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Israel’s New Surrogacy Ruling Is More Just, but Still Discriminatory

For many years, the issue of surrogacy in Israel has been fertile ground for argument and debate. Earlier this month, surrogacy twice made its way into the headlines. The first time was about six former surrogates launching a crowdfunding campaign after the “New Life” agency filed a libel suit against them (a gag order has been imposed on the lawsuit’s contents). The second time was about Health Minister Nitzan Horowitz announcing that surrogacy would be extended in Israel to men, regardless of their relationship status.
These two events are indicative of the disconnect between the original objective of the surrogacy law and its new version. The amendment, meant to make a non-egalitarian law more just, has made it discriminatory, specifically against women, whose welfare had guided the original law’s framers. The six surrogates who have been sued were given ample proof that “he who pays the piper calls the tune,” and that the commercial nature of the practice now excludes them from taking part in the conversation, even gagging their right to free speech. As it stands, the amendment adversely affects infertile women (whether or not they’re in a relationship) who will have to compete with many men and incur substantial expenses to secure a suitable surrogate.
Some countries forbid commercial surrogacy completely while others do not intervene, seeing it as a private matter between two parties. In contrast, Israel is trying to have it both ways, permitting only commercial surrogacy. But every procedure must receive the advance authorization of a state-appointed committee known as the Gestational Carrier Agreement Approval Board. Moreover, the state supervises any and all contractual agreements, from a detailed approval of the sides, through approval of the contract between them, to the procedure by which the Interior Ministry registers the newborn. The only aspect the state does not involve itself in is the payment amount.
Avoidance of this latter issue was logical when the law was first legislated, in the 1990s. Back then, surrogacy was supposed to be a unique solution for a few dozen couples, in which some medical issue prevented the women from becoming pregnant or sustaining a pregnancy. The lawmakers opted to stay out of the payment issue, intending to downplay the practice’s more commercial aspects. Furthermore, the framers of the law believed that meticulous selection of the couples and of the surrogates, plus contract oversight, would ensure fair practices and would prevent exploitation.
Over the years, surrogacy has gained popularity in Israel and abroad as the perception of motherhood and fatherhood has shifted greatly. The Surrogacy Law, initially perceived as progressive and innovative, has become a symbol of discrimination against men. The argument over extending entitlement to surrogacy in Israel is largely an argument over cost, too, because surrogacy is expensive. Meanwhile, public interest has shifted from morals and ethics (focused on protecting the rights of surrogates and infants) to consumer issue. The high costs abroad are presented as a primary and significant element in the discrimination against same-sex couples. One of the reasons why the Mor Yosef committee, which reviewed surrogacy policy, recommended in 2012 not to open surrogacy to same-sex families was that upsetting the fragile balance between high demand and low supply would trigger a price hikes, lure unsuitable women into the surrogacy “market” and make it harder for the original target group to realize their surrogacy rights. As a result, many Israelis, whether willingly or for lack of choice, opted for an even more expensive alternative, surrogacy abroad. The state then allocated resources for regulating the status of the babies born abroad.
Despite it all, policymakers continue to consistently disregard the practice’s commercial aspect. This avoidance results in the state further empowering the brokerage agencies, which have filled the void. These agencies took upon themselves the role of half public representative, half expert. Although they are not subject to supervision, they partake actively in discussions of the subject in Knesset committees, while playing down the commercial aspects of their involvement in procedures in Israel and abroad. What’s more, besides mediating between the designated parents and the childbearing mother, the agencies serve as unofficial chaperones of the surrogates abroad after birth. They also act like field agents, assisting the authorization committees with collecting information and feedback. The collaboration between bodies affiliated with the Health Ministry and the for-profit firms indicates that the law is clearly the product of a capitalistic system.
The correction of the discrimination against men announced this month must be countered by a correction of the economic discrimination (which will necessarily hurt women). To that end, the state must regulate the brokerage agencies, including training, licensing and supervision. In addition, it would be worth reconsidering the proposal by former MK Yael German in 2017 to preserve the principle of equality by means of setting a fair and uniform price for surrogacy in Israel.
Orly Halperin is a doctoral candidate in the Science, Technology and Society program at Bar-Ilan University. Her thesis examines the discourse on surrogacy in Israel’s state institutions.

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