By Daniel Aspiro, Partner
A surrogacy procedure carried out outside of Israel may allow a child born as a result of the process to acquire Israeli citizenship by virtue of their parental connection to an Israeli parent [1].
However, when parentage cannot be registered directly based on birth documents and the genetic link alone, the parental status must first be regulated through an appropriate legal proceeding, specifically via a Judicial Parentage Order (Tzav Horut Psiktí).
It is important to emphasize that the mere existence of a genetic connection to an Israeli parent is not necessarily sufficient, in and of itself, to complete the registration. In international surrogacy proceedings, authorities examine several factors, including the genetic link, the legality of the surrogacy process in the country where it was performed, the legal status of the surrogate mother, and the formal severance of the parental bond between her and the child
The Surrogacy Process and Israeli Citizenship
Surrogacy is a process in which intended parents enlist the help of another woman—the surrogate—who carries the pregnancy for them. This usually occurs after creating an embryo through In Vitro Fertilization (IVF) and transferring it to the surrogate’s uterus. Following the birth, the child is handed over to the intended parents in accordance with the agreement and the applicable law in the country where the procedure took place.
When the procedure is performed abroad, the question of the child’s status and citizenship in Israel is not always resolved automatically. The Population Authority requires proof of the Israeli citizen’s parental connection to the child, and a foreign birth certificate or foreign court judgment is not necessarily sufficient.
Example: Moshe and Ronit, both Israelis, underwent a surrogacy process in the United States using an American surrogate. After the birth, they will need to apply to the Israeli authorities to register the child and examine their eligibility for Israeli citizenship.
When the Israeli father is the genetic parent, proof of the genetic connection may be required. In cases where the documentation is deemed insufficient, the Authority may demand an appropriate Israeli court judgment and even a procedure for genetic family testing. Furthermore, if one of the parents is non-genetic, registering them as a parent may require additional documents and court orders. Additionally, if the parental bond between the surrogate and the child was not legally severed in a manner that satisfies the Israeli Population Authority, complex legal proceedings in Israel or abroad will be necessary.
Conditions for Regulating Citizenship and Status
Generally, to register a child as an Israeli citizen, one must prove that at least one parent is an Israeli citizen and establish the relevant parental connection. Depending on the circumstances, the process may include the following steps (partial list):
- Proving the Genetic Connection: When one of the intended parents is the genetic parent, a DNA test may be required to prove the biological link. A genetic test to determine family ties requires an order from the Israeli Family Court. In appropriate cases, the test can be conducted via an Israeli diplomatic mission abroad [2].
- Proving the Legality of the Surrogacy: Documentation must be presented to allow the Israeli court and authorities to verify that the surrogacy was conducted legally in the foreign country. This includes the surrogate’s informed consent and the regulation of her legal status vis-à-vis the child.
- Severing the Legal Tie Between Surrogate and Child: It must be proven when and how the surrogate’s parental rights were severed. A foreign court ruling or official document can serve as significant evidence, but it does not necessarily replace the need for a legal determination in Israel.
- Obtaining a Judicial Parentage Order: When the establishment or regulation of parentage for one of the intended parents is required, an appropriate application must be filed with the Israeli Family Court. In suitable cases, the order may be granted regarding a parent with a genetic link, given the need to regulate the severance of ties from the surrogate and establish the exclusive parentage of the intended parents.
Is a Foreign Law Opinion Required?
A foreign law opinion is not an automatic requirement in every international surrogacy procedure. However, when the laws of the foreign country are relevant to questions such as the surrogate’s status, the validity of her consent, the method of severing parental ties, or the legal status of the intended parents, a legal opinion regarding the foreign law can be of great importance.
An Israeli court may need to review the foreign law to determine the legality of the surrogacy process and the exact timing of the severance of parental ties.
Submitting the Application: In Israel or Abroad?
Once parentage is legally established and a court order is obtained, the parents can proceed to register the child as an Israeli citizen.
- If the parents are in Israel: The application can be submitted through a local office of the Population and Immigration Authority. The Authority allows Israeli citizens to register a child born abroad in the Population Registry, subject to presenting the required documents.
