Six years since the state pledged to change adoption law so that discrimination against same-sex couples would be eliminated, the Israeli Supreme Court on Thursday unanimously ruled that existing law allows LGBTQ couples to adopt.
The judges issued their decision as part of a discussion of the petition that two LGBTQ couples submitted in 2021 with the Reform Center, the Aguda, Jerusalem Open House for Pride and Tolerance and the Proud Fathers Association.
The petition dealt with the adoption law that states “there is no adoption except by a man and his wife together,” thus discriminating against LGBTQ couples who can only adopt children in which heterosexual couples are not interested. These are usually older children or children with special needs, and it is required that the term “man and his wife” in the adoption law be interpreted to include spouses of the same sex.
“Six decades have passed since the box ‘man and his wife together’ was written in the adoption law,” wrote the judges in their decision, “Since then, we have learned to know that a stable and loving family unit, which can form a solid foundation for raising a healthy child, can be a family unit of a man and a woman, of a woman and a woman and of each person — provided that the best interests of the child are preserved. This insight is the focus of the interpretation given by us today to the provision of Section 3 of the law. In this interpretive ruling, which brings same-sex couples through the ‘main door’ of non-adoption, we are walking in a groove that has already been plowed in rulings in the field of family law and in other areas, which over the years have recognized the existence of same-sex relationships, the parenting of same-sex couples and their right for equality. Our ruling even continues an existing interpretive axis that refers to the adoption law, an axis that expands the range of potential efforts beyond the limits of the traditional family model of ‘man and woman,’ in order to fulfill the purpose of the law. This interpretation is therefore required by the changes of the times, the principle of the best interests of the child, human dignity and the principle of equality.”
More than seven years of struggle
The issue of discrimination in the adoption law was raised for the first time in front of the Supreme Court in the first petition submitted in 2016. The State then sought to amend the adoption law within a year and a half so that discrimination against LGBTQ couples would be eliminated. In 2019, a legal memorandum was published on the subject, but it was not published.
After the previous government stated there was no political possibility to amend legislation but they had no objection to the petition being scheduled for hearing before the High Court of Justice, a hearing on the petition was scheduled for the summer of 2022, but it was canceled in light of the fall of the government and the elections held at the end of 2022.
The first hearing on the petition was held in August.
According to the State’s position submitted in advance of the hearing, the best way is to wait for the amendment of legislation, but because the justice minister believes that there is no political feasibility to amend legislation and due to the welfare minister’s opposition, who claimed that this “adds complexities and difficulties to the child” contrary to the positions of the professionals in his office, there is a legal anchor that will make it possible to receive the expansive interpretation that the petitioners request. The State, as well as the petitioners in this case, insists that this is also required due to the principle of the best interests of the child — to provide a home for the child regardless of the sexual orientation of his parents.
“This is a ray of light in a dark time,” said petitioners Shahar Gloverman and Shay Gortler. “For more than eight years we have been waiting in line for adoption. The High Court of Justice will no longer give us back these years or the consequences of the long wait, but we are happy that the door of adoption has been opened for the next LGBT couples.”
“During the difficult times we are in, we welcome small moments of kindness that inspire hope that we will rise from the ruins for a better, more just and united future,” added petitioners Tzafir Gideon and Ido Ziv, “We thank the court for its ruling that put an end to the discriminatory distinction between us as parents, which has no understanding And between the welfare of the child, one thing and another. Just as there are no second-class children, there are also no second-class parents. Love is love is love.”
A ruling that erases another expression of institutional discrimination
“For over seven years we have been fighting for LGBTQ couples so that they can realize their dream of becoming a family through adoption,” said attorney Ricky Shapira Rosenberg of the Reform Center for Religion and State who represented the petitioners. “We welcome the verdict, which accepted the position The petitioners that there should be no discrimination between same-sex couples and other couples for the purpose of adoption. The court ruled that the law stating that ‘there is no adoption except by a man and a woman’ should be interpreted as applying to couples of the same sex since the purpose of the adoption law is to ensure the welfare of the child, and in this regard there is no difference between LGBT families and heterosexual families. Once again it has been proven that the one who protects human rights in general and of the Lahtav community in particular is the Supreme Court.”
Aguda CEO Ran Shalhavi said “this is a historic victory and a groundbreaking achievement that gives a little light and hope in these difficult days. For years we have been fighting and fighting to be seen as equal in adopting children and starting a family in Israel, while Israeli governments for generations discriminated and incited against us just because of who we are, the Supreme Court once again proves its importance in protecting our rights. This day is the answer to homophobia, hatred, darkness and welfare ministers who for years denied our parentage, leaving us second-class citizens. The war only emphasized how disconnected inequality is from life itself. The time has come for equal rights in primary legislation in the Knesset: in parenting, in security, in marriage, without incitement and discrimination, and we will continue to march proudly until we get there.”
Jerusalem Open House for Pride and Tolerance stated “we welcome the verdict that erases yet another expression of long-standing institutional discrimination against the gay community, and congratulate Shai and Shahar and Tzafir and Ado that after years of legal struggle they will be able to expand their families. A big thank you to attorney Ricky Shapira and the Reform Center for Religion and State who led the petition. These are complex and difficult days for Israeli society. We demand that even at this time the political echelon does not stop promoting the rights of the gay community. Just as the battlefield does not distinguish between us, there is no justification for the rulebook to distinguish between us. We all hope that we will know more quiet, loving, and equal days.”
