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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Israel: Gay Couple Recognized as Parents Without Genetic Testing

(Aug. 30, 2016) On August 7, 2016, the Tel Aviv Yafo Family Court recognized for the first time, without genetic testing, the parentage of a child born to a gay couple from a surrogate mother abroad. While determining that the plaintiffs had successfully proved their parentage by other means, the court held that by refusing to use genetic testing the plaintiffs had wasted the court’s time, and therefore they were not eligible for reimbursement for court-related expenses. (File No. 32901-05-14 Anonymous v. the Attorney General (rendered by the Tel Aviv Yafo Family Court on Aug. 7, 2016), Takdin Legal Database (in Hebrew).)

Background

The plaintiffs are gay men who are residents and citizens of Israel. They have maintained a spousal relationship in a joint household for over 12 years and underwent a civil marriage ceremony in Canada in 2007. In May 2008, the couple had a baby girl born via a surrogate mother in the United States. In 2010 they contracted with a fertility clinic in the U.S. state of Connecticut to conceive a second child through a surrogate. Semen was taken from the first plaintiff, fertilized with a donor’s egg, and implanted in a surrogate, in accordance with a surrogacy agreement that had been previously signed between the surrogate, her husband, and the plaintiffs. The pregnancy resulted in the birth of a baby boy. (Id. Part A ¶¶ 1-5.)

Israeli authorities refused to register the plaintiffs as the child’s parents based solely on a decree previously issued by a U.S. court that recognized them as such, in the absence of genetic testing proving a genetic link between the first plaintiff and the child. (Id. Part A ¶¶ 6-7.) The plaintiffs petitioned the Israeli Supreme Court to order the authorities to register the child as the plaintiffs’ son based on the U.S. decree. The Supreme Court rejected their petition and referred the parties back to the family court for further evaluation of additional evidence and determination of the case. (Id. Part A ¶¶ 8-9.)

Supreme Court Decision

On January 28, 2014, an extended bench of seven justices issued a decision in response to petitions filed by the plaintiffs (HCJ 566/11) and by another same-sex couple (HCJ 6569/11). Both couples requested registration of children born from surrogates in the United States as their children, based on U.S.-issued birth certificates and declaratory judgments that had recognized them as parents of their respective children. (HCJ 566/11 & 6569/11 Meged & Tavak Aviram v. Ministry of Interior (decision rendered on Jan. 28, 2014), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew).)

According to Court Deputy President Miriam Naor, who wrote the main decision, in the circumstances of HCJ 566/11 registration was denied because of the absence of genetic testing. Unlike in HCJ 566/11, in the second case results of genetic testing indicating a biological link between the child and one of the petitioners had been submitted. Israeli authorities, however, refused to register the non-genetic parent as the child’s parent in the absence of an adoption decree recognizing parentage. (Id.¶ 1.)

According to Naor, the U.S. decrees recognizing parentage in both cases had been issued based on affidavits by the respective petitioners, surrogates, the surrogates’ husbands, and the physicians who performed the in-vitro fertilization and implantation of the fetuses in the uteruses of the respective surrogates. (Id. ¶¶ 2-3.)

Naor made the following determinations:

HCJ 566/11:

  1. Biological Link as a Basis for Establishment of Legal Status of a Child Born to Surrogates Abroad

The petitioners requested recognition of the child as an Israeli national by birth. Under the conditions enumerated by the Nationality Law 5712-1952, a child of an Israeli national who is born abroad may acquire nationality by birth. (Nationality Law, 5712-1952, § 4(A) (2), SEFER HAHUKIM [BOOK OF LAWS, the official gazette, SH] 1952 No. 95, p. 146, as amended). Such nationality therefore requires proof of a “biological-genetic link” between the Israeli national biological parent and the child born abroad. As surrogacy conducted abroad is not currently regulated under Israeli law, in the absence of a biological link to the child, the surrogacy arrangement by itself cannot serve as a basis for the creation of legal status and does not entitle the child to Israeli nationality. (Id. ¶ 14.)

