Adoption

 

In the Supreme Court sitting as the High Court of Justice

 

HCJ 1779/99

 

Before:                                    The Honorable Justice D. Dorner

                                    The Honorable Justice D. Beinisch

                                    The Honorable Justice A. R. Zuabi

           

 

The Petitioners:

 

1.Nicole Berner-Kadish

2.Ruti Berner-Kadish

3.Mattan Berner-Kadish

 

                                    versus

 

The Respondent:

 

                                    The Minister of Interior

                                   

                                    A Petition for Order Nisi

 

Date of hearing:          15 Adar A 5760; February 21, 2000

 

Adv. Hadas Tagari

                                    On behalf of the Petitioners

 

                                    Adv. Osnat Mandel

                                    On behalf of the Respondent

 

Abstract

 

The First and Second Petitioners (hereinafter: the Petitioners,) two women who have been life partners for seven years, are Israeli citizens. Their permanent residence is in the State of California, in the United States. On January 12, 1996 the Second Petitioner (hereinafter: the mother) gave birth to the Third Petitioner (hereinafter: the son,) after having become pregnant via sperm donation. The son was adopted by the First Petitioner (hereinafter: the adoptive mother,) with the mother’s consent, according to an adoption decree granted by a California court – where the son was born and where the three Petitioners reside. The adoptive mother was registered as an additional parent in the son’s birth certificate. The Petitioners, who wish to return to Israel and who have been staying in Israel for two years for the purposes of study, notified the registrar of the child’s adoption by the adoptive mother, relying on the birth certificate and the American court decision, and asked that the adoption be registered in the Population Registry. The Registrar refused, giving the reason that, biologically, the existence of two parents of the same sex is impossible, and that it has no duty to make registrations that are incorrect on their face. Hence the Petition.

 

The Supreme Court ruled:

 

A.        1.         The rules of private international law demand, that the personal status of a person be recognized uniformly in all countries. Splitting a status may compromise both the public and the parties’ policy. Only in extraordinary cases, when the foreign status compromises the public policy in the state where the registration is requested, it shall not be recognized.

            2.         The public policy in the country where the registration is requested – which may be compromised should the requested registration be permitted – has been given a limited interpretation.

            3.         Not recognizing a foreign adoption decree releases the adoptive parents from their duties toward the adoptees and thus infringes the rights and interests of the children.

            4.         Therefore, it seems the foreign adoption decree is valid in Israel as long as it has not been voided through a judicial proceeding.

 

B.        1.         According to the case law, the Registrar is not authorized to determine the validity of the registration, but it must register what the citizen instructs it to, unless the “incorrectness of the registration is apparent and unquestionable.”

            2.         The registration in the case at hand does not reflect the biological aspect but the legal aspect. But it is obvious that any adoptee has two mothers – a biological mother and an adoptive mother – and the adoption decree does not necessarily sever the legal link between the adoptees and their biological parents.

            3.         Therefore the Respondent’s claim that it may refuse to register because of an apparent incorrectness of the requested registration has no substance.

 

C. (According to Justice D. Beinisch):

            1.         The answer as to whether the Third Petitioner’s adoption by the First Petitioner would be recognized as valid in our law has yet to be pronounced upon by this Court, and it raises complex issues, including issues of private international law. However, the resolution of these issues is not in the hands of the Registrar.

            2.         The Respondent’s claim in the case at hand that the incorrectness of the requested registration is “apparent” due to the impossibility to recognize two mothers for the same child is but a different framing of the argument that an adoption based on a same-sex relationship between the biological parent and the adoptive parent must not be recognized. This position, which is one possible position on the merits of the issue, may not guide the Registrar when coming to exercise its authorities under the Population Registry Law, 5725-1965.

 

D.        (Minority opinion of Justice A. R. Zuabi):

            1.         Insofar as the registration of parents’ names is concerned, the registration in the Population Registry is prima facie evidence of its correctness, according to section 3 of the Population Registry Law.

            2.         Therefore, protecting the Registry’s reliability requires granting the Registrar the authority to examine in depth the correctness of the facts requiring registration. Therefore, when a reasonable doubt arises as to the correctness of the registration or its validity, the Registrar may refuse to make the registration.

            3.         The meaning of the Registrar’s refusal is not that the Registrar is authorized to or capable of examining the validity of foreign judicial decisions or state certificates, and determine their validity. The registrar can only refer the matter to the appropriate court.

            4.         In the case at hand, a great doubt arises as to the validity of the foreign adoption decree and as to the chances of recognizing it because the Children’s Adoption Law. 5741-1981 seemingly prohibits the adoption of a child by a same-sex couple.

            5.         As apposed to the act of conducting a marriage ceremony, which is essentially a ceremonial act, a foreign court’s declaration of a minor’s adoption is a meaningful act that changes the status of those involved and impacts their fate and their lives. Therefore, a judicial decision granted in a foreign country that establishes the personal status of one as adopted, has no validity in Israel on its own and in order to be valid must be recognized.

            6.         Therefore, the Registrar acted reasonably when it refused to register, based on the foreign adoption decree, the First Petitioner as the Third Petitioner’s mother, and there is no room to intervene in its discretion.

 

Judgment

Justice D. Dorner

1.The First and Second Petitioners (hereinafter: the Petitioners,) have been life partners for seven years. They are Israeli citizens. Their permanent place of residence is in the State of California in the United States of America. On January 12, 1996 the Second Petitioner (hereinafter: the mother) gave birth to the Third Petitioner (hereinafter: the son,) after having become pregnant by a sperm donation. The son was adopted by the First Petitioner (hereinafter: the adoptive mother,) with the mother’s consent, by an adoption decree granted on July 19, 1996 by a court in California – the birth place of the son and the place of residence of all three Petitioners. The adoptive mother was registered as an additional parent in the birth certificate issued for the child.

The Petitioners, who wish to return to Israel and who have been present in Israel for about two years for the purposes of their studies, notified the Registrar of the adoption of the son by the adoptive mother, relying on the birth certificate and the American court decision, and requested that the adoption be registered in the Population Registry. The Registrar refused. It argued that biologically the existence of two parents of the same sex is impossible, and thus the incorrectness of the registration is obvious and apparent. Because the Registrar is not required to make registrations that are incorrect on their face, the Registrar rejected the Petitioners’ request.

The Petition before us challenges this refusal.

The Petitioners requested that the Registrar be compelled to register the child’s adoption by the adoptive mother in the Population Registry. At the Petitioners request, this Court issued an order nisi.

2.The Petitioners argued that the Registrar was not authorized to refuse to register their notice; that it was required to register the adoption based on the documents presented to it; and that its refusal was a result of improper considerations, rooted in moral objection to adoptions in same-sex families.

In its response to the Petition, the Respondent repeated its arguments as to the biological impossibility. It reasoned that at the basis of the refusal there were no considerations of public policy, which it is not authorized to consider, but the apparent and obvious incorrectness of the requested registration. The Respondent additionally claimed that such a registration is impermissible under the Population Registry Regulations, which require the Registrar to register the names of the “father” and the “mother” whereas the adoptive mother was registered in the American birth certificate as a “parent” – an option that does not exist in the Israel Registry.

In my opinion, the Petition must be accepted.

3.The rules of private international law require that one’s personal status be recognized uniformly in all countries. Splitting a status may compromise the public by infringing on the parties’ rights. Only in extraordinary cases, when the foreign status harms the public policy in the country where the registration is sought, it must not be recognized. See Amos Shapira, Comments on the Nature and Purpose of Conflict of Laws in Private International Law, 10 (1984) 275, p. 290-91.

The public policy of the country where the registration is sought, which may be harmed were the requested registration be approved, was given a limited interpretation. As Justice Cardozo explained in a decision by the New York State Appeals Court:

“The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.” [Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 111, 120 N.E. 198, at 202 (1918)].

For example, in England a marriage performed in Nigeria between an adult and a 13-year-old girl was recognized, even though such marriage is prohibited in England and though the girl’s best interest required, despite the recognition of the marriage, separating her from her husband. See Mohamed v. Knott, [1968] Q.B. 1, at 14. A special status is given to foreign adoption decrees, because of their impact on the best interest of the minors. So, for instance, in a decision by the English Court of Appeals, Lord Dening wrote, that subject to the harm the foreign adoption causes to the public policy “[a validly created foreign adoption] should be universally recognized throughout the civilised worlds” [In re Valentine’s Settlement, [1965] 1 Ch. 831, at 842].

In the United States, too, foreign adoptions were recognized even when according to the specific state’s law such adoptions were impermissible. See for example Delaney v. First Nat’l Bank in Albuquerque, 386 P. 2d 711, at 714 (N.M. 1963). Under the same principle, a court in North Carolina rejected the argument that an adoption in a lesbian family may not be recognized due to its harm to the public policy in that State, which does not recognize same-sex marriage. The decision states as following:

“Enforcing the adoption decree does not require North Carolina to recognize same-sex marriages. Enforcing the decree simply allows the court to determine custody of the child, as between two involved adults, based on the best interests of the child – which is the expressed public policy of the state in resolving custody matters… North Carolina has no public policy denying parental status to an individual based upon that person’s sexual preferences. It cannot be known at this stage how the trial court will resolve the custody dispute. Enforcing the adoption decree only ensures that a best interest hearing will be held which is not a result that offends the good morals, natural justice or interest of North Carolina citizens.” [Aviva S. Starr v. Sheryl R. Erez, No. 97 CVD 624 (D. N.C. Aug. 29, 1997)].

Indeed, non-recognition of a foreign adoption decree releases the adoptive parents from their duties toward the adoptees, and thus compromises the rights and interests of the children, in regards to whom wrote Justice Zilberg that “it is unacceptable to ignore the interests [of the children] under no set of circumstances” (CA 209/54, Steiner v. The Attorney General, IsrSC 9 241, at 251.) See and compare also CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 50(1) 48, at 65-66; Pinhas Shiffman, Family Law in Israel (vol. 2, 1989), 252-253.

4.It therefore seems that the foreign adoption decree is valid in Israel as long as it has not been voided through a judicial procedure. However, the question as to the validity of the decree does not require determination in our matter. As Justice Zussman wrote in HCJ 143/62, Funk-Schlesinger v. The Minister of Interior, IsrSC 17 225 (hereinafter: HCJ Funk-Schlesinger):  “We are not here concerned with the validity or voidance of the marriage. The issue before us is… whether it is justified for the Population Registrar to register the applicant as married.”

In that case, which is part of a long and consistent string of case law that started with HCJ Funk-Schlesinger, it was held that the Registrar is not authorized to determine the validity of the registration it is required to make, but that it must register as the citizen instructs it, unless it is a case where the “incorrectness of the registration is apparent and is not in any doubt” (there, at 243.) Justice Zussman explained this as follows:

“In registering a resident’s family status, it is not the role of the Registrar to consider the validity of the marriage. It is incumbent upon the legislature that it did not charge a public authority with a duty it is incapable of fulfilling. It is sufficient that the Registrar, in order to perform its duties and register the family status, that it was presented with evidence that the resident had conducted a marriage ceremony. The question of the ceremony’s validity has sometimes various aspects and their exploration is beyond the scope of the Population Registry.” [There, at 252.]

See also the words of Justice Haim Cohen in HCJ 72/62, Rufeisen v. the Minister of Interior, IsrSC 16 2428, at 2444.

Based on that same case law, the Registrar was compelled to register in the Population Registry as married a non-Jewish woman who married a Jewish citizen of Israel in a civil marriage in Cyprus, and the children of a Jewish man and a non-Jewish woman as Jews (HCJ 58/68, Shalit v. The Minister of Interior, IsrSC 23(2) 477); to register people who underwent reform or conservative conversion in recognized communities outside of Israel as Jewish in the religion and nationality markers, while they were citizens and residents of those countries (HCJ 264/87 and Others, Union of Sepharadic Torah Observers – Shas Movement and Others v. the director of the Population Administration and Others, IsrSC 43(2) 723); and to register as Jewish a Jewish male citizen of Israel and a non-Jewish woman who were married in Israel at the consular department of the Brazil embassy (HCJ 2888/92, Goldstein v. the Minister of Interior, IsrSC 50(5) 89.)

5.The Respondent does not dispute the claim that it is not authorized to determine the validity of the foreign adoption. As noted, its claim is that its refusal is based on the apparent incorrectness of the registration it was called upon to register, whereby the child has two mothers, which is impossible biologically.

This claim does not hold water.

The registration before us does not reflect the biological aspect, but the legal aspect. It is plainly clear that any adoptee has two mothers – the biological mother and the adoptive mother – and that the adoption decree does not necessarily sever the legal link between the adoptees and their biological parents. Thus section 16 of the Child Adoption Law, 5741-1981 recognizes an open adoption where the relationship between the adopted children and their biological family is preserved. This relationship finds expression in the Population Registry, and as it was explained to me, both the biological parents and the adoptive parents are registered there.

Beyond the necessary scope, I will add that the Population Registry does not consider a “mother” and “father” distinctly, but as details among the details that must be registered under the “parents’ names” (section 2(a)(2)). Even were the law to address the “mother” and the “father” separately, there would have been no bar to registering the adoptive mother as an additional mother, similarly to the way, as mentioned, decrees as to open adoptions are registered.

Based on the above, I propose to accept the Petition and to make the order nisi absolute.

Additionally, I propose to require the Respondent to pay the Petitioners their costs in the amount of NIS 10,000.

 

                                                                              Justice

 

Justice Beinisch

1.I join my colleague Justice Dorner in my position that the Petition should be accepted, and that the Respondent must register the Petitioners’ details in the Population Registry according to the foreign adoption decree.

In its response to the Petition, the State’s attorney declared that the Respondent’s position is that the Petitioners' matter falls under the rule established by this Court in HCJ 143/62, Funk-Schlesinger v. The Minister of Interior, IsrSC 17 229. Therefore, the Respondent’s position as reflected in the response is that “the Registrar is not authorized to exercise discretion as to the legal validity, which is in doubt, of a valid document that is presented to it… Indeed, it seems that were the reason for refusing to register the Petitioner as she requests is rooted in casting doubt on the validity of the adoption, the Registrar would have exceeded its authority” (section 9-10 of the response.) Further the State’s attorney stated in the response that the Respondent routinely guides its staff to register, as a general rule, out-of-country adoptees and their adoptive parents as children and parents, “without digging into the nature of the adoption and its validity” (section 10 of the response.) Therefore, the response reveals that routinely, and seemingly in the course of implementing the rule established by HCJ 143/62 above, the Respondent tends to be satisfied, for the purpose of registering adoptions, with foreign adoption decrees presented to it, without investigating or examining the substantive validity of the adoption. This policy by the Respondent has apparently been accepted for a significant period of time and it is reasonable on its face.

The State’s argument in the Petition before us is that the requested registration under the ordinary policy as to registering adoptions according to foreign adoption decrees must not be made. This is because the case at hand is not one of doubt as to the legal validity of the foreign adoption decree, but one of “incorrectness of the registration that is apparent and is not in reasonable doubt.” This reason for the Respondent’s refusal to make the requested registration is based on the exception for the registration obligation that HCJ 143/62 above established. I cannot accept this argument. In the case before us, the Respondent cannot point to an obvious and apparent “incorrectness” as mentioned. The requested registration detail is not a biological fact, but a matter that involves a complex legal issue. The answer to the question as to whether the adoption of the Third Petitioner by the First Petitioner might be recognized in our law is not simple. The similar issue of the validity or recognition of a foreign adoption procedure of the type before us, has yet to be considered by this Court, and it raises difficult questions, including those in the area of private international law. Additionally, we must assume that under factual circumstances similar to the case before us, the discussion around the validity of the adoption would focus on the matter of compromising the public policy as an exception to recognizing the adoption. As reflected from my colleague’s opinion, such discussion should consider the distinction between the “internal” Israeli public policy and the “external” public policy (on this point see: P. Shiffman, International Adoption, Israeli Reports to the XIII International Congress of Comparative Law (ed. C. Wasserstein Fassberg, Jerusalem 1990), 42-43; HCJ 143/62, above, at 256; CA 1137/93, Ashkar v. Hames, IsrSC 48(3) 641, 651-52; CFH 1558/94, Naffissi v. Naffissi, IsrSC 50(3) 626, 628.) Whatever the answer to these questions, and we need not determine this for purposes of the discussion before us, resolving them is not in the hands of the Registrar (compare: HCJ 2888/92, Goldstein and Others v. the Minister of Interior and Others, IsrSC 50(5) 89, 94.) The Respondent’s argument in this case, whereby the incorrectness of the requested registration is “apparent” because of the impossibility of recognizing two mothers for the same child, is but a different dress to the argument that an adoption based on the same-sex relationship between the biological parent and the adoptive parent should not be recognized. As said, this position – which is one of the possible positions on the merits of the issue – may not guide the Registrar when it comes to exercise its authorities under the Population Registry Law. In the absence of any claim – which is undisputed – challenging the validity of the foreign adoption decree or the correctness of the requesting parties’ details – and in our case there is no such claim – the Registrar must register the Petitioners’ details based on the adoption decree and consistently with its policy regarding the usual registration of foreign adoption decrees.

For these reasons I join the opinion of my colleague Justice Dorner.

 

                                                                                                Justice

Justice A. R. Zuabi:

                  I read my colleague Justice Dorner’s opinion and my colleague Justice Beinisch’s opinion with interest, and I regret I cannot join my voice with theirs.

                  As detailed in my colleague Justice Dorner’s opinion, this Petition is concerned with the Petitioners’ request that the Population Registrar register the First Petitioner as the mother of the minor – the Third Petitioner – by force of an adoption decree issued in the State of California which granted the Petitioner the status of a parent in terms of her relationship with the minor, a parenthood that exists alongside the biological parenthood of the Second Petitioner.

                  Relying on Justice Zussman’s words in HCJ 143/62, Funk-Schlesinger v. The Minister of Interior, IsrSC 17 225 (hereinafter: the Funk-Schlesinger case) where it was held that “the duty of the Registrar, under the above ordinance is merely the role of collecting statistical material in order to manage the book of residents, and no judicial authority was granted to it” (there, at 244,) my colleague found that the Registrar lacked the authority to examine the validity of the adoption decree granted abroad and that all it must do is register as the citizen instructs it, except for when the incorrectness of the registration is apparent and is under no doubt. In this case my colleague rejected the argument that the incorrectness of the registration is apparent through finding there is no bar to registering the adoptive mother as an additional mother similarly to the way open adoption decrees are registered.

                  With all due respect, I believe that the Funk-Schlesinger case cannot guide the determination in the case pending before us, and in my view this case can be distinguished from the Funk-Schlesinger case, a distinction that must lead to a different conclusion than that which my colleagues reached.

                  The Funk-Schlesinger case involved a Christian woman, a Belgian citizen, who married an Israeli Jewish man in a civil marriage in Cyprus, since the couple could not be married under Jewish law. Following the Cyprus marriage, the woman wished to be register in the Population Registry as married and to change her name to her husband’s name. The Registrar refused these requests since it believed a marriage between an Israeli Jew and a Christian woman to be invalid. It referred the applicant to the District Court in order to be granted declaratory judgment as to the validity of the marriage.

                  The Honorable Justice Zussman, who at the time was joined by the Honorable Justices Berenson, Vitkon and Mani, rejected the Registrar’s position and ordered it to comply with the request. However, in the dissenting opinion Justice Zilberg endorsed the Ministry of Interior’s position.

                  Justice Zussman reached the conclusion he did only after informing as to the technical and statistical purpose of the Population Registry Ordinance, 5719-1949, finding on page 249 of the opinion as following:

“The above Ordinance did not attribute to a registration in the Registry any evidentiary force or made it proof of anything. The purpose of the Ordinance is as noted in HCJ 145/51 (Judgments 11, 29) to gather statistical data, data that may be true and may be untrue, and no one guarantees its correctness. For the purpose of establishing one’s age for conscription the registration in the Book of Residents is used only as prima facie evidence, not under the Ordinance above but under the Annexure to Security Service, 5719-1959. Identification Card is issued to a resident under section 7 of the Ordinance as a method of identification, but no one is obligated to act according to it and no one is obligated to identify the holder of the identification card based on it. Holding an identification card grants its holder no rights: HCJ 155/53 (Judgments 15, 24.)”

                  As a result, Justice Zussman concluded that the registration of family status should not be used to prove the marriage, particularly when the validity of the marriage in such a situation is a highly complex issue which ought to be determined by the rules of conflicts of laws, when the Registrar has no qualification to determine it. Therefore, it is not the Registrar’s position to raise the issue of the marriage’s validity, and it must be satisfied for purposes of registration in the Population Registry with prima facie evidence that a marriage ceremony was held. And in the language of Justice Zussman on page 251 of the opinion:

“… I discussed at length the various possibilities of prohibiting or permitting mixed marriages in order to demonstrate that the issue of their validity or their invalidity is weightiest and when a couple seeks to be registered under the Population Registry Ordinance, 5719-1949 it is impossible to determine how the chips may fall. The Registrar cannot guess which court will hear the matter, how the President of the Supreme Court may use its authority under Article 55 of the King’s Council, and it cannot predict in advance whether the marriage would be recognized as valid or not.”

                  And he summarizes on page 252:

“… My opinion leans toward that when registering the family status of a resident it is not the role of the Registrar to consider the validity of the marriage. It is incumbent upon the legislature that it did not charge a public authority with a duty that it cannot fulfill. It is sufficient that the Registrar, for purposes of fulfilling its duties and registering the family status, is presented with evidence that the resident held a marriage ceremony. The question of whether the ceremony that was held is valid has aspects in both directions and examining the validity is beyond the scope of the Population Registry.”

                  The Supreme Court repeatedly affirmed this in applying the Funk-Schlesinger rule to registering religious and national markers in the Registry [see HCJ 58/68 (the Shalit case), HCJ 264/87 (Shas Movement case), HCJ 2888/92 (Goldstein case)], all of which are cited in my colleague Justice Dorner’s opinion.

