On November 24, 2024, the family court of Rishon Letzion ordered that a child born in 2022 from an embryo implanted in the wrong woman during IVF should be transferred to her biological parents because they should be considered her lawful parents, custodians and guardians.(Fam. C. 61932-09-23 (RL), Takdin Legal Database (in Hebrew).)
Background
The birth mother and her partner registered as the child’s parents and have raised the child since her birth. During the pregnancy, they learned that the child did not carry their genetic material following a test performed due to a heart defect discovered in the fetus.
The genetic parents claimed that they were the child’s lawful parents, and that preference should be given to them based on their genetic connection. The “raising parents” (the defendants) claimed that the birth mother was the child’s mother and that her motherhood could not be severed or denied, and emphasized that it was in the child’s best interests to remain with them.
Decision
In his ruling, Judge Oved Elias found that Israeli law does not contain any statutory provisions that explicitly regulate the terms paternity, motherhood, or parenthood and there was no explicit legislation or precedent that could apply to the current case. Legislation regulating ova donation or surrogacy did not apply as the genetic mother or the birth mother did not intend to be a donor or a carrier. Similarly, the Adoption of Children Law did not apply.
Judge Elias noted that in prior cases, the genetic connection has been considered by Israeli judges as “the main basis for granting the status of parenthood [and that] the right of the genetic mother to legal recognition of her motherhood in relation to the minor is self-evident.” (Para. 8)
In the case at hand, Judge Elias said it was also
not possible to ignore a fundamental difference that exists between the two fathers who claim to be parents. While the genetic father has the natural and normal right to parenthood, the adoptive father is registered as a parent with an incorrect declaration on his behalf. In the absence of a marital relationship among the adoptive parents (having a relationship without marriage), the raising father is not ‘automatically’ recorded as the father of the newborn baby and a positive declaration was required on his behalf. He declared that he was the father, despite his clear knowledge that he did not carry the genetic material of the newborn baby. (Para. 9.)
Judge Elias accepted a psychologist’s opinion that the child would benefit from being raised by her genetic parents, among other things, in building her future identity, connecting to the family’s generational lineage and values, and when she learns about the error relating to her birth. Judge Elias further agreed that the difficulty in the child’s separation from the raising parents could be addressed through gradual, supervised, and informed separation. He found this would be preferable to the damage and difficulties that the child could face because of living without her genetic parents and eventually learning about it. (Para. 14.)
Judge Elias therefore issued a declaratory order that the genetic parents were the lawful parents of the child and that she should be transferred to them in accordance with a plan to be designed by the local social services. (Para. 17.)
The defendants have filed an appeal of the ruling.
Ruth Levush, Law Library of Congress
January 13, 2025
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