  1. Genetic Testing

Genetic testing had previously been recognized by the Israeli Supreme Court as an efficient, simple and reliable way to prove biological parentage. A family court judgment recognizing biological parentage based on genetic testing may therefore constitute a “public document” that qualifies as evidence for the purpose of registering and granting the child Israeli nationality. (Id. ¶ 15.)

  1. Other Means of Proving Biological Parentage

Recognizing genetic testing as the main method of proving biological parentage, however, does not exclude other means of proof. According to Naor, the family court is authorized to determine that there exists a “biological link” where “… a substantive hearing on the affidavit of the treating physician was added to the petition, … while examining the quality of the treatment clinic and the medical terminology mentioned in the affidavit, including a cross-examination of the expert, if the state has requested this, would satisfy the family court that there exists a biological link between one of the petitioners and the child. (Id. ¶ 16.)

Naor noted, however, that “…the [petitioners’] refusal to perform a genetic test remains puzzling.” (Id. ¶ 16.)

Naor further stated that although the petitioners’ wish not to know or disclose which of the partners was the biological parent was understandable, such a wish could not negate the need for proof of a biological link of at least one Israeli parent for the purpose of the child’s acquisition of Israeli nationality by birth. While it may be possible to obtain a “blind test” that does not identify the specific parent but that indicates that at least one of the petitioners was a biological parent, this solution does not resolve all problems that may arise. Such problems include a situation where the child needs genetic information for medical purposes. (Id. ¶ 21.) However, a “blind test” is not necessary in either of the current petitions, Naor concluded. This is because in HCJ 566/11 the petitioners themselves knew who gave semen for the in-vitro fertilization, and in HCJ 6569/11 the petitioners conducted genetic testing. (Id.)

HCJ 6569/11:

  1. Registration That Does Not Create Legal Status Does Not Require Proof of Biological Link

Unlike HCJ 566/11, HCJ 6569/11 does not involve recognition of legal status in Israel. The child subject of this petition had already received Israeli nationality by birth based on the biological parentage of one of the petitioners, which had been proven by genetic testing. The petition centers on the registration of the non-biological parent as the child’s other parent. (Id. ¶ 26.)

According to the Population Registry Law 5725-1965 (SH 5725 No. 466 p. 270), registration can be based on presentation of a “public document” or other documents as prescribed by the law. According to Naor, the birth certificate and the court decree presented by the petitioners constitute “public documents,” the presentation of which requires the registering official to register the non-biological parent without the need to present a decree of adoption. The documents would not be sufficient, however, for registration of the biological parent, because such registration would create for the child, rather than reflect, a legal status in Israel, such as that of citizenship. (Id. ¶ 36.)

  1. Judicial Determination on the Status of the Non-Biological Parent

Although a decree from the family court was not necessary in order to obtain registration of the non-biological parent, such a decree may offer real benefit as it may eliminate possible future legal conflicts regarding inheritance, custody, alimony, and other matters. (Id. ¶¶ 33-44.)

Supreme Court Conclusion

Naor rejected petition HCJ 566/11 and directed the petitioners to the family court to prove biological parentage either by genetic testing or other means. After biological parentage is proven, she held, the petitioners may reapply for “receipt of [legal] status for their son in Israel and for their registration as the child’s parents in the population register.” (Id. ¶ 50.) This conclusion was supported by all the justices.

Naor accepted petition HCJ 6569/11, however, insofar as the non-biological parent should be registered as the father of the child in the population register based on the foreign birth certificate and court order that recognized him as the child’s parent. (Id.) This decision was supported by five justices with two dissenting. Justice Amnon Rubinstein opined that registration based on presentation of foreign legal documents, without a determination by an Israeli family court, may be “misleading.” (Id. Rubinstein ¶ J.)  Similarly, Justice Hanan Melcer held that foreign-issued documents cannot constitute a basis for registration in the absence of prior authorization by an Israeli court.  (Id. Melcer ¶¶ 6-7.)

Family Court Decision

The family court decision was rendered on August 7, 2016, by Judge Naftali Shilo. Shilo noted that based on the Supreme Court determination in HCJ 566/11, in special cases it is possible to prove paternity without genetic testing. (File No. 32901-05-14 Anonymous v. the Attorney General, supra, Hearing and Determination ¶ 1.) According to Shilo, the plaintiffs submitted numerous legal and medical documents to prove the child’s genetic link to the first plaintiff. These included a surrogacy agreement, a U.S. court decree recognizing the plaintiffs’ parentage of the child, confirmation of their involvement in the fertilization procedures conducted by the clinic, medical records, blood test results, and the surrogate’s ultrasound test results. (Id. ¶ 2.)

