* LL.B. (1993) (Hebrew University of Jerusalem); LL.M. (1997); J.S.D. (2000) (NYU School of Law). Dr. Yuval Merin is a senior lecturer at the School of Law of the College of Management, Academic Studies Division, Tel Aviv, Israel. The author wishes to thank Dr. Yuval Shany, Dr. Yoram Rabin, and Neil Zwail, for their considerable help, as well as research assistants, Yonit Peleg and Michal Rapid, for their dedicated work. A condensed version of this article was published in Hebrew, for the Israeli reader, in Economic, Social and Cultural Rights in Israel 663 (Yuval Shany & Yoram Rabin eds.) (2004) [Hebrew].
1 Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., Part 1, art. 16(3), at 74, U.N. Doc. A/810 (1948) [hereinafter Universal Declaration of Human Rights].
2 See International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, art. 23(1), 999 U.N.T.S. 171, 179 [hereinafter Covenant on Civil Rights] (reiterating that which is stated in the Universal Declaration of Human Rights); see also International Covenant on Economic, Social and Cultural Rights, opened for signature Dec. 16, 1966, art. 10(1), 993 U.N.T.S. 3, 7 [hereinafter Covenant on Social Rights] (providing that “[t]he States Parties to the present Covenant recognize that . . . [t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society”). For similar sentiments, see the Declaration on Social Progress and Development, G.A. Res. 2542, U.N. GAOR, 24th Sess., Supp. No. 30, at 49, U.N. Doc. A/7630 (1969) (stating that the family is “[a] basic unit of society and the natural environment for the growth and well-being of all its members, particularly children and youth”), and the European Social Charter, Oct. 18, 1961, art. 16, 529 U.N.T.S. 89 [hereinafter European Charter]. Similar provisions may be found in various regional conventions, such as: American Declaration of the Rights and Duties of Man, May 2, 1948, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992) (Article VI: “Every person has the right to establish a family, the basic element of society, and to receive protection thereof”); American Convention on Human Rights, Nov. 22, 1969, art. 17(1), 9 I.L.M. 673, 680 (“The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.”); Banjul Charter on Human and Peoples’ Rights, June 27, 1981, art. 18(1), 21 I.L.M. 58, 61 (“The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health.”).
3 See Ariel Rosen-Zvi, Family and Inheritance Law, in Introduction to the Law of Israel 75, 75–76 (Amos Shapira & Keren DeWitt-Arar eds., 1995); Pinhas Shifman, Family Law in Israel: The Struggle Between Religious and Secular Law, 24 Isr. L. Rev. 537, 538 (1990).
4 See Ruth Lapidoth, International Law Within the Israel Legal System, 24 Isr. L. Rev. 451, 459 (1990); Natan Lerner, International Law and the State of Israel, in Introduction to the Law of Israel, supra note 3, at 383, 386–87; see also Yaffa Zilbershats, The Adoption of International Law into Israeli Law: The Real is Ideal, 25 Isr. Y.B. Hum. Rts. 243, 245–47 (1995).
5 See Lapidoth, supra note 4, at 459.
6 See id.; Zilbershats, supra note 4, at 245–47.
7 Universal Declaration of Human Rights, supra note 1, art. 25, at 76.
8 Covenant on Social Rights, supra note 2, art. 10(1), 993 U.N.T.S. at 7. The Covenant was ratified by Israel in 1991.
9 Covenant on Civil Rights, supra note 2, arts. 17, 23, 999 U.N.T.S. at 177, 179. The Covenant was ratified by Israel in 1991.
10 See Convention on the Rights of the Child, Nov. 20, 1989, art. 16, 1577 U.N.T.S. 43, 49 [hereinafter Convention on the Rights of the Child] (stating that “[n]o child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation,” and that “[t]he child has the right to the protection of the law against such interference or attacks”). The Convention was ratified by Israel in 1991.
11 See Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, art. 16, 1249 U.N.T.S. 13, 20 [hereinafter Convention on the Elimination of Discrimination Against Women]. The Convention was ratified by Israel in 1991; see also Convention on the Nationality of Married Women, Feb. 20, 1957, art. 3(1), 309 U.N.T.S. 66, 68. (stating that “[e]ach Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy”).
12 See Convention for Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter The European Convention]. According to the treaty:
Article 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Id. art. 8, 213 U.N.T.S. at 230; see also id. art. 12, 213 U.N.T.S. at 232 (“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”).
13 The Sick Pay (Absence Because of a Spouse’s Sickness) Law, 1998, S.H. 234, � 1.
14 The Nationality Law, 1952, 6 L.S.I. 50, � 7 [hereinafter Nationality Law] (providing that “[t]he spouse of a person who is an Israeli national or who has applied for Israeli nationality . . . may obtain Israeli nationality by naturalization”); see also The Law of Return, 1950, 4 L.S.I. 114, � 4A [hereinafter Law of Return]. In this matter, the Court has ruled that “an extension of the right of return to family members is intended to preserve the unity of the family, one member of which is Jewish.” H.C. 3648/97 Israel Stamka v. Minister of Interior, 53(2) P.D. 728, 755. Regarding limitations on rights of immigration and naturalization in Israel, in various contexts, see infra, Part III.D.
15 See The Evidence Ordinance (New Version), 1971, 2 L.S.I. 198, � 3 (providing that “in a criminal trial a spouse shall not be competent to give evidence against the other spouse”).
16 See Proposed Family Visits in Prison Facilities Law, 2003, at http://www.knesset.
gov.il/privatelaw/data/16/1013.rtf (last visited Dec. 6, 2004) [Hebrew] (“[T]he link to the family unit is considered a basic human need, necessary to the prisoner and his family . . . these needs are among the minimal civilized human conditions of every prisoner who belongs to a family unit.”).
17 See Stamka, 53(2) P.D. at 781–82; see also C.F.H. 2401/95, Nachmani v. Nachmani, 50(4) P.D. 661, 683 (stating that “every person has the right to establish a family and to bear children”).
18 See, e.g., H.C. 639/91, Efrat v. Dir. of Population Registry at Ministry of Interior, 47(1) P.D. 749, 783 (discussing the essentiality of the family to the life of Israeli society).
19 Stamka, 53(2) P.D. at 787.
20 See Basic Law: Human Dignity and Liberty, 1992, S.H. 150.
21 C.A. 7155/96, John Doe v. Attorney General, 51(1) P.D. 160, 175. An English translation of this judgment may be found on the official website of the Israeli Judicial Authority at http://www.court.gov.il (last visited Jan. 12, 2005).
22 See Basic Law: Human Dignity and Liberty, 1992, S.H. 150; Proposed Basic Law: Social Rights, 1994 H.H. 326; Proposed Basic Law: Social Rights, 1994 H.H. 337; Proposed Basic Law: Social Rights, 2002 H.H. 214.
23 Even if we do not read a right to family life into the Basic Law: Human Dignity and Liberty, and even if it will not be enshrined in the Basic Law: Social Rights, then, as a basic human right, it is still appropriate to examine every provision that infringes on the right to family life according to the standards outlined in the limitation clause of the Basic Law. See H.C. 5016/96, Horev v. Minister of Transportation, 51(4) P.D. 1, 41–43. An English translation of this judgment may be found on the official website of the Israeli Judicial Authority at http://www.court.gov.il (last visited Jan. 12, 2005).
24 See supra Part I.A.
25 See Philip Alston, The International Covenant on Economic, Social and Cultural Rights, in U.N. Centre for Human Rights & UNITAR, Manual on Human Rights Reporting 39 at 57, U.N. Doc. HR/PUB/91/1, U.N. Sales No. E.91.XIV.1 (1991). The member states that are parties to the Covenant give substance and meaning to the term “family” as accepted in each and every country. See id. In the General Comment of the Human Rights Committee of 1990, it was noted “that the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition.” See U.N. GAOR Hum Rts. Comm., Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies: General Comment 19, art. 23, 39th Sess., 1990, U.N. Doc. HRI/GEN/1 at 28 (1992) [hereinafter General Comment 19]. Even prior to this, the UN Human Rights Committee stated that the term “family” in this Covenant, as in other conventions, should be interpreted as including “[a]ll those comprising the family as understood in the society of the State party concerned.” U.N. GAOR Hum. Rts. Comm., Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies: General Comment 16, art. 17, 23d Sess., 1988, U.N. Doc. HRI/GEN/1 at 21 (1992).