                  In the Goldstein case similar, though not identical, circumstances to those in the Funk-Schlesinger case arose. There, then Deputy President Barak relied on the opinion of Justice Zussman in Funk-Schlesinger and held in section 8 of the opinion:

“…Therefore, were a non-Jewish woman, a citizen of a certain country, and the Jewish man (also a citizen of that same country) to approach the Registrar and present it with registration certificate regarding their marriage which was made by the consul of that certain country, the Registrar must register the two as married. It is true that there is doubt as to the consul’s power to perform a marriage under such circumstances, but the Registrar is not authorized to determine this doubt… Indeed, as long as such doubt exists, the Registrar must register the couple as married, because the issue as to the validity of such a ceremony has sometimes various aspects and examining its validity is beyond the scope of the Registry’s authorities.”

                  As noted, I believe the Funk-Schlesinger case must be distinguished from the case at hand. As a result, I believe a different conclusion than that reached by my colleague Justice Dorner must be reached – that is, the adoption must not be registered in the Population Registry as reasoned below.

                  First: the Funk-Schlesinger case involved the registration of a marriage, to which, as we know, the Population Registry Ordinance, 5719-1949 (hereinafter: the Registry Ordinance) applied. This Ordinance, as Justice Zussman held as cited above, had no probative value – the Ordinance did not even attribute the Registry the force of prima facie evidence, and its purpose was merely the collection of statistical information. Therefore, Justice Zussman held that the Registrar, which operates under the Ordinance, must comply with a citizen’s request and make registrations per one’s request. However, this is not the case here. The Population Registry Law, 5725-1965, which replaced the Registry Ordinance, attributes reliability and evidentiary weight to the details registered in the Registry. The law explicitly stipulates in section 3:

                  “The registration in the Registry, any copy or summary of it as well as any certificate issued under this law would serve as evidence as to the correctness of the registered details listed in paragraphs (1) to (4) and (9) to (13) of section (2).”

                  This was also established in section 1(c)(4) of the Population Registry Regulations (Registrations in Identification Card), 5750-1990:

                  “Under section 3 of the Population Registry Law, 5725-1965, the registered details in such certificate – aside from the registration for “nationality,” “personal status” and the “name of the partner” – will serve as prima facie evidence of their correctness.”

                  In the Goldstein case, the Court applied the Funk-Schlesinger rule, though the Population Registry Law was in effect, yet that case, too, concerned marriage – a registration detail that the law, similarly to the state of the law in place when the Registry Ordinance was in effect – negates any evidentiary force, and thus there was no need to distinguish the Funk-Schlesinger rule. Still, it is appropriate to reference the words of Professor M. Shawa as to the importance of the Population Registry beyond collecting statistical information, which he wrote in a critical article published following the Goldstein judgment: On The Validity and Registration of Mixed Marriages Performed by a Foreign Consul in Israel, HaPraklit 42, at 188, quoted by Justice Tal, with consent, in HCJ 1031/93, Goldstein and Others v. The Minister of Interior and Others, IsrSC 49(4) 661, at 710:

“The importance of the registration in the Population Registry and the identification card that is issued according to it must not under any circumstances be underestimated… The registration in the Population Registry has great value in different matters, much beyond ‘collecting statistical data.’ It is probably to assume that the petitioner in the Goldstein case would also be considered as an ‘Olah’ (ed. note – Jewish immigrant to Israel) as a result of this registration and will enjoy all those rights enjoyed by Jewish immigrants to Israel. Furthermore, we must assume that in reality the different government agencies and authorities, such as the Ministry of Housing, National Insurance, the IDF, tax authorities and others consider the parties as married – in the absence of any other efficient legal tool – based on the registration in the Population Registry and the identification card. They accordingly grant the rights associated with this personal status as long as a court did not invalidate such marriage…”

                  In our case we are concerned with registering “names of parents.” Registering this detail in the Registry serves, under section 3 of the law, as prima facie evidence of its correctness. In such instance it is difficult to apply the Funk-Schlesinger rule, which at its core is the Registration’s lack of evidentiary value or force. Preserving the correctness of the Registration calls for granting the Registrar with authority to examine in depth the correctness of the facts that warrant registration. Things in this spirit were said in the explanatory notes to the Population Registry Bill, published in Bills 1984, at 266, as follows:

                  “… In light of the instructions as to the authorities of the Registrar it was decided that the registration in the Registry, any copy or summary of it as well as any certificate issued according to this law would serve as prima facie evidence as to the details of the registration, with the exception of the personal status, nationality, religion and partner’s name.”

                  From all of the above it appears that when a reasonable doubt arises as to whether the registration is proper, or as to its correctness or validity, and when registering a detail that serves as prima facie evidence as to its correctness, the Registrar may refuse to make the registration. This is particularly true when there is great doubt as to the validity and prospects of recognizing a foreign adoption decree in our circumstances, as seemingly Israeli law bars any possibility of partners of the same sex to adopt a child (see section 3 of the Children’s Adoption Law which mandates at the top “There shall be no adoption but by a man and his wife together…” and see also on this matter: Ben Dror, Adopting Surrogacy, Cook Publishing 1994, at 223.) It is even possible that this conflicts with the Israeli public policy, which may prevent any option of recognizing the foreign adoption decree (see section 3(3) of Enforcing Foreign Judgments Law, 5718-1958 (Prof. M. Shawa, Personal Status Law in Israel, Expanded 3rd edition (Massada Publishing) 1991, at 470-76.)

                  Indeed, the above does not mean that the Registrar is authorized and/or capable of examining and determining the validity of a foreign court decision or foreign certificate. Its decisions in effect do not determine anything and it merely refers the citizen to the proper judicial authority.

                  On the operation of the Registrar, Dr. Zeev Palk wrote in his article Registering Marriage in the Book of Population, HaPraklit 19, 199, 204:

“In effect Registrars have taken a third tack aside from those described in the opinion (meaning the Funk-Schlesinger case – A. R. Zuabi.) They registered details such as age and family status according to an interested party’s notice and documents. Should there be any doubt in their hearts, both on the factual level and on the legal level, they forwarded the case to the division’s management to consult the legal advisor of the Ministry of Interior. Were the doubt found to be unfounded they would be instructed to register the detail, and where the doubt stood they would be instructed to notify the relevant person that the detail would not be registered until declarative judgment from the competent court may be presented. Though the Registrar is not qualified to reach judicial decisions, it enjoys legal counsel. Additionally – its decisions determine nothing, instead it only refers the citizen to the appropriate court.”

                  In our case, as opposed to the Funk-Schlesinger case, the Registrar need not “guess” which is the competent court to recognize and consider the validity of the foreign adoption decree, as section 3(b) of the Family Courts Law, 5755-1995, authorizes the family court to adjudicate petitions to enforce a foreign court decision in terms of family matters or to recognize it.

                  Second, in addition to the above, it seems there must be a distinction, for purposes of registration in the Population Registry, between registering a marriage performed abroad and an adoption or divorce granted based on a decision of a foreign court. Performing a marriage is a ceremonial act that requires no judicial determination, and thus the Registrar must be satisfied with a marriage certificate, lawfully drafted. An act that concerns the personal status and requires judicial determination is different. The adoption decree granted by a court determines and changes the status of the adoptee and the adopters – the adoptee becomes their child and not the child of her natural parents, and the adopters become her parents. In an adoption proceeding the court has a significant role, it does not fill a purely formal function, but instead fills a function of the most highly important judicial determination because adoption proceedings are of “the laws of life” which alter status and impact the fate and the life of those they concern.

                  A decision granted by a foreign court and establishes one’s personal status as divorced or adopted is not valid in Israel by its own force and it must be recognized in order to have any validity.

                  In the Rosenbaum v. Goli case (CA 423/63, IsrSC 10) this Court considered the purpose and meaning of section 11(b) of the Enforcement of Foreign Judgments Law, 5718-1958, which concerns incidental recognition. Justice Olshan said there as following:

“Were it not for section 11, when considering a suit filed in Israel, with in Israeli court, it would have been impossible to permit a party to submit a foreign decision as evidence and such attempt would have been rejected because as long as the decision is not recognized through declaration as enforceable or by granting a decision based on the foreign decision in a filed suit – the court may not recognize it.”

                  Justice Agranat confirmed this in the Anavi case (CA 472/64, Anavi v. The Attorney General, IsrSC 19(1) 645):

                  “The meaning of the above is to demonstrate that the legislative intent was but to remove the procedural difficulty as a foreign court decision may not serve as evidence ‘incidentally to the adjudication of another matter’ as long as it was not granted validity…”

                  From this we learn that the foreign decision that has yet to be recognized may not serve as evidence and that the Registrar may request that the parties present a declarative judgment recognizing the foreign decision.

                  Let us assume for a moment that two partners who are Jewish and who have married according to Jewish law travel abroad and divorce there in a civil divorce based on a foreign decision. Would the Registrar be able to register them as divorced based on the foreign decision that has yet to be recognized? The answer is certainly in the negative, despite the fact that this detail does not serve as prima facie evidence. Section 19(e)(b) authorizes the Registrar to approach the family court and seek a declarative judgment that verifies the correctness of the claims.

                  My colleague’s conclusion does not even serve a desirable policy. Registering an adoption decree in the Population Registry, despite the heavy doubt as to its correctness and validity in Israel, would compromise the Registry’s reliability and harm the adopted child’s best interest. This may cause a split in the child’s status because in the eyes of the law the child would not be considered adopted though she would be registered in the Registry as such. This would also open a wide door to registering dubious adoption decrees that clearly could never be recognized whatsoever in Israel and for which one is satisfied with their registration in the Population Registry.

                  In our case it seems the Registrar acted reasonably and within the discretion it was granted when it refused to register, based on the foreign adoption decree, the First Petitioner as the adoptive mother of the Third Petitioner. The legal doubt as to the validity in Israel of a yet to be recognized adoption decree, the uncommon family unit that the decree creates and the seeming tension in registering two mothers to a minor are sufficient to justify the Respondent’s position not to make the registration before the adoption decree is recognized and in such cases the Respondent must refer the petitioners to a family court in order to recognize the adoption decree.

                  At bottom I will note that though the Petitioners do not wish for the adoption to be recognized by the different Israeli authorities in a manner that would mean the parental duties and rights of the Petitioner vis-à-vis the child be recognized as such. However, reviewing the Petition reveals the most of the Petitioners’ arguments concern the consequences of the registration and the importance that the adoption be recognized. In effect, the Petitioners do not seek registration alone, but they seek de facto recognition of the adoption. For such purposes they should have turned to the competent court from the outset in order to be granted recognition for the adoption decree. The Respondent’s argument in this context is correct that since the Registrar has only a registering function, since its registration has no force beyond the fact of the registration itself, then the substantive outcomes of non-registration cannot be relied upon in order to justify registration. If indeed under the circumstances the registration bears any outcomes, then certainly the Registrar’s discretion cannot be eliminated.

                  Therefore, were my opinion heard, I would have rejected the Petition.

 

                                                                                                Justice

 

It was decided, by majority, according to the opinion of Justice Dorner.

Handed down today, 24 Iyar 5760 (May 29, 2000).

 

 

Justice                                                 Justice                                                 Justice

 

 

 

 

 

 

 

 

 

 

 

Appeal allowed by majority opinion (President Barak and Justices Cheshin, Türkel, Beinisch, Rivlin, Grunis and Naor), Vice-President Emeritus Mazza and Justice Levy dissenting.

29 Tevet 5765.

10 January 2005.

 

 

C.A. 50/55

           

ISIDOR (YEHEZKEL) HERSHKOVITZ

v.

I. GREENBERGER

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[May 18, 1955]

Before Cheshin D.P., Goitein J., and Witkon J.

 

 

Family law - Minor - Adoption - Application by stranger - Relationship of applicant to child important but not decisive - Welfare of child the true test - Jewish law and English law.

 

            The petitioners, into whose care an orphan child aged 5 years had been handed by the Social Welfare Authorities, applied to the District Court for an order of adoption. The application was opposed by a relative of the child who resided in the United States, and who also testified as to his willingness and ability to bring up the child whether in the United States or in Israel. The District Court, without investigating the circumstances fully, and apparently relying upon the principle that relatives of the child had a stronger right to his guardianship than strangers, dismissed the application. The petitioners appealed.

           

            Held: allowing the appeal,

           

(a) whether the law applicable is English law or Jewish law the test to be applied in deciding whether an adoption order should be made or not is the same, namely whether such an order will be for the benefit of the child.

 

(b) the mere fact that the person seeking an order of adoption is a stranger and not a relative of the child is of some importance but is not decisive.

 

(c) as the matter had not been sufficiently inquired into in the court below the case should be remitted in order that a decision should be given in accordance with the principles set out above and after the matter has been fully investigated.

 

Israel cases referred to :

 

(1)   C. File 28/49 T.A. - Yehuda and Alisa Ben-Ezra, re adoption of minor Malka Cohen; (1948/49) 1 P.M. 352.

(2)   P. File 236/53 Haifa - Aharon Fisher - re adoption of minor Hanna Weiss ; (1953/54) 9 P.M. 292.

(3)   Files Nos. 2496/1952: 2567/1953 - A. v. B.; (1954) Rabbinical District Courts, Vol. 1 p. 56.

 

English cases referred to:

 

(4) Reg. v. Nash; (1883) 10 Q.B.D. 454.

(5) Barnardo v. McHugh : [1891] A.C. 388.

(6) Ex parte Knee : (1804), 127 E.R. 416.

(7) in re Aster; [1955] 1 W.L.R. 465.

 

American cases referred to:

 

(8) Willet v. Warren ; (1904) 34 Wash. 647 ; 20 A.L.R. 840.

(9) Mahon v. People ; (1905) 218 Ill. 171; 20 A.L.R. 842.

 

Cohen for the appellant.

Peled for the respondent.

Bar-Or, Deputy State Attorney, for the Attorney-General, intervening.

 

CHESHIN D.P. giving the judgment of the court. This is an appeal, by leave, from a decision of the District Court of Haifa dismissing an application for the adoption of a minor. The decision was given with surprising brevity. This is the judgment in full: -

 

"On examining the petition of the applicants and their sworn declarations (six):

 

2. And on examining the sworn declarations (six) of the relatives of the minor Tovril Klein and, in particular, the sworn declaration of Ignaz Greenberger, the brother of the mother of the minor, who oppose the petition;

 

3. And on hearing Dr. Cohen on behalf of the applicants, Dr. Carlebach on behalf of the Attorney-General and Dr. Peled on behalf of the said Ignaz Greenberger;

 

4. It appears that the relatives of the child are interested in him and that he is not neglected;

 

5. In the circumstances, therefore, the petition of the applicants must be dismissed, and their request refused.

 

6. Leave to appeal is granted."

 

            The main reason - in effect the only reason - for rejecting the application is contained in paragraph 4 of the decision which is also somewhat laconic. This states that the relatives of the child take an interest in him and that he is not neglected. But who is the child and who are the applicants? In whose custody is the child today and in whose care is he? Where do the respondents live and what is the reason for their opposing the application? What have the relatives done for the child up to now and how does their interest in him express itself? And, above all, what is better for the child, to leave him where he is, i.e. with the applicant and his wife, or to hand him over to the respondents? To these questions, and others, no answer is provided in the decision of the District Court judge, who did not consider them and did not deal with them. The serious nature of the application makes it necessary to explain the matter in greater detail and to set out the facts and the law applicable.

 

2. From the petition of the appellant and the sworn declarations attached thereto, the following facts emerge: the minor Tovril Klein was born in Rumania in 1948. His father died whilst abroad and in 1951 the mother, together with the minor, immigrated to Israel. The mother died in September, 1953, after having lived in an immigrants' camp in Naharia for some two and a half years. The local welfare officer then placed the minor with a family by the name of Fischer, with whom the child stayed for some two weeks. Later, on September 21, 1953, the welfare officer handed him over to the appellant and his wife. Since then he has been in their home and they have taken care of him. They have shown affection for him as if he were their own son and, it would appear, their hope is that this child will fill the void left by the loss of their only son, a boy of 5, who was murdered by the Nazis. The appellant is ready to assume responsibility for the maintenance of the child and to ensure the boy's rights of succession to his estate.

 

3. The boy, it seems, belongs to a large family and has several relatives both in Israel and abroad. Some of these relatives have submitted affidavits, in all of which the handing over of the child for adoption is vehemently opposed. Each relative claims the right to express his opinion on the child's future, and most of them are even prepared to take him to their own homes and to care for him themselves. The principal opponent of the adoption, however, is Ignaz Greenberger, a resident of the United States and the uncle of the minor's mother, and in this he is supported by the rest of the relatives.

 

            Mr. Greenberger states in his affidavit, sworn in New York, that he had been in correspondence with the parents of the child while they were still in Rumania. He had assisted them from time to time and had sent them money. In 1948 he was desirous of bringing them to the United States and even sent them the necessary papers, but the Rumanian authorities refused to give them travel documents. He continued to interest himself in their fate even after they immigrated to Israel and sent them gifts of food and clothing. The mother's letters to him are full of love and gratitude. Immediately he heard of the mother's death he sent money for her burial and for paying her debts. He communicated, both personally and through his lawyer in New York, with his relatives in Israel, as well as with the family of the appellant, and begged of them to see to it that the boy be sent to him in the United States as it was his wish to adopt him as a son. For this purpose he instructed his attorney to obtain from the American authorities an entry visa for the child and the application for this visa is still pending. Mr. Greenberger has permanent work carrying a salary of $ 433 net per month. He is 57 years of age and his wife is 51, and they have no children. He concludes his affidavit as follows:

           

            "It is my wish, and I have the means, to care for the boy either in the United States or in Israel to the extent required for his welfare, and to incur the expenses necessary for his upkeep, and I am ready and willing to adopt him."

           

4. Before we begin to consider and answer the questions raised, we shall note briefly what took place in the court below. The appellant and the respondent Greenberger were both represented. The Attorney-General, moreover, thought it necessary to be represented because the matter was one of public importance. Some of the deponents were examined on their affidavits and produced additional documents. A doctor of psychology also gave evidence on behalf of the respondent, and she was examined at length on the intricate and complicated problems usually involved in cases of adoption. Counsel for the respondent requested that the doctor be allowed to visit the home of the appellant in order to talk with and observe the child to find out whether the appellant and his wife were suitable persons to adopt him, to see what influence the neighbourhood had on him, and to what extent he felt at home. This request was not agreed to by counsel for the appellant, and the court made no comment and expressed no view on the matter.

 

5. These were the circumstances under which the application for adoption was made, and this was the background of the hearing in the court below. As already mentioned, the decision of the District Court reflects neither the facts nor the complicated questions requiring solution, nor the legal grounds for the decision itself. Furthermore we do not know - for the court has not given a ruling on the question - what will happen to the child now that the application for adoption has been refused, and with which party he will live from now on. It is not surprising therefore that counsel for all the parties - the appellant, the Attorney-General, and the respondent, have found it necessary to deal with the facts in full and to suggest solutions to the problems each in his own way and from the point of view of his own client. I propose to deal with these suggestions one by one.

 

6. The first question which arises is what law applies to the case. As I have already mentioned, the matter came before the court by way of an application for adoption. Adoption of minors is one of the matters of personal status mentioned in Article 51(1)1) of the Palestine Order in Council, 1922, and in accordance with Article 472) of the same Order in Council the personal law of the person concerned applies in these cases. In adoption cases the question arises who is the person concerned: the minor or the applicant? Whose personal law applies - that of the minor or of the applicant? These questions have been raised in the District Court, and have found various and conflicting answers (see for instance In re Ben-Ezra (1)1). In the case before us, however, we are not obliged to deal with this question at all, for both the appellant and the minor are citizens of Israel, and the personal law applicable to both of them is Jewish law.

 

7. The adoption of children as a legal institution, giving a permanent and lasting status, was not known to Jewish law either in Biblical or in talmudic times. Only children who are actually born to their parents are regarded as children in every sense as regards their rights and duties. Unlike Roman law, Jewish law did not allow the widening of the family and the creation of a parent-child relationship by an artificial legal fiction. Hence the Roman concept of "adoptio" (or the Engish "adoption") is unknown to our ancient legal literature and the Hebrew term "imutz" (adoption) is of modern vintage.

 

8. Counsel for the Attorney-General, who supports the appeal, agrees that there is no authority in Jewish substantive law to support an application for adoption, but contends that the court has to consider the application of the appellant as if it were one for the appointment of a guardian over a minor. As such, he submits, it is one of the matters of personal status mentioned in Article 51(1) of the Order in Council, and there are many rules and regulations in Jewish law dealing with the appointment of guardians. Counsel for the respondent on the other hand, contends that an application for adoption is to be considered as one for the handing over of the minor to the custody and supervision of the applicant. Inasmuch as custody of minors is not a matter of personal status according to Article 51(1) of the Order in Council, Jewish law does not apply, and the case is to be decided according to the English doctrines of equity under which the claims of a relative are preferred to those of a stranger.

 

9. The truth of the matter is that according to Jewish law the term gnardian is used especially in connection with the property of another, particularly that of an orphan. In Gittin1), 52a, reference is made to "a father who appoints a guardian for his children.. ." and Rashi explains the words "King's guardian" in Shabbath, 121a, as meaning "Controller of his property", (ibid.).

 

            The basic principle is this:

           

            "He who dies and leaves heirs both old and young should appoint a guardian to take care of that part of the property that belongs to the minors. until they grow up. And if he did not do so the Court should, so long as they are not grown up." (Maimonides, Halachot Nahaloth, 10 Halacha 5.)

           

            As the main duty of the guardian is to protect the property entrusted to his care it follows that when a court wishes to appoint a guardian over the property of an orphan it has to choose "one who is trustworthy and an honourable man who would know how to deal with the orphan's property and to fight their fight; a man who has the means to preserve the property and to make it yield profits" (Maimonides, ibid. Halacha 6).

