Being Fruitful and Multiplying: Legal, Philosophical, Religious, and Medical Perspectives on Assisted Reproductive Technologies in Israel and Internationally
Rosenblum, Irit, Suffolk Transnational Law Review
Reproduction in the twenty-first century is a perpetually evolving phenomena in which fertility, declining due to parents' age, health, and environment, meets the changing structure, needs, and desires of the modern family, and creates a complex global web of conception and birth which is more deliberate and varied than ever before in human history. Assisted reproductive technologies (ART) are advancing at an unprecedented rate, opening up infinite reproductive possibilities and biological and social parenting constellations. As ART becomes more sophisticated and the global family evolves, ART will continue to present new possibilities that were previously inconceivable and legally impossible. (1)
In this context, freedom and rights for the family have dissipated to new spaces for which legal and constitutional infrastructure have not yet been created. This article will explore the notable connections and gaps in the legal and constitutional infrastructure of family rights, and their significance in the legal, philosophical, religious, and medical practice of ART.
II. THE PHILOSOPHICAL JUSTIFICATION FOR FAMILY HUMAN RIGHTS
The right to family through couple hood or parenthood belongs in the category of human rights. Human rights are defined as the rights every individual are entitled to as human beings. Family rights belong to the world of natural rights. Natural rights are those rights that ensure freedom of the individual, and protect individuals from government tyranny. I argue that the individual's right to form a family is inalienable.
The human right to family is the essence and existential expression of an individual's desire for survival and continuity. Hence, the right to form a family is more than just a right; it is a liberty. A liberty, as distinct from a right, is the absolute freedom an individual should be able to exercise unhindered, without obtaining approval from an external authority. The distinction between "liberty," which is the expression of absolute freedom, and a "right," which is a human invention, has great legal, moral, and ethical implications for family rights.
A. The Right to Procreate
The right to procreate, which any person should have, is the right to bring children into the world regardless of their medical or social ability to conceive, carry a pregnancy, or deliver a baby. Procreation is a fundamental human right determined, among others, by a United States court in Skinner v. Oklahoma. (2)
Before the advent of advanced ART, gender and biology were absolute determinants and the distinction between men and women was clear and unequivocal. In the past, when fertilization occurred within a woman's body and the pregnancy was carried by a woman, in her own uterus, who was both the genetic and legal mother, the differences between men and women, and the role each had in conception, were apparent and obvious. Today, with the proliferation of in vitro fertilization (IVF) and surrogacy, there is no longer a guarantee that childbirth will necessarily take place in the womb of the biological mother. Thus, the legislator needs to redefine the right to procreate and better delineate the reproductive rights that stem from it.
One of the most fascinating phenomena in the field of reproductive technologies, and a true sign of our times, is the emergence of different categories of infertility. This article will distinguish between medical infertility (primarily in heterosexual couples), social infertility (primarily in single men and women and same-sex couples), and "elective" or "lifestyle" infertility (primarily referring to women's control over childbearing).
The de facto expansion of the circle of parenting is a reality. Childbearing is no longer dependent on sexual intercourse between a male and female, the couple relationship, or, as discussed later in this article, the existence of life itself.
B. The Legal Perspective on Fertility and Infertility in Israel
In 2001, a verdict by the High Court of Israel defined the limits for intervention by the State into the autonomy of the family unit, stating, "[c]onception, pregnancy, and childbirth are intimate events that are entirely within the realm of the right to privacy. The State does not intervene in this field, unless there are reasons of great importance, stemming from the need to protect the individual's right or a major public interest." (3) An individual is the start of every new family, and a family can come into being only if the individual realizes his or her reproductive potential. Therefore, the foundation of family originates in the individual's reproductive rights.
III. THE RELIGIOUS PERSPECTIVE ON FERTILITY AND INFERTILITY IN ISRAEL
A. Israel: Taking the Biblical Commandment, "Be Fruitful and Multiply" Seriously
Few deny that having biological children is a compelling human need. While the need for biological continuity appears to be universal, procreation has special meaning in Israel. Having children is deeply rooted in Jewish culture and a strong Middle Eastern value. Childbearing is a religious imperative within the monotheistic faiths and a core of communal life. Since family law in Israel is based on Jewish religious law, parenthood is seen as both a commandment and a right. People, both religious and secular, tend to take the Biblical commandment, "[b]e fruitful and multiply" seriously. Israel is a child oriented society, and people of all religions respect parenting.
Even today, ancient perceptions that infertility is a curse and fertility is a blessing saturate Israeli culture. Although religious families tend to be larger, secular Jewish and Muslim populations have similar attitudes toward childbearing. Singlehood and childlessness are often seriously stigmatized, particularly within religious communities. Infertility within marriage has been known to create pressure that eventually causes the couple to separate. Childbearing is so important within Judaism that Jewish marriage has an "exit clause," requiring childless couples to divorce after ten years so that husband and wife could remarry and bear children with new spouses. This is still practiced today among religiously observant couples, though the use of ART significantly reduces infertility within marriage. Therefore, divorce of a couple that would otherwise remain married due to infertility is a relatively rare occurrence.
