WAdv. Yonathan Kanir and Adv. Shahar Malul Shiber || 9.4.18

As part of the spectacular collapse of the definition of the "classic family" in the Israeli lexicon, we shall try in this article to examine the route from the definition of "family" to the definition of "parenthood".

For the purposes of this article, we shall define parenthood as a relationship between any parenting couple – father and mother, or mother and mother, or father and father or two fathers and mother, two mothers and father – who have jointly decided to bring a child into the world without having a spousal relationship between them.

In contrast to families which consist of common law couples and families of same-sex couples who have already merited a leap in the right direction, in the sense that they have the recognition and legal status required for their existence as families [1], despite being outside the "classic" structure, parenthood in all its forms has not yet received similar recognition.

Unlike a family, a system consisting of a triangular relationship between parents and their children, living under one roof and speaking (more or less) the same common language, the legal world still does not recognize the independent existence of parenthood, as establishing rights and duties between parents themselves.

Through recognition of the rights of the minor vis-à-vis his parents, we shall try to examine whether it is possible to continue and take the next legal stride forward by determining that a comprehensive agreement can also be created concerning the horizontal relationship between two people whose only connection is their agreement to have a child together?

In order to try and answer this question, we shall focus on two essential points of view that need to be considered – the point of view of the child and the point of view of the parents.

Examining the first point of view – Ascertaining the child's point of view

Examining the proceedings through the eyes of the child has enabled the Family Courts to legally recognize various family relationships – for example, brotherhood, and the relationship between a minor and his parent's former spouse, which is a purely psychological relationship [2].

By examining the situation from the minor's perspective and positioning the minor as a focal point, from which it shall be determined who are those closest to him, who is responsible for him, who is to be considered as his natural or legal guardians and their status in the minor's life, a system of obligations towards him can be established.

The way a child perceives the adults who raise him may be a sufficient indication for the creation of a legal connection between him and those responsible for his upbringing, even if at least one of his parents is not a biological parent or adoptive parent of the minor, since the child has the most objective, authentic and appropriate perception of the reality of his past and current family life.

Examining the second point of view – Parents in an "alternative" form of family life

In contrast to the child's point of view which is evolving, from a parental perspective more problems arise here than the solutions which can be given to them. 

As matters currently stand, the relationship between the parents themselves has not yet been defined, certainly if we assume that at least one of the parents is not a biological parent or adoptive parent of the minor, and his status is at most that of a psychological parent.

Unlike in the case of married parents whose reciprocal rights and duties stem from their past or current spousal relationship per se, parenthood alone does not create any connection and reciprocal commitment between the co-parents [3].

To emphasize the point, we would add that the Family Courts Law, 5755-1995, does not include two people who have agreed to have a child together in the definition of a family member. The relationship between each parent and the joint child is indeed a family relationship, but the parents themselves are not family members according to the statutory definitions. Why is this matter considered problematic? Because a lacuna is created here.
Thus, for example, it would appear that adults who wish to engage in co-parenting, and for this purpose to delineate their relationship in a binding agreement, cannot approve this agreement in the Family Courts before the woman conceives.