Evidence Needed to Prove Parentage

Although the best and strongest evidence under the circumstances was undoubtedly genetic testing, Shilo noted, as a general rule the Israeli legal system does not require presentation of the best possible evidence. (Id. ¶¶ 5-6.) Shilo determined that the plaintiffs met the burden of proof needed to prove that the first plaintiff was the biological father of the child. As indicated by the medical expert in the case, the chance that plaintiff No. 1 was not the child’s parent was only about one percent. According to Shilo, even if it was only 60%, such evidence would be sufficient for a civil procedure. (Id. ¶¶ 10-11.)

 Court Fees

While accepting their request for recognition of parentage, Shilo rejected the plaintiffs’ request for compensation for their trial expenses. He held that the delay in the procedures and the costs associated with bringing to Israel twice the head of the U.S. clinic and recruitment of a court-appointed medical expert were all necessitated by the plaintiffs’ refusal to resolve the matter in a direct and inexpensive way of genetic testing. The plaintiffs’ request for payment of expenses was therefore denied. (Id. ¶ 6.)

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Estonia: Court Confirms Russian Not a School Language

(Aug. 29, 2016) On August 26, 2016, an Estonian second instance Circuit Court, whose jurisdiction includes the capital city of Tallinn, confirmed the legality of a decision issued by a lower court earlier this year to reject consideration of a complaint submitted by the parents of two Tallinn city high school students objecting to the use in their schools, whose student bodies are predominantly ethnic Russians, of the Estonian language as the language of instruction. The original court decision cited the 2014 ruling of the State Court of Estonia (the highest court in the country) under which the local administration and school boards cannot appeal government resolutions concerning the choice of language of instruction. (Court Confirmed Ban on Teaching in Native Language in Two Russian High Schools, POSTEMEES.EE, (Aug. 26, 2016) (in Russian).) Fifteen similar cases were reviewed by different Estonian courts in the last three years with the same result. (Estonian Court Confirmed the Ban on Teaching in the Russian Language in Russian Schools, NEWSRU.COM (Aug. 26, 2016) (in Russian).)

In 2015, school boards of several high schools where the majority of students are ethnic Russians and native Russian speakers submitted a petition to the Estonian Government requesting permission to conduct instruction in the Russian language in all subjects. The petition was supported by the Tallinn City Council but rejected by the central government. (Id.)

The petition was based on a provision of the Estonian Basic Schools and Upper Secondary Schools Act of 2010, which gives school boards and local administrations some flexibility in selecting other than the Estonian language as the language of instruction in a municipal school. While the Law requires schools to conduct at least 60% of education in Estonian and provides for varied opportunities for non-native Estonian speakers to learn the Estonian language, it allows for some exemptions under which an entire school or particular classes can be taught in another language. Such permission can be granted by the national government to school boards and local administrations on a case-by-case basis. (Basic Schools and Upper Secondary Schools Act, art. 21, RIIGI TEATAJA I [OFFICIAL GAZETTE] 2010, No. 41, item 240.) This rule is based on a constitutional provision that states, “[t]he language of instruction in national minority educational institutions shall be chosen by the educational institution.” (Constitution of the Republic of Estonia (June 28, 1992, in force on July 3, 1992), art. 37, Office of the President website.) However, the same article of the Constitution states that “[t]he provision of education shall be supervised by the state,” and that norm serves as the basis for the government intervention in the matter. (Id.)

Reportedly, the Estonian government is active in implementing a language policy aimed at avoiding the use of any language other than Estonian. Since 2004, the National Language Inspection (Keeleinspektsioon), a government agency within the Ministry of Education with the responsibility to ensure proper implementation of legislation regulating the use of the Estonian language, has fined teachers whose knowledge of the Estonian language is deemed to be wanting. (Estonian Court Confirmed the Ban on Teaching in the Russian Language in Russian Schools, supra). It was also reported that the hourly wages of municipal employees vary depending on their Estonian language skills. (Salary of Hospital Personnel Who Do Not Speak Estonian Is Lower than that of Their Peers, NEWSRU.COM (Feb. 11, 2015) (in Russian).)