26 Despite the existence of provisions that deal with equal rights for women, see infra, Part IV.C, the man is the universal subject of the Covenant. See Covenant on Social Rights, supra note 2, art. 11(1), 993 U.N.T.S. at 7 (providing that “[t]he States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family” (emphasis added). As such, the Covenant presumes that it is the man who requires an adequate standard of living for his family, an assumption based on the perception that it is the man who heads the family. Dianne Otto, “Gender Comment:” Why Does the UN Committee on Economic, Social and Cultural Rights Need a General Comment on Women?, 14 Canadian J.Women & L. 1, 19 (2002).
27 For different and varied definitions of the concept of the “family” in the fields of sociology and anthropology, see Rivka Bar-Yosef, Sociology of the Family in View of Social Changes and Biotechnological Innovations, 38(1) Megamot 5 (1996) [Hebrew].
28 See generally Nicholas Bala & Rebecca Jaremko Bromwich, Context and Inclusivity in Canada’s Evolving Definition of the Family, 16 Int’l J. L. Pol’y & Fam. 145 (2002) (arguing that the definition of family is not static).
29 See id. at 145.
30 See id.
31 See Zeev W. Falk, Marriage Law 11 (1983) [Hebrew]. The accepted definition of the family in the field of sociology, since the 1940s and up to this day and age, is that of Murdock, who defines the nuclear family as one that includes a married man and woman and their offspring. George Peter Murdock, Social Structure 1–2 (1949). But see generally Bar-Yosef, supra note 27 (arguing that Murdock’s model is incompatible with the characteristics of the post-modern family).
32 For a discussion of the characteristics of the post-modern family in Israel, see generally Sylvie Fogiel-Bijaoui, Families in Israel: Familism and Post-Modernism, in Sex, Gender and Politics 107 (1999) [Hebrew].
33 See generally id. (noting the presence of new family units in the post-modern world).
34 Such recognition finds only partial expression, mainly in the area of social rights. See, e.g., The Single-Parent Families Law, 1992, S.H. 147 (granting various benefits to a single-parent, such as preferential admissions to day-care centers or an increased state loan for housing purposes). In a similar fashion, same-sex partnerships have been accorded limited recognition that finds expression in the right of a same-sex partner to receive various employment benefits routinely granted to partners of a different sex. See H.C. 721/94, El Al Israel Airlines Ltd. v. Danielowitz, 48(5) P.D. 749. An English translation of this judgment may be found on the official website of the Israeli Judicial Authority at http://
www.court.gov.il (last visited April 25, 2004). The legal conception of the nuclear family as the normative model up to the present day is reflected in the comments of Justice Porat in F.A. (Tel-Aviv) 10/99, Jane Doe v. Attorney General, Takdin (District Court) 2001(2) 125 [hereinafter Jane Doe I]. The Justice refused to view a lesbian couple and their children as a family unit and to grant them second-parent adoption, ruling that “the children in question have mothers and no one has expressed any doubt as to their fitness to raise their children. Each one of the mothers chose to bring her children into the world without the participation of a man in her life. What is lacking for these children (if it is indeed lacking) is a father, but definitely not another mother.” Id. at � 18 (emphasis added). This decision was recently overturned by the Supreme Court, which allowed for second parent adoption by a lesbian couple. See C.A. 10280/01, Yaros-Hakak v. Attorney General (not yet published; decided Jan. 10, 2005); see also B. Schereschewsky, Family Law 1 (4th ed., 1993) [Hebrew] (defining the institution of the “family” as follows: “A family for the purposes of family law means all those persons who are related to one another by blood or by marriage.”).
35 Initial Report by the State of Israel to the U.N. Committee on Economic, Social and Cultural Rights, Implementation of the International Covenant on Economic, Social and Cultural Rights (1998), U.N. Doc. E/1990/5/Add.39(1), � 338, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.1990.5.Add.39(1).En?OpenDocument (last visited Jan. 12, 2005) [hereinafter Israeli Report to the U.N. Committee].
36 Compare, e.g., The Municipalities Ordinance (New Version), 1 L.S.I. 247, � 174A(g) (defining “family relation” as “a spouse; a parent; a son or daughter and their spouses; a brother or sister and their children; a brother-in-law or sister-in-law; an uncle or aunt; a father-in-law or mother-in-law; a son-in-law or daughter-in-law; a grandson or granddaughter; including step-relations or adoptive relations”), with id. � 235A(a) (defining “family member” as “a spouse, a child, a parent, a brother or sister, a grandson or granddaughter, a great-grandson or great-granddaughter”).
37 See Israeli Report to the U.N. Committee, supra note 35, �� 338–40 (discussing this distinction).
38 See The Prevention of Family Violence Law, 1991, S.H. 138, � 1; see also The Law Against Stalking, 2001, S.H. 1809, � 3.
39 See The Family Courts Law, 1995, S.H. 393, � 1.
40 See The Prevention of Family Violence Law, 1991, S.H. 138, � 1; The Family Courts Law, 1995, S.H. 393, � 1. The Prevention of Family Violence Law even includes uncles and aunts, and nieces and nephews, 1991, S.H. 138, � 1, while The Family Courts Law also includes grandchildren as “family members,” 1995, S.H. 393, � 1. In keeping with its objective, The Prevention of Family Violence Law provides a broad definition that even applies to the relationship between someone who is responsible for a minor/incapacitated person residing with him or her and the minor/incapacitated person. See 1991, S.H. 138, � 1.
41 See The Prevention of Family Violence Law, 1991, S.H. 138, � 1; The Family Courts Law, 1995, S.H. 393, � 1.
42 The National Insurance Law (Consolidated Version), 1995 S.H. 205, � 1; see also The Planning and Building Law, 1965, 19 L.S.I. 330, � 1 (containing an identical definition).
43 The Equal Opportunities in Employment Law, 1988, S.H. 38, � 21(a)(1). For a similar definition, see The Victims of Road Accidents (Assistance to Family Members) Law, 2002, S.H. 130 (defining a “family member” as “a spouse, a child, a parent, a brother or a sister, or another family member who was dependent upon the road accident victim”).
44 See, e.g., The National Health Insurance Law, 1994, S.H. 156, � 8(7) (defining “family” as “[a]n individual and his spouse and their children up to the age of 18, or an individual and his children up to the age of 18”); The Fallen Soldiers’ Families (Pensions and Rehabilitation) Law, 1950, 4 L.S.I. 115, � 1; The Invalids (Pensions and Rehabilitation) Law (Consolidated Version), 1959, 13 L.S.I. 315, � 1; The Government Companies Law, 1975, 29 L.S.I. 162, � 17A(b); The Penal Law, 1977, Special Volume L.S.I. 50; The Political Parties Law, 1992, S.H. 190, � 28F; The Crime Victims’ Rights Law, 2001, S.H. 183, � 2; see also Proposed Basic Law: The Family, at http://www.knesset.gov.il/privatelaw/data/16/ 1013.rtf (last visited Jan. 12, 2005) [Hebrew] (defining “family” as follows: “(1) married couples; (2) unmarried adult couples unrelated by blood who live together in the same home, maintain a joint household and are mutually committed to a shared life; (3) an adult and a minor maintaining a joint household, where the adult is the parent or legal guardian of the minor”).
45 While it is extremely difficult to find a clear definition for the term “family” in Israeli case law and legal literature, a very comprehensive discussion may be found regarding the definition of the term “spouse,” which constitutes a basic element of the “family.” Opinions are divided on this subject and various questions remain unanswered, such as: for the purposes of family law, as well as in other legal contexts, should a common-law partner be included within the definition of the term “spouse” that appears in legislation?; or: is a same-sex partner also a “spouse” for the purpose of recognizing various rights emanating from this status? See C.A. 2000/97, Lindorn v. Karnit—Road Accident Victims Compensation Fund, 55(1) P.D. 12, 25–26; Danielowitz, 48(5) P.D. 749 at 785–86; Menashe Shava, The “Unmarried Wife,” 3 Iyunei Mishpat 484 (1973) [Hebrew].