IV. THE PHILOSOPHICAL JUSTIFICATION FOR POSTHUMOUS REPRODUCTION
A. The Biological Will[TM]
The philosophical justification for posthumous reproduction stems from a belief that having biological children is a human right. The right to reproductive choice derives from individual free will and consciousness, which transcends religious and governmental authority. Denying the right to procreation is a sentence, perhaps the closest in nature, to involuntary sterilization or the death penalty.
These beliefs inspired me to establish the world's first, and only, Biological Will Bank. As the only entity drafting and storing Biological Wills, the organization I founded and lead, New Family, helps the terminally ill, bereaved families, soldiers, and both widows and widowers create their biological legacy. (4)
B. The Legal Perspective on Posthumous Reproduction
A central derivative of the human right to reproduce is the right to know your origins. I argue that anonymous gamete donations rob children of their genetic record, complete family tree, and extended family. Children's hunger to find their roots is so compelling that adopted children, and those born of anonymous gamete donations, may spend their entire lives unraveling the mystery of their origins.
The Biological Will is legal testament that documents the intended use or disposal of any individual's sperm, ova, or embryos in case of death, incapacitation, or infertility. The Biological Will is an innovative form of legal insurance for genetic continuity. I proposed the Biological Will as a solution to the questions of gamete and embryo ownership, donor consent, legal parentage, and inheritance rights of posthumously-conceived children.
Biological Wills offer singles and same-sex couples an alternative to anonymous sperm or ova donations, by receiving sperm or ova from a known donor to form a family with the donor's kin and give their child a complete genetic record. All stakeholders benefit, including, the individual that fathers or mothers the child, the designated parent who has a child that knows his or her other parent's identity, and the donor's family who continue their bloodline. The child gets a genetic record, a complete family tree, and a known extended family. The Biological Will is the only legal option for known sperm and egg donations in Israel.
In an age where a child can have multiple biological, legal, and social parents, the legal system must redefine parenthood to protect the rights of all parties. Written instructions by the deceased in a Biological Will which define the circumstances in which the donor consents to the use of their gametes or embryos to conceive a child are the most accurate indication of donor prerogative. Biological Wills eliminate speculation and prevents unnecessary litigation. Six hundred Biological Wills have been composed so far, and a dozen are currently being implemented.
Since my proposal to establish a sperm bank for Israel Defense Force soldiers in 2001, through the birth of the world's first and only child to be born of posthumous maternity by Biological Will in 2011, (5) the Biological Will has broken the boundaries of nature and made this new paradigm in ART a legal reality. (6) In 2013, two new babies came into the world through the Biological Will, and within months, the Kevain Cohen case that shook the world in 2002 will reach fruition when his child is expected to be born twelve years after his death.
C. Medical Practice of Posthumous Reproduction
Since the dawn of humanity, children have been born after the death of their fathers. With the advancement of reproductive technologies, new possibilities emerged that allowed children to be conceived after the death of one or even both parents. Posthumous paternity is possible when sperm from a deceased man is used to inseminate a woman to conceive a child. Sperm can be frozen during the donor's lifetime or retrieved up to 72 hours after death. Theoretically, a man could father children years or decades after death, because sperm that is cryopreserved at -196 degrees Celsius can be kept almost indefinitely.
Posthumous maternity is possible when a woman's ova are frozen during her lifetime or hours after her death, then inseminated and gestated by a surrogate mother. Posthumous maternity is more likely if embryos are created in her lifetime with a partner, or donor sperm, and preserved. If embryos created by a couple during their lifetime are gestated by a surrogate mother after their death, a child can theoretically be born years or decades after the death of their biological parents; necessitating the legal system to determine the identity of the legal parents and the rights of children, parents, and grandparents.
No nation has comprehensively dealt with posthumous reproduction in legislation or regulation, yielding a legal and ethical vacuum in a sphere that is creating questions faster than the legal system can answer them; leaving posthumously-conceived children without certain legal parentage or guaranteed rights.
D. Posthumous Reproduction with a Partner Unknown to the Donor
I was privileged to litigate three groundbreaking cases in Israel, in which the deceased's parents won the right to carry out their son's Biological Will by choosing a single woman to conceive with their son's sperm, and raise the child as her own. The world's first case of attempted posthumous reproduction with a partner unknown to the donor is Keivan Cohen in Israel. (7) In 2007, Cohen's parents won the right to designate a woman to conceive with the sperm that was extracted after his death in 2002, after proving in court that he wished to father children. The case was unique because Cohen neither left his wishes in writing, nor did he know the woman that would raise his child. A designated mother is now pregnant with his sperm, and is expected to give birth to the world's first baby to be born twelve years after his father's death. The Cohen case paved the way for a string of legal precedents in Israel. In December 2009, a family court approved the verbal Biological Will of Idan Snir, and empowered his parents to donate his sperm to a single woman who wished to raise a child from a known sperm donor. (8) In April 2011, an Israeli court approved a written Biological Will in which Baruch Posniansky empowered his parents to choose a single woman who wished to conceive with his sperm. (9) These cases are significant because the Israeli legal system affirmed the young men's right to father children after death and independent of a female partner, validated the Biological Will, and recognized its benefits for children, parents, and grandparents.
