On Reproduction, Citizenship, and the Exclusion of Same-Sex Couples
On Reproduction, Citizenship, and the Exclusion of Same-Sex Couples
In HCJ 5771/12 Moshe v. The Committee for Approval of Agreements for Carrying Fetuses, the Israeli Supreme Court decided a petition regarding the parenting rights of a lesbian couple who asked the Court to compel the Ministry of Health or a committee on its behalf which considers exceptional cases (the Exceptions Committee) to allow them to have a child using assisted reproductive technologies (ART). In doing so, the Court’s decision had broad implications for the reproductive rights of Israelis who are either unable or unwilling to bear children (unable to parent?) within the traditional heterosexual marital model.
The first petitioner (Liat) was a high-ranking officer in the IDF, who – together with her partner of ten years (Dana) – had suffered several failed attempts to become pregnant, likely because of inability to carry a pregnancy. The couple therefore sought the Ministry of Health’s approval for eggs to be extracted from Liat and implanted in Dana’s uterus. Upon the Ministry’s denial of this request, Liat and Dana challenged various provisions of the Agreements for Carrying Fetuses Act (Approval of Agreements and the Status of the Child) 1996 (the Surrogacy Act) and the Egg Donation Act 2010 (the Egg Donation Act). It should be noted that because the women wanted to perform the entire procedure in Israel, they continued their legal challenge even after the Ministry of Health issued a new protocol which would allow the couple to take overseas the eggs already harvested from Liat, perform the implantation abroad, and be later recognized as co-parents in Israel.
Writing for the majority of the Court, Justice Rubinstein found that the petitioners do not meet the definition of “intended parents” as established by the Surrogacy Act, whereby “intended parents” are “a man and a woman who are a couple,” and thus they are not eligible to undertake surrogacy in Israel. All the Justices agreed that the fact that the Knesset was in the process of revising legislation to expand eligibility for surrogacy services calls for judicial restraint and abstention from judicial intervention in the provisions of the Surrogacy Act.
In considering the parties’ constitutional challenge to the Egg Donations Act, Justice Rubinstein considered the Egg Donation Act’s requirement that a woman receiving donated eggs have a medical condition. The petitioning couple had challenged this requirement under the Limitations Clause. (Recall that here, Liat – the prospective donor – was the woman with the potential medical condition, while Dana – the prospective carrier – was considered to have no relevant medical condition.) Ultimately, Justice Rubinstein concluded that, in requiring them to exercise their right to parent through ART outside of Israel, “with all the inconvenience involved, the new protocol does not automatically lead to unconstitutional violations of [their] right” and is thus a proportional alternative to the prohibition on undergoing ART in Israel. He concedes that there is “discomfort” with the State leaving its citizens to realize their dreams and rights in other countries, yet he still finds it appropriate and proportional because this alternative preserves harmony in the system of parenthood arrangements and the balances between them.
Writing separate dissents, both Justices Hayut and Arbel were united in the opinion that the Petition must be granted but differed as to their reasoning. Justice Hayut found that the Egg Donation Act violates the Limitations Clause, and she proposed to solve this problem by reading into the Act a general catch-all section that would expand the Exceptions Committee’s authorization to approve an egg donation. Justice Hayut would have held that when the Committee is satisfied that “under the circumstances there are exceptional and special reasons that justify doing so,” it should permit what the Petitioners requested. Justice Arbel, on the other hand, believed that both the Egg Donation Act and The Surrogacy Act did not apply to the case at hand and instead analyzed the case under the People’s Health Regulations (In Vitro Fertilization) 1987.
This rich decision easily lends itself to critique on many grounds. Just to name a few: Israeli society’s strong interest in promoting reproduction as a response to demographical concerns; the way this interest feeds into high preference for ART over adoptions, as rooted in biogeneticism – a phenomenon that has taken a strong hold in the LGBT community as well; the potential need to rethink the individualist paradigm in considering medical need; the problematic use of the term “mother” to refer to most women involved in ART, regardless of their actual role in the future child’s life, and the way in which using such a term has constitutive force as to the rights of all parties involved; the relatively extensive use of Jewish law sources, which are likely inherently skewed against non-traditional parenting; and finally the fact that the Court never guarantees that both partners would be recognized as the future child’s parents.
Perhaps what is most striking about this decision is the common thread among the writing Justices in their struggle to fit the couple and the procedure they seek into the existing statutory framework. As I will discuss below, this is precisely the trouble with these arrangements – that by design they exclude couples and individuals who do not fit the traditional heterosexual and marital family model. Therefore some of the Justices’ attempts to fit the circumstances of this case into the existing statutory framework resemble trying to fit a round peg into a square hole.
To support this point, consider two aspects of the majority’s satisfaction with the option of performing the desirable ART route abroad as a least restrictive means and thus a cure to the constitutional flaw. The first aspect is the practicality and meaningfulness of this alternative; the second aspect considers the philosophical meaning of such proposals as to whom a society and its law consider “citizens” whose rights are worthy of full protection and exercise.