46 C.A. 449, 464/88, Ofri v. Perlman, 45(1) P.D. 600, 609. Similarly, in most basic textbooks dealing with family law in Israel, it is impossible to find a definition for the term. See generally Pinhas Shifman, 1 Family Law in Israel (2d ed., 1995) [Hebrew]; Ariel Rosen-Zvi, Israeli Family Law: The Sacred and the Secular (1990) [Hebrew]; Menashe Shava, The Personal Law in Israel (4th ed., 2001) [Hebrew] (all finding a general definition elusive).
47 See Israeli Report to the U.N. Committee, supra note 35, at 76, � 341.
48 See, e.g., Craig Scott, The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights, 27 Osgoode Hall L.J. 768, 833 (1989).
49 Id.
50 See id. For a discussion of additional distinctions between social rights and civil rights, including a survey of their different historical development, the hierarchy between them, and their different political and theoretical characteristics, see Matthew C.R. Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on Its Development 8–9 (1995). Regarding the distinction between positive and negative human rights in international law, see, for example, Jack Donnelly, International Human Rights 26 (1993); Cristina Baez et al., Multinational Enterprises and Human Rights, 8 U. Miami Int’l & Comp. L. 183, 223–24 (1999/2000).
51 There are those who argue that, ultimately, all human rights require the state to act in a positive manner in order to ensure that all individuals have the opportunity to fully benefit from them. See Aart Hendriks, The Right to Health: Promotion and Protection of Women’s Right to Sexual and Reproductive Health Under International Law: The Economic Covenant and the Women’s Convention, 44 Am. U. L. Rev. 1123, 1133 (1995).
52 See, e.g., Gaile McGregor, The International Covenant on Social, Economic, and Cultural Rights: Will It Get Its Day in Court?, 28 Man. L.J. 321, 334 (2002).
53 See Covenant on Civil Rights, supra note 2, arts. 17, 23, 999 U.N.T.S. at 177, 179; Covenant on Social Rights, supra note 2, art. 10, 993 U.N.T.S. at 7. It is interesting to note that the Covenant on Social Rights provides that “the widest possible protection and assistance should be accorded to the family.” Covenant on Social Rights, supra note 2, art. 10(1), 993 U.N.T.S. at 7. It is customary to interpret the term “protection” as an obligation on the part of the state to prevent interference, by third parties, with the family institution. According to this interpretation, then, the wording of Article 10 is narrow and only relates to the protection of the family in the sense of preventing interference, by certain individuals, with the right of other individuals to family life. See Craven, supra note 50, at 109. If that is the case, then the right to family life in the Covenant on Social Rights may be interpreted as a right that is mainly negative in character. Nevertheless, it should be remembered that, like the rest of the provisions in the Covenant, Article 10 is also subordinate to the general implementation clause, Article 2(1), which imposes positive obligations on the state. See Covenant on Social Rights, supra note 2, art. 2(1), 993 U.N.T.S. at 5. Indeed, Article 10 of the Covenant does not make use of the word “right,” and, therefore, prima facie, Article 2(1) does not apply to it. See id. This interpretation is unreasonable, and Article 2(1) should be read as also applying to Article 10 of the Covenant, both in view of the intention of the Covenant’s drafters to lay down binding legal obligations, and because it is not appropriate to interpret Article 10 in a different manner from the rest of the Covenant’s provisions, since Article 2(1) was designed to lay down the responsibility of the states regarding all provisions of the Covenant. Moreover, the Economic and Social Committee, in its guidelines for the submission of reports, expressly used the term “rights” when it referred to Article 10 of the Covenant. See Committee on Economic, Social and Cultural Rights, General Comment 3, The Nature of States Parties Obligations (Art. 2, para.1 of the Covenant), Fifth Sess., 1990, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, at 45, U.N. Doc. HRI\GEN\1\Rev.1 (1994). Reporting Guidelines, UN Doc.E/1991/23, Annex IV, 97–9, UN ESCOR, Supp. (No. 3) (1991) [hereinafter “General Comment 3”]; Craven, supra note 50, at 135–36.
54 See Hendriks, supra note 51, at 1133–34. Within the context of the right to privacy, as well as the right to equality, a guarantee of full enjoyment of the right necessitates the prior implementation of administrative safeguards, legal and otherwise, against the possibility of an infringement of this right. That is to say, the state must also take “positive” steps in order to guarantee the existence of a right that is, primarily, “negative.”See id.
55 See Craven, supra note 50, at 135.
56 It may be argued that, even though the right to family life is referred to in a similar fashion in both the Covenant on Civil Rights and the Covenant on Social Rights, these should not necessarily be viewed as overlapping references, but rather as referring to different aspects of the right. That is to say, the right should be interpreted according to the context in which it appears. Therefore, to the extent that the right to family life is mentioned in the Covenant on Social Rights, it should be interpreted as requiring economic support for the family unit (i.e., its interpretation should be limited to the socio-economic context); and when it appears in the Covenant on Civil Rights, it should be interpreted as referring to the civil characteristics of the right to family life.
57 An attempt to give substance to the right to family life may be found, primarily, in judgments of the European Court. For a discussion of this attempt, see infra text accompanying notes 69–70 and 128–32. Perhaps the lack of a special legal discussion regarding Article 10 of the Covenant by the UN Committee on Economic, Social and Cultural Rights may be explained by the fact that the right to family life is a broad right encompassing numerous secondary rights that sometimes overlap other rights. See Craven, supra note 50, at 135.
58 See Human Rights Committee Concludes Consideration of Initial Report of United States, Hum. Rts. Comm., 53d Sess., 1406th mtg., U.N. Doc. HR/CT/405 (1995), available at gopher://gopher.undp.org:70/00/uncurr/pressreleases/HR/CT/ 9503/405.
59 Andrew Byrnes & Jane Connors, Enforcing The Human Rights of Women: A Complaint Procedure for the Women’s Convention?, 21 Brook. J. Int’l L. 679, 726 (1996).
60 C.A. 488/77, John Doe v. Attorney General, 32(3) P.D. 421, 434.
61 C.A. 5587/93, Nachmani v. Nachmani, 49(1) P.D. 485, 499, 501.
62 See id.
63 C.A. 577/83, Attorney General v. Jane Doe, 38(1) P.D. 461, 468, 485 [hereinafter Jane Doe II].
64 See Fogiel-Bijaoui, supra note 32, at 109.
65 Id. at 127.
66 The Prevention of Family Violence Law, 1991, S.H. 138, � 2. Another example is the power temporarily or permanently to remove children from the custody of their parents, by means of an adoption order pursuant to The Adoption of Children Law, 1981, 35 L.S.I. 360, and The Youth (Care and Supervision) Law, 1960, 14 L.S.I. 44.
67 Universal Declaration of Human Rights, supra note 1, art. 25, at 76.
68 Covenant on Social Rights, supra note 2, art. 11(1), 993 U.N.T.S. at 7.
69 Id. art. 10(1), 993 U.N.T.S. at 7.
70 Id. art. 10(2)–(3), 993 U.N.T.S. at 7.
71 See id.
72 Office of the U.N. High Comm’r for H.R. & the Dep’t for Econ. & Soc. Affairs, The Family in International and Regional Human Rights Instruments, at 7, U.N. Doc. HR/PUB/1999/1, U.N. Sales No. E.98.XIV.2 (1999).
73 Convention on the Elimination of Discrimination Against Women, supra note 11, art. 11, 1249 U.N.T.S. at 18–19. The Convention deals with equal employment opportunities and is also designed to enable women to maintain their economic independence. Therefore, the international community recognizes that family responsibility does not need to adversely affect the equal opportunities of women within the context of the labor market.
74 See The Employment of Women Law, 1954, 8 L.S.I. 128, �� 6 , 9.
75 Regarding the history of maternity insurance in Israel, and for details about the level of benefits, see Israeli Report to the U.N. Committee, supra note 35, �� 257–262.