E. Posthumous Maternity
The world's only case of posthumous maternity resulting in a live birth is Nissim and Keren Ayash of Israel, whom I was privileged to represent. (10) In 2011, a global precedent was set when the world's first baby born by Biological Will was born to a surrogate mother, who gestated the embryo created by both parents before Keren succumbed to cancer prior to completion of their fertility treatments. The child is now being raised by his father.
V. THE LEGAL PRACTICE OF ART IN ISRAEL
A. The Current State of ART Services in Israel
Israeli family values are supported in pro-fertility public policies, which include, but are not limited to, a fourteen week paid maternity leave, incremental monthly government stipends paid to mothers for the birth of each child, state-funded day care, protection for pregnant women from job termination, compensation for losses from job absences resulting from fertility treatment and pregnancy, and tax credits for employed mothers. (11) Health care in Israel is provided by a mandatory state system that provides low-cost, quality care to all residents, and is paid for on a sliding scale according to income. Fertility services in Israel are covered within the state health care system and are virtually free for those who are eligible. Additional fertility treatments are paid for by supplementary state health insurance.
Public funding for ART in Israel is unparalleled in the world. Israel has the highest rates of fertility intervention in the world, indicated by the number of IVF treatment cycles per capita. (12) In Israel, the total number of treatment cycles rose by 56%, from 2001 to 2009, together with an increase in the per capita ratio by 38%. (13) The first IVF birth in Israel was reported in 1982.
B. Artificial Insemination
Health services in Israel provide insemination treatments to married couples to have their first or second child. Heterosexual common-law couples are also eligible for artificial insemination in Israel, but they must demonstrate the stability of their relationship and their preparedness for parenthood. (14)
Because there is no separation of religion and state, one of the unique legal issues in Israel is the concern of child religious legitimacy or "bastardization." A bastard in religious Jewish law is not a child born to unmarried parents, but a child born of infidelity. A "mamzer" is the child of a woman and a man other than her husband, when all three partners are Jewish. The legal system in Israel requires that Jewish couples use the traditional system of divorce, where women cannot divorce without their husband's consent. This causes the religious and social status of any child born to a woman who was denied divorce with another man to be endangered. The first precedent to challenge this legal injustice was the 2007 case of a woman who was denied divorce but received artificial insemination with sperm from a non-Jewish donor. (15) Use of sperm from a non-Jewish man means that the child is not a "mamzer," and prevents the child from having the religious status of bastard. This precedent case paved the way for other cases in Israel in which women, who were involuntarily bound to their husbands, were permitted to utilize ART to have children alone, or with other partners, without being subjected to the disadvantages in which the "mamzer" status would result.
C. Publically-Funded ART for Social Infertility in Israel
Israel's National Health Insurance Law of 1994 (16) entitles Israelis to infertility diagnosis and IVF to have a first and second child. This is for couples who do not have children from their current marriage and, also for childless single women. The number of treatment cycles that health services must provide can only be limited on medical grounds and not by financial considerations. It is significant that within Israel's healthcare system, single women are entitled to undergo IVF with donated sperm to become single mothers, which turns IVF into a solution for social infertility--lack of male partner--rather than medical infertility. Couples are also entitled to public funding for IVF even if they already have children from a previous relationship. This makes biological parenthood a right held by the couple, not just an individual. Israel may be the only nation on earth that gives couples, and not just individuals, reproductive rights backed by publically-funded fertility services. (17)
VI. PHILOSOPHICAL PERSPECTIVE: THE RIGHT TO PREGNANCY
Emmanuel Levinas defines the right to be pregnant as a right that establishes a more profound relationship, or as he calls it, "the goodness of goodness--a fertility that gives birth to fertility, fulfills goodness beyond the sacrifice involved in bestowing a gift, the gift of the power of giving, conceiving the child." (18) The right to be pregnant includes conception, carrying the fetus inside the uterus, and delivery. This right requires an act to be performed, since by its nature, a life is created. It is currently reserved only for women. Unlike other reproductive rights, such as paternity and conception, which have been detached from the human anatomy naturally required for those biological process through ART, this right is still entirely dependent on female anatomy. The right to pregnancy is further dependent on physical ability to conceive, maintain a pregnancy, and deliver a baby, with or without ART.
This right to be pregnant is held by any woman who wishes to become a parent, or who wishes to give birth to a child as a surrogate that other people will raise. The biological process of giving birth cannot be separated from the social act of creating life. Even if a woman carries a baby for people who cannot bear children, she does so with the awareness that she is creating life. The altruistic elements cannot be negated by the material compensation a surrogate presumably receives.
