The desire of an individual to become a parent can be very strong, especially in "child-centric" societies, where the idea of having children and raising a family is highly valued. In those societies, the prominent pro-natal nature translates into policies and laws regulating reproduction. The Jewish-Israeli society is a prime example of such a society where the use of state-funded Assisted Reproduction Technologies ("ARTs") is the highest in the world--eight times higher than the international average. (1)
However, the road to becoming a parent is not as smooth for all members of Israeli society. A recent case that went all the way to the Israeli Supreme Court proved how the current Israeli reproductive policies, particularly surrounding third-party reproduction methods such as adoption or surrogacy, are inaccessible to people with disabilities (among other minority groups) who share the same great desire to become parents. (2)
The Ora Mor Yosef case revolves around a Jewish-Israeli woman with muscular dystrophy who could not bear a child because of her impairment. Her dream of becoming a mother was so powerful that after exhausting all of her other options, she used a surrogate, sperm donation, and egg donation to bring a baby into the world. However, the lack of genetic-biological connection to the baby led the courts to decide not to recognize Ora as the mother, meaning that she never had the chance to even see the baby.
This Article will examine the exceptional case of Ora Mor Yosef in a broad context and from a "Disability Legal Studies" perspective. It will compare Israeli socio-legal treatment of what I refer to as the right to become a parent with the United States legal system and will show how Israeli law makes it more difficult for women with disabilities to have children. It will continue with a discussion on the concept of disabled motherhood from a comparative Israeli-American perspective. This discussion will illuminate that there are still universal struggles and hardships for people with disabilities, specifically women, as they endeavor to become mothers and in raising their children. By using a Disability Legal Studies framework and a socio-legal analysis, this interdisciplinary Article will bring to the foreground issues and ramifications that were not found in the original reasoning of the Israeli courts' rulings on the Ora Mor Yosef case and will demonstrate the crucial role legal institutions play in the social construction of disability and its treatment by society. It is my hope that this paper will therefore help bring more attention to the issue of disabled parents and prevent tragic instances like the one standing in the heart of this paper from recurring.
It is important to conduct a comparative analysis of the American and Israeli legal systems on this issue since the Israeli legal treatment of people with disabilities has been influenced by American disability rights academia, legislation, and activism. The Americans with Disabilities Act ("ADA") was used as the model for the Equal Rights for People with Disabilities Law, which is the main Israeli legislation governing this population, and American legal scholars were even involved in its enactment. (3) Furthermore, the work of Bizchut--the Human Rights Center for People with Disabilities, the leading organization on promoting the rights of Israelis with disabilities--was influenced by the work of American civil rights organizations. (4) The two systems differ, however, as Israel has signed and ratified (5) the United Nations Convention on the Rights of Persons with Disabilities ("UN CRPD"), (6) while the United States has declined to do so. (7) This is the first time that such a comparative analysis has been conducted on the issue of parents living with disabilities, and it helps shed light on the broader relationship between disability and law.
Part I introduces the socio-legal landscape regarding access to reproduction in Israel and the United States. In Part II, I provide an overview of the stigmas and legal treatment of disabled mothers in both legal systems. Part III will describe the Ora Mor Yosef case and the Israeli courts' rulings on the matter. Finally, in Part IV, I will provide an analysis and critique of the court rulings using a Disability Legal Studies approach.
A Comparative Socio-Legal Analysis of the Right to Become a Parent
What is the Right to Become a Parent?
Development in ARTs, beginning in the early 1980s, has sparked a debate around the issue of who should be allowed to gain access to such technology. (8) The debate has developed from revolving solely around the use of technology to focusing on a much broader question of who should have the ability to have and raise children and on whether the state should regulate parenting in the same way it regulates and licenses "other potentially harmful activities." (9) This debate about who should get the right to become a parent continues to this day and usually focuses on historically underserved minority groups. This Article focuses on parenting for people with disabilities and even more specifically on mothers with disabilities.
The Fourteenth Amendment of the United States Constitution has protected a person's right to procreate without having the state interfere or prevent her from doing so. (10) In Eisenstadt v. Baird, the Supreme Court specifically drew a right to procreate from a person's right to privacy when it stated that if "the right of privacy means anything it is the right of the individual, married or not, to be free from government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (11) Years later, in Bragdon v. Abbott, the Supreme Court has also recognized procreation as a "major life activity," while determining HIV infection to be a disability according to the ADA. (12) Nevertheless, and as implied, the right for privacy can only serve as the base for a narrow negative right to procreate. (13)
Scholars have named various rationales that lie behind the desire to procreate, in turn basing it on such noble ideas as human dignity, individual meaning of life, and identity. (14) Other values put forward include: the desire to achieve immortality by continuing to live through one's decedents; the desire to live vicariously through the child in a way and thus ensure a "second chance in life"; the desire to ensure that the family name will be carried on; and the longing to create a secure nest and achieve a deep and meaningful connection and relationship with their flesh and blood extension of self. (15) Those values and rationales have led to a broader, positive right, and this right requires the state to assist people to become parents.
It is important to clarify that the interest behind the right to procreate is not merely the idea of replicating one's genes. Although the idea of procreation for itself might appeal to some people more than to others, it should be safe to say that the primary interest behind the right to procreate is the desire to rear children and develop a meaningful relationship with them (an interest that can be satisfied even if the genetic connection is nonexistent). Therefore, the right to procreate can usually be framed as the right to become a parent or the right to parenthood. (16) This notion is reinforced by the United Nations Universal Declaration of Human Rights, which recognizes the right to found a family as a basic human right. (17) With regard to persons with disabilities, Article 23 of the UN CRPD requires party states to "take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to ... parenthood." (18) As such, for the rest of this paper, the right to procreate will be framed as the right to become a parent.
The Desire to Become a Parent--A Socio-Cultural Perspective
A person's desire to become a parent has historically existed in most settings, cultures, and contexts. Nevertheless, as in the case of other social norms, this desire does not seem to manifest itself to the same extent within different groups and societies.
In 2014 the Danish government funded the "Do It for Denmark!" campaign aimed at boosting the country's low birthrate by convincing Danes to go on a holiday, since people are believed to have more sex when on vacation. (19) While it seems that a significant number of the people of Denmark do not seem to want to have any or many children, on the other side of the spectrum are other societies that are much more "child-centric," and Israel is one of them.
Research has shown that the Jewish-Israeli society is very family-oriented, with high marriage rates, relatively low divorce rates, and high birth rates. (20) The reasons for those pro-natal tendencies are said to include: biblical-religious perceptions; identification with the collective goal of fighting the "demographic threat" (i.e., the fear that the country's Arab population might eventually outnumber the Jews); the aspiration to bring up more Jewish babies especially in the wake of the Holocaust; and the fear of losing a child in war or terrorist attack (as part of the mandatory army service). (21) For minority groups in Israel, such as the LGBTQ community, the "ticket into society" is to have a baby. (22) It is therefore not surprising that the theme of the 2014 annual gay pride week in Tel Aviv was "Proud Families," with the main parade not ending at the traditional party on the beach, but at a nearby park where new gay parents could easily push their strollers and play with their children on the playground. (23)
With regard to the United States, according to a 2013 Gallup survey, most Americans have a desire to have children, and that attitude has remained unchanged over the past two decades. More than nine in ten adults say they already have children, are planning to have...