76 Covenant on Social Rights, supra note 2, art. 10(3), 993 U.N.T.S. at 7.
77 Convention on the Rights of the Child, supra note 10, art. 5, 1577 U.N.T.S. at 47.
78 Id. art. 18(1), 1577 U.N.T.S. at 50.
79 See The Assurance of Income Law, 1980, 35 L.S.I. 50, �� 5 (addition 2), 12A(a)(2) (addition 3), 30A (addition 4); The Single-Parent Families Law, 1992, S.H. 147, �� 2–4.
80 C.A. 451/88, John Does v. State of Israel, 44(1) P.D. 330, 337.
81 C.A. 2266/93, John Does v. Richard Roe, 49(1) P.D. 221, 235 [hereinafterJohn Does] (citation omitted).
82 Israeli Report to the U.N. Committee, supra note 35, � 361.
83 E.T. 1/81, Nagar v. Nagar, 38(1) P.D. 365, 393; John Does, 49(1) P.D. at 239–40.
84 See Israeli Report to the U.N. Committee, supra note 35, � 361.
85 See The Youth (Care and Supervision) Law, 1960, 14 L.S.I. 44, � 3; The Adoption of Children Law, 1981, 35 L.S.I. 360, �� 12–13.
86 The “best interests of the child” principle also dictates, prima facie, that children not be harmed by the status or acts of their parents. Nevertheless, the application of religious law in matters of personal status, which I will discuss in more detail below, also harms certain groups of children as a result of the acts or status of their parents. Thus, for example, according to Jewish Law, a child born to a Jewish mother and a non-Jewish father is not legally related to the father; likewise, a child born to a married woman by a man who is not her husband is considered a mamzer (this term translates to English as “bastard,” and it refers to the offspring of a forbidden union), something that imposes serious limitations on the child’s legal capacity to marry, since a mamzer is forbidden to marry a Jew and may only marry another mamzer or a non-Jew. See Carmel Shalev, Freedom of Contract for Marriage and a Shared Life, in Women’s Status in Israeli Law and Society 459–60, 465, 479 (1995) [Hebrew].
87 The Adoption of Children Law, 1981, 35 L.S.I. 360, � 3.
88 The Surrogacy Agreements (Approval of Agreement and Status of the Child) Law, 1996, S.H. 176, � 1 [hereinafter Surrogacy Agreements Law] (defining those entitled to benefit from surrogacy arrangements as “a man and a woman who are a couple, who enter into a contract with a surrogate mother for the purpose of bearing a child”). For further discussion of the Surrogacy Agreements Law, see Rhona Schuz, The Right to Parenthood: Surrogacy and Frozen Embryos, in The International Survey of Family Law 237 (Andrew Bainham ed., 1996).
89 See, e.g., H.C. 2458/01, New Family v. Approvals Comm. for Surrogate Motherhood Agreements, Ministry of Health, 57(1) P.D. 419 (holding that a single woman does not have a right to use the services of a surrogate mother under the Surrogacy Agreements Law). C.A. 1165/01, Jane Doe v. Attorney General, 57(1) P.D. 69 dealt with the question of whether the term “spouse” in Section 3 of the Adoption of Children Law also includes a common-law spouse. In the end, the question was left for further consideration, and the Court did not even rule that common-law spouses are entitled to jointly adopt a foreign child. See New Family 57(1) P.D. at 460. However, to the extent that this relates to second parent adoption, the Supreme Court has recently ruled that a partner of a same-sex couple has the right to adopt the biological child of the other. See Yaros-Hakak, supra note 34. Moreover, in H.C. 1779/99, Berner-Kadish v. Minister of Interior, 54(2) P.D. 368, the Court ordered the Ministry of Interior to register a lesbian couple as the dual mothers of the biological child of one of them, who was adopted by the other in California. A motion has been submitted for a further hearing of this decision, and it is pending before an expanded panel of the Supreme Court. Despite the recent recognition of same-sex second-parent adoption, unmarried couples and gay partners are still excluded from the right of jointly adopting an unrelated child.
90 While joint adoption and surrogacy are largely restricted to a man and a woman who are a couple—thereby discriminating against single people—single women are no longer discriminated against as far as artificial insemination services are concerned. In 1997, the Supreme Court nullified a policy that discriminated against single women (including lesbians) in terms of unrestricted access to artificial insemination services, and equated between their rights with those of married women. See H.C. 2078/96, Weitz v. Minister of Health, Takdin (Supreme Court) 1997(1) 939. Therefore, the Supreme Court’s decision in New Family to not allow a single woman to avail herself of a surrogacy arrangement under the Surrogacy Agreements Law, is in conflict with its previous ruling in Weitz.
91 A discussion of the subject of the migration of workers with their families is beyond the scope of this Article. In this matter, there is a special convention that regulates the rights of the families of migrant workers. See International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, G.A. Res. 158, 45th Sess., U.N. Doc. A/RES/45/158 (1990).
92 In this context, I use the term “family unification” in its broad sense, i.e., every case involving the immigration of a person so that he or she may live in the same country together with his or her family members. Further on, I will discuss the meaning of the term in the Israeli context and its application in the Occupied Territories and within the borders of the State of Israel.
93 See Goran Cvetic, Immigration Cases in Strasbourg: The Right to Family Life Under Article 8 of the European Convention, 36 Int’l & Comp. L.Q. 647, 654–55 (1987); see also Ryszard Cholewinski, The Protection of the Right of Economic Migrants to Family Reunion in Europe, 43 Int’l & Comp. L.Q. 568, 589 (1994); Hugo Storey, The Right to Family Life and Immigration Case Law at Strasbourg, 39 Int’l & Comp. L.Q. 328, 337 (1990).
94 See Cholewinski, supra note 93, at 589; Cvetic, supra note 93, at 654–55; Storey, supra note 93, at 337.
95 Courtney R. Howell, Note, The Right to Respect for Family Life in the European Court of Human Rights, 34 U. Louisville J. Fam. L. 693, 693–94 (1995–1996).
96 See, e.g., Abdulaziz v. United Kingdom, App. Nos. 9214/80, 9473/81, 9474/81, 7 Eur. H.R. Rep. 471, 498 (1985) (Eur. Ct. H.R.) (ruling that the right of the couple to family life was not infringed, since they were married after the foreign spouse had already been staying in Britain illegally, and, under these circumstances, the state had no obligation to grant immigration rights to the foreign spouse). In other cases, the European Court found a breach of the right to family life enshrined in Article 8 of the European Convention, in particular, when concerning foreign nationals who have lived with their families in the “foreign” country for most of their lives and faced deportation because of the commission of criminal offenses. See, e.g., Moustaquim v. Belgium, App. No. 12313/86, 13 Eur. H.R. Rep. 802, 802 (Eur. Ct. H.R.) (1991); Beldjoudi v. France, App. No. 12083/86, 14 Eur. H.R. Rep. 801, 801 (Eur. Ct. H.R.) (1992).
97 See Stamka, 53(2) P.D. at 990.
98 Id. at 783.
99 Id. at 783–84.
100 Id. at 763.
101 Id. Section 1 of the Nationality Law, which lists the different ways to acquire Israeli citizenship, does not count marriage to an Israeli national as one of them. See The Nationality Law, 1952, 6 L.S.I. 50, � 1.
102 See The Entry into Israel Law, 1952, 6 L.S.I. 28, �� 1–9; The Nationality Law, 1952, 6 L.S.I. 50, � 2.
103 Stamka, 53(2) P.D. at 760.
104 See id. at 764–66.
105 See id. at 760.
106 Id. at 783.
107 See id. at 778.
108 Stamka, 53(2) P.D. at 781–82 (quoting HCJ 450/97 Tenufa Ltd. v. Minister of Labor and Welfare, P.D. 52(2) 433, 452).
109 Id. at 790.
110 See id.
111 See The Nationality Law, 1952, 6 L.S.I. 50, � 7.
112 Id.
113 See Stamka, 53(2) P.D. at 790; H.C. 754/83, Rankin v. Minister of Interior, 38(4) P.D. 113, 117.
114 See H.C. 4156/01, Dimitrov v. Minister of Interior, 56(6) P.D. 289; Rankin, 38(4) P.D. at 113.
115 Stamka, 53(2) P.D. at 792.
116 See id. at 765.
117 See id. at 793. It should be noted that, following this case, the Ministry of Interior changed its policy. See H.C. 338/99, Sabri v. Minister of Interior, Takdin (Supreme Court) 1999(1) 154.