The right to be pregnant stands alone and is not dependent on the outcome of the pregnancy. By its very nature, pregnancy is a temporary state that ends with childbirth, miscarriage, or termination. One might say that the pregnant woman embraces the unknown, as pregnancy does not allow her to determine the outcome of the pregnancy, the identity of the child she will carry, or the physical, emotional or mental effects of the pregnancy. Therefore, a woman who decides to be a surrogate has a right to decide whether she would like to bear the pregnancy or terminate it.
VII. THE LEGAL PRACTICE OF SURROGACY IN ISRAEL
A. Domestic surrogacy in Israel
In 1996, Israel legalized gestational surrogacy under the Embryo Carrying Agreements Law. (19) Traditional surrogacy, in which the surrogate's egg is used, making her the biological mother, is completely illegal in Israel. This law made Israel the first country in the world to legalize state-monitored gestational surrogacy, in which each case must be approved by a state-appointed committee.
The surrogacy process in Israel is strictly regulated by the government. Surrogates must be unmarried women, meaning single, widowed, or divorced, who already have a child of their own. Due to religious concerns of an incest-like situation, the surrogate cannot be biologically related to either designated parent. This eliminates a scenario common in other countries whereby a sister acts as a surrogate. The sperm has to belong to the designated father and the egg must not belong to the surrogate mother. The egg can belong to the designated mother or an ova donor. The designated parents and the surrogate mother must all share the same religion, so that the child's religious status will be clear. This is consistent with the legal philosophy of family law in Israel, in which individuals are accorded rights on the basis of their religious and family status; thus forbidding, for example, interfaith marriage and adoptions. By law, only infertile heterosexual couples can use the services of a surrogate mother in Israel. The designated mother and father may not be older than fifty and sixty years, respectively, and the mother has to prove that she is infertile or that pregnancy would meaningfully impair her health. Surrogacy is not legal in Israel for convenience or career considerations.
Surrogates cannot technically be paid a salary, but can be generously compensated for expenses in such a way that approximates payment. The financial arrangements, alongside the other details, are written up in a legal agreement which must be approved by the Ministry of Health before the surrogacy is approved.
B. Surrogacy and Social Infertility in Israel
The issue of social infertility is demonstrated in a 2002 precedential Israeli High Court of Justice case that I litigated, in which a single, infertile forty year old woman had frozen her ova for future use before undergoing a hysterectomy. (20) My petition requested permission for a number of women to utilize a surrogate mother to bear children. Permission was denied because Israeli law did not permit single women to use surrogacy services. I argued that single women have the same right to bear children as married couples. The High Court of Justice rejected the appeal because the court cannot contradict the law, but recommended that legislative changes be made to permit single women to utilize surrogates. Following the High Court's recommendation, I drafted a legislative amendment to allow single men and women to use surrogacy services. In 2004, a High Court of Justice committee was formed to examine the expansion of the Surrogate Law for single people, lesbians, and gay couples, and this issue is more salient than ever on the public agenda in Israel. Subsequently, committees were formed in 2005 and 2012 to examine legislative changes; as such the 2012 Mor Yosef Committee that recommended that the law be changed to allow single and same-sex couples to use surrogates. (21) Yet implementing this recommendation is dependent on Israel's legislative body, the Knesset, passing legislation allowing singles and same-sex couples to use surrogates.
C. Foreign Surrogacy for Israelis
Because of the stringent regulation of surrogacy in Israel, Israeli heterosexual and homosexual singles and couples often pursue surrogacy abroad. Same-sex couples or singles cannot have children through Israeli surrogacy, so foreign surrogacy is their only available option. Heterosexual couples who might be approved for domestic surrogacy may choose to go abroad to take advantage of lower costs, more relaxed regulations, a shorter process, and greater autonomy. Popular destinations for homosexual Israelis pursuing foreign surrogacy once included India, though legislative changes now prohibit this, and now include Thailand, Kyrgyzstan, Armenia, the United States and most recently, Mexico. Georgia, the Ukraine, which do not allow two men to register as parents, and the United States, which do allow two men to register as parents in some states, are the top destinations for heterosexual Israelis.
The cost of foreign surrogacy procedures, prolonged stays abroad, and legal proceedings can range from USD75,000 to USD130,000, depending on the country, agency, surrogate, and egg donor. This enormous sum likely excludes many couples who would otherwise pursue surrogacy if they could afford it. It often means that a couple can simply not afford to do more than one round of surrogacy, which could make multiple births a happy, unplanned outcome.
Intended parents must use a reliable surrogacy agency to arrange the surrogacy procedure. The costs, practices, reputation, and references of surrogacy agencies should be thoroughly examined before a decision is made to hire one.