           

            Further, in order to preserve the property of minors it was ruled that

           

            "a court should replace a guardian which it appointed where it is reported that he is extravagant and lives above his means lest perhaps he is himself using the minors' property" (Maimonides ibid. Halacha 7).

           

            In other words if a guardian is suspected of misusing, in his own interest, the property of the orphan entrusted to his care, it is the duty of the court to dismiss him, for he is no longer worthy of holding the office of guardian.

           

10. Moreover it is not essential that the guardian of the property of minors should be appointed guardian of their persons as well. On the contrary, the interest of the parties sometimes requires separation of the two functions.

 

            "With regard to the question with whom should the daughter live, with her father or with the guardian, in this case her maternal grandfather? This should be decided according to the evidence of a witness who knows them both: but prima facie it would seem that the daughter would be better off with her father. Her property, however, should be under the control of her maternal grandfather as guardian provided that the court considers it safe in his hands." (The Rosh, Responsa 82, paragraph 2.)

           

11. It is evident that when the draftsman of the laws came to define the jurisdiction of the Rabbinical Courts, he was well aware that this was the main function of a guardian according to Jewish law, for according to Rule 6(2) of the Jewish Community Rules: -

 

            "Every such court shall have power to appoint... guardians of the property of minor orphans......"

           

            Nothing is said in these Rules concerning the appointment of guardians of the person of minor orphans.

           

12. From what has been said it is clear that according to Jewish law a guardian is not appointed over the person of a minor but over his property. In the case before us, inasmuch as the minor is without means, the question of the care and management of his property does not arise. Hence from this aspect it is not possible to consider the application for adoption as one for the appointment of a guardian. but one for the determination of the question in whose custody he should be and who should have the right - or the duty - of his supervision. I shall now deal therefore with the question whether an application of this nature - that is for supervision and custody - is one of the matters that can be classified as one of personal status. But I need not go deeply into this, for it makes no difference to the final result whether the question is a matter of personal status or not. For in either case, that is to say whether Jewish law or whether English equitable principles apply, the court has to consider the same factors when deciding the fate of this application and give judgment accordingly. I shall deal then with what has to be considered under both systems before deciding who is qualified to have the custody of a minor, and to whom it is advisable to hand him over for supervision and control. Beginning with Jewish law it should be noted at once that here there is no difference in effect between what has to be considered by the court when appointing a guardian (over property) and what has to be weighed before the court decides to whom to entrust the care and custody of a minor.

 

13. The maxim that the "court is the father of orphans" is at the root and core of that part of Jewish law which deals with minors. For this principle has been applied no less to minors than to orphans (see Uziel - Shaarei Uziel, 1, 2, 1.). It is equally the duty of the court to appoint a guardian of the property of minors as it is to appoint some one to have charge and control of their persons. If necessary the court has to do this unasked, and sometimes even while the parents are still living. The charge and control of minors is first and foremost the task of the court, but it may appoint another person to act under its directions. It has accordingy been said that:

 

            "When a court appoints a guardian it does so merely for the sake of convenience so that it should not be constantly troubled in protecting the minor's interests. But should the court decide not to appoint anyone and itself undertake the protection of the minor's interests - this is the ideal solution, as there can be no better guardian". (Rashba: Responsa 974; Hoshen Mishpat 110. 11.)

           

            The appointment of a guardian of a minor and the exercise of his functions are not rights vested in the parents or relatives, and consequently they cannot claim to be so appointed as of right either in law or in equity. Hence, for example, if it is apparent to the court that the father is an evil man, it should appoint a guardian to protect the interests of his young children, so that their property should not be wasted. This principle was laid down by one of the greatest jurists in a responsum which is as short as it is crystal clear:

 

            "You ask regarding the case of Reuven1), whose wife died, leaving an unweaned and sickly infant son who was being looked after by the maternal grandmother. Reuven desired to take back the child although he would have to leave him with the neighbours when he left home as he had not remarried and was very poor - the question is whether it is better for the child to remain with his grandmother. or with his father?

 

            Answer: The saying that a child should be with its mother clearly does not mean that it should be with its grandmother. But if the court is of opinion that it would be better for the child with his grandmother because she would be likely to show it more loving care than others. then the child should be left with his grandmother. And Reuven's plea - 'give me my son and I will care for him the way I like and if he dies, he dies' - must be rejected. For the first consideration of the court is the welfare of the child and if that requires that he should be with his grandmother let him be with her. The father must be a fool to want him to perish ......The guiding rule of the court must be - that which it considers best for the child." (Radbaz, Responsa, Part I, Article 123; quoted also in Rabbi Mordechai Levi's "Darchei Noam" Commentaries on Even Ha-Ezer, Resp. 38 and Pithei Teshuba Commentaries on Even Ha-Ezer 82, 7.)

           

            In short - the welfare of the child and its needs - these are the matters which influence the court in deciding to whom the child should be entrusted.

           

14. Counsel for the respondent has stressed the fact that on the one hand we have the application of absolute strangers and on the other the opposition of the mother's uncle. He submits that we must not ignore the rights of blood relatives. The call of blood must certainly not be left unheeded, and one cannot lightly reject family relationship. But, as we have seen, the natural and family rights of relatives are not decisive, and the welfare of the child sometimes requires that he should be entrusted to distant rather than to near relatives, and even to strangers.

 

            "Neither the mother nor her relatives nor the father's relatives can hinder the court from appointing as guardian any one whom it considers fit." (Beit Yoseph Commentaries on Hoshen Mishpat in Rashba's name, Article 290 s. 3.)

           

Essentially the principle is this:

 

            "The court which is the father of orphans has to seek until it finds a solution to the question what is best for the child's welfare." (Rashba, Responsa according to Maimonides Article 38.)

           

            It is necessary to point out that this principle has also been accepted in modern times and that the rabbis in Israel have applied it in ruling as to the place where a minor should stay (see for instance A.V.B. (3)).

           

15. And what of the English doctrines of equity on this subject? Counsel for the respondent relies on two English cases - R. v. Nash (4) and Bernardo v. McHugh (5) - and submits that in accordance with the doctrines of equity in force in England the relatives of the mother are to be preferred to strangers, when the court comes to determine into whose custody to hand over the minor. In our opinion these judgments are not relevant to the present case. In any event they do not add much weight to the submission of counsel for the respondents, even though they speak of the rights of the relatives and in particular of the rights of the mother and of the mother's relatives to the child. In the case of Nash (4), for example, the question whether the mother or her relatives had the absolute right to obtain custody of the child was not decided. All that the court held was that where there was an illegitimate child and the mother or one of her relatives applied for his custody then the blood-relationship in such a case was only one of the considerations - and a most important one - that the court had to take into account when deciding the question before it, and that it was wrong to consider the mother as being a stranger to her own illegitimate child. As Jessel, M.R. said, at p. 456: -

 

"In many cases the law recognizes the right of a mother to the custody of her illegitimate child. In the case of Ex parte Knee (6) before Sir James Mansfield, it was held that she had such a right unless ground was shewn for displacing it... Natural relationship was thus looked to with a view to the benefit of the child... Here the mother does not wish the child to be with her, but to be placed with her sister, a respectable married woman with one child ...in a station superior to that of the appellants, and how it can be contended that it is for the benefit of the child to remain with the appellants I do not see."

           

            In the same case, Bowen, L.J. added briefly: -

 

            "......The question is whether in considering what is for the benefit of the child the Court will have regard to natural relationship. When we consider what is for the child's benefit, the scale is turned by the respectability of the persons with whom she is to be placed."

           

16. From what is said above it is clear that according to English law the natural right of the mother and the relatives has to be taken into account by the court, but it is not the only consideration nor indeed is it the decisive one. The welfare of the child is the paramount consideration, and the court must reach its decision only after weighing all the factors. Amongst the first of these, family relationship and the call of blood will naturally be found. Is not this principle the same as that contained in the rulings on Jewish law quoted above?

 

17. The case of Bernardo v. McHugh (5) is to the same effect. This case also concerned an illegitimate child whose natural mother demanded his return from strangers. The House of Lords quoted with approval the words of Jessel, M.R. in the case of Nash (4), and held, as it is expressed in the headnote to that case :-

 

            "In determining who is to have the custody of and control over an illegitimate child, the Court in exercising its jurisdiction with a view to the benefit of the child will primarily consider the wishes of the mother."

 

            Even here the decision was not that the mother's right to custody was conclusive and absolute. And if it was correct to say that the right of the mother was only one of the elements - although a most important element - that the court had to consider, how much more correct would it be to say the same regarding the mother's uncle ? (and see in this connection Halsbury, Hailsham edition. Vol. 17, p. 699, paras. 1443-1444, and the comments of Evershed M.R. in re Aster (7) on the cases of Nash (4) and Bernardo (5)).

           

18. To remove all doubts regarding what should be considered by the court when deciding the question of the care and control of young children, special legislation was passed in England. The Custody of Children Act, 1891, limited the rights of parents over their children in certain circumstances which are enumerated in the statute. This made a considerable breach in British conservatism regarding the problem of adoption of children when in effect it gave - indirectly - the right to strangers to adopt children. This Act also provided that the welfare of the child was to be the first consideration, and regarded its welfare as taking priority over the natural rights of relatives.

 

19. To sum up: we consider an application for adoption as an application to decide who should have the custody of the child and under whose care and control he should be. In this connection the child's welfare is the decisive consideration under both Jewish and English law. But even supposing that an application for adoption is to be regarded as an application for the appointment of a guardian of the person of the child, this will make no difference to the legal position in this country, for it is provided in section 3 of the Women's Equal Rights Law, 19511), that in such a case the court must regard the welfare of the child as the first consideration.

 

20. We should like to say in passing that this principle which lays so much weight and emphasis on the welfare of the child is practically universal. I may, perhaps, cite two American cases which in certain particulars are similar to the one before us. The first is Willet v. Warren (8). In this case each of the two persons claimed the right to be appointed as guardian of a minor. One was a blood relative who lived abroad and the other was a stranger in whose home the child was living. The court chose the stranger in preference to the relative, and held that the welfare of the minor was the primary and decisive consideration when choosing a guardian.

 

            In that case the child was already attached to the stranger, and was attending school in the neighbourhood to which he had become accustomed. It was held that he should not be taken abroad.

           

21. The second is Mahon v. People (9). An American jurist, commenting on this case, says:-

 

            "In modern times it has come to be the established rule that, in awarding the care and custody of children to other persons, the welfare and interest of the child is the paramount consideration, and to it all others must yield. That rule has governed in many cases in which was involved the question of residence of the proposed custodian. The rule was applied to deny to an aunt domiciled abroad the custody of a girl in her early teens whom it was proposed to take away, whereas the child was living in the home of worthy people who had been kind to her and were capable of caring properly for her, and whom she had loved from her infancy."

           

22. We must now return to our case and to the problems that need consideration before deciding the question of what is best for the welfare of the child.

 

A. The place where the child is living today. The appellant and his wife took the boy from the home of the family of Fisher to which he had been taken on the death of his mother. There was evidence that at the home of that family the boy was almost starved, that he became weak and was covered with bruises and scars. We do not know to what extent he has become accustomed to his new surroundings, but there was evidence that in the appellant's home his condition has improved. He has become healthier and has begun going to school. The court below was mistaken in not calling for a detailed report from the welfare officer. In cases of this kind the court cannot rely on the evidence of the parties alone, and it is unfair to the boy to decide finally on the question without going thoroughly into all the circumstances, merely because the parties did not choose to bring their evidence at the right time. Applications of this kind, upon which the whole future of the minor sometimes depends, cannot be treated like the ordinary disputes of litigants which require the decision of the court. They cannot be decided this way or that according to the amount and weight of the evidence which either party is sufficiently alert to produce. This is not a race, and it is not the function of the court to punish one side or to reward the other. Through no fault of his, the child has lost the care and attention that he would have received from his parents. In this respect he becomes the ward of the court. Certain obligations are due from the State to these unfortunate children, and it discharges these obligations by imposing the duties of guardianship upon the court. The court is "the father of orphans".

 

 This is the lofty principle laid down by our jurists of old. The court therefore must always be jealous of the welfare of the child, and it may and sometimes should call witnesses and procure evidence of his own motion.

 

B. Is it desirable to remove the boy from where he is now and to place him somewhere else? We must not forget that the boy was born abroad and was brought to the country while still an infant. For some years he was in an immigrants' camp, without a father. After that he was taken to the home of the Fisher family, and from there to the appellant and his wife. It would seem that this was the first home where the child found some warmth and a normal, peaceful family life. Will it be to his advantage to uproot him once more, for the fourth time, and to bring him up in a fifth home? Especially as the home in question is in a foreign land the language of which he does not understand and the customs of which he does not know. A change of life is bound to follow the change of surroundings. He will have to forget the old and get used to the new. He will have to be re-educated, which will be difficult and painful. Of course if the boy were not happy and at home with the appellant and his wife, he would have to do this, it being the lesser evil. Here too the court below erred in not obliging the appellant to agree to allow the doctor of psychology chosen by the respondent, or some other neutral doctor, to visit the home of the appellant, to talk with him, with his wife and with the boy; to determine how they get on together and whether they are suitable and suited to each other both physically and mentally; and whether the appellant and his wife are emotionally suited to be adoptive parents. It is a pity that the judge did not avail himself of the help and advice of the officers of the Ministry of Social Welfare, for as experts in the problem they could have rendered a service of great importance.

 

C. The qualifications of the respondent and his family, and their fitness for the task. We have already mentioned that we must not be deaf to the call of blood. Without any hesitation we say that, all other things being equal, the right of family relatives must prevail. In the case before us it takes little to show that apart from Mr. Ignaz Greenberger of New York, the other relatives cannot be taken into account either for appointment as guardians or to be put in charge and control of the child. Although the uncle and aunt are living in Rumania they wish to leave the child here. They issue instructions what to do with the boy, but they do not wish to have him themselves, and their affidavit does not show how the child's future is to be secured. The relatives in Israel are not in a position to give the boy a home and a warm family circle, either because of their poverty or because of the great number of their own children. The respondent Greenberger, therefore, is the only one who remains. His financial position, it seems, is sound, but it is necessary to consider other factors such as age, state of health, character and social standing to see if he is suitable and has the necessary qualifications to be put in charge of the child. Furthermore, Mr. Greenberger lives abroad and it may be necessary to send the boy to him. But the very fact of sending the child away from the country and thus beyond the jurisdiction of the court, requires serious consideration.

 

    And what arrangements does Mr. Greenberger propose to make for the boy to travel to him? Who will take him and with whom will he travel? Moreover, we have heard that Mr. Greenberger has not as yet succeeded in obtaining a visa to enable the child to enter the United States. And what will happen to the child if the application for adoption is refused ? Will he remain in the home of the applicant without his legal status being determined or will he have to sleep in the street without a roof over his head? Mr. Greenberger says in his affidavit that he is willing to care for the child in this country. But we have heard nothing of how he proposes to bring up the child in Israel. Will he be kept in a public institution or will he be placed with a private family? Will he perhaps have to wander about once more from one relative to another? And what money will be devoted to his upkeep? These questions and many others will have to be answered first before one can decide what is advisable for the welfare of the child and for his good: whether an order for adoption should be made or refused. But we have heard nothing at all regarding any of these questions. For this very reason it will be necessary to remit to the lower court the hearing of this case to enable the parties and the court itself to call additional evidence and to produce further witnesses so as to make it easier to decide what is best for the welfare of the child.

           

23. Finally we are bound in all conscience to make one general observation. No chapter in our law is so incomplete and fragmentary as that concerning children, and especially their adoption, and no other subject is in such urgent need of amendment by legislation.

 

            In an unreported judgment given in 19491), Landau J. said:

           

            "The law dealing with the adoption of children is most obscure because neither clear legislation nor legal precedents are available to guide the court. The lack of these is already beginning to be felt and will continue to be felt more and more in the future. For with the immigration that is coming to the country from the diaspora there are many orphans and many more will continue to come. More and more applications for adoption must therefore be expected. We should encourage this trend and must make it easier for those wishing to adopt these orphans to do so. But everything that faces them in this field is uncertain and ambiguous and nothing is so urgently required as firm and clear guidance."

           

            Citing the above remarks with approval, Ezioni J. said four and a half years later:

           

            "Although some years have passed since judgment was given in that case, to my regret I cannot say that the uncertainties in this connection have been removed. The legislator has taken no initiative in clearing up the questions relating to adoption, in defining the rights of the parties and in regulating the procedure to be employed when applications for adoption are made. Most of these matters remain as obscure as they were in the past. It is true that the judges are trying to fill the void but it is obvious that in the absence of appropriate laws their work cannot be complete and the courts should not be called upon to do the work of the legislator." (See Fisher's case (2), at p. 294.)

 

            Still more time has elapsed and the remedy for this state of affairs still lies in the future. The District Court judges are groping in the dark, searching for the way, perplexed as to what to do. Different views are held and different solutions are suggested. Each judge has to produce his own solution to the problem in accordance with his own particular understanding. ("Trying to fill the void" as Ezioni, J. said in Fisher's case (2).) Doubt and confusion abound. Instead of one rule there are many, and no one knows what the law is on the subject. To increase the confusion, orders for adoption and for guardianship are issued every week and every day by way of legal fictions and ingenious devices, by inference from statutes, by strained interpretations, by hairsplitting and casuistry. In the place of authority we have obiter dicta and the citation of great names, and the subject is confused, bringing little honour either to the law or to the lawyers. The Rabbinical authorities too have begun issuing orders for adoption - adoption pure and simple, not orders for guardianship or custody - although it is not clear from what source they derive their jurisdiction nor what law they purport to apply. They have gone even further. Without any substantive legal basis they have promulgated a special rule regulating the procedure to be followed in applications for the adoption of children. (See Procedural Regulations of the Rabbinical Courts of Palestine, 1943, Regulation 189.)

 

            There is a crying need to regulate the whole problem by special legislation. The State owes this to the orphans of those killed during the Nazi regime, to the children of those killed in the War of Liberation, to the children without a home and to the families not blessed with children. And the sooner the legislator fills the gap the better will it be for all.

           

            For the above reasons the appeal is allowed, the order of the lower court set aside, and the case remitted to be reheard in the light of the ruling set out above.

 

Appeal allowed, and case remitted.

Judgment given on May 18, 1955.

 

1) The Palestine Order in Council, 1922, Article 51:

Religious Courts. Jurisdiction of Religious Courts, Definition of personal status (as amended in 1939):

(1) Subject to the provisions of Articles 64 to 67 inclusive, jurisdiction in matters of personal status shall be exercised in accordance with the provisions of this part by the Courts of the religious communities. For the purpose of these provisions matters of personal status mean suits regarding marriage or divorce, alimony, maintenance, guardianship, legitimation and adoption of minors, inhibition from dealing with property of persons who are legally incompetent, successions, wills and legacies, and the administration of the property of absent persons.

2) The palestine Order in Council, 1922, Article 47:

Jurisdiction in personal status:

The Civil Courts further have jurisdiction, subject to the provisions contained in this Order, in matters of personal status as defined in Article 51 of persons in Palestine. Such jurisdiction shall be exercised in conformity with any law, Ordinance or Regulations that may hereafter be applied or enacted and subject thereto according to the personal law applicable.

Where in any civil or criminal case brought before the Civil Court a question of personal status incidentally arises, the determination of which is necessary for the purpose of the case, the Civil Court may determine the question, and may to that end take the opinion, by such means as may seem most convenient, of a competent jurist having knowledge of the personal law applicable.

1) The learned judge also referred to the following unreported cases, Civil Files 207/48 and 257/58, Haifa, and Personal Files 32/50 and 917/51, Tel Aviv.

1) Tractate on Divorce.

1)     The names Reuven and Shimon are used in Jewish legal literature to denote hypothetical litigants.

1) The text of this section is set out infra p. 429.

 

1) Civil File 257/48, Haifa.

 

HCJ 4293/01

 

1. New Family

2.         Dr. Ruth Zimmerman-Shahar

3.         Dr. Ron Shahar

4.         A Minor

5.         David Ben Nahum

 

v.

 

Minister of Labor and Welfare

 

 

The Supreme Court sitting as the High Court of Justice

[24 March 2009]

 

Before President D. Beinisch, Vice President E. Rivlin and

Justice A. Procaccia

 

Petition to the Supreme Court sitting as the High Court of Justice

 

Facts:     The institution of intercountry adoption of children in Israel, i.e. the adoption in Israel of children from abroad, is regulated by the Adoption of Children (Amendment no. 2) Law, 5756-1996.  By virtue of his authority under this Law, the Minister of Labor and Welfare has issued “Rules and Professional Guidelines for the Operation of a Recognized Non-Profit Organization”, rule 4(b)(1) of which states that a person wishing to adopt a child in the framework of an intercountry adoption will not be deemed eligible to do so if the age difference between himself and the child exceeds 48 years on the date of submission of the application to adopt. According to the petitioners, this maximum age difference rule is unlawful and must be struck down, in that it is incompatible both with fundamental constitutional principles, and with proper administration. Alternatively, the petitioners are asking the Court to order that the rule be amended to the effect that the recognized non-profit organization – the adoption association – is granted discretion to approve eligibility for adoption even when the age difference between the prospective adopter and the child exceeds 48 years, when special circumstances justify so doing; and that it be possible to appeal the decision of an adoption association that refuses to approve an adoption due to the excessive age difference.

The High Court (per President Beinisch, Vice-President Rivlin concurring and Justice Procaccia dissenting), granted the petition in part.

Held: On the constitutional plane, the Court considered the question of whether people seeking to adopt a child had a constitutional right to do so; if so, what were the nature and origins of this right and did the state have a correlative duty to enable realization of such a right. Although the Justices in the majority were of the opinion that no such constitutional right exists, President Beinisch, writing the majority opinion, held that in the circumstances of the case, no ruling was required on this question, and in view of its sensitivity and complexity, it is best left with no firm determination.