118 See Stamka, 53(2) P.D. at 793.
119 Following the decision in Stamka, the Ministry of Interior formulated a new procedure, in 1999, which shortened the period of time necessary to receive citizenship. According to this new procedure, during the trial period, the foreign spouse must extend his or her temporary resident permit each year. After the trial period, the foreign spouse receives Israeli citizenship without the interim stage of permanent residence. In this matter, the Supreme Court has recently rejected a petition in which it was asked to rule that the procedure for extending the permit of a temporary resident be performed every two years, instead of every year. See H.C. 7139/02, Abbas-Batza v. Minister of Interior, Takdin (Supreme Court) 2004(1) 1266. Nevertheless, in April 2003, the new policy of Interior Minister Avraham Poraz, to grant a temporary permit of stay for two years, came into effect. See Mazal Mualem, A Sympathetic Ear Can Make a Legal Difference, Ha’aretz English Edition, Apr. 7, 2003, available at http://www.hotline.org.il/english/news/Haaretz040703.htm (last visited Jan. 12, 2005).
120 Stamka, 53(2) P.D. at 782.
121 See, e.g., H.C. 673/86, Al Saudi v. Head of the Civil Admin. in the Gaza Strip, 41(3) P.D. 138; H.C. 263/85, Awad v. Commander of the Civil Admin., Ramallah District, 40(2) P.D. 281; H.C. 802/79, Samara v. Reg’l Commander of the W. Bank, 34(4) P.D. 1; H.C. 209/73, Ali Odeh v. Minister of Interior, 28(1) P.D. 13; H.C. 500/72, Abu Al Tin v. Minister of Def., 27(1)P.D. 481.
122 H.C. 13/86, Adel Ahmed Shahin v. Regional Commander of IDF Forces in the W. Bank, 41(1) P.D. 197.
123 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art.27, 75 U.N.T.S. 287, opened for signature Aug. 12, 1949 [hereinafter Fourth Geneva Convention]. A similar provision may be found in Article 12 of the Universal Declaration of Human Rights, supra note 1, at 73–74.
124 Convention (IV) Respecting the Laws and Customs of War on Land, Annex, Oct. 18, 1907, art. 46, 36 Stat 2277, 2306–07, 205 C.T.S. 277, 295 [hereinafter Hague Regulations].
125 See Yoram Dinstein, Reunion of Families in the Administered Territories, 13 Iyunei Mishpat 221, 227 (1988) [Hebrew].
126 Shahin, 41(1) P.D. at 214.
127 See id. at 202–04.
128 Id. at 202.
129 Id.
130 Id. at 204.
131 Shahin, 41(1) P.D. at 204.
132 Id. at 208. Prof. Dinstein notes that it is puzzling that neither the petitioners nor the Court referred to the most relevant provision of humanitarian law in this matter, i.e., Article 74 of the First Protocol of 1977, annexed to the Geneva Conventions of 1949, which states that “[t]he High Contracting Parties and the Parties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflicts.” Indeed, Israel is not a contracting party to the Protocol; however, it has never objected to the aforesaid provision in Article 74. See Dinstein, supra note 125, at 227–28.
133 Shahin, 41(1) P.D. at 210.
134 Id. at 209.
135 See Stamka, 53(2) P.D. at 767.
136 Compare id. with Shahin, 41(1) P.D. at 214–15.
137 Shahin, 41(1) P.D. at 215.
138 See id. at 214–15.
139 Stamka, 53(2) P.D. at 786. Regarding the use of the term “family unification” by the Supreme Court, in the context of Jewish residents of Israel, see, for example, H.C. 758/88, Kandel v. Minister of Interior, 46(4) P.D. 505, 518–20.
140 Stamka, 53(2) P.D. at 787.
141 See id. at 767.
142 See Fourth Geneva Convention, supra note 123, art. 27, 75 U.N.T.S. at 306; Hague Regulations, supra note 124, art. 46, 36 Stat. at 2306–07, 205 C.T.S. at 295.
143 Shahin, 41(1) P.D. at 206.
144 Id. at 209.
145 See id.
146 Id. at 214.
147 H.C. 4541/94, Miller v. Minister of Def., 49(4) P.D. 94, 124.
148 Regarding this right and its restriction, see infra, Part III.D.2; see also H.C. 1689/94, Harari v. Minister of Interior, 51(1) P.D. 15.
149 Israel has recently begun to apply this discriminatory policy between Jews and Arabs even within the borders of the State of Israel. On July 31, 2003, the Knesset enacted the Nationality and Entry into Israel (Temporary Order) Law, 2003, the provisions of which were laid down as a temporary order for a period of one year. Section 2 of the statute, under the heading “Restriction on citizenship and residence in Israel,” provides:
During the period in which this Law shall be in effect, notwithstanding the provisions of any law, including Section 7 of the Nationality Law, the Minister of Interior shall not grant citizenship to a resident of the region pursuant to the Nationality Law and shall not give a resident of the region a permit to reside in Israel pursuant to the Entry into Israel Law, and the regional commander shall not give such residents a permit to stay in Israel pursuant to the defense legislation in the region.
Id. According to this new law, the spouses of Israeli citizens will be unable to obtain citizenship, pursuant to Section 7 of the Nationality Law, on the basis of marital ties, when the foreign spouse is a resident of the West Bank or Gaza Strip. In this matter, the Association for Civil Rights has filed a petition that is pending before the Supreme Court, H.C. 7052, 7082/03, Ass’n for Civil Rights in Israel v. Minister of Interior. In this petition, it has been claimed that the reasoning of the Ministry of Interior, which relies on the “security risk” ostensibly posed by the Palestinian spouses, lacks an evidentiary basis, that the decision stems from illegitimate considerations—including a preservation of the demographic balance and a desire to avoid the payment of pensions and welfare benefits—and that it is invalid, being racist and discriminatory on the basis of national origin. There is no doubt that the new law severely infringes the right to family life of said couples.
150 For a similar criticism, see Dinstein, supra note 125, at 228–29, who notes that the Court has displayed “excessive willingness to avoid an individual examination of the specific cases of family unification on the ‘micro’ level,” adding that “concrete humanitarian problems cannot be resolved solely on the basis of general considerations.” Id.
151 Regarding the principle whereby the state has wide discretion to prevent foreigners from settling in its territory, see H.C. 482/71, Clark v. Minister of Interior, 27(1) P.D. 113, 117.
There is nothing special or extraordinary about Israel in regard to the entry of foreigners and their residence in the country. Generally, every country reserves for itself the right to prevent foreign persons from entering its territory or to deport them when they are no longer wanted there, for any reason— and even without giving a reason. From our easy access to English and American legal sources, we know that, in fact, such law does exist in those countries, and it is well-known that this state of affairs also exists in other nations.
Id.
152 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, U.N. ESCOR, 30th Sess., para. 18, U.N. Doc.E/C.12/1/Add.90 (2003), available at http://
www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.C.12.1.Add.90.En?Opendocument (last visited Jan. 12, 2005) [hereinafter Concluding Observations].
153 Id. � 34.
154 See The Nationality Law, 1952, 6 L.S.I. 50, � 4(a), stating
[T]he following shall, from the day of their birth, be Israeli nationals by birth: (1) a person born in Israel while his father or mother was an Israeli national; (2) a person born outside Israel while his father or mother was an Israeli national—(a) by return; (b) by residence in Israel; (c) by naturalization; (d) under paragraph (1); (e) by adoption under Section 4(b)(1).
Id. This is different from Section 4A of the Law of Return, which expands the circle of eligibility for rights of “returnees” to also include other family members, such as the child and even the grandchild of a Jew. See The Law of Return, 1950, 4 L.S.I. 114, � 4(a).