Each nation has its own law that applies to foreigners using surrogacy services. As a result, clients must make sure that they navigate the legal process with the help of a competent attorney. Issues of particular concern include ensuring the resulting infant can be released from the country of birth to the care of the designated parents, legal parentage (particularly in the case of same-sex couples), and second-parent adoptions in their home countries. The legal process Israelis must go through to prove biological and legal parenthood for babies born of surrogacy abroad is described below.
D. The Foreign Surrogacy Process for Israelis
The legal process of establishing biological and legal parentage begins when the fetal heart beat is heard, which typically occurs between week eight and fifteen of the surrogate's pregnancy. The intended parents must provide certification of the pregnancy from the surrogate's doctor, in addition to the signed and dated surrogacy agreement. The intended parent's attorney must request a court order for the DNA testing of the biological father and newborn required to prove eligibility for Israeli citizenship. The court order request is then sent to the State Attorney's Office for the State's opinion, and the State must provide the court its opinion within forty-five days. After the State Prosecutor's reply, the court decides if it will order the DNA testing necessary to allow the newborn to come to Israel. Armed with the court order, the DNA test can be conducted on the intended father and the DNA kit to test the newborn can be obtained from Tel Hashomer Hospital in Tel Aviv.
Birth normally occurs in a hospital or fertility clinic that treated the surrogate mother. After the baby's birth, the biological father, the surrogate mother, and the newborn must come to the Israeli Embassy to report the birth. A DNA saliva test is performed on the newborn at the embassy and the DNA test is sent to Israel. The surrogate mother must then file an affidavit that disclaims any genetic relationship and legal authority over the newborn, which is also necessary for second-parent adoption of the child by a spouse who is not a biological parent. To bring the newborn to Israel, the intended parents must provide the surrogate's affidavit, which severs ties with the infant, the surrogate's legal identification, the newborn's birth certificate, signed and sealed with an apostil, the legal opinion of a local lawyer confirming that the domestic surrogacy procedure was done legally, and signed in front of the Israeli consul.
The newborn's DNA sample is then analyzed at Tel Hashomer laboratories in Tel Aviv. Upon receipt of the results, the intended parent's attorney asks the court to rule on the baby's biological and legal parenthood. The Court will again ask for the Attorney General's response. Once the response is received, the court will determine if the conditions for Israeli citizenship as the child of an Israeli have been fulfilled and if so, will issue a verdict enabling the baby to come to Israel. Upon receipt of approval from the Ministry of the Interior, an Israeli passport will be immediately issued for the newborn at the Embassy abroad. The government of the birth country will then issue an exit permit for the infant.
The process of establishing biological and legal parenthood for babies born of surrogacy can take weeks, or even months, and can be influenced by strikes, holidays, time difference between Israel and the country of birth abroad, and the attitudes of the government officials required to carry out the procedures. In 2009, a judge in Israel refused to order the paternity test required to bring twins born in India to Israel based on illegal considerations, presumably the father's sexual orientation, even though many went through the legal process in the past--at great detriment to parents and babies. (22) I appealed the judge's decision to the Jerusalem District Court of Appeals and the family court's ruling was reversed, allowing the twins to enter the country safely.
E. The Religious Perspective on Surrogacy and Ova Donation in Israel
The religious status of the egg donor and surrogate mother is of particular significance for Jewish Israeli couples. Because Israel's family law dictates that parents and children must be the same religion, and Judaism is passed down from the mother, the egg donor and surrogate mother should either be Jewish, which is very rare out of Israel, or a faith not recognized in Israel, in order to register the child as the parent's child. The abundance of Hindu egg donors and surrogate mothers in India make it an especially attractive surrogacy destination for Israelis, since Hinduism has no official representation in Israel, and therefore, children born from a Hindu egg donor or surrogate mother can be registered as religion-less and can then convert to Judaism. Clarity of the child's religious status is very important for the child's future ability to marry and have their own children in Israel.
E. Philosophical Perspective on Surrogacy and Ova Donation
ART raise a number of philosophical questions concerning the nature of the relationship between the patient-consumer and surrogate-provider. Critics of surrogacy argue that making the reproductive capabilities of the surrogate mother into a commodity exploits her for personal gain of the wealthy. (23) Supporters of surrogacy highlight the economic opportunities for these women in light of their social circumstances. If surrogacy contracts are fair and transparent, the surrogate is literate and understands them, and surrogate mothers are protected by adequate laws, then surrogacy could provide them an unprecedented economic opportunity. A second line of thought asks how much control surrogates have over their reproductive capacities.
In my opinion, these arguments portray women who choose to become surrogates, who create life for others, in a one-dimensional light, as objects vulnerable to exploitation. I argue that women are autonomous beings who are capable of managing their lives, timing their pregnancies, and making decisions about their bodies. So long as women are not viewed as capable decision makers, true gender equality is impossible. Hence, I reject any claim that negates a woman's autonomy over her body, including receiving fertility treatments, terminating pregnancy, and acting as a surrogate. It is a paradox that requires resolution. How can one argue that a woman should control her own fertility, yet claim that her decision to act as a surrogate or ova donor is coerced or invalid? How can a woman's decision to maintain or terminate a pregnancy be valid, if her decision to be a surrogate or donate ova is not? The sole right to make these decisions is every woman's liberty and autonomy over her body is her privilege as a human being.
