The number of children a couple already has does not constitute sufficient reason to reject an application for surrogate motherhood, the High Court of Justice ruled yesterday.
The court was responding to a petition by a married woman, now 38 years old, who sought approval for a surrogate to carry a child for her and her husband. The petitioner underwent a hysterectomy after giving birth to her third child.
The surrogacy approval committee turned down the couple's request, saying its policy was to approve surrogacy for applicants with no children, while the petitioners had three of their own.
"It's a joyful day," the woman told Haaretz after the ruling was issued. "On the personal level, when I was 30 and my womb was removed, I thought I had lost the possibility of bringing more children into the world ... On the broader level, I feel I blazed a path for other happy families to come, now that this obstacle has been removed."
In 2007, after her hysterectomy, the woman and her husband applied to the surrogacy board that was established when Israel legalized surrogate motherhood and asked to begin the process of finding a woman willing to carry a child for them.
In rejecting their application, the board said the law was intended to help childless couples, and while it does have the power to approve surrogacy for couples who already have children, its members were not persuaded that the couple's case justified making an exception.
Several months later, the couple appeared before the committee a second time with a written letter of support from a rabbi, but the board was not swayed.
Figures submitted later to the High Court show that since the law regulating surrogacy was passed in 1996, only two couples with three children have applied for permission to use a surrogate mother to have a fourth.
In their 2010 petition to the court, the couple argued that parenthood is a fundamental right, and therefore, absent a compelling reason to the contrary, they should not be denied the possibility of using advanced medical technology to bring children into the world. They said the number of children a couple already has could not be considered sufficient cause to deny them that right.
The state replied that directives issued to the surrogacy board by the attorney general more than a decade ago deemed two children the fulfillment of a family's right to parenthood, so surrogacy should not be approved in order to give a family a child beyond that number.
But the court said it was not persuaded that the board had thoroughly examined the couple's application, as its members apparently believed the number of existing children was reason enough on its own to deny the application.
The couple's attorney, Yitzhak Bam, said the ruling was important because it was the first time the court had intervened in the surrogacy board's considerations.
"We heard from the court that the board is not God and cannot determine how many children are 'sufficient' for a couple to have," he said. "Let us hope that this verdict heralds the creation of new life."
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