THE PARADOX OF SAME-SEX PARENTAGE EQUALITY.

• Author: Naaman, Noy

ABSTRACT

There is a general scholarly consensus that the law of parental determination should conform to the principles of equality. But the precise meaning of equality' itself remains contested in the era of assisted reproductive technology. Increasingly, legal scholars argue that the commitment to equality requires the law to be untethered from its biology-centric focus and that the relational elements of family configuration must be embraced. Prima facie, this scholarly vision seems promising for the future of same-sex families, as it accommodates their particular reproductive limitations. The present article, however, reveals the cracks in this scholarly logic, by presenting a classic tale of equality paradox: one person's gain becomes another person's hindrance to fair treatment within the same community.

Drawing on original and comprehensive case-law analysis of a relatively new mechanism for legal parental determination in Israel, the Judicial Parental Order, the article explains why this vision for equality is not as promising as it first appears. The research demonstrates that, to the extent that the principles surrounding parental determination (a) are enacted in line with (hetero)normative assumptions of family, (b) discourage the fluidity that is well documented within same-sex familial narratives, or (c) ignore the surveillance deployed to reinforce 'acceptable' heteronormative lifestyles, the current vision risks benefiting only certain sectors of the LGBTQ community'. To further highlight the broad scale of the paradox I present, comparative references are made to regimes in the U.S. and Canada that, to some extent, operate under similar constraints. The article, then, offers a more nuanced position vis-a-vis equality--one that acknowledges the fact that gays and lesbians do not constitute one homogeneous mass--and therefore exhorts greater sensitivity toward the differences between, and within, the two collectives.

TABLE OF CONTENTS I. ORDERING PARENTHOOD II. RELATIONSHIP A. The Nature of the Paradox B. Reorienting Relationship in Legal Parenthood III. INTENT A. The Nature of the Paradox B. Reorienting Intent in Legal Parenthood CONCLUSION INTRODUCTION

There is broad scholarly consensus that the law of parental determination in the context of assisted reproductive technology (ART) (1) should conform to the principles of equality. (2) But the precise meaning of equality itself remains contested in this context. (3) Recently, increasing numbers of prominent family law scholars have argued that the commitment to equality requires the law to be untethered from its biology-centric focus, (4) and that it should take into account the relational elements of family configuration, namely, the shared intent to raise the child together, (5) the relationship between the co-parents, (6) and the bond developed with the child, once born. (7) At first glance, this vision seems promising for the future of same-sex families, (8) as it accommodates their particular reproductive limitations. (9)

This article seeks to scrutinize this vision and complicate the scholarly consensus by clearing space for a set of important questions that are largely sidelined--questions over whether this vision of parentage equality is attainable for all gays and lesbians, given the differences between, and within, these two collectives. (10) Who, within the LGBTQ community, is most likely to benefit? Would shifting the gaze from the binary of homo/hetero--which has long framed the ongoing academic conversation on parentage equality (11)--to other crosscutting hierarchies, such as class and race, enable us to reveal how these hierarchies operate through, and not just against, the category of sexuality? (12) Might this intersectional examination yield valuable insights into the field of parentage determination, be the partners of the same or different sexes?

To pursue this line of inquiry, the present article offers an innovative and comprehensive case law analysis of a relatively new mechanism for legal parental determination in Israel: the Judicial Parental Order (JPO). (13) This mechanism, born out of a commitment to sexual orientation equality in the context of cross-border surrogacy, has become a common means of having same-sex parentage legally recognized in the context of ART. (14) Yet, a closer inspection of all cases published in legal databases reveals that this reform has, unwittingly, actually served to reinforce other longstanding hierarchies, leaving couples whose living arrangements do not comply with the normative image of family, or who possess fewer resources, more vulnerable to state surveillance or with insufficient legal protections for their child-parent relationships. (15) The present case study, then, is presented as a classic talc of equality paradox: one person's gain becomes another person's hindrance to fair treatment within the same community.