VIII. FREEZING OVA FOR FUTURE USE
A. Medical Practice of Ova Freezing
Originally developed as a technique for women who were about to undergo fertility-threatening chemotherapy, ova freezing is considered the ultimate in fertility control for women. A procedure called "oocyte cryopreservation" allows women to freeze their eggs and use them at a later time to conceive a child. It serves three groups of women: women with cancer who need chemotherapy, women undergoing treatment with ART who have religious objections to embryo freezing, and women who seek to preserve their future ability to have children due to partner, career or other social considerations. Freezing ova thus bridges the gap between medical and social infertility. The growing number of women who freeze their own eggs to lengthen their reproductive window due to career or partnership considerations, and not due to medical infertility, have raised objections against elective or lifestyle fertility procedures.
B. The Legal Perspective on Ova Freezing in Israel
In 2009, the Israel National Bioethics Council recommended permitting egg freezing to prevent both disease and age related fertility decline. This could encourage unrealistic expectations of late genetic motherhood, leading to involuntary infertility. (24)
C. Interdependence of the Israeli Ova Donation Law and Foreign Ova Donation Trends
Science, medicine, economics, capitalism, law, philosophy, geography, and demographics interact to drive the evolving field of ART. Social categories of infertility bend and blend according to developments in each of these fields. Combinations of new reproductive treatments and third-party practices, such as sperm donation, ova donation, and surrogacy, have been developed to treat both medical and social infertility. (25)
Two examples demonstrate the interdependence between the various forces described above and the symbiotic relationship between ova donors and recipients. Today, ova freezing and receiving ova donations is a popular lifestyle choice, increasingly utilized by older women. Since poor ova quality is the primary barrier to pregnancy in older women who can still conceive and deliver babies, freezing one's one ova, or receiving ova donations from younger women, are used to lengthen women's child-bearing window and even surmount the obstacle created by menopause. (26) The social demand for young ova created a new market and viable ova have emerged as a niche commodity within a booming global industry triggered by elective infertility. These phenomena reflect the interdependence between all of the aforementioned factors.
Shaley and Werner-Felmayer analyzed the difficulty of obtaining ova, before Israel enacted the 2010 Egg Donation Law:
Prior to the enactment of Israel's 2010 Egg Donation Law, IVF Regulations only allowed women who were undergoing infertility treatment to donate ova. The rationale was that the health risks could not be justified unless the intervention was primarily for the donor's own benefit. Due to the difficulty of obtaining ova, infertility patients ordinarily prefer to fertilize all the retrievable eggs for their own use, causing a shortage of donated ova. Private clinics started offering incentives to donate ova, but the ova supply dried up after the exposure of the Egg Affair scandal in 2000. (27)
To deal with the increasing demand for ova donation, the Ministry of Health recommended legislation to allow donations by healthy volunteers, but it took another decade for an updated Eggs Donation Law to be enacted in 2010. The Ministry of Health then amended the IVF Regulations to permit the use of imported ova, and a cross-border flow of ova from nations in which there were no legal restrictions was legalized. (28)
Success of treatment with frozen embryos is lower than freshly fertilized eggs. As a result, Israeli doctors began advising patients to travel abroad to clinics where they would be implanted with freshly fertilized donated eggs. An arrangement was made in which doctors set up an IVF facility abroad as a private enterprise, and would accompany their patients abroad to perform the treatment. (29) To compete with these practices, public hospitals established their own IVF facilities in Eastern Europe. In 2009, another egg scandal shook Israel when Israeli gynecologists were arrested in Romania.
The 2010 Egg Donation Law emerged in the wake of these events, permitting ova donations from healthy Israeli volunteers. The ova donation process is as strictly regulated as surrogacy, with many of the same issues and concerns. The donor must be between twenty-one and thirty-five years old and may undergo up to three retrieval cycles which are at least 180 days apart. There can be no more than two recipients from each retrieval procedure, so that in total, no more than six children can be born from any one donor. The resulting baby is the legal child of the ova recipient and the donor has no parental rights or liabilities. The state compensates donors with an amount determined by the Ministry of Health.
