Surrogacy For Gay Men Is Now Legal In Israel, But Difficult – Above the Law
Last summer, Israel’s Supreme Court ruled that all people — and specifically including single men and same-sex male couples — may access surrogacy in the country on an equal footing with women and heterosexual couples. The ruling required that the law, which previously prevented such surrogacy arrangements, had to be fixed within six months. And, indeed, six months later, in January 2022, the law was changed to prohibit discrimination based on sex.
That is great. So how do things look now?
I spoke with Israeli surrogacy attorney Victoria Gelfand. She shared that the legal changes were positive, but that several challenges remained for families needing to turn to surrogacy to have a child.
Lack Of Implementation
Gelfand explained that while the Ministry of Health issued a statement that there would no longer be discrimination against men forming families through surrogacy, the system has not caught up with the law. The Ministry of Health has not issued or implemented new regulations to evolve from the previous paradigm always involving a female parent-to-be as the patient for infertility. From the clinics to insurance, forms, checkboxes, links, etc., the system has not yet evolved with the expanded options for different forms of families.
Egg Donation
Egg donation is highly regulated in Israel, and very few women choose to donate, despite a change in the law back in 2010 and a later revision to provide increased (state-governed) compensation to encourage egg donation. I asked Gelfand why that was. She explained that Israeli culture places a strong importance on genetic connections and biological legacy. She noted that the sacred nature of genetics makes a significant contribution to why adoptions are rare in Israel. Without available options locally, most Israeli hopeful parents needing an egg donor look to Ukraine. Or at least they used to, before Russia’s invasion.
Ukraine Invasion = Worldwide Fertility Disasters
We have seen story after story of Ukrainian surrogates carrying for couples in other countries, and intended parents throughout the world praying for their surrogates’ safety. Some have even rescued their newborns from the depths of an active war. Ukraine is closer to Israel and more affordable than countries like the United States. With a strong fertility industry, Ukraine had become a go-to destination for Israelis seeking fertility assistance. The future of Ukraine’s fertility industry is unclear, to say the least, as the country fights for its survival.
According to Gelfand, many hundreds of Israeli families were turning to Ukraine for egg donation each year.
Ministry Strike
Adding to the surrogacy difficulties faced by parents is an ongoing strike by employees within Israel’s Foreign Ministry. The employees’ labor union has demanded better working conditions. The result has been a lack of services to help foreign surrogate-born babies return with their parents home to Israel. Gelfand described how a number of families have been stuck in the U.S. as well as in Georgia — the country, not the American state in the South — for months, unable to return to Israel while the striking Foreign Ministry workers fail to process the necessary documents.
Look To Friends And Family
Given that the need for surrogates has always outpaced the number of women eligible and volunteering to be surrogates in Israel — even before single men and gay couples had the option to do so within the country and when Ukraine was a possibility for married heterosexual couples — the gap is expected to go up significantly. Gelfand suggests that hopeful parents’ best shot may be to look to their own networks. That way, they can see if they or their family have friends who may be willing to help either directly or by connecting them to a potential surrogate.
Relationships
Gelfand stressed that for those that go through surrogacy in Israel, the arrangement is not a business-focused one but a relationship-focused one. In contrast to the usual situation in Eastern Europe, intended parents should expect to have a very personal and close relationship with their surrogate. Whereas, in countries like Ukraine and Georgia, surrogacy is managed more commercially, with a surrogate receiving compensation and having little to no contact with intended parents. Surrogacy in Israel is the opposite. The women who do opt to be surrogates in Israel frequently do so with the primary motivation to help another family. They want to know who they are helping and see the fruits of their (literal) labor.
Female Preference
While, in some places, surrogates may prefer to work with gay single men or gay couples, Gelfand says she doesn’t see that to be the case in Israel. The surrogates preferring to work with men often feel relieved to not share the emotional burden or pressure that comes from an intended parent who may have suffered through years of infertility and traumatic pregnancy losses. But Gelfand sees surrogates in Israel drawn to the sisterhood of helping other women, often preferring to work with hopeful female parents who may have already been down a rough road.
New Emerging Markets
Over the past decade, the number of Israeli families who underwent surrogacy abroad was three times that of those who were able to undergo local journeys — and there is little expectation of a significant increase in the number of women volunteering to become surrogates in Israel going forward. The United States has long been an option for surrogacy, but it is expensive (although organizations like Men Having Babies have been working to alleviate costs there for gay dads). And the United States, too, has seen wait times increase due to COVID-related reductions in women stepping forward to be surrogates. Without the more affordable alternatives available in Eastern Europe and such limited availability at home, Gelfand expects more Israeli hopeful parents to look to countries with emerging fertility practices, like Argentina and Colombia — the country, not the American district — for help.
The legal change in surrogacy law in Israel is, unquestionably, a positive step for equality and the acceptance of varying forms of families. However, the obstacles may continue for some time to be too great for those now eligible under the law to take advantage of it.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.