Israel's Supreme Court Overturns Adoption Orders for Children Born via Surrogacy

Israel's Supreme Court has overturned adoption orders for two children born to a gay couple through surrogacy in Northern Cyprus. The court ruled that the waivers signed by the surrogate mothers, who are foreign nationals, did not meet the legal requirements for adoption consent in Israel. Justice Dafna Barak-Erez, writing the main opinion, stated that these waivers could not substitute for the legally required consent for adoption, especially given the lack of diplomatic relations with Northern Cyprus and the Foreign Ministry's travel advisory against surrogacy procedures there.

The couple, who began their surrogacy journey in 2021, had two children, a boy and a girl, born in August 2022. Each child has a biological father within the couple, but the surrogate mothers were registered as the mothers on the birth certificates. Unlike surrogacy in other countries, the process in Northern Cyprus did not formally sever the legal tie between the surrogate mother and the child. This prevented the non-biological father in each case from obtaining a parentage order in Israel, leading the couple to pursue adoption.

After the surrogates signed "waiver of rights" affidavits before an Israeli consular representative, the couple obtained parentage recognition for the biological fathers. They then sought adoption orders for each to become the legal parent of their partner's biological child. While the Family Court and the Haifa District Court initially approved the adoptions, ruling that the waivers indicated the women's intent, the Attorney General appealed to the Supreme Court.

The Attorney General argued that the waivers lacked the informed consent required by adoption law, which necessitates detailed information about the implications of adoption and the parent's rights. Justice Barak-Erez agreed, emphasizing that consent for adoption, a life-altering decision, must be free, deliberate, and genuine. She noted that the waivers omitted crucial information present in the legal adoption consent form, such as the child's right to receive information about the birth parent and the possibility of revoking consent within a specific period.

Barak-Erez expressed grave concerns about potential exploitation and human trafficking in the surrogacy process, particularly given the circumstances under which the agreements were signed and the potential sanctions against the women. The court ruled that the couple must make genuine efforts to locate the surrogate mothers and obtain their proper legal consent. If the women cannot be found after diligent efforts, alternative legal avenues may be explored, such as declaring the children available for adoption if their parents cannot be identified or their wishes ascertained. The court acknowledged the children's best interest in having their parental status settled but stressed that problematic procedures cannot be retroactively legitimized.