Surrogacy, Israel, and the Nepal Earthquake

By John A. Robertson

The Nepal earthquake has shocked with the devastation and suffering inflicted on a long suffering people.  Foreigners in Nepal were also affected, but most of them will be able to leave and carry on their lives without the poverty, housing, and health care deficits the Nepalese will be dealing with for years.  One sub-group of foreigners were Israelis awaiting the birth of children carried by Nepalese surrogates or the legal papers needed to bring home those infants who had already been born.  They have, of course, no moral priority over others hit by the earthquake, but their situation shines yet another light on the complexities of national surrogacy policy and surrogacy tourism.

Nepal has become a major surrogacy destination for Israelis who because they are unmarried or gay cannot obtain surrogacy in Israel.  India and Thailand had been the prime choice for surrogates, but those countries two years ago restricted surrogacy to married couples.  Indian women already pregnant with children commissioned by unmarried persons then went to Nepal to give birth.   With surrogacy available in Nepal for $30,000-$50,000, rather than $150,000 in the United States, Israeli surrogacy agencies started arranging surrogacy births there, even while Indian rather than Nepalese women are usually the carriers.

Israeli media coverage of the earthquake prominently featured the Nepalese-Israeli surrogacy connection.   NPR, Time, Reuters, CNN, Washington Post, and other media followed.  Standing out in a front page story in Haaretz is a single quote from one of 200 Israelis anxiously awaiting evacuation, a gay couple who had been in Nepal for six weeks for the birth of their child:

“On the one hand, it is an amazing and proud feeling to see the El Al plane here to take us home, but on the other hand the same state that sends planes to the edge of the world to bring Israelis home—is the same state that because of its laws people like us have to go to remote places and go through such a difficult process.”

The El Al plane had come filled with medical aid to Nepal and left with Israelis, including 12 babies born to Israeli fathers and surrogate mothers, with others to follow.  After criticism that only the babies were allowed to come and not the 100 or so women who were pregnant with Israeli children, the Attorney General of Israel announced that surrogate mothers at different stages of their pregnancies currently in Nepal would be permitted in Israel to complete the birth process (what will happen to the mothers after the births is unclear).  Television and photographs featured moving images of babies being cradled by military medics as they arrived at Ben Gurion airport.

Israel is to be commended for its immediate response to the earthquake, being one of the first nations to land supplies and personnel to help with the unfolding tragedy.  Nor is it acting inappropriately in evacuating its own citizens rather than Nepalese and others affected.  The focus on surrogacy, particularly the moving images of babies, is serendipitous, happening only because a substantial number of Israelis were in Nepal for that purpose.  (Should the women who had already given birth for Israeli fathers also have been evacuated)?

With a press and public seemingly so supportive of persons who ventured to Nepal to have their children, might it not be time for Israel to change its law restricting surrogacy to married persons?  The High Court of Justice, in denying surrogacy to a 40 year old single woman who had had eggs retrieved prior to a medically necessary hysterectomy, had recommended that a legislative committee consider such a change.  In 2014 the Mor-Yosef committee recommended legal changes allowing single persons and gays and lesbians access to surrogacy in Israel.  The Cabinet approved the bill after an appeal by a conservative minister threatened to derail it.  It now is set for a Knesset vote at a later date, and will likely pass into law.

Such a change would enable all Israeli citizens to have children without resorting to transnational reproductive tourism where in many instances ethical concerns, including exploitation, are endemic.  With a shortage of surrogates in Israel, however, surrogacy tourism will still occur.

Israel is far from the worse offender in its surrogacy policy.  It has recognized surrogacy for a married couple since 1996.  Its restrictions affect single women and gays and lesbians only, while many European nations (Italy, France, Germany) do not allow gestational surrogacy even for a married couple, and several others ban commercialization (United Kingdom, Sweden), which has nearly the same effect.  In the United States similar disparities exist in some states, but gay couples can get surrogacy in those states that permit it for everyone.  With Israel on the verge of adopting the Mor-Yosef committee recommendations, the path that other countries long leery of surrogacy should take is now apparent.

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