Motherless Child

In the olden days, a motherless child was generally a foundling, a child whose birth mother abandoned it for some or other reason. That’s not the case in a recent decision by Judge Geula Levin of the Beersheva Family Court. In this case, the suit was filed by a woman who wished to be recognized as the mother of the child in question.

The facts in the case are fairly dramatic and heartbreaking, particularly since the plaintiff is a woman who suffers from ALS, more commonly known as Lou Gehrig’s disease.

Desperate but unable to have a child, she embarked on a quest to have a child with the help of various reproductive technologies.  She approached a number of doctors and asked them to harvest her eggs, but was turned her down because of her age (she was born in 1966) and her medical condition. She eventually found a doctor willing to extract the eggs, and three embryos were frozen. However, her request for a surrogate mother was turned down by the relevant governmental committee since she and her boyfriend did not qualify as a couple. By law, surrogacy in Israel is only available to a legally married heterosexual couple, the sperm must be from the father, and the surrogate mother may not be related to the couple.

She and her boyfriend parted ways, and she explored options for surrogacy abroad. With an Israeli woman willing to serve as a surrogate, they flew to the USA, where the frozen embryos were implanted in the surrogate’s uterus. Unfortunately, the implants were unsuccessful, and there was no pregnancy.

Undeterred by these setbacks, she sought a solution to her problem and turned to a fertility clinic in Mumbai, India (of which, a quick search on Google reveals, there is no small number). There, the clinic located an egg donor, while the sperm of an Israeli donor –  a friend of the would-be mother –  was flown to India, and an embryo was implanted in the womb of the same Israeli surrogate mother.

So, just to recap, here’s a child who will be born with a genetic mother (the egg donor), a biological mother (the surrogate) and what we might call the functional, psychological mother (the plaintiff who has funded and organized each of these players). In addition, the child has a genetic father, the sperm donor. Confused yet?

Once the pregnant surrogate was back in Israel, the would-be mother made the rounds of the Ministry of Health and the Ministry of Interior to determine what she needed to do to be recognized as the legal mother of the child who would be born. She was consistently informed that there was no way to acquire that status.

At a bureaucratic dead-end, she filed a maternity suit before the Family Court, in which she asked to be recognized as the legal mother of the as yet unborn child. Here’s the spoiler: The Family Court judge ultimately ruled against her and she was not recognized as the mother of the child.

The novel approach to the suit was the plaintiff’s claim that she and the surrogate mother had an agreement according to which at the end of the pregnancy the child would be delivered to the parent who had ordered the pregnancy. She claimed to be compliant with both local Israeli law, and the laws where the conception and implantation of the embryo took place, India.

Before the court, the plaintiff fought to have the maternity suit recognized as a surrogacy case, despite the fact that Israeli law only allows surrogacy in this country under rather narrow circumstances.

Surrogacy abroad has created a bit of a mess. If one can find a country where the surrogacy laws are more flexible than in Israel, one can have a child by a surrogate, bring the child back to Israel and no one can say anything. Earlier this year there was some publicity when it turned out a pedophile was a father to a child born abroad to a surrogate mother.

There is a a committee working today to formulate new guidelines for reproductive technology and surrogacy, including legal guidelines to deal with surrogacy abroad.  For a good critique of surrogacy in general, and the law in Israel, see a study from Isha L’Isha – Haifa Feminist Center.

The Family Court in Israel hearing this case wasn’t, however, simply concerned about legal niceties. Rather, there was a genuine concern that both an egg and a sperm donor and a surrogate created a slippery slope on the road to trafficking in children, or private-placement adoption, which is what the State is afraid of and trying to prevent.

The plaintiff made a good-faith argument to mitigate that claim, but more importantly, emphasized that she had a constitutional right to create a family unit and a fundamental right to parenthood. The plaintiff argued that since the State has recognized the right to parenthood as a basic right, then this cannot be denied her without appropriate legislation; in this case, she claims, a law outlawing foreign surrogacy. Absent a clear statute forbidding her behavior, her desire to be the mother, and the birth mother’s consent to the arrangement are sufficient to declare her the legal mother.

Given her medical condition, the plaintiff went on to say that it would be discrimination not to grant her request, since this is the only way that she can become a mother. She further claimed that her disability was the true basis for the State’s refusal to recognize her as the mother.

