Surrogacy in Israel: Law, Requisites and Filiation

In Israel, surrogacy is legal only for heterosexual couples who are regular residents in the country. This means that it is not a good destination for surrogacy for american IPs or Parents of another nationality, since they might not obtain the filiation of the baby. It is permitted, in accordance with Law 5756, to compensate the surrogate financially, although it is not mandatory.

Reproductive rights and how to proceed in this area depend to a large extent on Jewish law. For this reason, one of the main requirements is that both intended parents and surrogate mother share the same religion in order to avoid religious discrepancies. Also, the semen used must be that of the intended parent or the child would be considered illegitimate. This excludes the possibility of double gametes donation.

What does the law say?

In the State of Israel, it is the Israeli Embryo Carrying Agreement Act 1996 (Act 5756) that regulates access to this assisted reproductive treatment. It should be noted that Jewish laws also play a very important role and must be taken into account at all times.

In this country, surrogacy is only allowed for heterosexual couples, although the law does not specify whether they should be legally married or not. Access to surrogacy is prohibited for single persons or homosexual couples.

However, homosexual couples can undergo a surrogacy process in a foreign country and obtain recognition of the baby once they arrive in the country.

Intended parents must be between 18 and 52 years old, and have their usual residence in Israel. An essential requirement is that the intended father must contribute his own semen, while the intended mother may be the one who contributes her genetic load or turns to a donor.

Surrogacy in Israel: Conditions for intended parents

The minimum requirements for undergoing this treatment are:

• Inability to carry a pregnancy to term
• Medical and psychological evaluation of all parties
• Confirmation by a psychologist or social worker of the quality of the counseling the Intended Parents have received

The committee also examines agreements with intermediary agencies, if any. In addition, its mission is to protect the rights of all parties and to ensure that they have freely and knowingly decided to take part in this treatment.

Surrogacy contract

Among the minimum guidelines established when signing an agreement we can find points such as a maximum of six transfers, the decision of the surrogate mother in the number of embryos that are transferred or the allocation of custody of the child in the event of death or divorce during pregnancy.

The validity of the contract must be approved by a seven-member state-appointed committee:

• Two specialists in gynecology and obstetrics
• One physician who specializes in internal medicine
• One clinical psychologist
• One social worker
• One jurist representing the State
• One representative of the religion practiced by the parties

Another point to highlight is the disparity of this commission: there must be at least three men and three women. Requirements other than those mentioned above may be required, on a case-by-case basis and at the request of the committee.

Surrogacy in Israel

The contract must specify where the procedure is to be carried out. In addition, a specific number of assisted reproduction treatment attempts (up to a maximum of 6 cycles) should be preset in the event that the surrogate mother does not become pregnant the first time.

Termination of pregnancy will only be permitted for medical reasons. In this case, the amount with which the surrogate will be compensated for damages resulting from the procedure must be established.

Profile of the surrogate

The surrogate cannot be a direct relative of the intended parents and must belong to the same religion as the intended mother, since in Judaism the religion of the baby is determined by the religion of the mother. If neither party is Jewish, then this would not be necessary and would depend on the determination of the religious representative of the commission.

The rest of the fundamental requirements to be fulfilled by the surrogate candidate are:

• It will not be her who contributes the genetic load (gestational surrogacy)
• Being between 22 and 38 years old
• If she is divorced, she must have at least 7 months with this marital status
• She must be a mother of at least one living child and a maximum of three
• At least one year must have passed since her last birth

Conditions for becoming a surrogate in Israel

Women who have participated in two successful or unsuccessful surrogacy treatments will be dismissed by the committee. So will be those who have psychological problems, are habitual smokers, consume drugs and alcohol, or have a criminal record.

The problem when it comes to chosing a candidate arises when she is married. In that case, since the child giving birth is not her husband's, it can be considered a case of Mamzerut. For this reason, it is recommended that the surrogate not be married, although there have been cases in which she was married, which has created jurisprudence.

According to unofficial statistical data, including information collected through Internet advertisements, the majority nationality of surrogates in Israel is Armenian, Georgian, Indian, Moldovan and Ukrainian. As for donor eggs, most come from Caucasian women.

Requirements and rights of the parties

Law 5756 only allows those with habitual residence in Israel to resort to this treatment, and the same applies in the case of surrogates. For this reason, one of the main requirements is that both intended parents and surrogate mother share the same religion in order to avoid religious discrepancies.

On the other hand, the government will cover both parties from the moment of birth. As a surrogacy treatment involves two parties, maternity leave rights will be divided:

• Surrogate mother: she will be entitled to a maternity leave of 3 weeks which can be extended to 12 weeks depending on her case and the specific situation.
• Intended parents: will be able to enjoy a maternity leave of 12 weeks.

For Jews, the woman who gives birth will be considered the legal mother of the child born by surrogacy until the moment as the paternity order is decreed that confers the legal rights of filiation on the intended parents, as explained below in the section "Filiation and nationality of the baby".

How is treatment carried out?

