GENERAL LEGAL FRAMEWORK

LEGAL RULES RELATING TO SURROGACY

Israel was the first country in the world to regulate surrogacy by legislation. The Surrogate Motherhood Agreements (Approval of Agreement and Status of Newborn Law) 1996 (hereinafter ‘the Surrogacy Law’) legalised gestational surrogacy agreements which fulfilled the conditions set out in the Surrogacy Law and received approval from a Statutory Committee (hereinafter ‘the Approvals Committee’), set up under that Law. The Surrogacy Law specifically allows for payments to be made to the surrogate mother to compensate her for her time and suffering and thus surrogacy in Israel is commercial. Whilst the scheme is widely considered successful, over the years it became clear that some aspects needed improving. As will be explained below, a recent amendment law made some improvements, but did not address all of the problems. The Surrogacy Law relates only to cases where the implantation of the embryo takes place in Israel. In recent years, for reasons which will be set out below, a growing number of Israelis have entered into agreements with foreign surrogates. Since Israeli law does not forbid this practice, it is not illegal. In the absence of legislative regulation, the procedure for determining the status of the children born as a result of such arrangements is governed by administrative guidelines, as modified by judicial decisions, which will be explained below.

THE APPROVALS COMMITTEE

Surrogacy arrangements have to be authorised by the Approvals Committee, set up under the Surrogacy Law. The Committee is appointed by the Minister of Health and includes two doctors with expertise in gynaecology and obstetrics; one doctor with expertise in internal medicine; a clinical psychologist; a social worker; a lawyer; and a religious cleric (according to the religion of the parties).

The Surrogacy Law 5 provides that applications to the Committee have to include a draft surrogacy agreement, a medical opinion confirming that the commissioning mother is unable to carry a pregnancy or that pregnancy would involve a significant risk to health; opinions from doctors and psychologists as to the suitability of each of the parties to participate in the process; confirmation from a psychologist or social worker that the commissioning parents received appropriate professional advice, including in relation to other possibilities of parenthood.