On the administrative plane, the Court held that the rule is reasonable and does not discriminate unlawfully against prospective intercountry adopters vis-à-vis other groups such as persons adopting domestically, biological parents and people entering into embryo carrying agreements. Nevertheless, the majority Justices held that the negation of discretion to depart from the rule in special, justified circumstances was not reasonable.  This conclusion does not, however, dictate that the private adoption associations be granted discretion in respect of the rule; rather, according to President Beinisch, the correct interpretation of s. 36A of the Adoption of Children Law, 5741-1981, is that the statutory appeals tribunal established by virtue of the Law is authorized to consider requests to depart from the rule in intercountry adoptions, in special circumstances. In this sense, the Court granted the petition in part by recognizing the possibility of departure from the rule. The Court dismissed the concern of the respondent that allowing exceptions to the rule would deflect the focus of attention from the best interests of the child to the interests of the prospective adopters, stating that no major breach of the bounds of the rule was entailed by the existence of a statutory mechanism for considering exceptional cases, and that suitable criteria would be formulated by the appeals tribunal for this purpose.

 

Legislation cited:

Adoption of Children Law, 5741-1981, and ss. 3, 4, 5, 6, 36a, 25, 28H, 28N

Adoption of Children (Amendment no. 2) Law, 5756-1996

Basic Law: Human Dignity and Liberty 1992; and s. 1A, 2, 4

Embryo Carrying Agreements (Approval of the Agreement and the Status of the Child) Law, 5756-1996

National Health Insurance Law, 5754-1994 (Second appendix)

National Health (IVF) Regulations, 5747-1987

Youth (Care and Supervision) Law, 5720-1960

 

Israeli Supreme Court cases cited:

[1]     HCJ 243/88 Consellos v. Turgeman [1991] IsrSC 45(2) 626.

[2]     HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of the Interior (2006) (unreported).

[3]     CA 2266/93 Anon. v. Anon. [1995] IsrSC 49(1) 221.

[4]     CA 3009/02 Anon. v. Anon. [2002] 56(4) 872.

[5]     HCJ 2245/06 MK Neta Dobrin v. Prisons Service (2006) (not yet reported).

[6]     LFA 377/05 Anon. & Anon., Designated Adoptive Parents of the Minor v. Biological Parents (2005) (not yet reported).

[7]     CFH 2401/95 Nahmani v Nahmani [1996] IsrSC 50(4) 661.

[8]     HCJ 2458/01 New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [2003] IsrSC 57(1) 419.

[9]     HCJ 294/91 Chevra Kadisha “Kehillat Yerushalayim” v. Kestenbaum [1992] IsrSC 46(2) 464.

[10]   CA 7155/96 Anon. v. Attorney General [1997] IsrSC 51(1) 160.

[11]   CA 5587/93 Nahmani v. Nahmani [1995] IsrSC 49(1) 485.

[12]   CLA 3145/99 Bank Leumi Leyisrael Ltd. v. Hazan [2003] IsrSC 57(5) 385.

[13]   CFH 7015/94 Attorney General v. Anon. [1996] IsrSC 50(1) 48).

[14]   HCJ 415/89 Alon v. Child Services [1989] IsrSC 43(2) 786.

[15]   CA 10280/01 Yarus-Hakkak v. Attorney General [2005] IsrSC 59(5) 64.

[16]   CA 577/83 Attorney General v. Anon. [1984] IsrSC 38(1) 461.

[17]   LFA 6930/04 Anon. and Anon. Prospective Adoptive Parents of the Minor v. Biological Father [2005] IsrSC 59(1) 596.

[18]   HCJ 4769/90 Zidan v. Minister of Labor [1993] IsrSC 47(2) 147.

[19]   HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1.

[20]   HCJ 953/86 Poraz v. Mayor of Tel Aviv-Jaffa [1988] IsrSC 42(2) 309.

[21]   HCJ 217/80 Segal v. Minister of the Interior [1980] IsrSC 34(4) 429.

[22]   HCJ 935/89 Ganor v. Attorney General [1990] IsrSC 44(2) 485.

[23]   HCJ 558/79 Jamal v. Jewish Agency [1980] IsrSC 34(1) 424.

[24]   CA 492/73 Speizer v. Council for the Regulation of Gambling in Sport [1975] IsrSC 29(1) 22.

[25]   HCJ 702/81 Mintzer v. Central Committee of the Israel Bar Association [1982] IsrSC 36(2) 1.

[26]   CA 438/88 Barak v. Registration Committee for the Registry of Psychologists [1990] IsrSC 44(1) 661.

[27]   HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [1992] IsrSC 46(1) 191.

[28]   HCJ 98/69 Bergman v. Minister of Finance  [1969] IsrSC 23(1) 693.

[29]   HCJ 678/88 Kfar Veradim v. Minister of Finance [1989] IsrSC 43(2) 501.

[30]   HCJ 6051/95 Recanat v. National Labor Court [1997] IsrSC 51(3) 289.

[31]   HCJFH 4191/97 Recanat v. National Labor Court [2000] IsrSC 54(5) 330.

[32]   HCJ 59/88 Zaban v. Minister of Finance  [1988] IsrSC 42(4) 705.

[33]   HCJ 6778/97 Association for Civil Rights v. Minister for Internal Security [1994] IsrSC 58(2) 358.

[34]   HCJ 366/81 Bureau of Tourist Bus Operators v. Minister of Finance [1983] IsrSC 37(2) 115.

[35]   HCJ 1703/92 C.A.L. Cargo Air Lines v. Prime Minister [1998] IsrSC 52(4) 193.

[36]   HCJ 20594 Nof v. State of Israel – Ministry of Defense [1996] IsrSC 50(5) 449.

[37]   FH 10/69 Boronowsky v. Chief Rabbi of Israel [1971] IsrSC 25(1) 7.

[38]   LFA 5082/05 Attorney General v. Anon. (2005) (unreported).

[39]   CrA 3439/04 Bazak (Buzaglo) v. Attorney General [2004] IsrSC 59(4) 294.

[40]   HCJ 3648/97 Stamka v. Minister of the Interior [1999] IsrSC 53(2) 728.

[41]   CA 1165/01 Anon. v Attorney General [2002]  IsrSC 57(1) 69.

 

 

For the petitioners – S. Oren; I. Rosenblum.

For the respondent – E. Golomb.

 

 

JUDGMENT

 

Justice A. Procaccia

1.    The Adoption of Children (Amendment no. 2) Law, 5756-1966 (hereinafter: “the amending Law”) regulated, for the first time in Israel, the institution of intercountry adoption. It established that intercountry adoptions will be carried out by means of non-profit organizations whose sole purpose is to operate in the area of these adoptions (hereinafter: “adoption associations”); these adoption associations were granted recognized status for this purpose. Section 28[37] of the amending Law authorizes the Minister of Labor to lay down rules and professional guidelines for the operation of a recognized adoption association. By virtue of this authorization, in 1998 the Minister of Labor and Welfare issued “Rules and Professional Regulations for the Operation of a Recognized Adoption Association”. These Rules lay down the following provision in relation to the maximum permissible age difference between adoptive parents and the child who is a candidate for an intercountry adoption:

4(b)            An adoption association will not certify that an applicant is eligible to adopt a child, if, on the date of submission of the application, one of the following applies to him:

(1)  The age difference between the applicant and the child exceeds 48 years; if the applicants are a couple, the age difference between each of the applicants and the child exceeds 48 (Official Gazette 5758, at p. 1580) (hereinafter:  “the maximum age difference rule”).

This provision, amongst the other rules, prescribes how the recognized adoption association must examine the application of prospective adopters, and in what circumstances the application to adopt cannot be approved due to the age difference between the prospective adopter and the child, which exceeds the maximum permissible difference.

2.    The petition is primarily concerned with review of the constitutionality of the rule that sets a maximum age difference between the person seeking to adopt and between the child as a preliminary condition of adoption. According to the petitioners, a conclusive determination concerning the maximum age difference as aforesaid is unlawful, and it must be struck down, both because it is contradictory to fundamental constitutional principles, and because it does not comply with the criteria for proper administration. Alternatively, the petitioners request that the Court order that the maximum age difference rule be changed so as to reduce the damage that it may cause; their suggestion is that a recognized adoption association be granted discretion to approve adoption even when the age difference between the prospective adopter and the child exceeds 48 years, in cases in which special circumstances prevail, and that it be possible to appeal the decision of an adoption association that refuses to approve an adoption due to the age difference exceeding the maximum.

The parties

3.    Petitioner no. 1 is an organization that operates for the advancement of the rights of families in Israel, and to promote recognition of the family as a constitutional unit. Petitioners nos. 2 and 3 are a couple who have one minor child, whom they adopted in Guatemala (petitioner no. 4). Petitioner no. 5 is a widower and father of two minor children, who were adopted by him and his late wife in the United States. Petitioners nos. 2 and 3 and petitioner no. 5 all applied to adopt another child from abroad, since their age prevents them from  adopting a child locally. Each sought to adopt a new-born child in order to raise him from the time of his birth. Pursuant to the maximum age difference rule, the adoption of a new-born child was not approved, due to their age on the date of submission of the application, which exceeded the maximum allowable age difference. Petitioner no. 2 was born in 1950, petition no. 3 was born in 1949, and petitioner no. 5 was born in 1948. At the same time, intercountry adoption of children was approved for these petitioners, whose ages at the time of the applications complied with the maximum age difference rule.

The respondent is the Minister of Labor and Welfare, who is the competent authority in relation to setting the rules that are the subject of this petition.

The arguments of the petitioners

4.    The petitioners claim that the maximum age difference rule is unlawful both from a constitutional and from an administrative point of view. Regarding the constitutional plane, it was contended that the right to a family is a constitutional right that embraces the right to parenthood, which may be realized in any manner whatsoever – be it by way of natural parenthood or by way of adoption. As such, the right to adopt is a constitutional right protected by Basic Law: Human Dignity and Liberty 1992. The maximum age difference rule violates the basic right of prospective adopters to a family, by setting a rigid, inappropriate ceiling, and it does not allow for deviation even in special circumstances.  According to the argument, this violation of the basic right to a family and to parenthood does not comply with the limitations clause in the Basic Law. The rule is not derived from explicit authorization in the Law, it does not befit the values of the State, it is not intended for a proper purpose, it is not proportional, particularly in view of the fact that it was introduced as a categorical provision allowing no discretion, and without any room whatsoever for special exceptions. According to the petitioners, the said rule is deeply damaging not only to people who seek to adopt, but also to the best interests of the child who is a candidate for intercountry adoption, since handing him over for adoption to a couple in Israel, even if the parents are older, is preferable on his part to leaving him to grow up in difficult circumstances in his country of origin.

5.    On the administrative plane, the petitioners argue that the maximum age difference rule suffers from extreme unreasonableness in setting a rigid allowable age difference, without proper factual or scientific basis; moreover, it creates grave discrimination and a violation of equality between, on the one hand, the petitioners and others like them who wish to adopt, and between other population groups – such as natural parents who may bring children into the world with whatever age difference without state interference; similarly, the state does not interfere in the decision of couples to bring a child into the world by means of a surrogate mother by virtue of the Embryo Carrying Agreements (Approval of the Agreement and the Status of the Child) Law, 5756-1996 (hereinafter: “Embryo Carrying Agreements Law”) or by other artificial means of reproduction undertaken by the mother that lead to natural birth. Moreover, discrimination exists between the domestic arrangement governing adoption, in respect of which a flexible age difference rule, allowing for deviation, has been set, and intercountry adoption, in respect of which the rule is rigid and has no allowance for special circumstances.

The arguments of the respondent

6.    The respondent rejects the basic point of departure of the petitioners’ arguments, whereby they have a constitutional right to adopt a child. In his view, the right to adopt is not recognized by either Israeli law or International law as a basic constitutional right.  The right to natural parenthood is, indeed, recognized as a basic right, as a component of respect for the autonomy of the individual in society, and the conception of non-intervention of the state in a person’s intimate decisions concerning the establishment of a family blends into this. The institution of adoption, on the other hand, focuses on the welfare of the child, and the interest of those seeking to adopt in realizing their parenthood is ancillary and secondary to the principle of the best interests of the child.  People who wish to adopt do not have a right to adopt; a fortiori they do not have a constitutional right to adopt. Their desire to adopt will be realized only to the extent that it is compatible with the principle of the best interests of the child who stands before them at the center of the laws of adoption. Adoption is a subject of a public nature, which involves the formulation of rules and their application in all that concerns handing children over for adoption in order to promote their welfare. It is not like the right to natural parenthood, the essence of which is the freedom to bear children without the intervention of the state. The respondent further argues that even if a constitutional right of the petitioners to adopt were recognized, and even on the assumption that this right was breached as a result of the maximum age difference rule – even then this would be a proportional violation that was intended for a proper purpose, i.e., protection of the best interests of children adopted in intercountry adoptions.

7.    With respect to the administrative plane, it was argued that the maximum age difference rule conforms to the criteria of propriety according to the rules of administrative law. The rule was adopted in light of purely professional considerations, in accordance with the recommendations of the Advisory Committee to the Minister. The contents of the rule are reasonable, it was intended to promote the best interests of the child, and it does not discriminate between the petitioners and others like them who wish to adopt, and between other groups.

Before embarking on an in-depth analysis of the arguments of the parties, we will describe the background to the institution of intercountry adoption and the rationale underlying the Israeli legislation. What we say has direct ramifications for the question under discussion in this case.

Intercountry adoption – general background

8.    The amending Law, passed by the Knesset on 1 May 1996, regulates, for the first time, the question of intercountry adoption in Israeli law. The amendment was conceived against the background of a legislative procedure that originated in a government bill (Adoption (Amendment) (Intercountry Adoption) Bill, 5754-1994 451) and private bills that were consolidated into one bill (Adoption of Children (Intercountry Adoption) Bill, 5756-1995, Draft Laws. 5756, 238). The Bills were discussed together in the Knesset Law and Constitution Committee, which drafted the bill that was eventually brought for the approval of the Knesset. The Amendment was enacted against the background of a reality in which the number of Israelis who applied to adopt children from outside of Israel had grown, due to the scarcity of children available for adoption in Israel in relation to the large number of people seeking to adopt, which resulted in many people having to enduring long waiting periods. This scarcity created a widespread phenomenon of adoption by Israeli couples through non-conventional, non-regulated channels, sometimes without the children even being registered in the local registry. Some Israelis were even involved in illegal acts of abduction of and trade in children (for example, HCJ 243/88 Consellos v. Turgeman [1]). The sad plight of many Israelis who sought to adopt a child abroad after they failed to adopt in Israel, and the many difficulties that accompanied such adoptions due to concern for the status of the child in Israel, led to legislative initiatives in the Knesset to resolve this difficult situation (see for example, the comments of MK Limor Livnat, Knesset Proceedings 24.5.94, at p. 7494; and MK Avi Yehezkel, ibid., at p. 7487).

9.    This distressing situation led, in the end, to the amendment of the Adoption of Children Law, 5741-1981 (hereinafter: “Adoption Law”), by means of the creation of a detailed statutory arrangement for the intercountry adoption of children in Israel. Intercountry adoption is not exclusive to Israel. The need to regulate intercountry adoption intensified in many states in light of the development of criminal activities involving the abduction of and traffic in children in connection with adoption (N. Maimon, Child Adoption Law (1994), at pp. 597-599). Against this background, the Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (hereinafter: “Convention on Intercountry Adoption”) was signed in The Hague in 1993. The aim of the Convention is to create a system of cooperation between different states in order to ensure the welfare and best interests of children who are handed over for foreign adoption, and to prevent trafficking in children (art. 1 of the Convention). Israel signed the Convention on 2.11.1993 and ratified it on 28.12.1998 (Kitvei Amana 1258, vol. 41). The government bill is a result of Israel’s adoption of this Convention, which required extensive deployment, including changes in internal legislation and the establishment of bodies to deal with intercountry adoption in Israel.

10.    This arrangement of intercountry adoption was intended to provide a response to childless Israelis who encountered difficulties in adopting children in Israel, and to facilitate the process of adoption for them by means of adoption of a child from abroad. It was intended to ensure that the process of intercountry adoption would be carried out in a proper manner and by a legal process. The arrangement was also intended to confer recognition on the status of children who were adopted in intercountry adoptions before this subject was regulated by law. At the same time, it is important to emphasize that although the background to the legislation was the intention to alleviate the plight of those seeking to adopt, and to open up to them new avenues that would answer their yearning for parenthood, the arrangement of intercountry adoption should not be understood as deflecting the focus of adoption from the best interests of the adopted child to the wellbeing of those seeking to adopt. The purpose of the arrangement is to find an appropriate response for children who cannot be raised by their natural families for one reason or another, and who are in need of a home with an adoptive family. The best interests of the child was and remains the central axis around which the laws of adoption, including intercountry adoption, are built (this found expression in the words of MK Zandberg during the deliberations on the first reading of the amending Law in the Knesset (Knesset Proceedings 24.5.94, at p. 7500).

11.    This protection of the best interests of children adopted in intercountry adoptions is manifest in s. 28D of the amending Law, which states that a recognized adoption association is obliged to act “in such manner as to safeguard the best interests of the child and with respect for his basic rights, including those that are recognized in International law; the recognized adoption association will also have a fiduciary obligation in relation to any person who has applied to it to adopt a child . . ., as long as this is not detrimental to the fiduciary obligation vis-à-vis the child” [emphasis added]. This provision was explained by the Chairman of the Law and Constitution Committee during the deliberations on the draft law at the second and third readings:

‘We hereby establish that the adoption association has an absolute fiduciary obligation to the principle of the welfare of the child, and a fiduciary obligation to the adopter – again, as long as the principle of the welfare of the child is not affected. The principle of the welfare of the child overrides all other interests, including the fiduciary duty to the adopter’ (Knesset Proceedings 11.3.1996, at p. 5151) [emphasis added].

12.    On the international level, too, intercountry adoption arrangements are founded on the concept of concern for the best interests of the adopted child. The adoptive parents are not at the focus of attention of this law. The aspiration to safeguard the best interests of the adopted child as a central purpose of the intercountry adoption arrangement is evident in the Convention on Intercountry Adoption, the Preamble to which declares that the states signatory to the Convention [are] “[C]onvinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children.”  Protection of the best interests of the child is included in the objectives of the Convention as follows: 

Article 1: The objects of the present Convention are -

a)  to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law [emphasis added].”

Two additional international documents that emphasize the need for special protection of the child in an intercountry adoption are the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally, and the Convention on the Rights of the Child, adopted by the United Nations in 1989, which Israel joined in 1991 (Kitvei Amana 1038, vol. 31, at p. 221).  These two international documents also state the need to compare the criteria governing internal and intercountry adoptions.  Art. 20 of the Declaration states:

‘In intercountry adoption, placements should, as a rule, be made through competent authorities or agencies with application of safeguards and standards equivalent to those existing in respect of national adoption. In no case should the placement result in financial gain for those involved in it.’

Art. 21 of the Convention on the Rights of the Child, which deals with adoption, states:

‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

. . .

(b)        Recognize that intercountry adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;

(c)        Ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d) Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it’ [emphasis added].

13.    Precisely because the motivation for intercountry adoption is the distress of prospective adopters who do not manage to adopt in Israel, particular importance is attributed to the emphasis placed – in intercountry adoption as in domestic adoption – on the obligation to position the best interests of the child as the paramount consideration in all situations. In the real world, there is liable to be some discrepancy between the criteria for domestic adoption and intercountry adoption, if only due to the significant difference in the number of children available for adoption in each of these spheres. Experience demonstrates that as the number of candidates for adoption decreases, so the criteria for adoption become more rigid and stricter. The institution of intercountry adoption arouses concern for a conceptual obfuscation between the interests of the adopters and the best interests of the child. This obfuscation creates difficult moral dilemmas, as noted by N. Maimon in her book:

‘The supporters believe that encouragement should be given to such [intercountry – A.P.] adoption, which saves children and babies from life in institutions, from poverty, homelessness and even death . . . The supporters point out that intercountry adoption attests to the desire to save homeless children and it may well bring down barriers between western states and the states of origin of the children. They also cite studies that demonstrate success in intercountry adoption. The opponents of intercountry adoption, on the other hand, claim that such adoption cuts the children off from their heritage and their culture, and integrates them into a culture that is alien to them. This is liable to create problems of identity in the children when they are older. They further claim that the children taken for adoption are white children who are sought after by childless couples . . . and that there is no demand for children who roam the streets. The opponents point out that intercountry adoption is designed to serve the purposes of childless couples from the West, and it is not the best interests of the child that are foremost in their concerns, and that the one-sided transfer of children from poor to rich countries, from their culture to a culture that is alien to them, will not break down cultural and political barriers. The best interests of the children, so say the opponents, requires that states in the West aid the poor states and the families who struggle to raise their children, and that they supply funds and help in establishing proper welfare systems, so that the children remain in the states with their own culture and tradition. The opponents further argue that intercountry adoption causes crime, trafficking in children, placement of children with couples who have been rejected as adoptive families by the welfare authorities in their own countries’ (Maimon, supra, at pp. 593-594).

The moral difficulty inherent in the blurring the boundaries between the interests of those seeking to adopt and the best interests of the child was addressed by MK Yitzhak Levy during the debate in the Knesset, as follows:

‘. . . Israeli society applies pressure, and because Israeli society applies pressure, the Knesset proceeds to enact a law for bringing children from abroad. When children are brought from abroad, the concern is not for the children [but] for the parents (Knesset Proceedings 11.3.96, at p. 5155; emphasis added).

These concerns are not baseless. They obligate the state to be particularly careful in safeguarding the interests of children adopted in intercountry adoptions, and to take special care not to become a tool whose main purpose is to enable realization, come what may, of the aspirations of those seeking to adopt a child.