The ova donor may not be married, biologically related to the recipient, or ever reveal her identity (section 13) without permission from an "exceptions committee" (section 22). The Law establishes a database which monitors the number of donations from each woman and rules out any biological relation between the donor and the recipient (section 30). A registry of resulting infants intends to prevent marriage of half-siblings (section 33). (30) Neither the recipients, nor resulting children can ever learn of the donor's identity. Also, the donor cannot ever gain the right to know the identity of the children she mothered or the woman who received her ova. (31)
D. Related Legal Precedent: Two Biological Mothers for One Child
The 2010 Egg Donation Law gave birth to a major legal precedent, of which I was privileged to be a part. In March of 2011, a Family Court in Israel recognized two lesbian spouses as the biological mothers of their child, after ova from one woman was removed, fertilized, and implanted into her partner, who gave birth to their child. (32) This was the only case in Israel in which a woman became pregnant for her female partner. This was permitted under Israeli law by a special directive of the Attorney General. Yet, paradoxically, the 2010 Egg Donation Law, which was supposed to ease ova donation, canceled the Attorney General guidelines that had once allowed two women to share the experience of childbearing. The scenario of two women becoming biological mothers of the same child now infringes on Israeli law in two ways. Israel only allows anonymous ova donations. Therefore, it is illegal for one woman to donate ova to her partner because it would not be anonymous. Also, a woman cannot be a surrogate for her female partner, because surrogacy is only legal for heterosexual couples under the Surrogacy Law in Israel. I intend to take up the challenge of restoring this liberty through legislative changes or directives from the Attorney General.
IX. REPRODUCTIVE IMMIGRATION: A UNIQUE PHENOMENON
Israel's key immigration policy is the Law of Return, which allows immigration of those born Jews (having a Jewish mother or maternal grandmother), those with Jewish ancestry (having a Jewish father or grandfather), and converts to Judaism. The State funds immigration and, if immigration is done through a formal process of "aliyah"--which means "going up" in Hebrew--immigrants of all faiths are entitled to a generous immigration package, including: a one-way flight, moving costs, stipends, university degrees, professional training, health care, and social welfare.
Those eligible for immigration are entitled to automatic Israeli citizenship, but citizenship has no bearing on religious status and is therefore determined separately. The religious status of immigrants, and all citizens, are determined by religious courts and this impacts their ability to marry and exercise rights for their family in Israel. An estimated 300,000 immigrants are defined either as non-Jews, "questionable Jews," "religion-less," or "forbidden to marry" according to religious criteria. Since Israel's legal philosophy dictates that spouses and children must all share the same faith, interfaith couples simply aren't eligible for some reproductive services, and face hurdles getting legal status and rights for their adopted, biological, or step-children of other faiths. The incongruity between citizenship and religious status invites a host of ethical issues, including their eligibility for fertility treatments and rights to start a family in Israel.
For those immigrants who are eligible for fertility treatments--namely, married couples, common-law couples of the same religion, and single women--fertility services are funded by the state health system, which may be costly or unavailable in their country of origin. Government-funded ART thus provides an additional incentive for eligible candidates to immigrate to Israel. Anecdotal evidence suggests that Israel's fertility policies have attracted infertile singles or couples to Israel, particularly young American Jews, who may have been deterred from fertility treatments due to expensive costs. (33) Heavy government investment in ART, at an annual cost of USD40 million and the average of USD40,000 cost for a baby, may have added value for immigration. (34)
One can say with certainty that this article could not have been written 50 years ago. The revolution in ART posed a formidable challenge to the field of human rights. Ongoing developments in reproduction continue to challenge human rights, and may even stimulate the formulation of new human rights. Yet, the root of reproductive rights are the same assumptions that could be explained and understood centuries ago in the days of John Locke and Thomas Hobbes when human rights began to be defined. The reproductive rights debated in this article draw their moral and legal justification from the concept of the social contract, and are grounded in centuries of moral theories of human rights.
Generations of philosophical discussion failed to reflect on the family as an entity. During centuries of discussions on human rights, the institution of the family was conspicuously absent. Failure to discuss human rights for the family was indeed a terrible omission, because the family is society's most basic reference point, and the most essential building block of life. Technological, social, and philosophic changes in recent years do not change this determination. In fact, they strengthen it, sharpen it, and clarify the need for debate on human rights in the family.
The individual is the product of their family. One can negate nationality, religion, and belief, but one cannot cancel the family origins inherent in every individual. Philosophy has two primary two categories of reference: the "individual" and the "other," yet neither adequately describe the uniqueness of the family, nor do they provide a sufficient philosophical or theoretical basis to describe the concept of family. Usually, the family fell under the social category of "other." Yet, we are not born by or to "others." It can be said that the family is the most basic intimacy with others, but this definition does not do justice to the concept, and attempts to impose philosophic conventions without recognizing the family as a separate, distinct, and characteristic category. Some might define the family as an extension of one's self, but this definition does not adequately describe the true nature of the family because it ignores the fact that a family consists of at least two individuals. Inability to impose the conventional wisdom regarding the individual and society on the family concept requires us to define the family as a separate, distinct, and independent category. In this context, we note that reproductive rights are the foundation of establishing a family unit.
(1.) See Irit Rosenblum, The Individual, the Other, and Family and the Ethics of Reproductive Rights and Freedoms, 2011 A.B.A. Sec. Fam. L.
(2.) 316 U.S. 535 (1942).
(3.) See CA 413/80 Jane Doe vs. John Doe, Israeli Law Reports 35(3), p. 57.
