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Tel Aviv Labor Court: Same-Sex Couples Pursuing Surrogacy Abroad Entitled to Same Job Protections as Expecting Mothers

The pregnancy discrimination clause of the Employment of Women Law applies to gay men traveling abroad to become parents, the court found | The ruling is a reversal of the court’s previous finding

מצעד הגאווה בירושלים, 2018 (צילום: הדס פרוש)
A sign at the 2018 Jerusalem Pride Parade reads, “It begins with two young, gay parents,” a plan on an Israeli children’s song from the 1980s that used the word “gay” in the sense of happy. (Photo: Hadas Parush)
By Nizzan Zvi Cohen

A new ruling by the Tel Aviv regional labor court has set a precedent in Israel: same-sex couples traveling abroad to pursue surrogacy will be protected from termination from their jobs.

This ruling stems from an appeal by Dotan Peleg and Alon Hazan, two Israeli men currently pursuing surrogacy in Mexico. They contested a prior ruling by the commissioner for women’s rights in the workplace, which had denied them protection from dismissal. Their appeal argued that such a decision infringed upon their fundamental rights and their aspiration to establish a family in Israel, maintaining that the initial judgment was inconsistent with principles of equality and disregarded previous Supreme Court rulings on surrogacy rights for same-sex couples.

The state defended its position, asserting that the earlier decision of the labor court aligned with the letter of the law and reflected existing policy. Following the appeal, an extensive review of the matter took place, involving representatives from the Ministry of Labor, senior legal figures from the state prosecution, and the Ministry of Justice. After consulting with the deputy attorney general, the state concluded that the Employment of Women Law’s ban on firing a pregnant woman applies even in cases where one of the intended parents is undergoing surrogacy abroad.

Judge Tomer Silvera commended the state’s decision, describing it as an endorsement of the principles of equality and justice, which are enshrined in the 1992 Human Dignity and Liberty basic law.

Although the Employment of Women Law was initially designed to protect women's employment rights, over time, it has been understood to encompass protections for men as well, including rights to parental leave, and protections during pregnancy and fertility treatments, Silvera noted.

“In light of these circumstances, and considering the evolving values of Israeli society that promote equality, there is indeed room—in line with the state’s position—to broaden the scope of the Employment of Women Law, even in cases where intended parents are undergoing surrogacy abroad,” Silvera said.

Silvera also instructed the state to review Peleg and Hazan’s dismissal to ensure that it aligns with the Employment of Women Law, while also requesting the perspective of the employers. He directed the state to prepare for a policy shift and to inform the public and the business community of this decision in the coming months.

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