14.    Finally, to conclude these preliminary remarks, it is important to point out the significant innovation in the new statutory arrangement, namely, that intercountry adoption will be carried out through recognized adoption associations, the supervision of which is the responsibility of the Ministry of Labor and Welfare. In this, intercountry adoption differs from domestic adoption, which is in the hands of the Child Services under the supervision of state authorities and the Ministry of Labor and Welfare. Regulation of intercountry adoption by means of the recognized adoption associations has both advantages and disadvantages. On the one hand, action through the adoption associations is particularly efficient with respect to the connection with the foreign states, and it provides an effective response to the needs in this area; on the other hand, placing the determination of the eligibility to adopt in the hands of private organizations, with all the implications thereof, is a complex matter that naturally requires strict, meticulous supervision on the part of the state authorities. The balance between these advantages and disadvantages is achieved by conferring various powers on the adoption associations, including the determination of eligibility of a person seeking to adopt; and parallel to this, establishing various criteria for recognizing these associations, imposing various obligations on them, and supervising their activities by means of a central intercountry adoption authority, in the person of a chief welfare officer, to be appointed by the Minister of Labor and Welfare (s. 28B of the Law). The appropriate balance for the proper and effective operation of the adoption associations is also achieved by means of rules and guidelines for their operation, which the Minister of Labor and Welfare is authorized to prescribe by virtue of s. 28 [37] of the amending Law, pursuant to which the rule at issue in this petition was introduced. Matters were presented as follows in the debate on the amending Law at the second and third readings:

In the bill presented by the Government of Israel, it was proposed that intercountry adoption be supervised and administered by the Government, by the Ministry of Labor and Welfare. On the other hand, several private bills were tabled . . . We decided that intercountry adoption will be carried out by adoption associations, for whom we set very rigid, very strict rules of recognition. We must struggle and fight and take precautions at all times against erring, and being in a position –which is familiar to many, or some foreign states – in which there is in fact traffic in children. The assumption is that these adoption associations [will be] under very rigid supervision – and this will be the task of the Ministry of Labor and Welfare . . . And because they will have a proven record and proven professional capabilities, they will perform this task better than the Government. They have greater freedom to do this work in the Ukraine or Brazil or Rumania, and they will raise the total number of child adoptions. As we have said, extremely strict conditions’ (Chairman of the Law and Constitution Committee, Knesset Proceedings 11.3.96, at p. 5150; for the different positions on this subject, see: the two bills above and the debate on the first reading, ibid., 24.5.94, at p.7485 ff.).

Decision

15.    The petitioners’ arguments challenge the maximum age difference rule on two fronts: the constitutional front and the administrative front. On the constitutional front, the petitioners seek to convince us that the right to adopt is a constitutional right that inheres in the right to a family and to parenthood. The maximum age difference rule violates this right in a manner that is incompatible with the limitations clause, and it must therefore be set aside.

Parallel to this, the petitioners argue against the validity of the rule on the administrative level, and focus on it being – according to them –unreasonable and discriminatory. The two parallel lines of argument drawn by the petitioners give material expression to the borderline between the constitutional and the administrative examination of the act of secondary legislation of the competent authority, as well as their interface.

Let us begin with the constitutional examination.

The constitutional examination – is the right to adopt a constitutional right?

16.    On the level of the constitutional argument, the questions to be considered are these: Does a legal right to adopt a child exist? Does this right enjoy the status of a constitutional right, as a derivative of the right to a family and to parenthood anchored in Basic Right: Human Dignity and Liberty? If the answer is positive – does the maximum age difference rule comply with the criteria of the limitations clause in the Basic Law? These are the questions that we will endeavor to answer.

The right to family and parenthood

17.    Basic Law: Human Dignity and Liberty entrenches a person’s right to dignity and liberty, thus embracing the values of the State of Israel as a Jewish and democratic state (s. 1A of the Basic Law). It states that there shall be no violation of the life, body or dignity of any person as such, and that all persons are entitled to protection of their dignity (ss. 2, 4). Within the parameters of the right to human dignity is the right of a person to a family (HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of the Interior [2]). From the right of a person to dignity stems his right to a family, and it therefore constitutes a constitutional right protected by the Basic Law (CA 2266/93 Anon. v. Anon [3], at p. 235; CA 3009/02 Anon. v. Anon. [4], at p. 894). The right to a family is one of the central foundations of human existence. “It reflects the existential essence of a person, and the manifestation of his realization of self” (Adalah v. Minister of the Interior [2], at para. 6 of my judgment). From the right to a family is derived the right to parenthood on the one hand, and the right of the child to grow up in the bosom of his natural parents on the other. Within the framework of the right to family, the natural right of parents to raise their children and the right of the child to grow up in the bosom of his family are recognized. The right to parenthood and the right of a child to grow up with his natural parents are interwoven rights, and together they establish the right of the family to autonomy:

‘The depth and intensity of the parental bond, which incorporates the natural right of a parent and child to a living bond between themselves, made of familial autonomy a value enjoying a legal status of the highest degree, violation of which is tolerated only in the most extraordinary situations’ (Anon. v. Anon.[4], at p. 894).

18.    The right to a family is derived from the right to privacy and from the realization of the principle of the autonomy of individual will, located at the very kernel of the concept of human dignity. “The family and parenthood are the realization of the natural inclination to propogation of the generations and realization of the individual in society” (HCJ 2245/06 MK Neta Dobrin v. Prisons Service [5]; LFA 377/05 Anon. & Anon., Designated Adoptive Parents of the Minor v. Biological Parents [6]; CFH 2401/95 Nahmani v Nahmani [7], at p. 719; HCJ 2458/01 New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], at p. 447). Amongst the constitutional human rights, the right to parenthood and family ranks highly, following protection of the right to privacy and physical integrity: “The right to physical integrity is designed to protect life; the right to a family is what imbues life with significance and purpose” (MK Neta Dobrin v. Prisons Service [5], para. 12). “These rights are fundamental to human existence, and it is difficult to imagine human rights which equal them in their importance and their impact” (Anon. & Anon. v. Biological Parents [6], at para. 6 of my opinion).

19.    The right to establish a family is also recognized under international law. Article 16 of the Declaration of Human Rights establishes the right of a person to marry and raise a family, as does art. 23 of the Covenant on Civil and Political Rights. Article 12 of the Declaration of Human Rights and art. 17(1) of the Covenant on Civil and Political Rights establish the right to privacy and to protection from arbitrary interference in family life. The European Convention on Human Rights establishes, in art. 8, a person’s right to respect for his private and family life, and in art. 12, the right to marry and to found a family.

20.    The right to family and parenthood is related to the concept of a person’s personal autonomy, and to his right to privacy. It is understood as a freedom that may not be violated by interference on the part of the government or other factors. This is a right which does not have a correlative duty of the government to take positive action in order to effect its realization. And indeed, “a free society imposes minimal limitations on the voluntary choices of the individual” (HCJ 294/91 Chevra Kadisha “Kehillat Yerushalayim” v. Kestenbaum [9], at p. 481; CA 7155/96 Anon. v. Attorney General [10], at p. 175). This is particularly true with respect to the aspirations of a person to realize his personality and personal experience by means of establishing a family and bringing children into the world.

In Nahmani v Nahmani [7], Justice Dorner discussed the negative character of the right to a family as a right that restricts state interference in a person’s freedom of choice to a minimum:

‘Freedom in the full sense is not only freedom from outside interference of the state or of others. It also includes a person’s ability to control his way of life, to fulfil his basic aspirations and to choose between a range of possibilities through the exercise of discretion. In human society, one of the forceful expressions of the aspiration which if not satisfied will cause many people not to regard themselves as free in the full sense of the word is the aspiration to parenthood. This is not a purely natural-biological need. We are dealing with a freedom which in human society symbolizes the particularity of a person. “Any person who does not have children is considered as dead” said R Joshua b. Levi (Nedarim 49b). Indeed, most people – men and women alike – see propagation as an existential need that gives meaning to their lives’ (at p. 719).

In the words of Justice Strasberg-Cohen (ibid., at p. 682):

‘The right to be a parent is, by its nature, its essence and its characteristics, a natural, inherent right, embedded in the person. This is a right which has no correlative legal obligation, neither in the relations between the state and its citizens nor in the relations between the spouses themselves’ [emphasis added].

(See also the first proceedings in the Nahmani case: CA 5587/93 Nahmani v. Nahmani [11], at p. 499; P. Shifman, Family Law in Israel (5749-1989, vol. 2), at p. 139.)

The conception of the right to parenthood in the international conventions, too,  is that of a negative right, the principal thrust of which is protection from arbitrary interference of the state in the private lives of a person, his family and his house (on this point, cf: D. Barak-Erez, “Symmetry and Neutrality: Reflections on the Nahmani Case”, (1996) 20 Iyyunei Mishpat 197, 199-200 [Heb.]).

21.    The right to a family and to parenthood as a constitutional right does not achieve full expression in all circumstances. Like other constitutional rights, the right to a family as a freedom that is protected from interference is not absolute. In exceptional circumstances, the law and the authorities are likely to intervene in this right, and to restrict the extent of constitutional protection afforded it, when it is confronted by another important, conflicting value. The legitimacy of violating the right to a family and to parenthood is conditional upon compliance with the criteria of the limitations clause. These criteria reflect the required balance between the import of the basic rights and that of conflicting rights, needs and values, whether of the individual or of society. If a violation of a human right is to meet the constitutional test, its place must be in an appropriate arena of balances, in which the weight of the right is balanced against that of the conflicting right (CLA 3145/99 Bank Leumi Leyisrael Ltd. v. Hazan [12]; MK Neta Dobrin v. Prisons Service [5], at para. 12).

Thus, for example, in certain circumstances, when realization of family life causes serious harm to the child, the state intervenes in order to protect his wellbeing, and exceptional situations may arise in which natural parenthood will be temporarily or permanently negated by virtue of the Youth (Care and Supervision) Law, 5720-1960 (hereinafter: “Youth (Care and Supervision) Law”) (Anon. v. Anon. [4]), or by virtue of the Adoption Law. Conditions may arise which will require the state to exercise its authority to remove a child from his parents in order to protect his safety and wellbeing, and also to hand him over to another family for adoption, thus separating him temporarily or permanently from his natural family. Regulation of these powers and their practical application are subject to the conditions of the limitations clause, since what is involved is a violation of a human right to realization of the family bond and parenthood. Other situations of intervention in the right to family may arise where the realization of this right of a resident of Israel who wishes to unite with a spouse from the Area of Judaea and Samaria clashes with considerations of state security (Adalah v. Minister of the Interior [2]).

The right to adopt

22.  Alongside the right to a family as a “passive” right, the essence of which is protection of a person’s personal autonomy from unconstitutional violation, stands the question of the status of the right to parenthood, which the individual seeks to realize by way of adoption of a child born to different biological parents, whether because he is not able to bring a child into the world, or whether because he wishes to forge a parental bond with an adopted child for some other reason. Does the constitutional right to a family extend to the right to adopt a child, where limitation of this right is possible only in accordance with the principles of the limitations clause, or shall we say that the constitutional right to parenthood does not embrace a right to sue the state to intervene in order to make possible its realization by one means or another, including by way of adoption. The question from another angle is whether the constitutional right to a family and to parenthood, which is granted to every person per se, engenders a right to obligate the state to act in order to make family or parenthood possible in the event that a person is not able, or does not want, to realize them in a natural way, e.g., by way of adoption, or through surrogacy, or by IVF. Does a lack of action on the part of the state amount to a “violation”, the constitutionality of which is subject to the limitations clause? These questions are complex and multi-faceted. They touch on the connection between a constitutional right and the means available to a person for realizing the right. They involve issues with extensive normative, moral, social and other ramifications. The approaches to their solution are subject to the influences of time, place and circumstance.

23.    At the same time, for our purposes, it may be said that according to the constitutional conception prevailing in our system, recognition of a constitutional right to parenthood and to family rests on the assumption that the right is protective in nature, and it does not give rise to a correlative obligation of the government to act. It is concerned primarily with protection from government interference, as opposed to fulfilment by the government of a duty to take positive action to provide various means aimed at enabling realization of the right. The right to parenthood extends over the autonomy of the individual will. It does not spill over into an area in which intervention of the state is required for its realization. Intervention of the state in areas such as adoption, surrogacy and artificial reproduction, which constitute different means of realizing parenthood, occurs in the framework of its governmental activity, and it is subject to administrative judicial review; but it is not the expression of a duty that exists as a response to a person’s constitutional right to realization of parenthood by alternative means to natural birth. It is not out of the range of possibility that changing times, social dynamics and human needs will bring with them, over time, changes in the constitutional conception regarding the role of the state in providing the means for realization of a person’s right to family and parenthood. On this matter, the considerations pertinent to the different means are not necessarily identical, and the adoption of a child, who is an independent entity and the subject of rights, is unlike means that are designed to enable childbirth, such as surrogacy and IVF. The question of the extent to which the state must help the individual by making available the means for assisted reproduction through artificial reproductive techniques is difficult and complex. The greater the intervention required from factors external to the reproductive processes, the further removed we become from the inner core of the right to parenthood, which is based on the autonomy of the individual and his independent right to make decisions that determine his fate without external interference. The extent of the state’s obligation to take positive action to help the individual to realize his natural parenthood by artificial means is a difficult and multi-faceted issue. In this context, various questions arise concerning the obligation to establish a system for the purpose of IVF and surrogacy (see National Health Insurance Law, 5754-1994 (Second appendix); National Health (IVF) Regulations, 5747-1987; and Surrogacy Agreement Law). The relationship between the conception of the right to a family and parenthood as a right of a protective nature, and between the extent of the legitimate expectation of the individual that the state will help him, actively, in realizing his right to parenthood by different means, raises complicated and difficult questions (M. Corinaldi, “The Question of Surrogacy in Israel – Comments on the Embryo Carrying Agreement Law, 5756-1996; Aloni Committee Report”, Hamishpat 3 (5756), 63, 67, 69).

Professor Shifman relates to the issue as follows:

‘From the point of view of possible intervention of society, the characteristic components of the substance of the right to be a parent, which are not hewn from the one block, should be noted. The primary component is the right to biological parenthood . . . . Particular attention should be paid to the distinction between the negative and the positive aspects, i.e. between restriction of the freedom of a person to take action to realize his right to parenthood in a way that he considers appropriate, and between negation of the assistance of society. The parameters of the positive assistance of the state are determined, inter alia, by means of the changes in the definition of legal parenthood that society is prepared to make in order to fulfil and confirm the desires of the individual (Shifman, ibid., at p. 169-170).

These questions greatly exceed the bounds of the discussion in this case insofar as they concern the various means of realizing parenthood other than by way of adoption. This is because the predominant conception in the area of adoption is built on the assumption that the adoption arrangement is designed first and foremost to provide a suitable response to the needs of needy children in cases in which the natural environment into which they were born and in which they were  being raised was not capable of providing their basic needs. Handing a child over for adoption, and realization of the parenthood of the adoptive parents are an important by-product to which great moral value is attributed by society, but realization of parenthood by way of adoption is not the major purpose of the institution of adoption.

25.    Adoption provides a response to the yearning of people to realize parenthood of children. Its importance from this aspect is obvious. At the same time, the state adoption arrangements are not part of a prospective adopter’s constitutional right to a family and to parenthood, and it does not establish a derivative constitutional right of that person to demand that the state enable realization of parenthood by means of adoption. As a citizen, he has a right to expect that the adoption arrangements will be applied by the state in a proper manner that comports with the criteria of public law, but this does not give rise to rights on the constitutional plane.

The focus of the child adoption arrangements under the Adoption Law is the best interests of the child whose natural environment and biological family cannot supply his basic physical and psychological needs. They confer on the state the power and authority to intervene in the natural family unit in order to safeguard the welfare of the minor child where the essential conditions for his growth are unavailable to him. The crux of the institution of adoption in the modern era is the wellbeing of the child, whose physical and psychological needs require attention (H.E. Still-Caris, “Legislative Reform: Redefining the Parent-Child Relationship in Cases of Adoption”, 71 Iowa L. Rev. (1985-6), 265).

The Adoption Law, in its basic conception, is directed at the wellbeing of the child. Section 1(b) of the Law, which constitutes the basis and corner-stone for an adoption order, states:

“An adoption order and every other decision by virtue of this Law will be issued if the Court deems them to be in the best interests of the adoptee.”

The arrangement in the Adoption Law is built on the basis of concern for the welfare of the child, recognition being accorded to the status and the constitutional rights of the biological parents to a family relationship and to realization of their parenthood, and subject to the provisions of the Law. The Adoption Law does not presume the existence of a right to adopt; it presumes the possibility of the existence of the ability to adopt when certain conditions of eligibility are fulfilled (sec. 3 of the Law): age and religion (secs. 4 and 5), and a successful trial period (sec. 6).

Indeed, a person’s decision to realize his parenthood by way of adoption belongs in the area of personal autonomy, which is protected from external state intervention. However, actualization of this decision goes beyond the bounds of personal autonomy, and it is subject to the adoption arrangements determined by the state, the main purpose of which is to promote the interests of the child, with those seeking to adopt fitting into the process of adoption in furtherance of the purpose of the welfare of the child, which will always be the central interest and concern of the institution of adoption (CFH 7015/94 Attorney General v. Anon. [13]).

26.    The centrality of the principle of the best interests of the child in adoption proceedings is also a leading theme in the Convention on the Rights of the Child (which Israel signed and ratified) which states:

‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration . . .’ (art. 21).

The child enjoys an independent legal status, he is the subject of rights and obligations, and the accepted law is that in every decision that is taken in his regard, consideration must be given, first and foremost, to his best interests:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’ (art. 3(1)).

The Committee for Examining Basic Principles in the Area of the Child and the Law and their Application in Legislation, chaired by Judge Saviona Rotlevy (December 2003), related to this matter in the following terms:

‘The Convention creates a broad duty on the part of states in all concerning the application of the principle of the best interests of the child. First, in determining that in relation to every action or decision undertaken in relation to children by the various state authorities, the best interests of the child will be the paramount consideration. In this way the Convention introduces the criterion of the best interests of the child into every public enterprise concerning the child, and into each action undertaken by private entities in the area of welfare. The significance of this determination . . . is that the whole body of rights, needs and interests of children enjoys a certain substantive priority over other considerations when a decision involving them is being made. This priority stems from the fact that the decision or action under discussion involves the child himself, and it is therefore natural that the determination in the framework of such decision or action will concentrate on the child himself’ (General Part of the Report of the Committee, at pp. 128-129).

(On the implementation in Israel of the Convention on the Rights of the Child see also: Israel Report of the Implementation of the Convention on the Rights of the Child, Ministry of Justice and the Ministry of Foreign Affairs, submitted to the United Nations Committee for the Rights of the Child in February, 2001, esp. pp. 154-160, which discuss adoption. On the historical development of the concept of “the best interests of the child” see: J. Ben-Or, “On the Meaning of the Concept ‘Best Interests of the Child’”, 29 (5734) Hapraklit, 608. On the transition from the “best interests of the child” to the theory of “the rights of the child” see: Y.S. Kaplan, “Children’s Rights in Israel Case Law – First Stage of Transition from Paternalism to Autonomy”, Hamishpat 7 (2002), 303; and Anon. v. Anon [3]).

27.  The best interests of the child in terms of the Adoption Law are incompatible with the existence of a recognized legal right of a person seeking to adopt. The assumption regarding such a right distances the best interests of the child from the focus of interest of the institution of adoption, and it cannot be reconciled with the idea that the state has a humanitarian duty to care for needy children as an absolute aim which is not subject to the rights of others. Consideration of the aspirations of those seeking to adopt at the level of realization of this right would combine external considerations with those of the interests of the child, and detract from the realization of this central principle. This approach finds expression in the case law and the legal literature: they contain no legal recognition of the right of a person to demand that the state hands him a child for adoption, the child being an independent entity, with rights and existence of its own, unless this is essential for the purpose of protecting his welfare and best interests, and for that purpose alone. The duty of the state to safeguard the welfare of children in the hands of adoptive parents who are fit for that rule, in a situation in which the biological nuclear unit to which the child belongs cannot provide an appropriate response (cf. HCJ 415/89 Alon v. Child Services [14], at p. 791). The focus of the duty is on the best interests of the child. It does not encompass the aspirations of the prospective adopter to the extent of conferring upon him a legal right.

‘No person has the right to adopt a child. The argument that every citizen has the right to adopt rests upon a conception that has long disappeared from the enlightened world’ (per Vice-President Mazza in CA 10280/01 Yarus-Hakkak v. Attorney General [15], at p. 93).

This was discussed by C. Goldschmidt in his article “Adoption, Common Law Marriage and Homosexuality” (Hamishpat 7 (2002), 217), who said, inter alia (at p. 238):

‘It is not my intention to argue that a person has a “right” to adopt a child: there is no “right” here opposite which stands a duty of the state. The argument concerning the “right to adopt” of every citizen is an argument that rests on the proprietary conception of children, an argument which has long disappeared from the enlightened world . . . . Moreover, the right is that of the child, the right to grow up in a regular family unit, which will provide him with all that he needs for his development and growth until he is an adult who can take care of himself. The state bears a duty to provide the basic conditions so that the right of the child is not violated, particularly in situations in which the family unit itself does not succeed in providing these . . .’

28.    Under comparative law, systems that are similar in their approach to the Israeli legal system, have not recognized a basic constitutional right to adopt a child in the broad sense.

In the United States, the existence of a right to adopt as a constitutional right has not been recognized:

‘It is manifestly clear that not every prospective adoptive parent has an expectation or entitlement sufficient for the recognition of a constitutional liberty interest in the right to adopt a child’ (2 AM. Hur. 2d Adoption §14 (1994)).