- If the parents and child are abroad: The application can be submitted through the Israeli diplomatic mission (embassy/consulate) in the country of residence.
Legal Counsel Before Signing the Surrogacy Agreement
An international surrogacy procedure creates a complex web of rights and obligations under Israeli law, as well as under the laws of the country where the process takes place. Therefore, it is highly recommended to obtain comprehensive preliminary legal counsel before signing the surrogacy agreement, rather than settling for a review of the agreement solely from the perspective of foreign law.
Preliminary counseling should examine, among other things:
- The identity of the intended parents and their status in Israel.
- The expected genetic connection between the child and the intended parents.
- The applicable law in the country of surrogacy.
- The legal status of the surrogate during pregnancy and after birth.
- The manner and timing in which the legal bond between the surrogate and the child will be severed.
- The documents required to obtain a Judicial Parentage Order in Israel.
- The option to obtain a legal opinion regarding foreign law.
- The procedure for registering the child in Israel and obtaining citizenship and Israeli documents.
- The risks that may arise if the foreign procedure does not align with the requirements of Israeli authorities and courts.
Legal Mechanism Throughout the Pregnancy
It is recommended that the surrogacy agreement and its accompanying legal framework include a detailed mechanism covering the pregnancy period through the completion of the child’s registration in Israel. The purpose of this mechanism is to ensure that, following the birth, the processes of establishing parentage, severing ties with the surrogate, and registering the child as an Israeli citizen can be completed without unnecessary delays.
Within this framework, the parties’ obligations can be regulated in advance (subject to local law) regarding matters such as (partial list):
- Safekeeping of medical and legal documents related to the pregnancy and birth.
- Providing necessary consents and approvals after birth.
- Cooperating with the court, relevant authorities, and the Israeli diplomatic mission.
- The surrogate’s appearance, if required, before a competent authority or an Israeli diplomatic mission.
- Signing declarations or waiver documents required to prove the severance of parental ties.
- Issuing legally authenticated (apostilled) birth certificates and official documents.
- Undergoing genetic testing, if required.
- Granting power of attorney and additional documents needed to complete the registration and citizenship process.
The importance of this mechanism stems partly from the fact that, under certain circumstances, Israeli authorities may require the surrogate mother to physically appear at an Israeli diplomatic mission after the birth to sign an affidavit waiving her rights to the child. This is particularly common when the severance of ties in the foreign country is executed via an administrative document, a pre-birth court ruling, or pre-birth consent.
Irrevocable Undertaking and Power of Attorney
As part of the legal preparation, it is worth considering including an explicit commitment in the relevant agreements to provide an irrevocable power of attorney. This allows the intended parents or their attorney to act—to the extent permitted by law—on behalf of the obligated party to complete the procedures necessary for registering the child in Israel and regulating their status.
This commitment may cover submitting and receiving documents, contacting authorities in Israel and abroad, completing authentication and apostille procedures, and executing the actions required to register the minor and secure their Israeli citizenship.
However, an irrevocable power of attorney cannot replace a judicial decision, a genetic test, legally required consent, or the approval of a competent authority, and it cannot independently guarantee the granting of citizenship. Its purpose is solely to ensure cooperation and the legal capacity to act toward completing the procedure as effectively as possible.
The Importance of Advance Legal Planning
An international surrogacy procedure does not end with the birth of the child. From the perspective of Israeli law, the birth is merely the transition point to the next phase: regulating parentage, severing the legal bond with the surrogate, registering the child in the Population Registry, and securing their citizenship and Israeli documents.
Therefore, it is highly recommended to plan the legal and administrative procedures in Israel before signing the surrogacy agreement, rather than waiting until after the birth. Early planning helps identify requirements in advance and minimizes the risk of delays in regulating the child’s status.
Footnotes:
[1] An inter-ministerial protocol known as the “Abroad Procedure” (Nohal Chul)—designed to regulate the status of a child born to an Israeli citizen via surrogacy abroad. The procedure is not published publicly.
[2] The test must be analyzed at one of the following hospitals: Sheba (Tel Hashomer), Hadassah (Jerusalem), Beilinson (Petah Tikva), or Rambam (Haifa).
