Last summer, Israel’s Supreme Court ruled that all people — including single men and same-sex male couples — can access surrogacy in the country on equal terms with women. and heterosexual couples. The decision required that the law, which previously prevented such surrogacy arrangements, be fixed within six months. And, indeed, six months later, in January 2022, the law was amended to prohibit discrimination based on sex.
That’s great. So what do things look like now?
I spoke with Israeli surrogacy lawyer Victoria Gelfand. She shared that the legal changes were positive, but several challenges remained for families who had to turn to surrogacy to have a child.
Lack of implementation
Gelfand explained that although the Department of Health issued a statement that there would no longer be discrimination against men forming families through surrogacy, the system has not caught up. the law. The Ministry of Health has not issued or implemented new regulations to evolve from the previous paradigm still involving an expectant mother as a patient for infertility. From clinics to insurance, forms, checkboxes, links, etc., the system has yet to evolve with the expanded options for different forms of families.
Egg donation is highly regulated in Israel, and very few women choose to donate, despite a law change in 2010 and subsequent revision to provide increased compensation (regulated by the state) to encourage donation of eggs. I asked Gelfand why that was. She explained that Israeli culture places great importance on genetic connections and biological heritage. She noted that the sacred nature of genetics contributes significantly to the paucity of adoptions in Israel. With no options available locally, most expectant Israeli parents who need an egg donor turn to Ukraine. Or at least they did before the Russian invasion.
Ukraine Invasion = Global Fertility Disasters
We have seen story after story of Ukrainian surrogates carrying couples to other countries, and expectant parents around the world praying for the safety of their surrogates. Some have even rescued their newborns from the depths of active warfare. Ukraine is closer to Israel and more affordable than countries like the United States. With a strong fertility industry, Ukraine had become a top destination for Israelis seeking fertility assistance. The future of Ukraine’s fertility industry is unclear, to say the least, as the country struggles for survival.
According to Gelfand, several hundred Israeli families turn to Ukraine each year for egg donation.
Compounding the surrogacy difficulties facing parents is an ongoing strike by Israeli Foreign Ministry employees. The workers’ union demanded better working conditions. The result has been a lack of services to help foreign babies born to surrogate mothers return to Israel with their parents. Gelfand described how a number of families have been stranded in the United States as well as Georgia — the country, not the southern US state — for months, unable to return to Israel as striking ministry employees of Foreign Affairs fail to process the necessary documents.
Watch your friends and family
Since the need for surrogates has always exceeded the number of women eligible and willing to be surrogates in Israel – even before single men and gay couples had the opportunity to do so in the country and when Ukraine was a possibility for heterosexual married couples – the gap is expected to increase significantly. Gelfand suggests that hopeful parents’ best move might be to reach out to their own networks. This way they can see if they or their family have any friends who might be willing to help directly or by putting them in touch with a potential surrogate.
Gelfand pointed out that for those going through surrogacy in Israel, the arrangement is not about business but about relationships. Unlike 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 run more commercially, with a surrogate receiving compensation and having little or no contact with the intended parents. Surrogacy in Israel is the opposite. Women who choose to be surrogates in Israel often do so with the primary motivation of helping another family. They want to know who they are helping and see the fruits of their (literal) labor.
While in some places surrogates may prefer to work with gay single men or gay couples, Gelfand says she doesn’t think that’s the case in Israel. Surrogates who prefer to work with men often feel relieved not to share the emotional burden or pressure that comes from an expectant parent who may have suffered years of infertility and traumatic pregnancy losses. But Gelfand sees surrogate mothers in Israel drawn to the sisterhood of helping other women, often preferring to work with hopeful mothers who may have already walked a rough road.
New emerging markets
Over the past decade, the number of Israeli families who have undergone surrogacy abroad has been three times that of those who have been able to travel locally – and there are few expectations of a significant increase in the number of women volunteering to become surrogate mothers in Israel in the future. The United States has long been an option for surrogacy, but it is expensive (although organizations like Men Have Babies are working to alleviate costs there for gay fathers). And the United States has also seen wait times increase due to COVID-related reductions among women coming forward to be surrogates. Without the more affordable alternatives available in Eastern Europe and such limited availability at home, Gelfand expects more hopeful Israeli parents will turn to countries with emerging fertility practices, such as l ‘Argentina and Colombia – the country, not the American District – for help.
The legal change to the law on surrogacy in Israel is, without a doubt, a positive step for equality and the acceptance of different forms of families. However, the obstacles may persist for some time and be too great for those who are now eligible under the law to take advantage of.
Ellen Trachman is the General Counsel of Trachman Law Center, LLCa Denver-based law firm specializing in assisted reproductive technology law and co-host of the podcast I want to put a baby inside you. You can reach her at [email protected].