In the American case law presented to us by counsel for the state in the supplementary summation, a series of judicial rulings were cited to the effect adoption is not to be regarded as a constitutional right, and that such recognition would be liable to upset the correct balance between the various considerations and interests involved in the process of adoption.

Owing to their importance, we will quote at length from these cases (all emphases added). In Griffith v. Johnston 899 F. 2d 1427 (1990), the Court said as follows:

‘Although the Supreme Court has rendered decisions defining various elements of family relationships as “fundamental interests” none of those cases announced a “fundamental interest” in adopting children. What consequences would flow from the recognition of such an interest are unclear. The adoption process is now heavily regulated by states for the protection of all parties involved . . . . If the right to adopt is “fundamental”, must the courts review whether states may require that adoptive parents be sane, honest, financially capable or otherwise qualified to be good parents? When does the “fundamental right” to adopt overcome the right of privacy of the birth parents? May the state decide that certain kinds of children, contrary to the wishes of particular prospective parents, may not be adopted? To assert that such an individualized “fundamental right” exists is sloganistic and oxymoronic, since society must balance the interests of at least three parties – birth parents, child, adoptive parents – when legitimating adoptions.’

See also the judgment in Lofton v. Secretary of the Department of Children and Family Services, 356 F. 3d 804 (2004), as follows:

‘Neither party disputes that there is no fundamental right to adopt, nor any fundamental right to be adopted . . . see also Mullins v. Oregon, 57 F. 3d 789 (9th Cir. 1995) (“Whatever claim a prospective adoptive parent may have to a child, we are certain that it does not rise to the level of a fundamental liberty interest.”), Lindley 889 F. 2d at 131 (We are constrained to conclude that there is no fundamental right to adopt"). Both parties likewise agree that adoption is a privilege created by statue and not by common law . . . Because there is no right to adopt or to be adopted, it follows that there can be no fundamental right to apply for adoption.’

In addition, see the decision in Behrens v. Regier, Secretary of the Florida Department of Children and Families, 422 F. 3d 1255 (2005): here too, the ruling was that there is no recognized right of adoption, and that at the center of the process of adoption is the rights of the child, as opposed to those of the prospective adopter:

‘Beherns has failed to point to any provisions of Florida law that grants prospective parents, like him and his wife, the right to adopt an unrelated child. In fact, Florida courts have held that no such right exists. . . . .

Additionally, Behrens cannot establish that, under Florida law, he has any legal claim of entitlement to have his adoption application approved. . . . Florida adoption laws – like the adoption laws of most states – provide that the decision to place a child in a prospective home is a discretionary one, where “the best interests of the child” always govern. . . . Hence, adoption is not viewed from the perspective of what rights prospective parents may possess; rather the “intended beneficiary of [an adoption] proceeding is the child to be adopted.”’

The State also referred to the analysis of the American case law on this matter in L.D. Wardle, “Preference for Marital Couple Adoption – Constitutional and Policy Reflections”, 5 Journal of Law and Family Studies (2003) 345.

In explicit provisions in the Adoption Law of the State of New South Wales, 2000, Australian law clearly states that a person does not have a right to adopt a child. Section 8 of the NSW Law prescribes:

‘8(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as practicable or appropriate) to the following principles:

(a) the best interests of the child, both in childhood and later life, must be the paramount consideration.

(b) adoption is to be regarded as a service for the child, not for adults wishing to acquire the care of the child.

(c) no adult has a right to adopt the child. . . .’

The Adoption Law, 1994 of the State of Western Australia states, in the Second Appendix to the Law, that there is no right to adopt:

‘1(3) There is no right to adopt a child. The adoptive or prospective adoptive parent with whom the child is placed with a view to the child’s adoption has the right to bond to the child.’

The State in our case also cited case law of the European Court of Human Rights. The European Council for Human Rights determined, on a number of occasions, that no right to adopt arises by virtue of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On this subject, the court in the case of X and Y v. United Kingdom, (977) 12 DR 32 said as follows:

‘Whilst it is implicit in Article 12 that it guarantees a right to procreate children, it does not as such guarantee a right to adopt or otherwise integrate into a family a child which is not the natural child of the couple concerned".

See on this matter also the ruling in Dallilla Di Lazzaro v. Italy Eur. Commn. HR, App. No. 31924/96, admissibility decision of 10 July 1997, 90 DR. 13:

‘The right to adopt is not, as such, included among the rights guaranteed by the convention and . . . Article 8 does not oblige States to grant to a person the status of adoptive parent or adopted child.’  

See also X. v. Belgium and the Netherlands, (1975) 7 DR 75; X v. Netherlands, (1981) 24 DR 176.

In Frette v. France, 36515/97 [2002] ECHR 156, the European Court for Human Rights ruled that the decision of the French authorities to reject the application of an unmarried man with homosexual tendencies to adopt a child does not in contradict art. 8 of the European Convention on Human Rights. The court said as follows:

‘The court notes that the Convention does not guarantee the right to adopt as such. Moreover, the right to respect for family life presupposes the existence of a family and does not safeguard the mere desire to found a family. . . .’

And further on it stated:

‘Adoption means “providing a child with a family, not a family with a child” and that the state must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect. The court points out in that connection that is has already been found that where a family tie is established between a parent and a child, “Particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. . .”.’ 

See also the ruling of the European Court in Pini v. Romania [2004] ECHR 780/01.

Similar rulings were handed down in England, where it was held that a person does not have a right to adopt a child, and that in circumstances in which the adoption had not been completed or where there were no de facto family ties, there is no protected meta-right: Thomson & Ors, R o the application of) v. The Minister of State for Children [2005] EWHC 1378 (Admin) (04 July 2005).

It is important to note –  and the State addressed this in its pleadings –   that regarding the existence of a right to adopt, there may well be a distinction between a normal situation in which the adoption of a child is sought in a regular adoption process in which the prospective adopter has no prior connection with a particular child, and a situation in which adoption is sought when in reality a de facto family exists for all intents and purposes, i.e., when full and complete family ties have already been established in practice between the prospective parents and a particular child. Foreign case law has considered such a possible distinction, negating the existence of such a right in the first case and tending to recognize the right in the second (see the decision of the constitutional court in South Africa in Du Toit and Another v. Minister for Welfare and Population Development and Others, (2002) 13 BHRC 187.

It should be emphasized that we are not dealing here with the special situation of an application for adoption aimed at conferring recognized legal status upon an actual familial parent-child relationship that hs developed: such a situation which may well support a claim to an existing constitutional right to formalize the existing family relationship in the framework of adoption, within the parameters of the wider constitutional right to a family. Rather, our concern is with the question of the existence of a constitutional right to adopt a child in general, in the absence of any prior connection between the person seeking to adopt and a particular child.

29.    Even though a right of prospective adopters is not recognized, they may have a legal interest that must be considered before the adoption order is issued. This is not a legal right, but a legitimate expectation that must be taken into acount when exercising administrative and judicial discretion. In the course of the adoption process, and prior to issuing an adoption order, the dominant consideration is the best interests of the adoptee. Alongside this consideration, the court considers the rights of the natural parents. It also considers the interests of the prospective adoptive parents, when they are raising the child in their home:

‘. . . It is also appropriate to consider the interests of those seeking to adopt the minor child. They do not have a right to custody of the child, but they do have an interest that must be considered. Even though this interest does not have the weight of the right of the natural parents, it too is a factor that must be taken into account’ (per President A. Barak in CA 577/83 Attorney General v. Anon. [16] at p. 471).

Neither do those to seek to adopt have direct standing in the preliminary stages of adoption proceedings. This standing is accorded to the biological parents and the Attorney General as representing the public interest. The prospective adopters do not stand in the forefront of the proceedings, but only behind the scenes (LFA 6930/04 Anon. and Anon. Prospective Adoptive Parents of the Minor v. Biological Father [17]; and see Maimon, supra, at pp. 30-34.)

30.  In its basic concepts, the institution of adoption rests on the humanitarian duty of the state to pursue the best interests of children whose biological families cannot respond to the basic requirements of raising them, and to integrate these children into life in adoptive families in which they will be able to grow and develop in conditions of physical and psychological wellbeing. This primary aim of the adoption arrangements also provides a response, as a by-product, to the desparation of childless couples to adopt a child, or to the desire of parents of biological children who wish to adopt another child. These prospective parents have a legitimate expectation that a suitable arrangement will exist, the criteria and means of implementation of which are conducted in a proper manner. They do have the right that their application for adoption be treated fairly, in good faith, out of relevant considerations and without discrimination. This right does not amount to a right to adopt; a fortiori it does not amount to a constitutional right to adopt, derived from the right to a family and to parenthood. Prof Shifman explained this in his abovementioned work, at pp. 145-150:

‘This institution [of adoption – A.P.] is clearly almost the absolute opposite of the previous model, which was characterized by the autonomy of the individual in natural reproduction. In the adoption of children, we have a selective distribution, controlled totally by the state, that operates through the welfare authorities . . . what is the justification for the selective distribution of children for adoption, which is controlled totally by the welfare authorities? . . . A number of answers and explanations can be offered for the phenomenon of intervention in adoption. The preliminary explanation is: the scarcity . . . as a result of a scarcity in supply, and of the constant rise in the number of those applying to adopt, the adoption authorities are forced to tighten the criteria of “entitlement” to receive a child, and the waiting periods until the child is handed over stretch out . . . But we must point out that considerations of scarcity, per se, are not the only consideration supporting the need for state intervention. The other, and possibly determinant consideration, is the welfare of the child. In truth, the preliminary orientation of the institution of adoption is the solution of the problem of homeless children, and only indirectly, and as a secondary goal, is the anguish of childless people who wish to adopt a child likely to be relieved. It must be stressed:  A person does not have the right to adopt a child. His right is not to suffer adverse discrimination relative to other applicants, and that he be treated fairly, and without superfluous bureaucracy; but the point of departure is the best interests of the child. . .

In any case, we may sum up and say that in the adoption at hand, there are several cumulative factors that create the model of intervention: first, the scarcity of children; second, the desire to safeguard the best interests of the child who has already been born; third, the effective ability to intervene in light of the need for the involvement of other people, other than the couple themselves; fourth, the intervention does not affect the intimate decisions of the couple themselves, nor their freedom over their bodies; and finally, in adoption, society is providing positive assistance to the will of the couple to become parents. These factors do not operate in the natural reproduction of a child, at the stage at which his parents decide whether to bring a child into the world’ (and see also at pp 52-53; emphasis added).

31.    Even though prospective adopters have no recognized legal right to adopt, the state must take into consideration and respect their expectation to do so as a natural and legitimate one, and as an important factor in finding a fitting solution to the main purpose of adoption – to promote the best interests of the child in need. And indeed, among the criteria for adoption set by the state institutions (the Child Services in relation to domestic adoption, and the Minister of Labor and Welfare in intercountry adoption) may be found a type of merger between considerations of the “best interests of the child” that are not detached from general social considerations, and the desire to establish a fair administrative arrangement in relation to those who seek to adopt (Shifman, supra, at p. 148). 

32.    In summary, we cannot accept the argument of the petitioners whereby those who seek to adopt have a constitutional right to do so, and that the state must provide a response to this right for otherwise, it would be violating a constitutional right that is subject to the principles of the limitations clause. During the course of the adoption process and prior to the adoption order, those seeking to adopt have a natural expectation and a recognized interest. A legal right, and a fortiori a constitutional right to adopt, are not recognized. This does not detract from the fact that upon completion of the adoption process with the issuing of an adoption order, a relationship of full duties and rights that characterizes parent-child relationships is created between the adopted and the adoptee, replacing the biological blood ties of the child with his original family, and a new family unit, bearing constitutional rights, is created.     

The argument of the petitioners on the constitutional level must, therefore, be dismissed. Their arguments on the administrative level ought now to be examined, insofar as they relate to the administrative acceptability of the maximum age difference rule according to the criteria of public law.

The administrative level

33.    On the administrative level, it was argued that the maximum age difference rule does not meet the criteria of public law, and that it harms the petitioners in two respects: the first – in the unreasonableness of the age difference that was set in the rules and in the creation of a rigid rule, that fixes an age difference between the adopter and the adoptee in relation to the process of intercountry adoption with no allowance made for special circumstances; the second – in that the petitioners’ group suffers discrimination vis-à-vis groups who seek to adopt in a domestic process, in relation to whom no similar rigid rule exists. In analyzing the administrative arguments, we will concentrate on the area of judicial review of administrative rules that by their nature constitute secondary legislation that was submitted to the Knesset for approval, as is the case with the rules in question (Y. Zamir, Administrative Authority vol. 1 (5756-1996), at pp. 75-85; HCJ 4769/90 Zidan v. Minister of Labor [18], at p. 172).

The background to the formulation of the maximum age difference rule

34.  The Rules and Professional Guidelines for the Activity of a Recognized Non-Profit Organization, 5758-1998, which are the relevant rules here and which include the maximum age difference rule, were issued by the Minister of Labor and Welfare on the basis of the recommendation of the Advisory Committee by virtue of sec 28F of the Adoption Law. The members of the Committee include an expert in the field of social work, the chief welfare officer for the purpose of the Child Adoption Law and the Central Authority for Intercountry Adoption under the Law, the national inspector for intercountry adoption in the Ministry of Labor and Welfare, head of the advisory department in the Ministry of Justice, and a rabbi. This Committee was established for the purpose of advising the Minister “on matters of intercountry adoption, including recognition of an adoption association, withdrawal or suspension of recognition of an adoption association, the establishment of professional guidelines and rules for the mode of operation of a recognized adoption association and its supervision  (sec. 28F(a) of the Law). This is a professional body whose considerations are professional. The said rule concerning the maximum age difference, too, was laid down on the basis of professional considerations relating to the welfare of the child that were weighed by the Advisory Committee and submitted as recommendations to the Minister. Accordingly, the petitioners’ argument whereby the rules were fixed without the requisite factual and professional basis must be dismissed. In the framework of his considerations, the Minister initially decided that the maximum age difference would be 45 years. On 23 December 1997, a proposal was submitted to the Law and Constitution Committee of the Knesset with additional regulations on the matter of intercountry adoption. Following deliberations in the Committee, which related, inter alia, to the question of the age difference, the proposal was amended and the age difference was extended to 48 years. It was also decided that the determining date for calculating the difference would be the date of submission of the request to adopt. After these changes were made, the Committee approved the rules (Protocol no 136, Session of the Law and Constitution Committee of 23 December 1997, R/2 – Response of the respondent to the original petition). The rules, therefore, were approved by the Law and Constitution Committee, as required by s. 36(a) of the Adoption Law.

Reasonableness

35.    An examination of the reasonableness of an administrative act, including secondary legislation, requires a suitable balancing of relevant considerations:

‘The reasonableness of a decision is determined by balancing the values competing for supremacy, according to their weight, and deciding between them at the point of friction. Our concern, therefore, is with the doctrine of balancing in our public law.  This is invoked where there is governmental authority, the exercise of which grants discretion that must take into account conflicting values and interests (per President Barak in HCJ 5016/96 Horev v. Minister of Transport [19], at p. 37; see also HCJ 953/86 Poraz v. Mayor of Tel Aviv-Jaffa [20]; HCJ 217/80 Segal v. Minister of the Interior [21]; HCJ 935/89 Ganor v. Attorney General [22], at pp. 513-514).

The balancing is effected by attributing relative weight to the various interests. “The act of ‘weighing’ is a normative act. It is designed to allocate to the various factors their place in the legal system, and their social value within the entirety of social values (per President Barak in HCJ 5016/96 Horev v. Minister of Transport [19], at p. 41).

36.    Unreasonableness of secondary legislation constitutes independent grounds for an administrative challenge (HCJ 4769/90 Zidan v. Minister of Labor [18]), at p. 172). Judicial policy in reviewing the reasonableness of secondary legislation is guided from a point of departure that seeks to protect the statutory norms laid down by an administrative body, as well as the expectation created by that legislation amongst the public. Accordingly, the court, as a rule, will not intervene in the discretion of the administrative body in relation to the secondary legislation that it formulated, unless the unreasonableness of that legislation goes to the heart of the matter “and it is almost certain that, according to the correct degree of reasonableness, the authority would not have been able to reach a decision of that sort” (Justice Elon in HCJ 558/79 Jamal v. Jewish Agency [23], at p. 429).

‘In such a case, the court is bound to act with restraint and forbearance, so that it should not be found to replace the discretion of the administrative authority with its own discretion. It has therefore been held that only unreasonableness of a high degree – “extremely radical” . . . or “exaggerated” . . . is likely to justify judicial intervention in the validity of secondary legislation. Moreover, the court must exercise special caution before intervening in secondary legislation that has obtained the approval of one of the Knesset committees’ (HCJ 4769/90 Zidan v. Minister of Labor [18]), at p. 172; and see CA 492/73 Speizer v. Council for the Regulation of Gambling in Sport [24], at p. 26).

The reasonableness of secondary legislation is assessed, inter alia, in light of its general purpose, even if in the specific case it may cause injustice (HCJ 702/81 Mintzer v. Central Committee of the Israel Bar Association [25], at p. 13; CA 438/88 Barak v. Registration Committee for the Registry of Psychologists [26], at pp. 671-672). The criteria for judicial review of an act of secondary legislation from the aspect of reasonableness focuses on the parameters of reasonableness within which various options are possible, each of which may meet the criteria of proper administration. It is sufficient that the legislative act fall within these parameters in order for it to meet the criteria of administrative reasonableness.

From the general to the specific

37.  The first basic assumption in determining the reasonableness of the maximum age difference rule is that setting specific criteria for the eligibility of prospective adopters is dictated by necessity, in order to establish a system of clear, organized norms in a field that is so sensitive and fateful in a person’s life. The Court related to this when it said:

‘The area of the processes for preparing the lists of adopters or selecting the prospective adoptees, including screening and examining them, ought not to be conducted other than on a clear normative basis; it should be subject to the defined responsibility of a governmental body, whose decisions and modes of operation are subject to review in light of clear criteria. In other words, the authority to deal with these pre-judicial areas should be fixed by law, in order to define, inter alia, who will determine the principles of operation and what are the means for challenging or appealing the various decisions at the said stage, at which there is not yet the possibility of recourse to legal processes according to the above law. It is very possible that it would indeed be reasonable if provisions such as these were to find their place in the Adoption of Children Law, and this may be effected by authorizing the Minister of Justice, in consultation with the Minister of Welfare, to make regulations, inter alia, in all concerning the means for determining prospective adoptees, the means for determining eligibility, appeals and objections and other such provisions. At present the matter is not regulated by law, and this must be corrected’ (HCJ 415/89 Alon v. Child Services [14], at pp. 790-791).

38.    A second basic assumption is that criteria are set solely in pursuit of the child’s best interests. In the framework of this principle, it is only natural to regulate, as well, the suitable and reasonable age difference between the adopters and the adoptee. Such determinations are accepted in many states world-wide. Already at the time of the debate on the Adoption Bill in 1959, it was proposed to set a maximum age for adoptive parents, since “the child’s best interests require not a grandfather’s house, but father’s house” (Knesset Proceedings 25, at pp. 934-935). This proposal was not adopted in the Law, but the maximum age limit was set by the Child Services, which is the organ responsible for determining eligibility of prospective adopters (Maimon, supra, at pp. 111-112). As opposed to this, the Law prescribed a minimum age difference between adopter and adoptee, which stands at 18 years. There is an exception: the court has the authority to deviate from this rule where it is in the best interests of the adoptee to do so (ss. 4, 25 of the Adoption Law).

39.  The third basic assumption is that the factor of the suitable age difference, including the maximum age difference between the adoptive parent and the adoptee, is a matter for professionals, and belongs in the fields of social, psychological and educational science. The purpose of setting an age difference is focused entirely on the best interests of the adoptee: this is the guiding principle underlying adoption, and the entire system of adoption is built upon it. The question of whether the best interests of the child are indeed affected, inter alia, by the difference in age between himself and his adoptive parents, and what ought to be the maximum and minimum age differences for this purpose, is a professional question, and as such it is clearly a matter for the discretion of the authorized body, which for this purpose has recourse to the opinions of professional bodies from the various relevant fields.

40.    As transpires from the response of the respondent, and from the deliberations in the Knesset Constitution Committee, the Advisory Committee held many discussions on the subject of the appropriate age difference for the purpose of intercountry adoption, and the rule that was formulated relies on a professional conception, as evident from the “Summary of the Position on the Matter of Deviation from the Maximum Age Difference” of 20 August 2002, which was drawn up by the Chairman of the Advisory Committee, Prof. Joseph Tamir, and submitted to the Court (hereinafter: “Advisory Committee Position Summary”). In this document, inter alia the rationale behind determination of the maximum age difference rule was explained:

‘The Committee commenced with a discussion of the subject of parenthood and the skills it required. It noted that parenthood is not a one-off event, but a process that requires changing skills according to the age and development of the child . . . . The parent of an adolescent must have the capacity for flexibility, concession, responsiveness to the emotional needs – which are sometimes confusing – of the youth . . . . Such (adoptive) parenthood must incorporate the skills required from biological parenthood, and in addition, special awareness of the complexity of the subject of adoption. Adoptive parenthood is, therefore, a more challenging parenthood, requiring a wider range of skills and greater parental capacity to deal with complex situations,  and constant learning of the subject of adoption. Therefore, the Advisory Committee gave its support to the existing age constraint, since the professional knowledge indicates that the capacity for flexibility and learning declines with an increase in age. The Committee envisaged an adolescent of 15 with one parent aged almost 65 and the second parent much older than that. Thus the generation gap between the adopter and the youth is not a gap of one generation but of at least two generations, with all the implications thereof. Experience in the Child Services teaches that the generation gap increases the sense of otherness of the adopted child, who feels that he is not growing up in a normative family, and that his parents are different from other parents.’