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Indonesia: Regulation on Shell Companies Issued

(Aug. 29, 2016) On August 19, 2016, Indonesia’s Ministry of Finance issued a regulation designed to support the tax amnesty program already adopted by the House of Representatives at the end of June under Law No. 11 on Tax Forgiveness. The amnesty program is aimed at encouraging the repatriation of Indonesian assets from abroad. (Ayomi Amindoni, Govt Issues Rule on Shell Companies, Aims for Asset Repatriation, JAKARTA POST (Aug. 22, 2016); Constance Johnson, Indonesia: Tax Amnesty Passed, GLOBAL LEGAL MONITOR (July 6, 2016); Law No. 11 of 2016 on Tax Forgiveness, LEMBARAN NEGARA REPUBLIK INDONESIA [GAZETTE OF THE REPUBLIC OF INDONESIA], No. 131, 2016, (in Indonesian).)

The new regulation focuses on Indonesian holdings in foreign special purpose vehicle (SPV) companies. According to Sri Indrawati, the Minister of Finance, it is hoped that holders of assets in SPVs will join the tax amnesty program to take advantage of the offer of exemptions from value-added tax for those who move their assets and businesses back to Indonesia before the end of the year.  She suggested that “taxpayers are expected to declare or repatriate their assets through the overseas SPV companies, as well as shift their business base to Indonesia.”  (Amindoni, supra.)

The Ministry had previously issued several regulations to implement other aspects of the Law on Tax Forgiveness. Regulation 118, for example, is on procedures for the tax amnesty, while Regulation 122 permits the transfer of assets into forms such as gold bars. ( Id.; Regulation No. 118/PMK.03/2016 on the Implementation of Law No. 11 of 2016 on Tax Forgiveness (July 15, 2016), Directorate-General of Taxation of the Ministry of Finance website; Regulation No. 122/PMK.08/2016 on Procedures for the Transfer from Abroad of Taxpayer Assets and Their Placement Outside the Financial Market for Tax Forgiveness (Aug. 8, 2016), PAJAK ONLINE.COM (both in Indonesian).)

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Japan: Act on Specified Commercial Transactions Amended

(Aug. 29, 2016) An amendment to Japan’s Act on Specified Commercial Transactions (No. 57 of June 4, 1976, Japanese Law Translation) was promulgated on June 3, 2016.  (Act No. 60 of 2016, KANPO (June 3, 2016) (in Japanese).)  Most of the amended provisions will become effective within 18 months of the promulgation date.  (Id., Supp. Provisions, art. 1.)

The Act aims to protect the interests of consumers and facilitate appropriate and smooth distribution of goods and provision of services in specified commercial transactions.  The specified commercial transactions include transactions arising from door-to-door sales, mail order sales, telemarketing sales, and multilevel marketing transactions, among other transactions defined in the Act.  (Act on Specified Commercial Transactions, art. 1.)  The major points of the amendment are as follows.

  1. Prohibiting directors of suspended businesses as defined under the Act from operating the same type of business by establishing new entities:

There are persons who reestablish illegal businesses, after their original businesses have been sanctioned, by the creation of a new business entity. The persons can carry on the same illegal practices until the new entity itself is sanctioned.  (Bill to Amend the Act on Specified Commercial Transactions (Bill Summary), Consumer Affairs Agency (last visited Aug. 26, 2016) (in Japanese).)  The amendment prohibits directors of sanctioned entities from operating the same business by establishing new entities or other entities.  (Act on Specified Commercial Transactions, as amended by Law No. 60 of 2016, arts. 8-2, 15-2, 23-2, & 58-13-2.)  To find such violations, the government’s authority to investigate businesses is also enhanced.  (Law No. 60 of 2016, art. 66.)

