Surrogacy, Same-sex Couples and the Privatisation of Regulation in Israel

Jonathan Berman - 27th February 2014

On 30 January 2014, the Israeli Government published a draft bill on surrogacy. This proposed amendment to Israel’s 1996 surrogacy law, which was based on a deeply entrenched heteronormative vision of the family, will allow same-sex couples to take part in surrogacy procedures in Israel for the first time.

The 1996 law defines the “parents to be” as a “man and woman”, and therefore excludes same-sex couples and single persons. In the past few years, same-sex couples were often compelled to choose between giving up their hope to have children or entering surrogacy arrangements abroad. India and Thailand became popular countries for Israeli same-sex couples who looked for alternative locations where they could become parents through surrogacy procedures.

This option raised several concerns. The high financial costs involved in these extra-territorial surrogacy proceedings rendered this option impossible for most people. But perhaps more importantly, the lack of regulatory oversight of these proceedings induced many to raise questions about the potential human rights violations of the women involved. In the past few years the LGBTIQ community in Israel, as well the feminist community, engaged in vigorous debates on the moral questions involved in “overseas surrogacy” (and surrogacy in general). Some pointed at the concerns of exploitation of women either by commercial companies involved in surrogacy or by other men, such as family members who may have control over some women’s choices. However, others expressed the view that questioning the free will of impoverished women who are attempting to improve their financial situation through surrogacy is paternalistic. Some opponents also conceptualised these practices of overseas surrogacy in terms of neo-colonialism, portraying the image of the white male who comes from a relatively wealthy country and uses the non-white woman’s womb as commodity.

The proposed bill will end the discrimination between heterosexual and gay couples. It will not, however, end the more general debate concerning the morality of surrogacy. Additionally, it will not render the concerns raised in relation to “overseas surrogacy” obsolete. Under the assumption that the demand for surrogacy procedures by Israelis will exceed the number of Israeli women willing to enter surrogacy agreements, the bill envisions a continuing use of “overseas surrogacy”, and purports to regulate it.

The regulatory arrangements presented in the bill (both in relation to “home surrogacy” and “overseas surrogacy”) purport to adhere to the middle ground between opposing poles – the belief that surrogacy entails no moral or practical problem and should be left entirely to the free market, and the belief that it is an unacceptable form of commodification of the female body, which should be disallowed altogether. Unfortunately, the proposed regulatory measures seem to reflect a clear neo-liberal profit-based vision. The regulatory model which the bill adopts is loosely based on state supervision, and delegates several functions to privately owned entities. “Overseas surrogacy” will be made available only to persons using the services of profit-based corporations based in Israel.

This model of regulation raises a number of concerns. The involvement of another commercial agent in the chain of mediation might result in either an increase of the cost of surrogacy or, more likely, in a decrease in the compensation the weakest link in this chain, the surrogate mother, will receive. But perhaps more importantly, once the challenging task of ensuring that basic principles such as appropriate medical conditions or guarantees against coercion and exploitation of women, is placed at the hands of institutions whose main consideration is profit, concerns should be raised about such entities’ inclinations to compromise over protection of basic rights in order to maximise their business potential.

Similar doubts should be voiced due to the fact that the bill confers the power to determine the competence and eligibility of potential parents upon these profit-based corporations. The privatisation and mercantilisation of a mechanism, which has a say in the realisation of a basic human right, the right to family life, raises serious concerns.

While state bureaucracies may not always be the ideal or most efficient agents for handling surrogacy agreements and procedures, it seems that privatised regulation of this delicate matter holds the potential of serious human rights violations. This model should therefore be reconsidered by the Israeli Government before the bill turns into binding legislation.


Author profile

Jonathan (Yonatan) Berman is a D.Phil candidate at the University of Oxford. As a legal practitioner in Israel he represented on behalf of human rights organizations LGBTIQ persons in marriage registration, inheritance rights, immigration and asylum cases.


Jonathan Berman, ‘Surrogacy, Same-sex Couples and the Privatisation of Regulation in Israel’ (OxHRH Blog, 27 February 2014)
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