Similar thinking emerged during the discussions in the Constitution Committee, in the words of Nechama Tal, the social worker in the Ministry of Welfare:

‘To be a parent is a difficult job. To be an adoptive parent, is ten times more difficult. Today we are in the situation in which people who were adopted both as babies and as children come back . . . First of all, the age of the parents is extremely significant– most of the children who were given to older couples complain a lot about this. In what sense? In the sense that an adopted child, because he has “built-in” problems of identity from the fact of being adopted, at the age of adolescence has much greater difficulty in undergoing the experience of his adoption, of adolescence and of his identity, than a regular child . . . I am talking about my experience, I have been in the Service for twenty years . . . therefore, for parents to go through such a stormy age of adolescence, when they themselves are 65 years old, is a difficult thing . . .’ (Protocol of the session in the Law and Constitution Committee, 23.12.97, pp. 25-26).

41.    The foundation of the rule, therefore, is the conception that an suitable age gap between the adoptee and the adopter is an important element in achieving a good and proper parental connection in adoption relationships. Too great an age difference between the adopter and adoptee is liable to make it difficult to create a close, understanding and sensitive relationship between parents and child, and to be detrimental to his welfare. The requirement that the age gap not exceed a certain difference is extremely important for the creation of good communications within the family and to the building of a healthy set of relationships within the family unit in order to achieve the aims of the adoption.

It should be added that setting a maximum age different is stems from the outlook that adoption relationships look to the future, and continue over the years, throughout all the stages of the life and development of the adoptee. Attainment of the purpose of the child’s wellbeing does not focus on one point of time close to the time of adoption, but it spreads over a span of many years, beginning with the first years of the child’s life, and extending to the years of his growing up until he is an adult. Too large an age difference is liable to make it difficult for adoptive parents to cope with the special needs of educating an adopted child. They are liable to entail other difficulties when the child is growing up, involving difficulties of communication and in providing a response to the needs of the maturing child. One should also not underrate the importance of ensuring the prospects of a  reasonable lifespan and the good health of the adoptive parent – which decrease with age – in order to ensure, insofar as possible, that the adoptee has a warm family unity and a complete, protected framework for the duration of his childhood and his youth. Primarily, the maximum age difference rule strives to conform to the average accepted age difference in natural parenthood, leaving wider margins in the intercountry adoption process. The approach whereby the model found in nature is the marker that in general reflects the ideal natural situation is a desirable approach, not only from the point of view of physical suitability, but also from the point of view of psychological suitability. Setting the maximum difference at 48 years constitutes a significant extension of the age difference familiar in nature, and it is difficult to say that an additional extension is required in order to meet the criterion of reasonableness.

42.    Regarding the age difference that was set in relation to intercountry adoption, it is important to note that in this area in particular, the secondary legislator acted leniently with respect to adoptive parents, when he set a maximum gap at 48 years. In domestic adoption, the age difference is set at 43 years, pursuant to the amended “Procedure Approving Prospective Parents for Adoption” of the Child Services, which is the body responsible for handing over children for the purpose of adoption. From this aspect, the Committee assigned weight also to the expectations of those seeking to adopt, and permitted a larger age gap in relation to intercountry adoption than in domestic  adoption.

‘It should be noted that the Committee gave serious consideration to the subject of the desire of the prospective adopters, and views its task, inter alia, as helping people to realize this desire, taking into account the quality of family life. The said rule does not negate the right of the candidates to fulfill themselves as parents, but it limits the age difference in such a way that a candidate who is fifty, for example, will be able to adopt a child of two and thus realize his desire for parenthood. The right to parenthood is not only for a baby. Representatives of the Child Services pointed out to the Committee that in their experience, the adoption of a child (not a baby) can be handled well and lead to satisfaction of the yearning for parenthood on the one hand and great benefit for homeless children on the other’ (Advisory Committee Position Summary, ibid.)

43.    Several additional aspects relating to the maximum age difference rule should be mentioned:

(a)   The meaning of the rule is that exceeding the maximum age difference does not totally negate the possibility of adoption. The rule works in such a way as to enable adoption, as long as there is compliance with the maximum age difference. Thus, an adoptive parent who is over the age of 48 can adopt a child whose age comports with the maximum difference or less. In these circumstances, the possibility of adopting is preserved, and the adopter is required to compromise in relation to the factor of the age of the child at the time of adoption. An examination of the existing statistics on adoption that arise from the respondent’s response reveals that the adoption of new-born babies is only a very small part of the total adoptions by Israeli parents. Only 14% of child adoptions relate to babies up to 6 months old; 40% of the adoptions are of babies up to the age of one year, and 25% relate to babies till the age of 18 months.

(b)   Even though the formulation of the rule on this matter is not sufficiently clear, it would appear that the requirement for a maximum age difference of 48 years between the adopter and the adoptee relates to only one of the couple. The requirement does not apply to both partners. One partner may well be older and exceed the maximum age difference, and this will not prevent the adoption by the couple (respondent’s interpretation of the rule in s. 14(b) of the State’s response to the amended petition).

(c)   The maximum age difference relates to the day of submission of the application for adoption, and not to the actual date of adoption. Hence, a prospective adoptee will not suffer, from the aspect of the maximum age difference rule, from the adoption proceedings being drawn out.

(d)   It was argued that the maximum age difference rule is tainted with unreasonableness, since it is presented as an inflexible rule that does not allow the competent authority discretion to depart from it in appropriate circumstances. In the course of the hearings on the petition, the State was asked to consider whether the maximum age difference rule could be relaxed by allowing discretion. After further deliberation, the State announced that the introduction of such flexibility was not warranted. Its reasons were as follows: first, there is a concern that allowing exceptions to the maximum age difference rule would lead to a natural positioning of the focus on those seeking to adopt, in departure from the principal purpose of the norm, which is concerned with the best interests of the child. Secondly, deviation from the maximum age differences places a question mark over the effect of the age gap in the years to come, the impact of which is difficult to foresee at the time of the adoption proceedings. Thirdly, the maximum age difference in intercountry adoption is greater than the norm in domestic adoption, and this already reflects a significant relaxation of the appropriate and reasonable gap. Any further relaxation, by way of creating exceptions, upsets the appropriate balance. And fourthly, the existence of clear rules relating to the eligibility of adopters in the framework of the professional activities of the adoption associations is important. The process of intercountry adoption is executed by private bodies with the oversight of the state. The existence of clear, uniform criteria will facilitate the operation of the adoption associations, and it will ensure equal, non-discriminatory treatment and that the wellbeing of the child is seen as the principal aim.

The cumulative weight of the above reasons leads to the conclusion that the maximum age difference rule falls within the bounds of reasonableness. This rule focuses on the best interests of the child as required, and it is compatible with the purpose of the institution of adoption. The limitation on the age difference between the adopter and the adoptee is directed at the welfare of the adopted child at various points in time along the axis of the years of his life in the course of his childhood, his adolescence and his youth. It is designed to help in creating relationships textured with warmth, sensitivity and understanding within the new family unit that is built around the adoption. At the same time, the rule is more lenient in relation to adopters in intercountry adoptions than domestic adoptions in that it allows for a greater age gap. The limiting rule does not negate adoption by older parents, as long as the age of the adoptee at the time of the adoption is not outside of the maximum permitted gap. This is a commendable, balanced, relevant and professional arrangement that answers the purpose of the institution of adoption. There is no cause to intervene since the arrangement is not defective due to unreasonableness.

The claim of discrimination

44.    The petitioners claim that the maximum age difference rule is tainted by discrimination that distinguishes them vis-à-vis other population groups, as follows: first, in relation to parents who bring children into the world through natural birth, with respect to whom there is no state intervention even when the birth takes place at a late age, and when the age difference between the parents and the new-born is more than 48 years. Secondly, it was argued, that in relation to couples who wish to have a child by way of a surrogate, pursuant to the Embryo Carrying Agreements Law, there is no provision limiting the age difference, and therefore, in this sense too, there is a discriminatory situation in relation to the age provisions in intercountry adoption. This argument extends also to state assistance for those who resort to fertility treatments in order to give birth. Thirdly, it is argued, that there is discrimination between those seeking to adopt by way of intercountry adoption and those who seek to adopt by way of domestic adoption: in relation to the latter, the internal procedural directive grants discretion to deviate from the rule.

45.    One of the main functions of judicial review of the policies of the competent authority is to examine whether that authority acts in an equal manner and without discrimination towards different sectors of the population. The principle of equality is one of the basic principles of the constitutional regime, and it is a foundational value in public law and in judicial review of administrative acts (HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [27], at p. 201; HCJ 98/69 Bergman v. Minister of Finance [28], at p. 698). Unlawful discrimination that is contrary to the value of equality involves different treatment of equals and unequal and unfair treatment of those deserving of equal treatment. Inequality is engendered by creating distinctions between individuals or between matters for irrelevant reasons. At the same time, the existence of a material difference may justify a distinction, provided that the basis for the distinction has a relevant foundation (HCJ 678/88 Kfar Veradim v. Minister of Finance [29], at pp. 507-508; HCJ 6051/95 Recanat v. National Labor Court [30], at p. 312; HCJFH 4191/97 Recanat v. National Labor Court [31]; Y. Zamir and M. Sobel, “Equality Before the Law”, 5 Law and Government (2000), 165; HCJ 59/88 Zaban v. Minister of Finance  [32], at p. 706-707). Sometimes, it is precisely the aspiration to apply the value of material equality that justifies differential, differentiating treatment of different sectors, according preference to the weak and needy and detracting from the strong and able (HCJ 6778/97 Association for Civil Rights v. Minister for Internal Security [33], at pp. 365-366; HCJ 366/81 Bureau of Tourist Bus Operators v. Minister of Finance [34], at p. 117). Sometimes, affirmative action is required in order to correct deep gaps and unfairness that has increased over the years (see also HCJ 1703/92 C.A.L. Cargo Air Lines v. Prime Minister  [35]; HCJ 20594 Nof v. State of Israel – Ministry of Defense [36]).  Equality does not require identity. It requires equal treatment of people whose basic particulars are similar and are relevant for the same purpose, and as expressed by Justice Agranat:

‘The concept of “equality” in this context means, therefore, relevant equality, and this requires, for the purpose under discussion, “equality of treatment” of those who are characterized by the said situation. As opposed to this, it would be a permissible distinction, if the difference in treatment of different people was the outcome of their being, in consideration of the aim of the treatment, in a situation of relevant inequality, just as it would be discrimination if it was the outcome of their being in a situation of inequality which was not relevant to the aim of the treatment’ (FH 10/69 Boronowsky v. Chief Rabbi of Israel [37], at p. 35).

In our case, a clear relevant difference exists between the group seeking to adopt – to which the petitioners belong – and the other groups to which they referred in their pleadings.

46.    As for the group that includes biological parents who bring children into the world the natural way: as we mentioned at the beginning of our words, the right to a family and to realization of parenthood in a natural manner is a basic constitutional right that derives from human dignity. This right is by its nature a “liberty” that does not involve the correlative obligation of another, and the state is not entitled to intervene in the autonomy of the individual that it represents, other than in unusual and exceptional circumstances. As a result, the state is not entitled to intervene in an act of natural childbirth on the part of parents, even where the age difference between them and the child exceeds the maximum age difference under discussion here. At the same time, situations of such an age gap are rare and very exceptional, and they do not reflect the natural reality in relation to the majority of the population. Things are different in relation to adoption. The state controls the institution of adoption, which is its exclusive responsibility. The focus of the system is on the best interests of the child as a principal aim, and determination of the maximum age is an important element in promoting these interests. Prospective adopters can expect, at most, consideration on the part of the state. Against the background of this structure, the role and the obligation of the competent authority is to set criteria of eligibility for those seeking to adopt, which will provide the greatest possible benefit to the child, whose interests are the focus of the system.

There is, therefore, no equality between that sector of the population that includes the natural parents, whose decision whether and when to have a child is a matter of their personal autonomy and is beyond the sphere of intervention of the state, and between the group of prospective adopters, who require the assistance of the state in order to realize their goals. The state, as the factor responsible for the wellbeing of the child is permitted, and even has a public obligation, to set the conditions of eligibility for adoptive parenthood. The maximum age difference is a required condition. Setting the maximum age difference at 48 years is actually being very kind to those pursuing intercountry adoptions, in that it is based on a difference that substantially exceeds the accepted and common difference in natural parenthood, which normally fluctuates between 20-35 years. It must also be recalled that in domestic adoptions, the accepted age difference according to the rules is also lower than the rule under discussion here. In light of the above, the argument in this context must be dismissed.

47.    As for the group that has recourse to embryo carrying agreements, an amending announcement of the respondent clarified that in the past, the age of the prospective mother for the purpose of a surrogacy agreement was at most 48 years old. On this matter there was a change, and the competent authority decided that for the purpose of approving their candidacy for surrogacy, the Committee for the Approval of Embryo Carrying Agreements would take into account the age of the prospective parents, the starting point being the accepted age of natural parenthood. Age does not constitute a prerequisite, but a consideration when determining suitability, and for this purpose, the natural age of parenthood constitutes a starting point.

On this issue, too, we are not dealing with groups whose particulars are equal, but rather, with groups that are distinguished by substantive differences, which explains the difference in the arrangements concerning the required age differences.

First and foremost, cancellation of the age difference requirement in embryo carrying agreements does not, in these circumstances, make things easier for the applicants; on the contrary, it should be seen as making things more difficult for them vis-à-vis those seeking intercountry adoptions. Whereas beforehand, there was a precondition setting the age difference at 48 years, now it is a matter for the competent committee, and the relevant age is the accepted age of natural parenthood, which is the starting point for the appropriate difference. This condition means that in an embryo carrying agreement, the maximum age is significantly lower than that of intercountry adoption, at least as a starting point. In these circumstances, it could well be argued that there has been an increase in stringency in relation to those wishing to enter an embryo carrying agreement, vis-à-vis prospective intercountry adopters.

Secondly, there is a material difference between the process of surrogacy and that of adoption. Surrogacy is closer to natural parenthood, and its goal is to help couples to bring a child into the world, the child being related genetically to one of them. The closer the process of birth is to natural parenthood, the less justification there is for state intervention in the autonomy of private will, as stated by the Court:

 ‘. . . The process of adoption is similar to the process of surrogacy: both of them were intended to realize and satisfy the need of parenthood, and in both processes, the authorities are involved in one way or another. However, the process of surrogacy – unlike adoption, is very close to natural parenthood, which expresses the autonomy of the individual  . . . the difference between the process of adoption and that of surrogacy negates the analogy from the former to the latter  . . .’ (New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [8], at p. 448, per Justice Cheshin).

This difference is also evident in relation to the funding of fertility treatments, an area that is even closer to natural childbirth, and therefore, the arguments of the petitioners regarding discrimination vis-à-vis those who are helped by fertility treatments must be dismissed. In this context, the words of Prof. Shifman concerning the difference between the process of adoption and new reproductive techniques are apt:

‘. . . It would appear that most of the considerations for intervention in handing children over for adoption do not apply to the new techniques of reproduction. This is not a matter of a scarcity of children, nor of the desire to ensure the optimal welbeing of the child who has already been born. This is a matter of planning to bring a child into the world, which is close to natural childbirth’ (Shifman, supra, at p.151).

Thirdly, another difference between the process of surrogacy and that of child adoption lies in the authorities who are responsible for approving the sought-after process. Whereas the approval of an embryo carrying agreement is issued by a professional public committee that was established by virtue of the Law, approval of intercountry adoptions was placed in the hands of private adoption associations; public policy in this area aspires to establish norms of eligibility that are as clear and detailed as possible, which will dictate the mode of operation of the adoption associations while creating clarity, certainty and stability.

In light of the above, the argument, insofar as it concerns the relationship between intercountry adoption and embryo carrying agreements and state aid in funding fertility treatments, must be dismissed.

48.  Finally, it was argued that there is discrimination between those applying for intercountry adoption and those seeking domestic adoption. This argument, too, must be dismissed, even if only for the reason that the maximum age difference under the present procedure in domestic adoption is 43 years for the older one of the couple seeking to adopt (Rule 3.7 of the Procedure for Approval of Prospective Adoptive Parents, as amended on 1 June 2000). It was not made clear in the response of the State whether there is discretion to deviate from the rule, but even so, the internal rule is still more stringent, and does not create a basis for a claim of discrimination. In these circumstances, the argument of discrimination raised by the petitioners is unfounded, and must be dismissed.

Comparative law

49.    Both the petitioners and the respondent presented to us numerous examples from states worldwide, and each clung to its examples to strengthen its arguments. One side brought examples of states in which there is no set maximum age difference for the purpose of adoption; the other side brought examples of states which have set a more stringent age difference than that set in Israel.

Indeed, a survey of the situation in various states reveals that there is no universal legal policy on the question of the age difference between adoptive parents and their child. On the one hand, there are those states that set a level for the maximum age difference. In these states, the decision is usually more stringent than that in Israel. Thus, for example, in Denmark, Italy and Ethiopia, the maximum age difference is 40 years. In Germany, the law does not set a maximum age difference, but in the rules set by the administrative authority, a maximum difference of 40 years was prescribed. In Iceland the rule is that the adopter will be between 25-45 years old, and in South Korea, the age of an adopter may not exceed 45 years.  In other states, there is a maximum age for adoption, which is usually below 48 years. Thus, in Hungary, Holland and Hong Kong, the maximum age for adoption is 45. On the other hand, there are states in which there is no set maximum age difference or maximum age for the purpose of adoption. This is the situation in the United States and in England, in which age is indeed a factor that is considered in determining eligibility for adoption, but no defined, compulsory age has been set for this purpose. The petitioners did not provide any information concerning the actual practice in these states, and how the discretion given to the adoption authorities is implemented in practice. Without such information, it is difficult to know whether the absence of a rigid rule regarding the age of adoption or the maximum age difference is to the benefit or the detriment of those seeking to adopt in those states. Thus, for example, in England it was stated:

‘Although there is no prescribed maximum age, it should be appreciated that in practice, adoption agencies are unlikely to consider applicants over 40 (and often over 35) at any rate as potential adopters for healthy babies’ (N. Lowe & G. Douglas Bromley’s Family Law (9^th ed., 1998), p. 628).

Similarly, special arrangements exist in some states, such as Australia, in which the age requirement as a condition of adoption was cancelled, but it was decided that the applicants for adoption must comply with the age requirements of the state that is handing over the child for adoption.  

Looking at the law overseas does not, therefore, strengthen the arguments of the petitioners. Setting an age difference is accepted practice in many states. In some of them, there is a more stringent age difference, and in relation to states in which there is no binding rule, we do not have information on how the discretion of the adopting authorities is exercised in the application of the age requirements in practice.

A final word

50.    The rule regarding the maximum age difference between the adopter and the adoptee in intercountry adoptions does not violate constitutional principles. It complies with the criteria of proper conduct according to public law. It reflects an appropriate criterion, amongst the other conditions of eligibility of people seeking to adopt, which is designed to secure the best interests of the child by ensuring that the age difference between him and his adoptive parents will not exceed the reasonable norm. A balanced age difference between parents and children makes it easier to create harmony in relations between parents and children within the family unit, and it is important for the healthy growth and development of the adopted child. This consideration of the best interests and the wellbeing of the child is the cornerstone on which the institution of both internal and intercountry is built. The maximum age difference rule is fair, reasonable and non-discriminatory, and conforms to the basic purpose of the institution of adoption.

51.    In view of all the above, the petition in all its parts should be dismissed. In the circumstances, I would recommend that no order for costs be issued.

 

President D. Beinisch

Before me is the reasoned opinion of my colleague Justice A. Procaccia. The petition before us centers on rule 4(b)(1) of the Rules and Professional Guidelines for the Activities of a Recognized Non-Profit Organization, enacted by the Minister of Labor and Welfare in 1998. This rule, called the “maximum age difference rule”, states that a person wishing to adopt a child in the framework of intercountry adoption, will not be eligible to adopt if the age difference between himself and the child on the date of submission of the application for adoption exceeds 48 years. As was explained in the opinion of my colleague, the petitioners challenge the said rule on both the constitutional and the administrative levels. On the constitutional level, the petitioners argue that the maximum age difference rule violates realization of the constitutional right to family life and to parenthood, and that the said violation is unlawful in that it does not meet the criteria of the limitations clause. On the administrative level, the petitioners contend that the said rule is unreasonable and discriminatory. The main request of the petitions is that we order that the rule be changed in such a way as to allow departures from it in special cases justifying such departure, even when the age difference between the prospective adopter and the child exceeds 48 years. It will be noted that in the hearing held in this Court on 25 February 2007, the State agreed that the petition be heard as if an order nisi had been issued.

My colleague, Justice Procaccia, discussed the arguments of the petitioners one by one, and dismissed them for the reasons elucidated in her opinion. I agree with many of the normative rulings on which Justice Procaccia’s opinion is based.  Nevertheless, I wish to add my say on a number of aspects in which I differ from the path taken by my colleague. On the constitutional level, Justice Procaccia ruled that people seeking to adopt a child do not have a recognized legal right, and in her view, such a right ought not to be recognized on the meta-legal constitutional plane. As I will explain below, in my view, the matter is sensitive and complex, and I would therefore prefer to refrain from a firm ruling in the matter, for such a ruling is not necessary in the circumstances of the case before us. As for the administrative plane – my colleague’s conclusion was that the maximum age difference rule is fair, reasonable and non-discriminatory. My colleague’s words imply that this conclusion stands even if the existing legislation does not permit discretion to deviate from the said rule in exceptional, justified circumstances. For reasons that I shall discuss below, I am of the opinion that s. 36A of the Adoption of Children Law, 5741-1981 (hereinafter:  “Adoption Law”) must be interpreted in such a way that the statutory appeals committee that it established is authorized to consider applications for a departure from the maximum age difference rule in intercountry adoptions, in special, exceptional circumstances that justify such a departure. Taking this into account, I am of the view that the petition should be granted in part, in the sense that the possibility of considering a deviation from the maximum age difference rule is not a matter for the private adoption associations as requested by the petitioners, but it can be entertained by the statutory appeals committee under the Adoption Law.  I will clarify.

