ISRAELI HIGH COURT SAYS YES TO ADOPTIONS BY LESBIAN COUPLE

Even as some U.S. newspapers have incorrectly stated that the Supreme Court upheld Florida’s ban on gay adoption, the Israeli high court ruling provides an example of the opposite media phenomenon. Although the opinion establishes an important point, English-language press reports published January 10 in the Jerusalem Post and Ha’aretz have perhaps overstated the specificity of the holding as a gay rights matter. 

The case involves a lesbian couple, Tal and Avital Yaros-Hakak, who are raising three children conceived through donor insemination. Tal gave birth to two children, Avital to the third. They unsuccessfully sought to adopt each other’s children in the Family Court in Ramat Gan.

Under Israel’s adoption laws, married couples are preferred as adoptive parents, and stepparent adoptions are allowed, but the law makes no specific provision to authorize a person to be adopted by an unmarried adult unrelated in law to the child’s legal parent. Because legal marriage in Israel is restricted to Orthodox Jewish marriage, many opposite-sex couples live as unmarried cohabitants and are recognized as “spouses” under the law for a variety of purposes, including the adoption law. However, the Yaros-Hakak case was not litigated on a contention that they should be treated as “spouses,” even though same-sex couples have had some success arguing this point in other types of cases. Instead, they asserted that the particular circumstances of their case justified an exception to the normal requirements.

The Family Court took a narrow view and found that these adoptions are not specifically authorized, refusing to apply a loophole in the law that allows for adoptions by single adults in “special circumstances,” and the Tel Aviv District Court voted 2 to 1 to affirm the Family Court.

In reversing that decision, the president of the Supreme Court, Aharon Barak, wrote that the Family Court should consider granting these adoptions if it were in the best interest of the children to do so. Barak did not recognize the lesbian partners as spouses for this purpose, but rather noted that the law allows the Family Court to take a realistic view of the situation. In this case, the three children are being raised by the two women as a single family, and the question is whether it is in the’ best interest of these children to be legally related to both mothers. Barak specifically rejected any contention that the Family Court should be considering whether the children would be better off in a traditional heterosexual household. The reality is that these children are living with their biological mothers and will continue to do so. The question for the Family Court is whether formalizing their relationships with their mother’s partner would be in their best interests.

The Court eschewed a categorical approach to the issue of “second-parent adoption,” as it has been developed by several state supreme courts in the U.S., and preferred to treat this case as a potentially justifiable exception to the general rule due to “special circumstances,” expressing a preference for case-by-case decision-making.

The big news for Israeli law was that the Court found it of no significance that the women involved are lesbians or that this is a case involving a same-sex couple as opposed to an opposite-sex couple. In that sense, this is an important gay rights case, considering that many aspects of family policy in Israel are controlled by the Orthodox Jewish religious hierarchy, and that spokespersons for the religious political parties have been very critical of the opinion.

Some flavor of the opposition to gay parenting emerges from the comment by Eli Yishai, chairman of Shas, one of the religious parties, who told the Jerusalem Post that the Court’s decision is “a mark of disgrace in the history book of the Jewish people.”

—Arthur S. Leonard, who was supplied an English-language summary of the Yaros-Hakak decision, issued only in Hebrew, by Aeyal Gross of the law faculty of Tel Aviv University.

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