(Apr. 22, 2011) On April 13, 2011, Israel's High Court of Justice accepted a petition to void a procedure that required female foreign workers, in the absence of unusual humanitarian circumstances, to leave the country with their newborns within 90 days after their births in Israel. This requirement forced new mothers who were in Israel on foreign workers' visas to exit the country prior to the termination of their lawful employment periods. According to a directive issued by the Ministry of the Interior in 2005, foreign workers who left the country under these circumstances could return without their children for the purpose of work for a period not to exceed two years after the birth. The petitioners, Israeli human rights organizations, argued that the procedure violated Israeli constitutional law protections of family and parenthood based on Basic Law: Human Dignity and Freedom and basic notions of equal labor rights under Israeli labor laws, as well as international law.
The government responded that the adoption of the above procedure was reasonable considering the need to prevent unlawful stay of foreign workers after the expiration of their employment permits. Such a need, the government explained, arose in view of the impact of a large-scale foreign workforce on the local labor force and of the increase in state welfare payments and law enforcement associated with it.
Writing her last decision before retiring from the Court (Israeli law mandates retirement of judges at age 70), Justice Ayala Procaccia overturned the rules governing foreign workers who give birth in Israel. She then called on the Ministry of the Interior to take steps to formulate a new policy for implementing its goal of preventing the permanent stay of foreign workers while avoiding unreasonable and disproportional harm to female foreign workers.
Justice Procaccia concluded that although the procedures instituted by the Minister of the Interior had been issued under legal authority, they had not met the requirements for reasonableness under Israel's administrative law. Her conclusion was based on a determination that the procedures had been adopted after an evaluation of some but not all relevant, necessary considerations. She held that the Minister's consideration of the risk of strengthening the foreign worker's desire to stay in Israel following birth of a child was a relevant consideration. In her opinion, however, the Minister neglected to evaluate the scope of the substantive and constitutional harm that the deportation of a female foreign worker from Israel based on her giving birth had on the constitutional right to parenthood.
In reaching her conclusion that the procedure was unreasonable, Justice Procaccia held that it contradicted female foreign workers' constitutional rights to parenthood, family life, and economic expectations. Similarly, she held, it also violated rights for protection during and after pregnancy, as well as gender equality under Israeli labor laws. In addition to violating Israeli constitutional and statutory rights, the procedure, according to Procaccia, contradicted the principle of protecting foreign workers. This principle, she held, was the rationale behind a list of international conventions, as well as European Union and U.S. basic constitutional documents, a rationale that may highlight the appropriate approach to be taken in evaluating the legality of the procedure that was the subject of the petition.
Having evaluated all the relevant considerations, Justice Procaccia concluded that to the extent the government policy was designed to promote local employment and prevent state reliance on foreign workers, the procedure was legal; it was designed to promote an important public interest. This procedure, however, imposed on female foreign workers harm that was disproportional to the benefit it created, and therefore it was void. (Tomer Zarchin, Israel's High Court Blocks State from Deporting Pregnant Foreign Work
ers, HAARETZ.COM (Apr. 13, 2011); Kav Laoved [A Line to the Worker] v. Ministry of Interior, the State of
Israel, The Judicial Authority website (last visited Apr. 22, 2011).)