155 See The Nationality Law, 1952, 6 L.S.I. 50, � 4(a).
156 See Harari, 51(1) P.D. at 17.
157 See id.
158 See id.
159 See id. at 18–19.
160 Id. at 20.
161 See generally id. (interpreting the Basic Law).
162 See Kandel, 46(4) P.D. at 518.
163 Id.
164 Dimitrov, supra note 114, � 290.
165 Id. � 291.
166 In this context, the Supreme Court held that from the moment the marital relationship between the couple had, for all intents and purposes, broken down, there were no grounds for the acquisition of Israeli citizenship based on the citizenship of the Israeli spouse, since the rationale behind Section 7 of the Nationality Law, which allows for the facilitation of requests for naturalization on the basis of marriage, no longer existed. See id. � 7.
167 See Dimitrov, supra note 114, � 293.
168 In accordance with this policy, the Ministry of Interior grants a visa for permanent residence only in exceptional cases, according to the following general criteria:
(a)To a spouse lawfully married to an Israeli national or to a permanent resident of the State of Israel, who is residing in Israel.
(b) To an elderly and isolated parent of a national or permanent resident of Israel, who has no other children or spouse outside of Israel.
(c) To a minor child, accompanying a parent who has obtained a right of permanent residence or citizenship in Israel, if this parent has lawful custody of the minor for a period of at least two years prior to their arrival together in Israel.
(d) In exceptional cases, for humanitarian reasons or when the State of Israel has a special interest in granting the permanent residence visa.
These criteria are internal Ministry of Interior guidelines that have not been published in official form. See A.P. 529/02, Bornea v. Minister of Interior, Takdin (District Court) 2003(3) 7058.
169 Dimitrov, supra note 114, � 2.
170 Id. � 9.
171 Bornea, supra note 168, � 744.
172 See id.
173 See id. � 757.
174 See id. � 760.
175 See id. � 16.
176 Bornea, supra note 168, � 25.
177 Id. � 31.
178 C.A. 549/75, John Does v. Attorney General, 30(1) P.D. 459, 465.
179 See C.A. 5532/93, Gunsburg v. Greenwald, 49(3) P.D. 282, 291.
180 Jane Doe II, 38(1) at 466–67 (referring to Justice Cheshin’s opinion in in CA 50/55, at p. 799).
181 C.A. 3798/94, John Doe v. Jane Doe, 50(3) P.D. 133, 155 (internal citation omitted).
182 John Does, 49(1) P.D. at 255.
183 See Bornea, supra note 168, � 28.
184 Convention on the Rights of the Child, supra note 10, art. 9(3), 1577 U.N.T.S. at 47.
185 Id. art. 10(1), 1577 U.N.T.S. at 48.
186 Id. arts. 14(2), 18(1), 1577 U.N.T.S. at 49, 50.
187 Berrehab v. The Netherlands, App. No. 10730/84, 11 Eur. H.R. Rep. 322, 329 (1988) (Eur. Ct. H.R.).
188 Id. at 323.
189 Id.
190 See id. at 329; Al-Nashif v. Bulgaria, 36 Eur. H.R. Rep. 37 (2002) (Eur. Ct. H.R.), at para. 114 of the judgment. (“However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 � 1 of the Convention.”); see also Recommendation 4 of the Committee of Ministers to Member States on the Legal Status of Persons Admitted for Family Reunification, 790th Meeting of the Ministers’ Deputies, app. 3, at 36 (Mar. 26, 2002):
In the case of divorce, separation or death of the principal, a family member having been legally resident for at least one year may apply for an autonomous residence permit. Member states will give due consideration to such applications. In their decisions, the best interests of the children concerned shall be a primary consideration.
Id.
191 Ciliz v. The Netherlands, App. No. 29192/95, Eur. Ct. H.R. (July 11, 2000).
192 Id. � 61.
193 See generally Briefs of The Association of Civil Rights, Bornea (making a similar argument).
194 Universal Declaration of Human Rights, supra note 1, art. 16(1), at 74.
195 Covenant on Civil Rights, supra note 2, art. 23(2), 999 U.N.T.S. at 179.
196 Id. art. 23(3), 999 U.N.T.S. at 179; Covenant on Social Rights, supra note 2, art. 10(1), 993 U.N.T.S. at 7.
197 An additional limitation specific to Israel, which will be discussed further on in this Section, is the lack of a possibility to marry in a civil ceremony.
198 C.A. 4736/94, Angel v. Attorney General, Takdin (Supreme Court) 1994(3) 319; see Shifman, supra note 46, at 150.
199 Universal Declaration of Human Rights, supra note 1, art. 16(1), at 74.
200 Covenant on Civil Rights, supra note 2, art. 23(2), 999 U.N.T.S. at 179.
201 Convention on the Elimination of Discrimination Against Women, supra note 11, art. 16(2), 1249 U.N.T.S. at 20.
202 See Luke T. Lee, Population: The Human Rights Approach, 6 Colo. J. Int’l Envtl. L. & Pol’y 327, 336 (1995).
203 See id.
204 Office of the U.N. High Comm’r for H.R. & the Dep’t for Econ. & Soc. Affairs, supra note 72, at 9.
205 See C.A. 501/81, Attorney General v. Jane Doe, 35(4) P.D. 430, 433–34 [hereinafter Jane Doe III].
206 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, art. 2, 521 U.N.T.S. 231, 234, opened for signature Dec. 10, 1962. In this matter, seeJane Doe III, 35(4) P.D. at 433–34.
207 See Marriage Age Law, 1950, 4 L.S.I. 158 (original version). As explained by Shalev, supra note 86, at 468, “[i]n effect, this norm prevents the marriage of young girls, which is permitted and accepted under traditional laws and customs according to which the marriage contract is entered into by the fathers of the bride and the groom.”
208 See Marriage Age Law, 1950, 4 L.S.I. 158 (original version).
209 See The Proposed Marriage Age (Amendment No. 4) (Marriage Age for a Young Boy) Law, 1998, H.C. 2728 (5758), 426. The Bill was passed by the Knesset on July 28, 1998.
210 See id.
211 The sanction does not have the force to annul the marriage, provided that it is valid under the personal law applying to the parties. Section 3 of the statute, id. at 426, provides grounds for dissolving a marital relationship that has been performed in violation thereof. See Shifman, supra note 46, at 150.
212 See Proposed Marriage Age (Amendment No. 4) (Marriage Age for a Young Boy) Law, 1998, H.C. at 426–27.
213 See id. The Supreme Court has laid down various guidelines regarding such circumstances. Among other considerations, the Supreme Court has indicated the need for the young girl’s consent to marry, although this consent, on its own, does not suffice to justify granting permission. The Supreme Court has also noted that “the customs of the community to which the couple belongs, according to which the marriage of a young girl, not yet 17 years of age, is accepted, are not, in and of themselves, a sufficient reason for permitting the marriage. As we have seen, it is these very customs that the statute was intended to uproot.” Jane Doe III, 35(4) P.D. at 435–36.
214 Israeli Report to the U.N. Committee, supra note 35, � 358.
215.See id.
216 See Shalev, supra note 86, at 471. In Jewish Law, incestuous marriages are null and void and the offspring are considered mamzerim (the plural form of the Hebrew term, mamzer; see definition given supra note 61).
217 Amnon Rubinstein, The Right to Marriage, 3 Iyunei Mishpat 433, 437–38 (1973) [Hebrew].
218 See id. at 438–39.
219 See Shifman, supra note 46, at 186–87.
220 See Shalev, supra note 86, at 469–70; Shifman, supra note 46, at 155 n.1.
221 Rubinstein, supra note 217, at 434–35.
222 Penal Law, 1977, Special Volume L.S.I. 50, � 176.
223 See Shalev, supra note 86, at 469–70.
224 Israeli Report to the U.N. Committee, supra note 35, � 359.
225 Penal Law, 1977, Special Volume L.S.I. 50, � 180.
226 See Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe 49 (University of Chicago Press 1989).
227 See Yuval Merin, Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States (2002) [hereinafter Merin, Equality for Same-Sex Couples]; Yuval Merin, Same-Sex Marriage and the Fallacy of Alternatives for the Legal Regulation of Gay Partnerships, 7 Hamishpat 253 (2002) [Hebrew]. Recently, the Massachusetts Supreme Judicial Court held that the prohibition of same-sex marriages fails the basic test of rationality, ruling that “[w]ithout the right to marry—or more properly, the right to choose to marry—one is excluded from the full range of human experience and denied full protection of the laws for one’s ‘avowed relationship’ . . . . Laws may not interfere directly and substantially with the right to marry.” Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 957 (Mass. 2003) (internal quotation omitted).