The position of the State which was eventually accepted by Judge Levin, is that there exist three routes to parenthood in the State of Israel: Biological parenthood, legal parenthood via adoption or legal parenthood via the vehicle of the surrogacy law (or as it is officially known, the Embryo Carrying Agreement Law). Because the child was born in Israel, Israeli –not Indian – law is the relevant law. Further, India has no legislation whatsoever regarding surrogacy, just general principles.

The State had a number of other arguments in this case. Of particular interest to me is the argument that the nucleus of the constitutional right to parenthood is the ability of the individual to have genetic or biological offspring. By extension, this safeguards both the best interests and the basic rights of the child, since creating a child without biological or genetic roots is a violation of his right to know his roots and origin, part of his basic right to human dignity.

Alternately, argued the State, even if one were to identify a basic right of the plaintiff unrelated to genetics or biology, this should not be implemented for reasons of public policy. Permitting a situation in which any person who has difficulty bringing a child into the world (or, I might add, simply because they would rather have someone else bear their child)  will lead to an ethically problematic situation.  It is liable to create situations of “fictional surrogacy”; couples or individuals who can afford to do so will engage in commercial transactions and basically buy children, and bypass adoption proceedings.

The State also objected to private sperm donations without benefit of a sperm bank, saying this violated the values of the State of Israel as a Jewish state because it’s then impossible to track the family relationship of the donor.

The case requires a decision about maternity of a child who came into the world using birthing techniques which involve three parties: the sperm donor, the egg donor and the woman who carried the fetus. Can the agreement made between these three and the plaintiff – a fourth party – transform her into the legal mother of the child?

While there is not a clear Israeli statute which defines a parent, in general, the Israeli legal system views parenthood as a status which evolves from the natural process of childbirth. Even recognition of parenthood of foreign surrogacy by Israeli law is still determined by some kind of genetic connection to the child.

The law does not recognize parenthood based on an agreement between parties.  Any such recognition leads to dangers of trading in children, ignoring the best interests of the child, and potentially harming the woman who has agreed to carry to fetus to birth.

The judge discussed at some length the constitutional right to parenthood, a constitutional right in that is part of the individual’s right to human dignity, and a subset of the right to autonomy. However, from the judge’s point of view the plaintiff is not simply claiming that she has a right to parenthood, but to parenthood of a very specific kind; one that affirms the steps she took to bring this child into the world, and one which seeks to recognize her as a parent of a child to which she has no biological or genetic connection. Fundamentally, she is asking the State and the court to recognize a legal arrangement which expands the very definition of parenthood to include parenthood on the basis of an agreement. The court is unequivocal that this is not part of her constitutional right to parenthood.

The decision argues that the right to parenthood is first and foremost a negative right, meaning the right to block any external intervention in one’s intimate decisions. To the extent that it is a positive, active right, then what that means is that the plaintiff has the right that society aid and enable her to actualize her desire to become a parent insofar as the State funds fertility treatments, making possible artificial techniques of conception.

A Supreme Court decision from 2009 dealt with the issue of whether the State must allow an individual to actualize his parenthood through adoption. Does the failure of the state to act to allow a person to become a parent through alternate means – adoption, surrogacy, IVF – constitute a violation of basic rights by the State?

The fact that technology exists doesn’t lead to the necessary conclusion that there is a right to use this technology under any circumstances. Therefore, technological advances in and of themselves are not what dictate the extent of the positive right to parenthood.

In any case, here the plaintiff in this case went a step further and asked society to of recognize parenthood based on agreement, a move which the judge is not prepared to take.

To apply this constitutional right to parenthood, Israeli law requires that there must some genetic connection to the child born of a surrogate mother, and not simply a contract between the surrogate mother and someone with no genetic connection to the child; this law is consistent with the limitations on basic rights as set out in the Basic Law: Human Freedom and Dignity. Ultimately, the judgement makes clear that limitations on surrogacy are reasonable given the psychological and medical complexity of the procedure, as well as ethical, legal, social, religious and medical complications. Therefore, the demand that there be a genetic connection with the intended parent as a basic condition for recognizing the parental standing of the parent is a reasonable demand, apparently the position of the aforementioned committee working to formulate legal guidelines around these issues.

With much compassion for the plight of the plaintiff before her, Judge Levin cannot declare the plaintiff mother of the child; due to the ethical complexity of questions of this kind, the legislature is the body that needs to regulate these questions, and judicial legislation is inappropriate.

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