(4.) See Irit Rosenblum, Founder and Exec. Dir., New Family Organization, The Biological Will--A New Paradigm in ART, Address at the 17th World Congress on Controversies in Obstetrics' Gynecology & Infertility (COGI) (November 9, 2012) Monduzzi Editorial--Proceedings, p. 87-95. Please note that the Biological Will is the trademarked property of Irit Rosenblum.
(5.) See Ministry of Health ART No. 05629810 (Isr.).
(6.) See Irit Rosenblum, Respect the Dead By Creating New Life, H'aaretz, Apr. 23, 2012, http://www.haaretz.com/opinion/respect-the-dead-by-dreating-new-life-1. 426003.
(7.) Family Court (Tel-Aviv) No. 4940/05, Cohen v. Attorney General of Israel.
(8.) See Family Court (Haifa) No. 13530/08, New Family and Snir v. Attorney General Israel.
(9.) See Family Court (Hadera) No. 7930/11/09, New Family and Pozniansky v. Attorney General.
(10.) See Ministry of Health ART No. 05629810 (Isr.).
(11.) See Russell Mayer, Employment for Women Law, Nefesh B'Nefesh (20002001), available at http://www.nbn.org.il/aliyahpedia/employment-a-entrepreneurs/ compensation-legal-rights-a-benefits/493-employment-law-for-women.html.
(12.) See Carmel Shalev & Gabriele Werner-Felmayer, Patterns of Globalized Reproduction: Egg Cells Regulation in Israel and Austria, 1 Isr J. of Health Pol'y Res. (2012), available at http://www.ijhpr.org/content/pdf/2045-4015-l-15.pdf.
(14.) See Public Health (In Vitro Fertilization) Regulations 5747-1987, KT No. 5035 [hereinafter IVF Law].
(15.) See Fam. Court (T.A.) 062300/06 New Family v. Tel Aviv District Attorney's Office and Others, PM 5767 (2007).
(16.) See National Health Insurance Law, 5747-1994, [SH] [Book of Laws, Official Gazette], [section] 6(D).
(17.) See IVF Law, supra note 14.
(18.) See Emmanuel Levinas, Totality et infini Essai sur l'exteriorite (La Haye, M. Nijhoff 1961).
(19.) See Agreements for the Carriage of Fetuses (Approval of Agreement and Status of the Newborn) Law, 5756-1996, SH No. 1577 p. 176 (Isr.).
(20.) See HCJ 2458/01 New Family v. The Approvals Committee 57(1) IsrSC ,
(21.) See Prof. Mor-Yosef, Comm. Chairman, Heading the Public Commission on the Subject of Fertility and Procreation on Behalf of the Israeli Ministry of Health (2012).
(22.) See Family Court (Jerusalem) No. 14816/04/10 Goldberg and Others v. Attorney General, PM 5769 (2009) (Isr.); District Court (Jerusalem) Appeal 28240/09 Goldberg and Others v. Attorney General, PM 5769 (2009).
(23.) See Moral and Ethical Considerations, Surrogate Motherhood in India: Understanding and Evaluating the Effects of Gestational Surrogacy on Women's Health and Rights (2008), available at http://www.stanford.edu/group/womenscourage/Surrogacy/moralethical.html.
(24.) See Shiri Shkedi-Rafid & Yael Hashiloni-Dolev, Egg Freezing For Age-Related Fertility Decline: Preventive Medicine or a Further Medicalization of Reproduction? Analyzing the New Israeli Policy, 96 Fertility and Sterility 291, 291-94, (2011).
(25.) See Shalev & Werner-Felmayer, supra note 12.
(30.) See Egg Donation Law, 5770-2010 (Isr.).
(31.) See Shalev & Werner-Felmayer, supra note 12.
(32.) See Fam. Court (Jer) 91954/06 Doe and Doe v. Department of Health, PM 5771 (2011).
(33.) Allison Kaplan Sommer, A New Reason To Make 'Infertility Aliyah': Free Egg-Freezing, THE JEWISH DAILY FORWARD, Oct. 13, 2010, available at http://blogs. forward.com/sisterhood-blog/132087/a-new-reason-to-make-infertility-aliyah-free egg/.
(34.) See Daniel Sperling, Commanding the "Be Fruitful and Multiply" Directive: Reproductive Ethics, Law, and Policy in Israel, 19 CAMBRIDGE QUARTERLY OF HEALTHCARE ETHICS 363, 367 (2010).
Irit Rosenblum *
* Irit Rosenblum is an Israeli advocate and human rights leader and founder and executive director of the New Family Organization. Rosenblum broke new ground defending a universal right to family. She cultivated a unique socio-legal philosophy of the new family, according to which every individual, regardless of religion, nationality, sexual orientation, or status, has an inalienable human right to establish a family and exercise equal rights within it. Rosenblum pioneered a new sphere of legal rights surrounding the family based on the conviction that the rights to marry, divorce, have children, bequeath and inherit assets, and conduct family life are human rights and must be attainable to all, regardless of faith, nationality, sexual orientation, or status.…