As the Court spends virtually no time thinking about the “inconveniences” involved in performing ART abroad, let us devote them some consideration. Think of the logistics – locating a jurisdiction where the procedure is permitted (and may be permitted to foreigners), finding a physician and other health care professionals or any insurance coverage that may be necessary, securing legal advice, overcoming potential language difficulties and other communication challenges. Now think of the finances, while keeping in mind that Israeli universal healthcare is quite generous with covering ART treatments performed in Israel – on top of financing the treatments themselves and fees for any participating professionals, there are expenses for travel, accommodations, potential lost wages in days missed from work. In addition, of course, there is no guarantee that the procedure will succeed after just one attempt. In the face of only a cursory conclusion that all this is “proportional” and in the absence of any discussion whether this alternative is in fact least restrictive (or even meaningfully feasible), “inconveniences” fast become barriers.
On a philosophical level, consider Michel Foucault’s work on citizenship, where he essentially theorizes that the state has developed social institutions such as law and medicine to define citizenship and morality and remove those who exhibit undesirable behavior from society. He focuses particularly on prisons and mental health institutions as illustrative examples. Criminals and the “mad” may be formally stripped of their citizenship in the sense that they could, for example, lose their right to vote as well as other fundamental rights such as their freedom of movement or rights to privacy or bodily integrity (through the loss of competence to make medical decisions), but they are also stripped of their dignity through a process of stigmatization and judgment as to their morality and desirability to be full participants in society. I would suggest that families and parenthood serve similar functions, in the sense that those who do not form traditional “desirable” families (that is, generally, heterosexual and marital) are to be excluded both from enjoying the fundamental rights and the dignity that come with citizenship.
It is fascinating – and alarming – to consider Liat and Dana’s case as a real-life example of Foucault’s theory. Quite literally, their desired family structure (two women and their future child) does not meet the model of parenting envisioned by the relevant statutory frameworks (“man and woman who are a couple”) and so the Court opts for removing them, however temporarily, to another country. This solution is not just problematic because of the logistical barriers described above, but also because of the message it sends – that those who form undesirable families are not entitled to enjoy their most fundamental rights as citizens and are literally removed from society, forced to exercise these rights in lands where they are not citizens even in the formal sense and where none of their rights may garner any sort of protection. That Liat is a high-ranking military officer in a country that exalts its military and military personnel exacerbates the sense of outrage at a decision whose rhetoric affirms citizen’s rights when its outcome effectively denies those rights and sends them to seek their implementation abroad. The harm to the dignity of the individual (which in and of itself is a violation of an Israeli fundamental right) acts like salt on the wound of the loss of rights to access ART.
Further, ART is not the only context in which Israeli law has shipped citizens abroad in order to exercise fundamental family rights. The various and expansive categories of people who may not marry in Israel due to the exclusive jurisdiction of religious law over matters of marriage and divorce has created a situation in which couples (who can afford it) travel abroad in order to get married. The same goes for decisions that generally affirm the right to marry citizens of enemy states or state entities, primarily in this context Palestinian residents of the West Bank and Gaza, but do not recognize a right to family life in Israel, leading to a blanket exclusion of reunification-based immigration of the foreign partner to Israel. While in all three contexts (ART, marriage rights, and reunification) the Court remarks that there should be changes in legislation to make marriage rights, ART access, and immigration more inclusive to reduce violation of fundamental rights, these comments seem perfunctory. A court more attuned to guaranteeing rights, even while concerned with maintaining legislative harmony, could provide greater instruction to the legislature, for instance, by setting a time limit for revised legislation – a tactic not unheard of in the Israeli Court or other apex courts such as the Supreme Court of the United States (Brown II) and the Constitutional Court of South Africa (Fourie). Such strategies compel the legislature to pass legislation that better protects constitutional rights, establishes a new legislative harmony, and, no less important, restores the dignity and citizenship of formerly excluded and disadvantaged families.
 See Michael Boucai, Is Assisted Procreation an LGBT Right?, Wisconsin L. Rev. (forthcoming 2016) (on file with author).
 In other words, the idea that a “medical need” definition examines the health of only one partner, rather than the couple’s – to the extent that there are two intended parents – medical need for ART vis-à-vis each other obscures the inherent challenges for “natural” reproduction that same sex couples face and ultimately obstructs their access to ART. On moving beyond the “individualist paradigm” see Holning Lau, Transcending the Individualist Paradigm in Sexual Orientation Antidiscrimination Law, 94 Cal. L. rev. 1271; Orly Rachmilovitz, Achieving Due Process Through Comprehensive Care for Mentally Disabled Parents: A Less Restrictive Alternative to Family Separation, 12 U. Pa. J. Const. L. 785.
 See, e.g., in this context HCJ FLA 1118/14, Jane Doe v. The Ministry of Welfare and Social Services, where a single mother was denied parenting recognition of a child she had through ART, with the child being removed into foster care. It is true that case can be distinguished from ours because there was no genetic link in the single mother’s case, whereas here one parent is genetically related to the child and the other parent receives “secondary” recognition vis-à-vis her relationship with the biological parent. Still, that a child can be removed from an adult who initiated and invested in bringing her into the world in order to parent that child, is likely a very unsettling prospect to many who parent through non-traditional means.
 Holnig Lau, Comparative Perspectives on Strategic Remedial Delays, Tulane L. Rev. (forthcoming), available online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2784267 (June 6, 2016).
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