The Inaccessible Road to Motherhood — The Tragic Consequence of not having Reproductive Policies for Israelis with Disabilities

Abstract

INTRODUCTION 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 Legal 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. …