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Israeli court paves way for surrogacy

BMJ 1995; 311 doi: https://doi.org/10.1136/bmj.311.7001.348 (Published 05 August 1995) Cite this as: BMJ 1995;311:348

Israel's High Court of Justice has overturned a 1987 law that bars surrogate motherhood and has given the government five months to push through parliament a detailed new law that would ensure strict supervision of the process. The highest appeals court in the land declared null and void an existing law that prohibits implantation of an embryo in a woman who is not its mother. The old law also provides that a donor's ovum shall not be transplanted unless it was fertilised by the recipient's husband.

Solicitor Amnon Ben-Dror was hired by 24 childless couples and one would be surrogate mother to fight the old regulations, as a result of which many Israeli couples spent fortunes on surrogacy arrangements carried out abroad. The lawyer argued that the infertile couples (including women born without a womb and one woman who had miscarried 14 times) were discriminated against and prevented from having children of their own. Rich people, he said, could always hire surrogates abroad. An estimated 500 Israeli couples each year want to hire a surrogate.

After initial opposition the ministries of health and justice recently changed their view and now endorse the legalisation of surrogacy. This turnabout is largely due to a report issued a year ago by a public committee of experts who deliberated for three years on the medical, ethical, legal, and religious problems. Most members of the committee believed that the phenomenon of going abroad to “commission” babies was too common to ignore and that it was better to allow commissioning in Israel under the eye of the authorities.

Professor Shlomo Mashiah, president of Israel's Society of Gynaecology and Obstetrics, praised the High Court of Justice's ruling and said: “It will give us the power to help hundreds of childless couples bring a baby into the world.”

Preparing a bill to cover all possible problems is proving complex. Questions include how the law should be enforced, whether the surrogate mother can be barred from behaviour deemed unhealthy during pregnancy, what to do if the baby is disabled and wanted by neither the commissioning parents nor the surrogate, and whether the surrogate mother should be granted visiting rights.

Mira Huebner, of the health ministry's legal department, would not disclose details of the bill that her team is developing with two other ministries.

She said: “Many issues, such as dealing with a defective baby, haven't been resolved yet. We don't want to reveal the proposal until it's brought to the Knesset.” She added that although health minister Dr Ephraim Sneh strongly favours legal surrogacy, theoretically the Israeli parliament—the Knesset—could pass a new law with restrictions so tight that they would prove impossible to meet.

Israel's powerful religious establishment was surprisingly docile about the High Court's decision. The prevailing view among rabbinical arbiters is that the woman who carries a pregnancy and gives birth to a baby is the mother, even if the egg came from another woman. Thus the resulting baby must be adopted by the commissioning couple even if they provided the embryo.—JUDY SIEGEL-ITZKOVICH, medical correspondent, Jerusalem Post

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