228 See generally Merin, Equality for Same-Sex Couples, supra note 227 (presenting a comparative study of legal regulation of same-sex partnerships worldwide).
229 Danielowitz, 48(5) P.D. at 781; Berner-Kadish, 54(2) P.D. at 368.
230 See, e.g., Jane Doe I, supra note 34.
231 See Merin, Equality for Same-Sex Couples, supra note 227, at 278–307.
232 Rubinstein, supra note 217, at 433.
233 For a discussion of the historical reasons for the subordination of personal law to religious law, see Shava, supra note 46, at 69–75. For an analysis of the implications of the historical compromise regarding the status of women in Israel, see Judith Buber Agassi, The Status of Women in Israel, in The Double Bind: Women in Israel 210 (1994) [Hebrew].
234 Regarding the application of religious law to members of other religious communities in Israel, see Palestine Order in Council, arts. 52, 54, 64, in 2 Laws of Palestine 432–33, 435 (Mosen Doukhan ed., 1934).
235 See Frances Raday, On Equality, 24 Mishpatim 241, 266 (1994) [Hebrew]; Shalev, supra note 86, at 460.
236 Shalev, supra note 86, at 460; see, e.g., Psalms 45:14; Yebamot 17a: “The king’s daughter is all glorious within”; and Genesis Rabbah 18:1: “A woman’s place is in the home and a man’s place is out in the world.”
237 See H.C. 47/82, Israel Movement for Progressive Judaism v. Minister of Religious Affairs, 43(2) P.D. 661; Pinhas Shifman, Who Is Afraid of Civil Marriage? 13–15 (2d ed., 2000) [Hebrew]; Esther Sivan, Divorce in Israel and the Status of Women—The Building of Inequality and Alternatives for a Solution 37 (2002) [Hebrew]; see also Heather Lynn Capell, Comment, After the Glass Has Shattered: A Comparative Analysis of Orthodox Jewish Divorce in the United States and Israel, 33 Tex. Int’l L.J. 331 (1998) (comparing, with respect to divorce, the secular family law of the United States with the religious family law of Israel).
238 The Women’s Equal Rights Law, 1951, 5 L.S.I. 171, � 1.
239 Id. � 1(A)(a).
240 Id. � 5. For a discussion of Section 5 of the statute and the background to its enactment, see H.C. 49/54, Melcham v. Sharia Judge, Aco Region, 8 P.D., 910, 916. Moreover, despite the fact that Section 8(b) of the statute provides that it is forbidden to dissolve a marriage against the will of the wife, this provision only applies in the absence of a judgment by a competent court. Therefore, if the precepts of religious law allow it, there is nothing in this provision to protect the woman. See Amnon Rubinstein & Barak Medina, 1 Constitutional Law in the State of Israel 316 (5th ed., 1997) [Hebrew].
241 Shalev, supra note 86, at 459–60.
242 Both marriage and divorce are, essentially, legal acts performed by the man, and not by the woman. The woman plays a passive role and is silent both during the marriage ceremony (in which the husband “purchases” the wife) and in the divorce ceremony (the consent of the husband is a condition without which there is no divorce). See Rubinstein & Medina, supra note 240, at 316; Shalev, supra note 86, at 461. The wife owes the husband “her work”: household chores, care of the husband and the children, and additional work limited to the home. See Shalev, supra note 86, at 461; see also Shahar Lifshitz, A Civil Reorientation in Israeli Family Law 7 (2002); Rosen-Zvi, supra note 46, at 225–28.
243 Rosen-Zvi, supra note 46, at 138–39.
244 See Rosen-Zvi, supra note 46, at 138–39.
245 Id.
246 Id.
247 Concluding Observations, supra note 151, �� 23, 39.
248 Schereschewsky, supra note 34, at 59, 346.
249 Rosen-Zvi, supra note 46, at 137.
250 Id.
251 Another practice that may lead to the aginut of the wife, and which may serve as an opening for extortion on the part of others, is the religious rule whereby the rite of chalitzah is required in a case of yibbum (for an explanation of these terms, see infra note 264). For a discussion of this subject, see Rosen-Zvi, supra note 46, at 252.
252 Rosen-Zvi, supra note 46, at 142.
253 Id. Recently, Judge Granit of the Tel Aviv Family Court has relied on the Convention on the Elimination of Discrimination Against Women as an interpretive tool to justify nullifying the “jurisdictional race” and to grant the Family Court parallel jurisdiction to that of the Rabbinical Court, even when the husband has first filed suit for divorce in the Rabbinical Court and included (a good faith inclusion) the matter of maintenance payments. See Misc. Civ. Appl. (Tel Aviv) 10408/01, L.S. v. L.A., Takdin (Family Court) 2003(1) 126.
254 See generally The Family Law Amendment (Maintenance) Law, 1959, 13 L.S.I. 73 (dictating the applicable law for maintenance disputes).
255 Sivan, supra note 237, at 17. For an analysis of the inferior economic status of women in the Israeli social reality and a discussion of the implications of this situation on their weaker bargaining power within the context of divorce negotiations, see Rosen-Zvi, supra note 46, at 144–58.
256 The Spouses (Property Relations) Law, 1973, 27 L.S.I. 313, � 5.
257 See id.
258 Rosen-Zvi, supra note 46, at 156–57; Sivan, supra note 237, at 19–21.
259 This is the case, for instance, regarding members of the Protestant faith and the Karaite community. This also means that even a Jew who belongs to the Reform Movement cannot be married in Israel in a Reform ceremony that will be recognized by state authorities. See Shifman, supra note 237, at 13.
260 Rubinstein, supra note 217, at 440.
261 Shalev, supra note 86, at 472. Nevertheless, the secular legislature has provided for a way to dissolve mixed marriages in the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969, 23 L.S.I. 274. This statute also applies to those persons without a religion or members of an unrecognized religious community. See id. Nevertheless, the civil courts and the religious courts of the Christian communities do not have the authority to dissolve the marriage of a foreign couple who are both members of a Christian community that has a competent religious court in Israel. This discrimination is unjustified and illogical. See Rubinstein & Medina, supra note 240, at 300; Menashe Shava, Rules of Jurisdiction and Conflict of Law in Matters of Dissolution of Marriage, 1 Iyunei Mishpat 125, 141–42 (1971) [Hebrew].
262 See Shalev, supra note 86, at 476.
263 See Shifman, supra note 46, at 199. A child born in consequence of such relations is considered a mamzer, who is forbidden to marry another Jew and is only permitted to marry another mamzer or a non-Jew. See Shalev, supra note 86, at 479.
264 See Shalev, supra note 86, at 477. A doubt also arises in the case of a childless widow who has married without the rite of chalitzah. The rules of yibbum (levirate marriage) and chalitzah are a further example of how religious law is more prejudicial to women than it is to men. Under these rules, when the husband dies childless and is survived by a brother, according to Jewish Law, the brother must marry the widow. If the brother does not wish to marry the widow, then, as long as he has not released her through the rite of chalitzah, the widow is forbidden from marrying another man. Even though regulations by the Israeli Rabbinate have ruled that the yibbum is forbidden (i.e., that the brother may not marry the widow), they still require the rite of chalitzah in order that the wife may remarry. This obligation makes the wife dependent upon the goodwill of her husband’s brother. See id.
265 For additional prohibitions included in this category, see Schereschewsky, supra note 34, at 56–60.
266 Joseph Algazy, A Marriage of Inconvenience, Ha’aretz English Edition, Jan. 21, 2002, available at http://www.interfaithfamily.com/article/issue81/algazy.phtml (last visited Jan. 12, 2005).
