In the past it was accepted that a family had but one definition – two parents and their biological children. Nowadays, however, with the synthesis of social openness and medical progress, the legal world has also taken on a different guise.
Dr. Yehezkel Margalit and Adv. Yonatan Kanir || 4.1.21
Several weeks ago the festival of Hanukah was celebrated in Israel and around the world, which is a family holiday – "the light is kindled for a man and his household", however, sadly this year, also, due to the Corona epidemic, it was only celebrated amongst the nuclear family. We all hope that the mass-inoculation campaign in Israel and around the world shall enable us to at least celebrate Passover, a festival which is also perceived in Jewish tradition as unsurpassed in terms of its family-orientation, with all the members of our extended family. During the Passover service, in keeping with the best Jewish tradition, the song "Who knows one" shall be sung. Everyone knows the answer to three and four – "three fathers, four mothers".
However, it seems that between the time when the Passover Haggadah was written and the present day a lot of water has flowed under the bridge, and not only thanks to the rainy start to the winter which we were again blessed with this year. Thus in recent months, not to put too fine a point on it, amongst many other developments, a revolutionary judgment of the Family Court was published which recognized that two women can be wives of the same man, while a precedential judgment of the Supreme Court was published which, inter alia, precluded the possibility of recognizing that a child can have three legal parents.
And indeed, in recent decades, in Israel, like in the rest of the world, the concepts of the family and parenthood have undergone dramatic changes. While in the past the only accepted definition of a family was "a married couple raising their biological children under one roof", the two judgments mentioned above are a sufficient testimony to the social openness which coupled with medical progress has brought children into the world in diverse and different family structures, which would have been unimaginable to our forefathers.
These children, who enter the world within the spectrum of modern families, are not infrequently born through various fertility treatments, a donated sperm and egg, surrogacy, after the death of the mother, etc. In practically all of these cases, the legal system does not recognize the individuals who gave birth to the child as his lawful parents. This lack of recognition denies them the most elementary rights as a parent and prevents the child from having his diverse needs met through imposition on them of the various parental obligations.
One of the main ways which case law in Israel has devised for solving this problem over the last eight years is the granting of a judicial parenting order. This judicial order facilitates recognition of such individuals' parenthood, despite the fact that they are not the child's biological parents – genetically or physiologically. It is evident from data which the writer received from the Office of the Court Administration's Legal Advisor that from the year 5774 until a year ago, hundreds of such parenting orders were granted, close to 500 in total. During the year 5774 alone 108 such orders were granted, while until the month of Tevet this year, in the first quarter, approximately twenty orders were granted. Similarly, from 2013 until last year, many hundreds of genetic tests, approximately 1500 in total, were conducted by Israeli embassies abroad in order to determine the biological parentage of the parents following the birth of children through a surrogacy procedure outside the borders of the country.
The guiding judgment mentioned above was the fourth of Supreme Court ruling to have been given on the subject and constitutes a pivotal about-face from the first judgment that was given on the subject at the start of 2014 and which recognized the legitimacy of this procedure. To this must be added the High Court of Justice's rejection of a petition in mid-August of last year in which it was asked to direct the Courts Administration to order the immediate cessation of this route, on the grounds, inter alia, that that it had been created by the Court with no legislative basis and has not gone through the crucible of the Israeli Parliament.
And it should be noted that the main casualties here are members of the LGBT community, who it goes without saying are often not the biological parents of the children and who seek to establish their legal recognition through these orders, since in the absence of a biological, genetic and/or physiological connection to him they are not recognized as the newborn's lawful parents and from the State's point of view, they are in fact, for all intents and purposes unrelated to the child.
It seems that the last word on this topical and challenging issue has not yet been said.
Hence aside from the last appeal to the High Court of Justice on the legitimacy per se of granting the orders, the following dilemmas, amongst others, remain unresolved: Can these orders be granted even before the child is born and alternatively, can they also be granted long after the child's date of birth? In a precedential ruling of the Supreme Court, which has passed under the radar, the Court ratified the granting of such an order even when almost 16 years had elapsed and the child was already – "sweet sixteen". Does the order for all intents and purposes transform the status of a putative parent to that of a lawful parent, including vis-à-vis the child's right to inherit from him under the intestacy rules? And once granted, can the order be rescinded?