Not only will Israeli gay men finally have access to legal domestic surrogacy arrangements, but they are now also eligible for IVF insurance benefits that were previously only granted to heterosexual couples and single women with demonstrated medical infertility.
Ron Poole-Dayan, Executive Director of Men Having Babies, stated, “The ruling by the Israeli Supreme Court and the provided justification make the country the first to essentially equate ‘social infertility’ to conventional ‘medical infertility’. Unlike the heterosexual couples and single women that are currently allowed to apply for domestic surrogacy, the court explicitly stated that gay couples and single men are not required to demonstrate any medical need in order to be eligible for surrogacy.”
In order to help remove financial barriers to parenting and eliminate discriminatory practices, MHB has partnered with RESOLVE: The National Infertility Organization, and the National Center for Lesbian Rights (NCLR) to find ways to make IVF insurance laws more equitable. For this purpose, these organizations have put forward an LGBTQ-equitable definition of "infertility” that refers not just to a “disease" or “condition,” but also to a status: "a person's inability to reproduce either as a single individual or with a partner without medical intervention.” A new bill in Illinois has adopted this definition, and gay men can sometimes also benefit from IVF insurance coverage for their surrogacy journeys in Ontario, Canada, and Scotland in the UK. However, the ruling in Israel is a crucial precedent of a country-wide new status.
The July 11th decision came after years of political debate and judicial proceedings. “Israel has a well regulated surrogacy system where applicants have to apply for pre-approval by a statutory commission, and upon approval can find a surrogate, whether independently or with the assistance of an agency,” stated attorney Victoria Gelfand, one of Israel’s preeminent expert in surrogacy law. “While the base compensation rate for Israeli surrogates is about $50,000, which is higher than the average base compensation in the USA, approved prospective parents can benefit from generous public health insurance to cover most of the medical fees, which make the overall costs of the domestic arrangements significantly lower than those in the US. And yet, most heterosexuals couples have already been traveling abroad for surrogacy in Eastern Europe, due to the long wait time for matching with a surrogate, as well as the cumbersome and bureaucratic process to achieve the committee's approval.”
The court rejected the claim that gay couples and single men should be barred from surrogacy due to the shortfall of the number of women that agree to assist as surrogates, one that would no doubt be exacerbated once the pool of eligible candidate would grow. Instead, the court stated, there should be equitable criteria that would establish standards for prioritizing candidates, such as the number of existing children or the time applicants have already been waiting for approval.
In practice, though, the implications of the Israeli ruling are hard to predict. Asaf Rosenheim, an Israeli MHB board member, stated, “While this ruling is without doubt a necessary correction of anti LGBTQ discrimination, it doesn't address the shortfall in available surrogates. It also does not correct some ethical problems we identify in the Israeli law, such as the partial conditioning of the surrogate compensation on the birth of a healthy child. This stands in contrast to our Ethical Framework for Surrogacy, endorsed by multiple LGBT organizations worldwide, including Israel.”
MHB is committed to continue to support current and future gay fathers in their parenting journeys, and the upcoming Men Having babies Conference in Tel Aviv, scheduled to take place (in person) on December 10, 2021, will fully address the new landscape of surrogacy options for Israeli gay men. The conference will be taking place a month before the new ruling will take effect on January 11, 2022.