  1. Enabling punishment of businesses that do not have known addresses:

To effectuate a punishment under the Act, the government must send a written decision to the business. However, some online businesses do not disclose their physical addresses.  (Bill Summary, supra.)  The amendment establishes that public posting by the government has an effect equivalent to sending a decision to the business.  (Act on Specified Commercial Transactions, as amended by Law No. 60 of 2016, art. 66-5.)

  1. Ordering a business to take remedial action for consumers:

The amendment enables the government to order businesses that violate the Act to take action to protect consumers’ interests.  (Id. art. 7, ¶ 1, art. 14, ¶ 1, & art. 22.)  For example, should a business claim a false benefit from a product, the business would be required to notify the customers of government findings about the product and of any sanctions the business had received because of the false claim and to establish a plan for refunds to customers.  (Bill Summary, supra.)

  1. Regulating telemarketing sales of unusual quantities of goods and services:

For door-to-door sales, sales of an unusual quantity of goods that would not be necessary for a normal household are already regulated.  (Act on Specified Commercial Transactions, as amended by Act No. 74 of 2008, arts. 9-2 & 9-3.)  The amendment expands the application of this regulation to telemarketing sales.  The government can issue a warning to a business that sells an unusual amount of goods and services, and the consumer can cancel the sales within one year.  (Act on Specified Commercial Transactions, as amended by Law No. 60 of 2016, art. 22, ¶ 1, item 4, & art. 24-2.)

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Italy: Legislation Implementing the EU Criminal Mutual Assistance Convention

(Aug. 26, 2016) On August 5, 2016, new legislation ratifying and implementing the European Union Convention on Mutual Assistance in Criminal Matters, in particular concerning extradition, entered into effect in Italy. (Law No. 149 of July 21, 2016, Ratifying and Implementing the Convention on Mutual Assistance in Criminal Matters Between Member States of the European Union of May 29, 2000, and Delegating Powers to the Government for Its Implementation … (Law No. 149), GAZETTA UFFICIALE, No. 181 (Aug. 4, 2016) (in Italian); Mutual Assistance in Criminal Matters Between Member States [of the EU] (2000), EUR-LEX.)  Law No. 149 also delegates powers to the Executive Branch to amend Book XI of the Criminal Procedure Code on the execution of judicial decisions, amends provisions on extradition, and sets deadlines in connection with coercive measures.

The Ministries of Justice, Foreign Affairs, International Cooperation for European Matters, and Economy and Finance must adopt legislative decrees for the implementation of the Convention that must then be sent to the Italian Parliament for the verification of the financial aspects of this implementing legislation. (Law No. 149, art. 3(2).)

Amendments to the Code of Criminal Procedure Concerning Judicial Cooperation

The Law includes several amendments to the Italian Code of Criminal Procedure to facilitate international cooperation in criminal matters. According to the amendments, the EU Convention on Mutual Assistance in Criminal Matters and the Treaty on the Functioning of the EU govern the relations between Italy and other EU Member States concerning international extradition requests, the effects of foreign criminal decisions, the enforcement of Italian criminal decisions overseas, and other relations with foreign authorities related to the administration of criminal justice.  (Id. art. 4(1)(a)(1); Consolidated Version of the Treaty on the Functioning of the European Union, 2012 O.J. (C 326) 47.) In relations with non-EU Member States, the provisions of the Italian Code of Criminal Procedure, Book XI on the execution of judicial decisions, apply.  (Id. art. 4(1)(a)(2); Codice di Procedura Penale [Code of Criminal Procedure] (updated to July 21, 2016), ALTALEX.)

Based on the international reciprocity principle, the Italian Ministry of Justice may reject requests for judicial assistance, extradition, or other matters related to the administration of criminal justice. (Id. art. 4(1)(b).)  The power to reject requests for international judicial assistance must be exercised in accordance with Italian treaties with EU Member States and, in the case of non-EU Member States, based on potential danger to national sovereignty or security or Italy’s essential interests.  (Id. art. 4(1)(c)(1) & art. 4(1)(d)(1).)

Judicial Assistance Requests

Requests for judicial assistance related to acquiring evidence or seizing assets must be transmitted to the Attorney General. (Id. art. 4(1)(c)(2).)  When the request involves evidence to be presented before a judge or when the authorization of a judge is legally required, the Attorney General must submit the request to the competent judge promptly.  (Id. art. 4(1)(c)(3).)  The Italian Court of Cassation (Italy’s highest court) has the power to decide conclusively any conflicts that may arise during proceedings on executing international judicial assistance requests.  (Id. art. 4(1)(c)(4).)

