Inaccessible Motherhood: The Normative Void Regarding Reproductive Policies for Persons with Disabilities

Disability Legal Studies is a relatively new field. It seeks to apply the perspectives of Disability Studies to law and examines the role that legal institutions play in the social construction of disability. Looking at the case of Ora Mor Yosef, a Jewish-Israeli woman living with muscular dystrophy (CA 11184/14 CA, Anonymous v. Ministry of Social Affairs and Social Services (April 1, 2015)) through the prism of Disability Legal Studies introduces new complexities to the law and reveals the decision as a missed opportunity to make an important statement regarding the rights of disabled people in Israel and beyond.

Ora Mor Yosef harbored a lifelong dream of becoming a mother, though she knew that she would not be able to carry a child herself. In her early forties, Ora decided to have her eggs harvested for the purposes of in vitro fertilization (IVF) treatments so that she would be able to have a child through surrogacy. Because of medical risks related to her age and disability, many doctors rejected Ora’s request, but she finally found a doctor who successfully harvested a few eggs. Three of those eggs were inseminated with the sperm of Ora’s then-partner, producing three embryos that were then frozen.

Ora was evaluated for parental capacity and efficacy by the State of Israel and found to be a fit parent; she and her then-partner applied for surrogacy through Israel’s strictly regulated process but were denied because they were not married through the rabbinical court. Very soon after, the couple broke up.

A close relative of Ora’s had volunteered to serve as her altruistic surrogate and carry a baby for her. The two women traveled to California in order to try and impregnate the surrogate with one of the embryos. Unfortunately, the procedure failed. All of the embryos containing Ora’s genetic material were gone.

Since Ora is not considered a candidate for adoption under Israeli law because of her status as a single woman, she had to become resourceful. She procured a sperm donation from an acquaintance who waived parental rights and an anonymous egg donation from a woman outside of Israel. Ora and the surrogate then traveled to India where the IVF treatment took place: an embryo was created and successfully implanted in the surrogate’s uterus. After spending ten days in India, the two women returned to Israel intending for the child to be born in their home country.

When Ora sought to register the unborn baby as her child, her request was immediately denied: state officials claimed that no relationship existed between Ora and the baby because there was no genetic or gestational link between them. Ora then filed for declaratory relief, asking the family court to recognize her as the mother and guardian of the baby. About a month later, a baby girl was born and immediately put into foster care. The family court held that the baby would remain in foster care and not be released for adoption until a decision regarding Ora’s parental status was made. However, Ora was never allowed to see the baby.

After many long legal proceedings, all of which resulted in denying her request to be declared the baby’s mother, Ora’s case came before an extended panel of seven Justices at the Israeli Supreme Court. The Court unanimously denied Ora’s appeal. As the family court and the district court had done, the Court decided that the case did not fit any of the four recognized foundations for a parent–child relationship under Israeli law: genetic connection, gestational connection, adoption, or recognition of the parent’s spouse as the second parent due to their couplehood. The Court was specifically concerned about paving the way for an immoral market bringing children with “no roots” or “a clear identity” into the world. As the Court stated, concerns about potential child trafficking justified Israeli law’s refusal to recognize “parenthood by contract,” i.e., a private contractual agreement to bring a baby into the world without having the state oversee the process.

The Court also refused to grant Ora any special status in the baby’s adoption proceedings, which she is entitled to seek in family court. Ora’s chances of persuading the Court that denied her parental status in the first place are slim, given that Israeli law generally prohibits single individuals from adopting and that Ora was not granted visitation rights with her baby or allowed to have any relationship with her in the almost three years since she was born and placed in foster care.

The decision had an ironic result: the Court denied Ora parental status due to the lack of genetic ties while entrusting the baby to a foster family and later to permanent adoptive parents who do not hold any biological connection to her either. This end result can be understood as a punishment for Ora, who, by going to court after the onset of pregnancy, made the court face a fait accompli in this case, and as a warning for other Israelis who might attempt to bring babies into the world using private surrogacy contracts. Further, the decision delivered an unsettling message about the capacities (or alleged lack thereof) of people with disabilities and single individuals to serve as parents.  These messages transcend the personal ramifications of the decision for those directly involved with the case, namely, preventing the child from forming a meaningful relationship with Ora and with the surrogate herself, who is Ora’s relative and lives close to her, and strengthening the child’s feelings of belonging and identity.

Although the concerns about parenthood by contract are understandable and are worthy of a broader and deeper discussion, as is the development of legislative means to prevent them from occurring, I argue that they do not really manifest themselves in the special and specific circumstances of this case.

Out of the seven Justices who wrote an opinion in the case only one, Justice Hanan Melcer, discussed the issue of Ora’s disability in detail. He mentioned the Equal Rights for People with Disabilities Act as well as Article 23 to the U.N. Convention on the Rights of People with Disabilities (signed and ratified by Israel) that addressed the need to eliminate discrimination against people with disabilities in terms of parenting and raising a family. Justice Melcer pointed to the “normative void” that currently exists in Israeli law with regard to reproductive rights for people with disabilities and called for the legislator to intervene by enacting laws and creating policies in order to fill this void.

I also argue that the Court (with the exception of Justice Melcer’s opinion) did not address the starting point for this story—and that is the notion of accessibility and discrimination against people with disabilities who have no access to reproductive policies that fit their needs. The Court did not bear in mind that the current Israeli legal system is designed in such a way that people like Ora cannot have children and, thus, are being left out of the extremely pro-natal society they were born into. Such a problematic lack of access needs to be addressed by the courts, regardless of whether this lack of access implicates only the rights of people with disabilities or other groups as well.

For further reading about reproductive policies for women with disabilities in Israel and the US, the legal treatment of disabled mothers and more about this specific case, see Doron Dorfman, The Inaccessible Road to Motherhood – The Tragic Consequence of Not Having Reproductive Policies for Israelis with Disabilities, 30(1) Columbia Journal of Gender and Law 49-83 (2015); available for free download on the author’s SSRN page: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2747163.

Doron Dorfman is a Graduate Fellow at the McCoy Family Center for Ethics in Society at Stanford University, a Bradley Fellow at the Stanford Constitutional Law Center and a JSD Candidate at Stanford Law School.