My findings lead to the conclusion that it is imperative to pay attention to the conditions that constrain the efforts of all people seeking to be recognized as parents. This closer attention, 1 argue, could allow us to identify the less normative, more hidden stories of parenting, and the drawbacks that may accrue in the most vulnerable sectors of the gay and lesbian community. (16) Nuanced acknowledgment of the diversity' of same-sex couples could facilitate a more accurate evaluation of the possibilities that are both produced and foreclosed by legal reforms in Israel and elsewhere in the world, and accommodate the tensions that have surfaced in the era of assisted reproductive technology in particular.

One point I would like to note on the case study of this article: in Israel, a repro-normative society, societal belonging is heavily articulated through parenthood. Such a repro-normative culture also produces related norms within the LGBTQ community itself--where members experience pressure from their own LGBTQ friends and acquaintances to become parents (17)--and exhorts LGBTQ-rights politics to focus on parenthood rather than on marriage (as centered, for instance, in the U.S.). (18) The mass-scale litigation in Israel, initiated by LGBTQ community members, along with the cultural importance ascribed to parenthood there, provides a valuable platform from which to contemplate what active, systemic commitment to equality in the legal institution of parenthood--across all forms of same-sex families--could look like. That said, although my analysis focuses on a specific regime, it remains pertinent to all readers engaged in matters relating to parental status and equality because the topic under consideration transcends jurisdictional boundaries. Contemporary struggles over questions of inclusion all over the world--from the mobilization around Black Lives Matter in the U.S. to the rapid regression of LGBTQ rights in Eastern Europe--illustrate the importance of the understandings of equality between, and inside, minority groups in their journey toward achieving full membership of society. (19) To further highlight the broad scale of the paradox centered in this article, comparative references are made to other regimes in the U.S. and Canada that, to some extent, operate under similar constraints.

This article proceeds as follows. Part I, which is primarily descriptive, provides an overview of the creation of the common method for parental recognition for same-sex couples conceiving through ART: the JPO. Parts II and III explore how two of the main criteria providing access to this mechanism--the relationship between the anticipated parents and their intent to raise the child together--demonstrate the paradox of same-sex parentage equality. Weaving between theory and practice in each Part, I also evaluate potential ways of mitigating, albeit not eradicating, this paradox.

1. ORDERING PARENTHOOD

The JPO formalizes the parental status of the same-sex partner based on two relational elements: the relationship between the biological parent and their same-sex partner, and their shared intent to raise the child together. The JPO was officially introduced in 2014 by the Israeli Supreme Court in a case involving a male couple who became parents through a transnational surrogacy arrangement conducted in Pennsylvania (hereinafter, the Mamet ruling). (20)

The Mamet ruling constituted a landmark advance for male couples in Israel. Before then, to be recognized as the legal parent, the non-biological parent (the same-sex partner) had to apply to take the cumbersome and privacy-invading route of second-parent adoption (21)--an avenue that has long been criticized by legal commentators all over the world. (22) The Mamet ruling, then, enabled the non-biological parent who already self-identified as a parent to have this role recognized by the state (23)--without the need to 'adopt' their own child--shortly after the birth and usually without the intrusion of a social worker's inspection. (24) Conferring the parentage close to the birth enables parents to fulfill their parental responsibilities without obstruction, ensuring the stability and continuity of the parent-child bond and enabling the family to benefit from financial safeguards. (25)

Indeed, there was a good reason for the LGBTQ community to celebrate this moment. The rhetoric of the Mamet ruling clarifies that the commitment to equality should be played out with regard to how parentage is formalized. It is not enough to expand the accessibility of adoption to same-sex partners. Doing so retains the privileged position of biology in the law by imposing unduly burdensome demands on same-sex families once they wish to enter the institution of parenthood. (26)

Ever since the introduction of JPOs, courts have routinely issued them for couples conceiving through cross-border surrogacy--male couples, and, subsequently, female couples conceiving through IVF. (27) The JPO has thus become the most common means to...