By Nofar Yakovi Gan-Or
As Israeli law has adapted to new reproductive realities, it has relied on more “traditional” familial cells, leaving out single men and male same-sex couples. As in many other legal contexts, it has been up to the courts to develop more egalitarian policies.
Broadly speaking, Israel is a pro-natalist country. Its enthusiastic attitude toward reproduction finds expression in various legal protections and, for the most part, publicly-funded reproductive technologies and practices. These include sperm and ova donation, surrogacy, and, more recently, even posthumous reproduction. Before assisted reproduction became widespread, the state’s efforts were directed at more traditional regulatory means known to boost birth rates, namely parental benefits. For instance, as early as 1954, Israel enacted the Employment of Women Law, providing women with various “protections” concerning night work, overtime, pregnancy, and childbirth. Together with Israel’s National Insurance Law, this law also established Israel’s maternity leave or “childbirth leave” policy, providing women with 15 weeks of paid leave equal to their full salary and an additional 11 weeks of unpaid leave.
Evident in its title, the law’s main interest was women’s rights as they entered — or rather, were nudged into — the workforce. It was only in 1998 that the law came to include men by providing that they could share at least part of the paid time off with the birthing mother. However, adding heterosexual, married men to the mix was only a first step in liberalizing Israel’s gendered parental leave regime. As more routes to parenthood became available to Israeli citizens inside and across state borders, including adoption, surrogacy, and gamete donation, they began challenging these laws’ limited definition of a family.
For instance, in 2021, the Israeli national labor court heard a case concerning whether a single man was eligible for paternity leave when he became a father through cross-border surrogacy. More specifically, the Court had to decide whether his paid leave could include the time he spent abroad in anticipation of the birth of his daughter. The single father claimed he should be treated like single women impregnated through sperm donation, who can choose to quit working and begin their paid maternity leave before giving birth based on their own personal, medical, or familial circumstances. The state objected, arguing that his situation is no different from that of intended parents using domestic surrogacy, who, according to the law, can only start their paid leave on the day they receive the newborn into their custody, not before.
Notably, when the case was making its way through the courts, the Israeli Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, more commonly known as the Surrogacy Law, excluded single men and same-sex couples from taking this reproductive route. This meant that cross-border surrogacy was the only available route for single men and male same-sex couples to become biological parents. Among the many problems and difficulties raised by transnational surrogacy (and global reproduction services more generally) is having to spend significant time across state borders. For expectant parents wishing to witness the birth of their children, it means traveling (and taking additional time off) before childbirth is expected to occur — work, family, and other obligations notwithstanding. Israeli single men thus occupy a different category of intended parents expecting a child through surrogacy. Unlike heterosexual couples who use a domestic surrogate and can work until receiving the child in their custody, single fathers must take time off before the child’s expected due date.
Cognizant of this legal reality, the Court ruled in favor of the single father, finding that he did not fit into the law’s existing ‘special’ categories of employees. As such, he should enjoy the same rights as any other employee expecting the birth of their child, including the right to start his parental leave prior to the birth of his child and in connection to it. According to the court, doing so would achieve the objectives of such parental benefit, namely allowing an intended parent to prepare for the delivery of their biological child and be a part of it. The court thus took it upon itself to bridge the gap between the law’s objectives and the reality of families formed through ART under circumstances the law did not foresee when it was first enacted.
An even more recent development in Israel’s ART legal regime upended the status quo. Following a Supreme Court’s landmark ruling that struck down provisions in the Israeli Surrogacy Law for discriminating against single men and same-sex couples, as of last year, both groups have access to domestic surrogacy. This decision thus places them in the same category as other intended parents using domestic surrogacy, which will probably disqualify them from starting their paid leave earlier, including those who will nevertheless opt for cross-border surrogacy. Indeed, even after the Supreme Court’s decision, legal and practical obstacles attributed in part to the state’s failure to properly amend the law, especially when coupled with the bureaucracy, time, and cost that domestic surrogacy already entails, make surrogacy for single men and same-sex gay couples legal, but largely inaccessible.
Surely, the decision to open domestic surrogacy to same-sex couples and single men was a desirable development. It has recognized men as equal stakeholders in assisted reproduction, and their procreative aspirations to become parents as having the same value as those of women. This decision could also save some single men and gay couples the emotional, physical, and economic hardship that cross-border surrogacy entails. A shorter paid paternity leave may thus be a small price to pay.
However, these recent developments illustrate the precarious relationship between Israel’s reproductive law and family units headed by men as singles or in same-sex relationships — and its costs. Their growing prevalence notwithstanding, policies fail to take these families into account, opting instead for a benefit-by-benefit recognition through court decisions, resulting in a patchwork of rights and legal instability. As ART becomes a permanent fixture of the Israeli reproductive landscape, it is time to adopt definitions that respond to the needs of all parents-to-be.
Nofar Yakovi Gan-Or is a Postdoctoral Fellow at Haifa University Faculty of Law.