267 See id.
268 The mechanisms that enable, to one extent or another, the circumvention of religious law in matters of marriage and divorce, include marriage outside of Israel, private marriage ceremonies, a shared life as reputed spouses, and marital agreements. See Rubinstein, supra note 217, at 443–49.
269 Justice Landau in H.C. 80/63, Gurfinkel v. Minister of Interior, 17(3) P.D. 2048; Justice Berenson in H.C. 287/69, Miron v. Minister of Labor, 24(1) P.D. 337, 363. A discussion of the degree of harm to freedom from religion in the application of religious law in matters of marriage and divorce in Israel is beyond the scope of this article. Regarding this matter, see Rubinstein & Medina, supra note 240, at 190–95; Shifman, supra note 237, at 7–19.
270 Rubinstein & Medina, supra note 240, at 193; see also Basheva E. Genut, Note, Competing Visions of the Jewish State: Promoting and Protecting Freedom of Religion in Israel, 19 Fordham Int’l L.J. 2120 (1996).
271 In this matter, see supra Part IV. A.
272 Universal Declaration of Human Rights, supra note 1, art. 16(1), at 74.
273 Covenant on Civil Rights, supra note 2, art. 23(4), 999 U.N.T.S. at 179.
274 Covenant on Social Rights, supra note 2, arts. 3, 2(2), 993 U.N.T.S. at 5, 5.
275 For a discussion of this provision, including the reservations of Israel, see infra, Part IV. D.
276 Covenant on Social Rights, supra note 2, art. 2(2), 993 U.N.T.S. at 5.
277 Covenant on Civil Rights, supra note 2, arts. 2(1), 26, 999 U.N.T.S. at 173, 179.
278 Universal Declaration of Human Rights, supra note 1, art. 16(1), at 74.
279 See Covenant on Social Rights, supra note 2, art. 2(2), 993 U.N.T.S. at 5; Covenant on Civil Rights, supra note 2, arts. 2(1), 26, 999 U.N.T.S. at 173, 179; Universal Declaration of Human Rights, supra note 1, art. 16(1), at 74.
280 General Comment19, supra note 25, art. 4.
281 See Marsha A. Freeman, The Human Rights of Women in the Family: Issues and Recommendations for Implementation of the Women’s Convention, in Women’s Rights, Human Rights: International Feminist Perspectives 149, 157 (Julie Peters & Andrea Wolper eds., 1995). Freeman bases the requirement for the implementation of civil marriage on Article 16(1) of the Convention on the Elimination of Discrimination Against Women. According to her approach, this provision requires that all couples be permitted to marry according to civil law, without any connection to their religion, origin or race. Id.
282 See Rubinstein, supra note 217, at 442 n.20.
283 See generally Y. Z. Blum, Israel Marriage Law and Human Rights, 22 Ha’praklit 214 (1966) [Hebrew].
284 See id.
285 See Rubinstein, supra note 217, at 440–41.
286 See L.S., supra note 253.
287 See id. In response to Israel’s reservation to Article 16 of the Convention on the Elimination of Discrimination Against Women, the Committee on the Elimination of All Forms of Discrimination Against Women suggested in its review of Israel’s compliance in 1997 that “[i]n order to guarantee the same rights in marriage and family relations in Israel and to comply fully with the Convention, the [Israeli] Government should complete the secularization of the relevant legislation, place it under the jurisdiction of the civil courts and withdraw its reservations to the Convention.” See Report of the Committee on the Elimination of All Forms of Discrimination Against Women, U.N. GAOR, 52 Sess., Supp. No. 38 para. 173, U.N. Doc. A/52/38/Rev.1 (1997); see also Ruth Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, 5 UCLA J. Int’l L. & Foreign Aff. 339, 345–46 (2000).
288 One can argue that, in addition to the Universal Declaration of Human Rights and the Covenant on Civil Rights, Israeli law is also in conflict with Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), Annex, U.N. GAOR, 20th Sess., Supp. No. 14, art. 5, U.N. Doc. A/6014 (1966), which Israel has signed. This provision states that civil rights also include “the right to marriage and choice of spouse.” This right is to be accorded to all citizens of the member states without discrimination on the basis of “race, colour, or national or ethnic origin.” Since the religious law applied in Israel adopts criteria of “national or ethnic origin”—such is the case, for example, when this law denies a person the right to marry only because of the fact that he or she was born to a non-Jewish mother—the right to equality, in accordance with the Convention, is infringed. See Rubinstein, supra note 217, at 443.
289 Covenant on Social Rights, supra note 2, art. 4, 993 U.N.T.S. at 5.
290 See id.
291 See Yuval Shany, Economic, Social and Cultural Rights in International Law: What Use May the Israeli Courts Make of Them?, in Economic, Social and Cultural Rights in Israel (Yuval Shany & Yoram Rabin eds., forthcoming 2005) [Hebrew].
292 Id.
293 The Covenant on Civil Rights also allows for a deviation from the principles stated therein because of the relativity of the rights. Thus, for example, Article 4 provides that the states may derogate from the principles of the Covenant on Civil Rights in a time of national emergency which threatens the existence of the nation. Even in such a situation, however, they are prohibited from discriminating on the basis of “colour, race, sex, language, religion or social origin.” Covenant on Civil Rights, supra note 2, art. 4, 999 U.N.T.S. at 174. The Covenant also includes provisions that allow the states to limit certain rights. For instance, Article 18, which deals with freedom of religion, provides that limitations may be placed on freedom of religion if they “are necessary to protect public safety...or the fundamental rights of others.” Covenant on Civil Rights, supra note 2, art. 18, 999 U.N.T.S. at 178. In any case, it seems that the clause in the Covenant authorizing the state to derogate from its provisions, or to limit various rights enunciated therein, does not permit derogation from or limitation of the right to marriage on the basis of sex, national origin, religion, or race.
294 See B.B. von Maydell, The Impact of the EEC on Labor Law, 68 Chi.-Kent. L. Rev. 1401, 1404 (1993); Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 Mich. J. Int’l L. 1, 12 (2001).
295 James Crawford, Democracy and the Body of International Law, in Democratic Governance and International Law 91–92 (Gregory H. Fox & Brad R. Roth eds., 2000).
296 See generally Shany, supra note 291.
297 See Craven, supra note 50, at 136.
298 See id.; General Comment No. 3 of 1990, the Committee for Implementation of the Covenant on Economic, Social and Cultural Rights stated that there is an immediate obligation to adopt measures which do not entail significant financial cost. See generally General Comment 3, supra note 53; Shany, supra note 291.
299 Rubinstein & Medina, supra note 240, at 991.
300 See The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, 7 L.S.I. 139, � 1.
301 C.A. 373/72, Tepper v. State of Israel, 28(2) P.D. 7, 15; see also Aharon Barak, Judicial Discretion 213–14 (1987).
302 Id. at 13. Recently, the Supreme Court has ruled that a Jewish Israeli couple married in a civil ceremony outside of Israel have a maintenance obligation towards one another. See generally C.A. 8256/99, Jane Doe v. John Doe, 58(2) P.D. 213 (addressing the issue). The Supreme Court did not deliberate the question of the validity of the marriage, and held that the maintenance obligation is grounded in contract law, by force of the agreement to marry in a civil ceremony outside of Israel. The Supreme Court reiterated its position, stating that the legislature should address this question and find a solution for it. See id. at 229–30.
303 Efrat, 47(1) P.D. at 788–89; see also C.A. 450/70, Rogozhinsky v. State of Israel, 26(1) P.D. 129.
304 Regarding various proposals for legislative reform, see Sivan, supra note 237; Shifman, supra note 237, at 52–69.
305 See Shahar Ilan, New Legislation Proposes Civil Marriage Under Another Name, at http://www.bambili.com/bambili_news_en/katava_main.asp?news_id=2090&sivug_id=2 (June 10, 2004) (last visited Jan. 12, 2005); Yuval Yoaz & Gideon Alon, NRP Threatens to Bolt Gov’t if Couple Registration Bill Passed, at http://www.unitedjerusalem.org/index2.asp?id=470287&Date
=7/26/2004 (July 26, 2004) (last visited Jan. 12, 2005).