Forget Marriage Equality; Israeli Gays Want Surrogacy Rights

Why having babies is the key to acceptance in a country waging a demographic war.
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Participants hold flags during a gay pride parade in Jerusalem on July 29, 2010. (Ronen Zvulun/Reuters)

A refugee lawyer, a transgender specialist, and six other people sit in a circle in an empty classroom on the second floor of Tel Aviv's Gay Center. They are here for the inauguration of Israel's first-ever LGBT legal clinic. The evening's keynote speaker is Frederick Hertz, an American legal expert who specializes in gay marriage. He describes a recent case he handled, in which a gay couple, one of them transgender, got married in Las Vegas as a man and a woman. Then they moved to California and wanted their respective healthcare benefits. "So the question," Hertz says, "was how to register that same-sex couple when they had been married as an opposite-sex couple."

The crowd stares blankly, some playing with their telephones. One attendee, wearing skinny jeans and Converse sneakers, breaks the collective yawn by quoting a New Yorker cartoon, republished in the Israeli newspaper Haaretz, to convey how Israelis feel about the American debate over gay marriage: "Gays and lesbians getting married -- haven't they suffered enough?"

"You brought us nice new children, many children -- this is the ticket to normalization, much more than marriage."

But down two flights of stairs, past a photo exhibition of Israeli drag queens and a poster for a Hebrew version of "Angels in America," a much livelier conversation is taking place in the Center's bar. Through a cloud of cigarette smoke and techno music, a group of activists is talking about what really matters to Israeli gays today: surrogacy.

Holding court at a wicker table is Michal Eden, who became Israel's first openly gay elected official when she won a seat on Tel Aviv's city council in 1998. She marvels at the fact that, while surrogacy is illegal for gay couples in Israel, an increasing number of them are paying foreign women to have their babies overseas.

"I'll tell you, I see it as a revolution," she says. "The fact that gay men from Israel can have a kid from India or from the United States and can raise it as part of a family, as a Jewish Israeli gay family."

Yuval Eggert, the Gay Center's executive director, drops by to join in the conversation. He can't stay long, since he is still on paternity leave (having just had a baby via a surrogate in India) and can barely keep his eyes open. "Ah, mazal tov!" Eden calls out.

Also shmoozing with the crowd is Itai Pinkas, a former Tel Aviv city councilman who had a child with his partner Yoav in 2010 via a surrogate from Mumbai. "A gay thirty-something man with a partner and a baby or two can definitely be considered a typical Tel Aviv specimen," he recently declared in a column for the Israeli daily Maariv.

But as gay men of means are increasingly willing to pay the hefty price of traveling abroad to find a surrogate, less well-off gays in Israel wonder why they are still denied the procedure at home -- which has been legal for straight couples in Israel since 1996. The problem is particularly striking in a country that touts its strong record on gay rights. Israel offers broad legal protections against discrimination based on sexual orientation, and allowed gays to serve in the military decades before the U.S. Out Magazine describes Tel Aviv as "the gay capital of the Middle East," and an American Airlines poll recently dubbed it the world's top gay travel destination. Indeed, Israel is so proud of its accomplishments on gay rights that it has even been accused of exploiting them internationally in order to "pinkwash" its treatment of the Palestinians.

This paradox has pushed Israeli gay activists and their allies toward making surrogacy rights their top political priority, much as marriage equality is for American gays. And like marriage, surrogacy has become a lightning rod for controversy, touching on some of the most loaded issues facing Israel today: sexuality, gender, demography, and religion.

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To a large extent, the lack of political interest in marriage equality among Israeli gays reflects a growing apathy about the official recognition of marriage in general. In Israel, all matters relating to marriage and divorce fall under the exclusive jurisdiction of religious courts -- for Jews, this means the rabbinate. Israel has no institution of civil marriage, and thus can make no provisions for couples who fall outside traditional religious parameters.

As a result, many straight couples in Israel do not legally marry, either because their marriages are unacceptable under religious law (such as interfaith marriages), or because they don't want to deal with the onerous process of getting the rabbinate's approval. "They have a private ceremony with the whole shebang and the wedding dress, but it's not a formal marriage, and they don't register with the Ministry of the Interior," says Victoria Gelfand, one of Israel's foremost civil rights attorneys focusing on gay family issues. "No one asks, 'Are you actually married or are you just pretending?' Once you have a wedding band, no one asks whether you are a heterosexual or a homosexual couple."

According to a new report by Israel's Central Bureau of Statistics, the number of Jewish couples who live together without marrying is 2.5 times greater than it was a decade ago. Such couples -- whether gay or straight --have been granted the status of "reputed" or common-law spouses by the Israeli Supreme Court, which gives them many of the same civil and legal rights as formally married couples. As a result, gay couples in Israel have far more rights than their counterparts in the U.S., which is part of what makes the issue of marriage equality seem less urgent. Unlike in America, moreover, getting married in Israel carries certain practical disadvantages, such as additional taxes and less paternity leave. And since all marriages performed overseas have been recognized in Israel as of 2006, gay couples who really want to get married can do so abroad.

Thus, it is not that gays are not interested in the right to marry; it is just so far from the current conception of marriage in Israel, and so many Israelis -- gay and straight -- have found easy ways around it. The fight for marriage equality is folded into the larger fight in Israel against religious control of the legal system, which extends far beyond the gay agenda.

So if marriage is not the Holy Grail for gays seeking equality and acceptance in Israel, what is? Increasingly the answer has to do with having children. "We Israelis chase heritage," Gelfand says. "When gay people come out of the closet here, the reaction of their parents is, 'Does this mean you won't have children?' They're obsessed with ancestry." As one Israeli gay activist put it, "We're a country full of Jewish mothers. What do you expect?"

Religion's heavy influence on Israel society, while it limits gays' ability to marry, also makes Israeli culture "very family-oriented," says Doron Mamet, who founded a surrogacy consulting firm in Tel Aviv for gay couples. "In Israel, if you don't have your family, you don't exist. In order to be part of normative society, you need a family." The recent Central Bureau of Statistics report found that 75 percent of Israeli couples have children.

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Zvika Krieger is a former editor and writer at The New Republic and a former correspondent for Newsweek based in Egypt and Lebanon, covering most of the Arab world. More

Krieger has received fellowships to study topics including the Muslim Brotherhood in Jordan, the Kifaya reform movement in Egypt, public health in Bombay slums, religious identity in Kashmir, historical memory in Palestinian refugee camps in the West Bank, and the role of religion in Lebanese politics. He has also reported from such places as Iraq, Saudi Arabia, Turkey, United Arab Emirates, Libya, North Ireland, Sri Lanka, Japan, and Korea. His work has also appeared in The Wall Street Journal, Guardian, Slate, New York, Arab Reform Bulletin, New Stateman, Chronicle of Higher Education, Daily Star (Lebanon), Cairo Magazine, Jerusalem Post, Christian Science Monitor, and various other publications, and he has appeared as a Middle East analyst on NBC News, CNN, Fox News, and Air America. His writings have earned him awards from the Overseas Press Club, the Scripps Howard Foundation, and the MacMillan Center for International and Area Studies. He is a fellow at the Truman National Security Project. He has a bachelor's degree in Middle East Studies from Yale University and studied Arabic at the American University in Cairo.

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