Israel's Supreme Court Rules on Surrogacy Parenthood Recognition

Israel's Supreme Court has ruled that a biological mother of a child born via surrogacy abroad requires a "declaratory parenting order" to be legally recognized as the mother, stating that a simple "declaratory order" is insufficient. The court also stipulated that conditions unrelated to the surrogacy process itself cannot be imposed on the biological mother. Instead, the focus should be on verifying the legitimacy of the foreign surrogacy procedure and ensuring the surrogate mother's rights were protected.

The ruling partially accepted the position of the Attorney General, Gali Baharav-Miara. Israeli law currently only regulates domestic surrogacy. In 2022, the Attorney General's office updated its policy, requiring a declaratory parenting order for biological mothers in international surrogacy cases, while fathers only need a declaratory order after genetic testing confirms their paternity. This policy change took effect in April 2024.

Justice Yael Vilner agreed with Baharav-Miara regarding the necessity of a declaratory parenting order but disagreed on the conditions for obtaining it. Vilner reasoned that Israeli surrogacy law mandates a judicial order to establish biological parenthood, even with genetic ties, to definitively sever the surrogate's connection to the child and protect her rights. This principle, she argued, applies even more strongly to international surrogacy.

Vilner emphasized that a judicial order ensures the biological mother's interests are safeguarded and prevents the automatic recognition of genetic parenthood from inadvertently severing the surrogate's parental rights without judicial oversight, especially since Israeli law does not recognize more than two parents. She rejected imposing conditions for obtaining the order that were derived from domestic surrogacy agreements, arguing they were inappropriate after the child's birth and would unfairly disadvantage intended parents who used surrogacy.

Justice Yechiel Kesher concurred with Vilner's decision, while Justice Daphne Barak-Erez dissented, believing a declaratory order would suffice for the mother. The Supreme Court unanimously rejected the Attorney General's appeals against lower court rulings concerning the recognition of biological mothers in surrogacy cases.