Supreme Court Revokes Surrogacy Adoption Orders Over Exploitation Concerns
The Supreme Court annulled adoption orders for a couple who used surrogacy in Northern Cyprus, ruling that surrogate waiver forms cannot replace statutory informed consent.
The Supreme Court has upheld an appeal by the Attorney General, annulling adoption orders previously granted to a same-sex male couple who had two children via surrogacy in Northern Cyprus. Writing the primary opinion, Justice Daphne Barak-Erez ruled that waiver declarations signed by the surrogate mothers cannot replace the formal, informed consent required by Israeli adoption law.
The couple initiated a double surrogacy process in 2021, utilizing anonymous egg donors and two surrogate mothers in Northern Cyprus—a jurisdiction where the Foreign Ministry has issued specific warnings against surrogacy due to a lack of diplomatic relations. In August 2022, the surrogates gave birth to a boy and a girl on the same day. While genetic testing confirmed each man's paternity for one child, formal legal steps to sever ties with the surrogate mothers were never completed under Cypriot law.
Legal Hurdles and Waiver Declarations
Because standard parental orders could not be issued, the couple sought to adopt each other's biological children. A week after the birth, the surrogate mothers signed waiver documents before an Israeli consular representative, declaring they had no genetic tie to the children and surrendering custody rights. However, the Supreme Court determined these documents omitted crucial statutory information, such as the surrogate's right to reconsider within a specified timeframe and her entitlement to receive future updates.
Justice Barak-Erez emphasized that statutory consent forms are not merely procedural formalities. She noted that the circumstances surrounding the agreements raised severe concerns regarding potential exploitation bordering on human trafficking, pointing to financial penalties, limited involvement in medical decisions, and contracts signed after pregnancies were already established.
The human yearning for parenthood is among the deepest foundations of existence, but it must not come at the expense of women vulnerable to exploitation. The end does not justify every means.
The Path Forward for the Family
The court acknowledged the heavy toll on the children's legal status, noting that while the minors' best interests typically favor stabilizing parental recognition, irregular procedures cannot be retroactively rubber-stamped. The couple is now required to make genuine efforts to locate the surrogate mothers and obtain proper consent. If the women cannot be found despite diligent searches, alternative legal avenues under the Adoption Law may be considered.
Deputy President Noam Solberg concurred, criticizing the couple's initial legal maneuvering while emphasizing the necessity of deterring exploitative practices. Justice Ruth Ronen also joined the ruling with hesitation, acknowledging the immediate welfare of the children but stressing that statutory requirements cannot be bypassed.