Embryos transferred to the surrogate must have been created by in vitro fertilization (IVF) with eggs from the intended mother or an egg donor, and sperm from the future father.

This implies that the only type of surrogacy allowed in Israel is gestational surrogacy. To find out more, we recommend reading the following article: Different types of surrogacy.

It is forbidden to use the semen of an anonymous donor because, if so, the child would be considered illegitimate. This requirement answers a number of questions:

• Medical: risk of incest if the child had offspring with other children from the same donor.
• Social: the right of the person born as a result of the treatment to know their biological origins.
• Psychological: the child has the right to know the identity of his biological father.
• Religious: According to the halachic concept of Mamzerut in Jewish religion, the child would be considered illegitimate if born from a forbidden relationship.

The treatment must be carried out in a public hospital authorized for treatments of surrogacy and always complying with the provisions of the agreement. At the time of pregnancy, the authorities must be informed. The expected date of birth and place of birth must also be communicated before the fifth month of pregnancy.

Costs and compensation to the surrogate

The law does not require that the surrogate be compensated. However, the IPs will be obliged to compensate her if she loses her job, part of her income, social benefits or any other benefit as a result of the process.

The total payment with which she will be compensated must be prefixed in the contract. The competent committee approves that a monthly economic amount is delivered to the surrogates for the following expenses derived from the procedure:

• Inconviences caused by pregnancy
• Time lost due to treatment
• Temporary reduction in income due to inability to work
• Maternity clothing, domestic help and other family needs
• Additional rest or hospitalization (if necessary)

There is no set minimum or maximum quantity, but it is left to the discretion of the parties and the commission. In practice, the payments to surrogates are around 35,000-45,000 US dollars (USD $). If we add to this the legal and medical expenses, the total would amount to about 50.000-75.000 USD $.

Costs of surrogacy in Israel

The law also contemplates the payment of expenses derived from the necessary legal advice and medical insurance. Intended parents must provide the surrogate with up to 10 hours of individualized legal assistance from a lawyer of her choice.

Affiliation and nationality of the baby

Within seven days of birth, intended fathers must begin a procedure to obtain a paternity order. This order shall be favorable as long as the interests of the child do not contradict it. So far, there has been no case in Israel where a paternity order has not been granted.

From the time of birth, 24 hours to notify is granted. At that time the competent authorities shall temporarily hand over the child to the intended parents through an agent. This agent will be the one who will ensure that the baby's well-being is cared for.

Once a paternity order is made, the intended parents become the legal parents of the child and this decision is irrevocable. This also applies when establishing the nationality of the child. If the parents are only residents in the country, the child would obtain the nationality of the parents.

The surrogate's desire to keep the baby would not be a sufficient reason for intended parents to be denied paternity order, unless a social worker can prove that the agreement that led the woman to change her mind has been breached at some point.

However, the interests of the child will always take precedence over everything else. Anyway, there has never been a case in Israel so far, where the surrogate claims custody of the child.

FAQs from users

Is Israel a good destination for foreigners who need a surrogate?

No, given that a fundamental requirement established by Israeli law is that intended parents must be habitual residents of the country.

Therefore, it is not recommended as a destination for reproductive tourism, since in any case they would never be accepted as candidates for such treatment. In addition, it is a fundamental requirement that all parties involved (intended parents and surrogate) profess the same religion in order to avoid conflicts on religious grounds.

Can the egg donor decide on any aspect of the surrogacy process in Israel?

No, since egg donation must be anonymous according to Israeli law. Therefore, neither the intended parents nor the surrogate will know the egg donor, nor will she have any responsibility towards the child born as a result of her donation. However, it is possible, under the approval of a special commission, if the recipient needs a particular donor, in which case she will be known from the beginning.

The specialist responsible for each case may give information on the donor to the recipient woman to the extent she deems appropriate, provided that this is duly justified. In any other case, the donor is an anonymous woman.

Can a surrogate pregnancy be carried out in a private clinic without the approval of the Israeli Government?

Any surrogacy process initiated without the express approval of the relevant commission would be considered illegal. Even if the agreement is initiated by having an agency act as an intermediary, it would first have to be done with the consent of the commission. Otherwise, it would be considered a crime.

Suggested for you

Since Israel is not a good destination for foreigners who wish to become parents due to surrogacy, we recommend consulting other countries where legislation is more flexible and allows access to all types of people, regardless of nationality or sexual orientation. If you wish to undergo surrogacy outside the States, do not hesitate to visit the following page: Where is surrogacy legal?

In the specific case of Israel, only gestational surrogacy is allowed, so the in vitro fertilization (IVF) technique will necessarily be necessary. Do you know how it works and the steps followed until pregnancy is achieved? We tell you about it in detail here: What is in vitro fertilization or IVF?

Besides, there are currently many possible family models. Depending on whether it is a heterosexual couple, homosexual or a single person, assisted reproduction treatment may change or require different requirements. Here you can find out all the possibilities available to you according to your family model: Who can have a child by surrogacy and how?