one internist, one clinical psychologist, one social worker, one attorney and a religious figure (if the parties are Jewish, this will be a Rabbi). This explains why challenges to the committee's decisions reach Israel's High Court of Justice, which handles any constitutional matters involving governmental action; including the decisions of this type of statutory committee.
Only couples who meet strict medical, psychological, and legal criteria can even apply for initial permission to enter into a surrogacy agreement. This initial permission granted by the Committee is only the beginning of a long process. The couple then has to find a surrogate and present a host of exhibits to the committee, including proof of Israeli residence, medical opinions on the woman's inability to be pregnant, medical opinions on the surrogate's health and suitability to the committee guidelines for surrogates and the psychological ability of all the parties to withstand this arduous journey.
Halachic (Jewish law) concerns also influenced the Surrogacy Law. If the intended parents are Jewish, the surrogate mother must also be Jewish and unmarried. This is because halacha regards the surrogate mother as the "mother," though genetically there is no relation. This way, if the surrogate is Jewish, the child is certainly Jewish. An important caveat is that the surrogate mother's egg cannot be used. She may carry an embryo, created of the intended father's sperm and the intended mother's egg, or a donor egg (though not donor sperm). Israel also does not allow relatives to act as surrogates, so the surrogate will always be a paid third party.
This may sound like a godsend for Jewish couples from the US, seeking a Jewish surrogate mother. But, Israel does not allow foreign residents to enter into surrogacy agreements in Israel. Section 2 of the surrogacy law contains the strict conditions that must be met in order to implant embryos in an Israeli surrogate mother:
•   The intended parents must be Israeli residents; and indeed this has prompted some couples to make aliyah.
•   Intended parents are a married couple (man and woman).
•   The surrogate must be unmarried and Jewish (if the couple is Jewish).
•   The sperm must be from the intended father.
•   The egg must be from the intended mother or a donor; but may NOT be from the surrogate.
•   A written surrogacy agreement, negotiated by both parties as represented by attorneys, and which meets committee and legal guidelines, is approved by the committee.
Then there are the lengthy requirements as to the surrogate's mother's health. A surrogate candidate must be between the ages of 22 and 38, have at least one child, and be at least one year post delivery. She cannot be candidate if she has already entered into two surrogacy agreements, even if a child wasn't born. Interestingly, the surrogate candidate's personal situation is no less important, than her medical and she cannot be a surrogate if she is going through a divorce, loss or illness of a loved one. In addition to these requirements, there is a list of fifteen conditions that would prevent a woman from acting as a surrogate, such as having undergone an ectopic pregnancy, or suffered other high risk pregnancy related problems.
Although surrogacy in Israel is less expensive than traveling outside of Israel, it is still a very expensive process. Surrogate mothers generally want a base pay of between $25,000 - $35,000. The committee is heavily involved in the contractual process between the parties, and even though both sides will always have their own attorneys, the committee adds another layer of supervision, especially to ensure protection of the surrogate mother.
There is a delicate balance in play as a surrogacy relationship develops. Both sides have to deal with frustration and uncertainty. They have to walk a fine line between intimacy and giving the surrogate mother enough distance. This underscores why psychological counseling throughout the process is mandated by the committee. For example, fertility doctors may place the surrogate mother on birth control until she begins treatment. If a surrogate objects to this, the intended parents may rightly be concerned whether the surrogate mother will be able to comply with the myriad medical demands that will be made on her during the pregnancy. Things can easily fall apart even before a pregnancy has been established. Or an anxious intended mother may want to micro manage the surrogate mother's diet. Think of Tina Fey in the movie Baby Mama, as Fey's character tries to train the surrogate to eat healthy foods. Although all of these details are addressed in the agreement between the parties, the reality of living those details sorely tests everyone involved, and are not nearly so comical in real life.
The intended parents are present at the birth, as is a social worker from the Ministry of Labor and Welfare, and according to section 10 of the surrogacy law, the baby is immediately placed in the care of the intended parents. Within one week of the birth, the intended parents must petition for a Parental Order naming them the parents of the child. This is virtually automatic, unless the court finds that the Parental Order is not in the best interests of the child.
In extenuating circumstances, the surrogate mother can petition for custody of the child, but this is a most extraordinary situation. The surrogate is NOT genetically related to the child, and in reality, there are very few surrogate mothers that would be interested in custody. Most of the women that choose to act as surrogates, do so because they are single mothers, in difficult financial straits, with children of their own to support and raise. They view surrogacy as a way to both help a couple, while being able to financially improve their life.
Israel's surrogacy law has brought a ray of light for hundreds of couples, who would not have otherwise been able to attempt pregnancy. According to Mrs. Nimrodi- Botzer, National Director of the Ministry of Health Committee, 700 couples have applied for surrogacy and 323 babies have been born over the last 14 years!!
But, it isn't salvation for everyone. In 2001, a single woman, who wanted to enter a surrogacy agreement, was denied by the Committee. She challenged the decision, and the law itself in HCJ 2458/2001, citing discrimination under the Israel's Basic Law: Human Dignity and Liberty (5752 - 1992). It is clear from a reading of this case that the High Court sympathized with the Petitioner's plight. The Court even agreed that the Surrogacy Law, which only provides some relief to heterosexual married couples, DOES indeed discriminate against single unmarried women. But, the Court found that the degree of injury to this segment of the population (unmarried women, who can't have children), is within lawful boundaries, given the complexity and novelty of surrogacy. The State, said the Court, can chose to first learn all the intricacies of surrogacy by providing relief to married couples, even if this means denying relief to women like the Petitioner.
So, Israel is now a brave new world of surrogacy possibilities, though with limitations and not for everyone.

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