The Italian Attorney General is empowered to agree with the competent authorities of other EU Member States that joint investigation teams be constituted. (Id. art. 4(1)(c)(10).)  The investigative reports produced by joint investigation teams are to be considered fully valid in Italy as long as there has been no violation of Italian law in preparing them.  (Id. art. 4(1)(c)(12).)

When a request for judicial assistance relates to the summons of a witness, an expert, or the accused before a foreign judicial authority, the Minister of Justice may authorize such summons, provided that the foreign state offers immunity to the person summoned. (Id. art. 4(1)(c)(14).)  If the request involves the temporary transfer for investigative purposes of a person who is detained or incarcerated, then the Minister of Justice must proceed by requesting the opinion of the respective Italian judicial authority.  (Id. art. 4(1)(c)(14).)  The participation in a hearing by an accused, witnesses, or experts who are located outside Italy and may not be transferred to Italy may take place through remote connections in accordance with the Italian Code of Criminal Procedure.  (Id. art. 4(1)(c)(9).)

Extradition of Italian Citizens or Residents Overseas

A request for Italian citizens or residents to be extradited must be submitted to the Attorney General, and his or her decision on whether or not to comply with that request is subject to appeal. (Id. art. 4(1)(d)(3).)  The Attorney General must interrogate the person subject to the extradition proceedings and may also request from the foreign requesting authorities all necessary documentation and information.  (Id. art. 4(1)(d)(4).)  In the absence of an international treaty applicable to a specific case, appellate courts must approve the extradition when serious indications of guilt or a final conviction exist, and no other final decision has been issued in Italy in criminal proceedings against the same person based on the same grounds.  (Id. art. 4(1)(d)(6).)

The time for delivery of a person subject to extradition is fixed at 15 days, which may be extended to 20 days depending on the circumstances. (Id. art. 5(2).)  Extradition measures become null when the Ministry of Justice’s decision to grant the extradition of a person is not complied with within three months.  (Id. art. 5(3).)  An administrative judge may always suspend decisions issued by the Ministry of Justice during extradition procedures.  (Id. art. 5(2) & (3).)

The Ministry of Justice may also reject extradition requests when the request may prejudice the sovereignty, security, or other essential interests of the state or when it is contrary to the state’s fundamental legal principles, and the competent judicial authority is bound to respect such principles. (Id. art. 4(1)(d)(8 &9).)

Periods of preventive detention undergone abroad may be computed for purposes of extradition procedures. The request for an extension of the term within which the accused must be extradited must be approved by a judicial decree, which may also order the preventive custody of the accused.  (Id. art. 4(1)(d)(10-11).)  The Law also allows for reparations for damages suffered in cases of unjust detention abroad during extradition procedures.  (Id. art. 4(1)(d)(13).)

Recognition of Foreign Criminal Decisions

The appellate court that renders a decision recognizing the execution of a foreign criminal decision must also establish the penalty that must be enforced in Italy. To that effect, the appellate court must convert the penalty established in the foreign decision into one of the penalties established by Italian law for the same facts; the penalty thus determined may not be more serious than that established in the foreign decision.  (Id. art. 4(1)(e)(3).)  If the penalty is conditionally suspended or if the convicted person is conditionally released in the State in which the decision was originally issued, then the Italian appellate court must also conditionally suspend the penalty or conditionally release the convicted person.  (Id.)

The Ministry of Justice must ensure compliance with the conditions required in certain cases for the enforcement in Italy or abroad of decisions whose recognition has been requested, provided that such decisions are not contrary to fundamental legal principles of the state. (Id. art. 4(1)(e)(4).)  Decisions on the recognition of foreign decisions to be enforced in Italy must be adopted “with the utmost urgency,” ensuring their timeliness and effectiveness.  (Id. art. 4(1)(f)(5).)  Decisions on recognition may be judicially challenged without suspending their enforcement, save in specific cases.  (Id. art. 4(1)(f)(7).)

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