Winner: Celebrating Excellence in Research and Impact Awards 2021 - Early Career Researcher - Faculty of Humanities
What is the process when a country’s law and systems discriminate against its people? What options exist to move beyond that discrimination and enable rights? Over the past decade, Dr Haim Abraham, from the School of Law, has been looking at the laws and processes surrounding surrogacy in Israel, to ensure same-sex couples and single people enjoy equal rights.
Surrogacy allows individuals to have children with a genetic link to at least one of the prospective parents. For some, it provides an important route to realising their dreams of family, but what happens when the law denies particular groups access to this medical treatment?
In Israel, surrogacy has been legal for 25 years. Prospective parents can only enter into a contract with a surrogate and undergo the procedure if they receive the approval of a special committee in the Ministry of Health. Yet, only heterosexual couples are eligible to apply for approval. Single individuals and same-sex couples have, so far, been excluded.
Dr Haim Abraham first turned his thoughts to Israel’s surrogacy policies in 2011, while still an undergraduate at The Hebrew University of Jerusalem.
In 2013, Dr Abraham organised the Surrogacy in Israel conference, attracting a significant audience of parliamentarians, academics, campaigners, surrogates and intended parents, with the aim of facilitating legal reform.
In the same year, he presented his initial findings to the Minister of Health, and the Israel Parliament Public Petitions Committee, providing oral testimony and written evidence that influenced a Draft Bill for the amendment of the surrogacy laws.
In 2017, he published Parenting, Surrogacy and The State, the first academic paper to establish that the current law in Israel systematically discriminates against single and same-sex couples.
Looking at the history of petitions to the country’s Supreme Court, Dr Abraham was able to identify discrimination based on sexual orientation, family status and gender, and to show how the law should be changed.
In Israel, political opposition has traditionally made it hard to realise LGTBQ+ rights through legislation. Dr Abraham looked instead to constitutional law: “Israel doesn't have a constitution per se, but it does have Basic Laws, which are codified and interpreted in a way that gives them the ability to be bulwarks against certain types of abuses of rights.”
The discrimination identified by Dr Abraham infringes the right to family life and access to medical treatment, and fails to meet the constitutional norms of necessity and proportionality.
“In the context of surrogacy, the relevant Basic Law is Human Dignity and Liberty. Under this law, the courts have interpreted that there is a right to equality and that means there are certain things that the legislator has to do, and certain things that it can't do.
“There are proportionality requirements that any law that comes into conflict with the basic law has to meet. The benefit of the law must outweigh it costs and in this case I could show that it does not.”
Dr Abraham’s research also looked at social developments regarding parenting and surrogacy in Israel, and the legislative history of Israel’s surrogacy laws, their operation, and interpretation by the court for over 20 years. It further revealed a clear bias against non-traditional family structures and a perception that only women have an inherent right to parenthood. It called for legal reform to end discrimination in access to surrogacy treatments.
Dr Abraham’s paper has helped to promote a reform of Israel’s surrogacy laws that will put to an end the current discrimination against single and same-sex couples.
His paper has so far been cited in three seminal rulings at the Israel Supreme Court, the country’s highest court:
The latest of these rulings has been celebrated as a significant achievement of the LGBTQ+ community in Israel in recent years. It ends nearly 30 years of clear discrimination in access to medical treatment and resources, and further entrenches the equality of the LGBTQ+ community.