The constitutional plane

1.    As stated, the main argument of the petitioners on the constitutional plane is that the right to become a parent by means of adopting a child enjoys a constitutional, meta-legal status in our legal system, and the maximum age difference rule violates this right, contrary to the conditions of the limitations clause.

In relating to these arguments, Justice Procaccia ruled that that prospective adopters have a natural and legitimate expectation that their said desire be taken into account in the framework of the exercise of administrative and judicial discretion, and even a right to expect that adoption arrangements will be implemented by the state lawfully in accordance with the criteria of public law. At the same time, according to my colleague’s approach, none of these give rise to a recognized legal right (“a right by law”) to adopt a child, and in any case, there is no cause to recognize a constitutional right as aforesaid. Justice Procaccia based her view on two main reasons: first, according to my colleague, recognition of a legal right to adopt children will lead to a conceptual confusion between the best interests of the child and the interests of those seeking to adopt, in a way that is liable to distance the main goal of the institution of adoption, which is the commitment to the meta-principal of the wellbeing of the child, from the center of interest. Secondly, according to my colleague, the constitutional right to family life and to parenthood – which stems from the constitutional right of a person to human dignity and privacy – is a right in the category of a “liberty”, the aim of which is to provide protection from unjustified external intervention of the state in the intimate decisions of the individual. Under this approach, the right to family life and to parenthood is of a negative character, and it cannot impose upon the state a duty to take positive action in order to promote the aspirations of the individual to establish a family and to become a parent. Justice Procaccia’s view is that a person does not have a constitutional right to realize his yearning for a child by alternative means to natural childbirth, and the state is under no active duty to make such alternative means available to him. In this context, my colleague commented that “it is not beyond the realm of possibility that changing times, social dynamics and human needs will bring with them, eventually, changes in the constitutional conception of the place of the state in providing the means for realization of a person’s right to a family and to parenthood. On this matter, the considerations need not be identical in relation to the different means, and adoption of a child, who is an independent entity and the subject of rights, is unlike other means that are designed to make it possible to bring a child into the world, such as surrogacy and IVF” (para. 23 above).

2.    Regarding my colleague’s position, I will comment that in my view, definition of the internal scope of the constitutional right to family life and to parenthood is a sensitive, complex and multi-faceted question. The case law of this Court has recognized, in the past, a right to family life and to parenthood as a constitutional right that derives from human dignity, and also from realization of the right to personal autonomy and self-fulfillment (see Adalah v. Minister of the Interior [2], per President Barak at para. 32 ff., per Vice President Cheshin at paras. 46-47, my opinion at para. 6, per Justice S. Joubran at para. 8 ff, per Justice Procaccia at paras. 1, 6, per Justice Naor at para. 4, and per Justice Rivlin at para. 8; see also Neta Dobrin v. Prisons Service [5], per Justice Procaccia at para. 12).

At the heart of the constitutional right to family life and to parenthood is the natural and preliminary right of every person to bring children into the world, and by so doing to realize his existential instinct to establish the next generation bearing the genes of the parents. The kernel of the right to family life and parenthood also contains the right of the biological parent to custody of his children and to raise them, as well as the right of the child to grow up within the bosom of his biological parents by virtue of the blood ties between them. This is the “hard nut” of the constitutional right to family life and parenthood, about which there would seem to be no argument (see e.g. Nahmani v Nahmani [7], at pp. 680-681, per Justice T. Strasbourg-Cohen; Anon. & Anon. v. Biological Parents [6], at pp. 184-188, per Justice A. Procaccia; and LFA 5082/05 Attorney General v. Anon. [38], at para. 5).

The question that is more difficult to answer concerns the definition of the internal scope of the constitutional right to family life and to parenthood in contexts other than natural childbirth and biological parenthood. This subject has not yet been dealt with in depth in our case law. Thus, for example, in New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], this Court refrained from ruling on the question of whether the internal scope of the constitutional right to family life and parenthood includes the aspiration to bring a child into the world by means of an embryo carrying agreement, which is based on a division between the genetic code (originating in one or both of the parents party to the agreement) and the physiological aspect (which is realized by means of the surrogate mother who undergoes the pregnancy and the birth). As for realization of the yearning for a child by means of the institution of adoption – to date, the case law has tended to recognize the rights of prospective adopters only in circumstances in which actual family ties existed between the prospective adopter and the prospective adoptee, in a way that affected the examination of the best interests of the adoptee (see what I wrote in Anon. v. Attorney General [10], at pp. 175-176, on the matter of the adoption of an adult by a person who married his biological brother and raised him since he was a baby; see and compare: Yarus-Hakkak v. Attorney General [15], per President A. Barak, concerning a female couple who live together, and each applied to adopt the biological children of her partner; see also the recent decision of the House of Lords, which granted the petition of an Irish man who sought to adopt the biological child of his female partner with whom he lived out of wedlock: Re P and others (adoption: unmarried couple) [2008] 4 HRC 650). As opposed to these cases, in the case before us the argument of the petitioners is that constitutional status should be granted to their aspiration to become parents by means of the institution of adoption, at the preliminary stage of the process of adoption, in the absence of any reality of de facto family life with the concrete child.

3.    As stated, Justice Procaccia discussed the reasons against constitutional recognition of the right to become a parent through the institution of adoption. However, as against these weighty considerations discussed by my colleague, one can muster counter-considerations that support according a constitutional status to the said right. Prima facie, it is plausible to argue that the yearning for a child is a deep, fundamental human need, and that this existential need is equally intense in the case of natural childbirth and where the couple are not able to bring children into the world by natural means and they wish to realize their yearning for a child by means of the adoption. According to this approach, a relatively broad definition of the internal scope of the constitutional right to family life and to parenthood ought to be recognized, while adapting the scope and intensity of the constitutional protection that will be afforded to the said right in different contexts, where it conflicts with opposing rights and interests. Inter alia, the degree of protection of realization of the right to family life and parenthood will be affected by the positioning of the case in the hub of the constitutional right or at its margins (see and compare: Adalah v. Minister of the Interior [2], per (then) Justice Rivlin, at para. 8).

In accordance with the said approach, the right to become a parent through the institution of adoption is situated on a more exterior circle vis-à-vis natural childbirth (which, as we have said, is included in the “hard kernel” of the right to family life and to parenthood), and even vis-à-vis artificial reproductive techniques and embryo carrying agreements, which involve external involvement of the state but which are based on planning the birth of a child who will bear the genetic code of one or both of his parents (see and compare: New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [8], per (then) Justice Cheshin, at p. 448). According to the approach of the petitioners, positioning of the right that they claim on a circle further from the core of the constitutional right is liable to affect the intensity of the protection afforded to those who seek to become parents by means of adoption of a born child who does not bear the genetic code of either of them. At the same time, according to the argument, this alone is not enough to negate the actual constitutional recognition of the right to become a parent by means of the institution of adoption, considering that realization of the yearning for a child is a basic and inseparable part of human dignity, of the realization of a person’s self-hood and his internal “I”.

It will be stressed that the petitioners to not presume to argue that the right of those seeking to adopt is an absolute right or that it should be granted maximal constitutional protection. Like all rights, the right claimed by the petitioners, too, is a “relative” right, and at times it must yield to competing rights and interests. In their pleadings, the petitioners did not dispute that the best interests of the child constitutes an overarching principle in our legal system and in international conventions that deal with child adoption, and that it is the principle of the best interests of the child that is the basis of the laws of adoption, as elucidated in the opinion of my colleague. It is clear, therefore, that even according to the petitioners, the constitutional right to become a parent through the institution of adoption cannot be discussed independent of questions of parental capability and the best interests of minors who have already been born. Moreover, there was no disagreement between the parties to this petition on the need to protect the rights of biological parents, and on their preferred status vis-à-vis people seeking to adopt – certainly at the early stages of adoption proceedings. No one disputes, therefore, that in the triangle of interests of the wellbeing of the child – rights of the biological parents – rights of those seeking to adopt, the status of the last group is relatively weak, and the constitutional protection they will be given will be less in scope and intensity, in view of the elevated status that must be assigned to the best interests of the child and to the blood ties between the child and his biological parents. At the same time, so goes the argument, one cannot ignore the fact that the institution of adoption – both domestic and intercountry – also satisfies the needs of childless people, who wish to realize their desire for a child even if the child will not be a biological descendent (see and compare: Shifman, Family Law in Israel, supra, at p. 148). According to that argument, the need to place the best interests of the child at the center of adoption law and the need to protect the rights of the biological parents do not mean that there is no room for recognizing the existence of a constitutional-legal right of those who seek to become parents through the institution of adoption, even though, as stated, this would be a relatively “weak” right from the point of view of the intensity of the protection it receives.

I would point out that an additional possible justification for an approach that supports constitutional recognition of the right to become a parent by way of adoption may be based on the close dependency of those seeking to adopt on state institutions. The state representative confirmed in her response before us that adoption in its very essence is “public”. Intervention and external arrangement on the part of the state are required for the purpose of handing children over for adoption. An individual seeking to adopt is unable to create the legal status of parenthood on his own – certainly when it is not a case of natural birth –and he requires the external validation of the state and its institutions in order to create the status of adoptive parent vis-à-vis the whole world. In view of this, it may be argued that there ought to be constitutional recognition of the right claimed by the petitioners, in order to balance the great power of the state in the said context. According to this approach, the constitutional right to human dignity – from which the right to family life and parenthood is derived – is not based only on negative content, and in suitable (although limited) cases, the said right is liable to impose positive duties on state authorities in order to protect individual rights and to provide a real possibility of realizing them (for a supportive view, see: Sigal Davidow-Motola, “Feminist Decision? Another Aspect of the Nahmani Case”, 20(1) Iyunei Mishpat 221, 227-228 (1996)). In this context, it will be noted that the State referred in its pleadings to statements in Nahmani v Nahmani [7] from which it transpires that the right to parenthood is a negative liberty which is not capable of imposing positive duties on the legal level (see ibid., at p. 682, 780-781, 790). On this matter, it is doubtful whether these statements apply in our case with the same intensity as in the Nahmani case, since that case dealt with the relationship between two individuals (former spouses), and not with the relations between the individual and the state. In the words of Justice E. Goldberg (ibid., at p. 726): “The question of whether the state bears an obligation to assist the individual in realizing his desire to be a parent does not arise in any way in this case.”

4. Thus, the fundamental issue concerning the question of constitutional recognition to become a parent by means of the institution of adoption is complex and sensitive. It is inextricably linked to the definition of the internal scope of the constitutional right to family life and to parenthood. It gives rise to questions concerning the essence of the institution of adoption and the relationship between the best interest of the child, the rights of biological parents and the desires of those seeking to adopt a child. It raises broad questions concerning the extent of active duties that ought to be imposed on the state by virtue of constitutional rights. The said matter is also likely to have ramifications for the legal-constitutional definition of concepts such as “legal parenthood” and “family unit” in the Israeli legal system (see P. Shifman, “On the New Family: Opening Lines for Discussion” 28(3) Iyunei Mishpat 643, 670 (2005)). It should be noted that in view of all the above-mentioned problems,        other states have refrained to date from granting constitutional status to the right to adopt a child. Even the European Court of Human Rights ruled that a right to adoption cannot be derived from the right to privacy and to family life as stated in art. 8 of the European Convention on Human Rights (see Frette v. France (2002) 38 EHRR 438; but see recently the minority opinion of Justice Mukaroni of the European Court of Human Rights, who calls for a change in the interpretation of the said art. 8 of the Convention, such that this article will protect the possibility of submitting an application to adopt a child in the framework of the domestic law of each state: E.B. v. France (Grand Chamber judgment of 22 January 2008, Application no, 43546/02).

5.    As we said, in the circumstances of the case before us, the constitutional issue does not require a decision, as the matter of the petition according to the remedy that is sought can be resolved on the administrative plane. In view of the sensitivity of the constitutional issue and its complexity, and in the absence of a need to decide on this issue in the circumstances of the case before us, I prefer to leave it for future consideration.

In conclusion, I would comment that even if we recognize a constitutional right to realization of the aspiration for parenthood by means of the institution of adoption, as requested by the petitioners, in the circumstances of the said case, the violation of this right does not go to the heart of a clear, recognized constitutional right, and the severity of the violation is not great in view of the fact that the maximum age difference rule does not prevent the petitioners from adopting a child, but only prevents them from adopting a new-born child. (Thus, for example, if a couple who are fifty years old look for succour from the institution of adoption, the maximum age difference rule enables them to adopt a two-year-old child.) In all events, in view of the conclusion that will be elucidated below, whereby the existing legislation contains a mechanism for considering exceptional cases in which it is possible to deviate from the said rule, I am of the opinion that even had a violation of a basic right been proven – and I am not ruling on this – it would conform to the limitations clause, including the requirement of proportionality.

Furthermore – and this is the most important thing in my eyes – the difficult question that arises under the approach of the petitioners concerns the contents of the constitutional right that they claim, and the nature of the corresponding duty. In their pleadings in this Court, the petitioners agreed that no-one has a vested right to adopt a child, and that the state does not bear a duty to “provide” a child for those who wish to have recourse to the institution of adoption; this is in view of the necessity of protecting the best interests of children who are prospective adoptees as well as the rights of the biological parents. It will be noted that in their amended petition, the petitioners stated that they do not insist on voiding the secondary legislation on which this petition turns, and that the remedy they are seeking is the moderation of the maximum age difference rule by recognizing the possibility of deviating from the rule in exceptional cases that justify so doing.

Thus, a careful reading of the arguments of the petitioners and the remedy they seek reveals that their main contention on the constitutional plane is that the state has a duty to create a proper legal mechanism for examining the applications of those interested in realizing their right to parenthood by means of the institution of adoption; this, subject to the overriding principle of the best interests of the child, the rights of the biological parents, examination of the parental capabilities of the prospective adopters, and the other interests that are relevant to the matter. Apparently, the state fulfilled the duty as claimed by the petitioners, in view of the fact that the Adoption Law and the secondary legislation enacted by virtue thereof establish regular mechanisms for examining applications for child adoptions, both in domestic adoption and in intercountry adoptions. At the same time, as we have said, the argument of the petitioners in this context is that the maximum age difference rule unlawfully infringes their rights, in that it does not allow for a mechanism for departing from the rule in exceptional cases, on the basis of a substantive examination of the suitability of the applicants to adopt a new-born baby when the age difference exceeds 48 years. On this matter, I am of the opinion that the existing legislation contains a mechanism for considering exceptional cases as requested by the petitioners, and the question confronting the respondents is whether this mechanism can also be implemented in relation to the matter of the maximum age difference. To clarify my position as stated, I will address the arguments that were raised on the level of administrative law.

The administrative level

6.    On the administrative level, the petitioners raised three main arguments against the maximum age difference rule: first, it was argued that the said rule is not reasonable in that it has not been proved that the wellbeing of the child suffers when the age difference between the prospective adopters and adoptee exceeds 48 years. Secondly, it was argued that the maximum age difference rule creates unlawful discrimination against those who seek to adopt a child in an intercountry adoption vis-à-vis other groups who seek to realize their right to parenthood, and particularly in relation to those applying for a domestic adoption. Thirdly, it was argued that the said rule is neither fair nor proportional in view of its rigid nature that does not allow for an individual examination of the circumstances in exceptional cases which justify so doing.

My colleague Justice Procaccia discussed the reasons for dismissing the arguments of the petitioners relating to the lack of reasonableness of the said rule, and I agree with all she said in this regard. As related in the opinion of my colleague, the Minister initially prescribed a 45 year maximum age difference in intercountry adoption However, after deliberation in the Knesset Law and Constitution Committee, the proposal was changed: the age difference was fixed at 48 years, and the relevant date for determining the maximum age difference would be the date of submission of the application to adopt, and not the actual date of adoption. It was further decided that it will be sufficient if one of the prospective adopting couple fulfils the maximum age difference requirement of 48 years between himself and the adoptee, even if the other partner exceeds the maximum age difference requirement. On this matter, I am of the opinion that the question of the extent to which the best interests of the child are affected by the age difference between himself and his adoptive parents, and what ought to be the maximum age difference between them, is a professional question, clearly subject to the discretion of the competent authority, assisted by the expert opinions of professionals. In the particular circumstances, the decision to set the maximum age difference at 48 years was made in accordance with professional evaluations of what the child’s best interests require, not only when he is a child but also as he grows and matures over the years, and in light of the accepted social conceptions that are influenced, inter alia, by the maximum age difference in natural birth, which is significantly lower than that anchored in the rule. A glance at comparative law reveals also that fixing the maximum age difference at 48 years does not deviate significantly from what is accepted in other states, as discussed by my colleague discussed in para. 48 of her opinion. Taking all the above into account, it cannot be said that the rule is unreasonable to an extent that requires striking down secondary legislation that has been approved by the Constitution Committee of the Knesset.

It will be noted that fixing the maximum age difference at 48 years may well involve a certain degree of arbitrariness which typifies every norm that fixes a set measure, certainly in relation to a limitation based on age. Our case law has already stated that “. . . this is what happens with times, with measurements, with weights, with distances and other such measurable concepts, that they are somewhat arbitrary at their boundaries. This is well known” (per (then) Justice Cheshin in CrA 3439/04 Bazak (Buzaglo) v. Attorney General [39], at p. 307). A certain alleviation of the problem of arbitrariness may be attained by granting discretion to depart from the maximum age difference rule in special circumstances that justify so doing, and I will discuss this below.

As for the argument of unlawful discrimination – on this too I am in agreement with Justice Procaccia that there is a relevant difference between those seeking to adopt a child in an intercountry adoption and the other groups to which the petitioners referred in their pleadings. The reasons for this position were elucidated by my colleague (para. 45 ff.) and I see no reason to repeat what was said there.

7.    From the whole array of arguments raised by the petitioners on the administrative plane, the argument that most disturbed me relates to the question of whether a possibility exists of deviating from the maximum age difference rule in intercountry adoption in special, exceptional circumstances that justify so doing. From the material submitted to us it transpires, apparently, that in domestic adoption, it is possible in exceptional circumstances to deviate from the procedure that requires a maximum age difference of 43 years between prospective adopters and the child to be adopted. In intercountry adoption, however, the position of the State is that there is no justification for allowing a deviation from the maximum age difference rule, which stands at 48 years. It will be mentioned that this alone is not sufficient to create unlawful discrimination between prospective adopters in domestic and in intercountry adoptions. This is because the age difference in the case of domestic adoption is lower than that in intercountry adoptions (43 and not 48 years), and therefore, prima facie, in relation to domestic adoption there is greater justification for allowing discretion to deviate from the rule.

The aspect that disturbed me in the said context does not stem, therefore, from the prohibition on unlawful discrimination, but from the competent authority being bound by fitting administrative norms that are based on fairness, reasonableness and proportionality. As mentioned above, even according to the approach whereby prospective adopters have no legal right recognized by law, there is no dispute that they have a legitimate expectation and interest that consideration will be accorded to their desire to adopt a child, and that limitation of the possibility of realizing this desire will be effected in a fair, reasonable and proportional manner in keeping with the accepted criteria of administrative law. The question that arises is whether the State’s position negating the existence of discretion to deviate from the maximum age difference rule in intercountry adoption fulfills the said criteria. I fear that this question must be answered in the negative.  It has already been ruled in our case law that “policy that has no exceptions is like a ball-bearing machine without lubricant. Just as the machine will not work and will burn out quickly, so too will the policy” (HCJ 3648/97 Stamka v. Minister of the Interior [40], at p. 794, per (then) Justice Cheshin). In another case, the Court said that “. . . it is the obligation of every administrative authority to apply his discretion from case to case, and to recognize exceptions to the rules and the set guidelines when circumstances justify so doing” (Adalah v. Minister of the Interior [2], per President Barak, at para. 72).

The requirement of fairness and proportionality in the actions of the administrative authority – including secondary legislation – supports limiting rigid arrangements to circumstances in which the establishment of an all-encompassing arrangement is unavoidable. As a general rule, the exercise of administrative discretion will permit flexibility in cases in which there is justification for deviating from the rule without thereby harming the principle of equality. In the words of Justice Cheshin: “Law is designed for that which is accepted, middling, average, and the need for flexibility is obvious, even if only so as to avoid trampling on the minority and the exception . . . hence, the flexibility that is required, to adapt the rules – which in their essence were created for the middling and the average – to whosoever is not middling or average” (CA 1165/01 Anon. v Attorney General [41], at p. 79).

In the case at hand, the State presented a number of reasons for its approach whereby no departure from the maximum age difference rule should be allowed in intercountry adoption. I examined these reasons, and I was not convinced that they justify the existence of a rigid rule that allows no deviation, even in cases that are special and exceptional. The argument of the State whereby the existence of such discretion will divert the focus of attention to the prospective adopters instead of the best interests of the child is not convincing in my view, for it is clear that the existence of exceptional circumstances will be examined subject to the overriding principle of the best interests of the children waiting to be adopted. Neither is the argument that it is difficult to anticipate the ramifications of the age difference between the adopter and adoptee convincing, for the process of adoption is constructed entirely on future-directed anticipation, which is naturally characterized by uncertainty. The State further argued that since the process of intercountry adoption is executed by private adoption associations which operate under state supervision, the existence of clear rules of eligibility of adopters is of great importance; this is so in view of the concern for undesirable consequences of competition between the private adoption associations, which harm the interests of the children awaiting adoption, as well s concern for the lack of equal treatment of those who seek to adopt them. Prima facie, this last argument is significant. Nevertheless, it appears that the concern expressed by the State should be answered not by setting a rigid rule regarding the maximum age difference, but rather, by a suitable choice of the entity that will exercise discretion to deviate from the rule. I will discuss this below.

8.    The obvious conclusion from what has been said so far is that the absence of discretion to conduct an individualized examination of exceptional cases in which departure from the maximum age difference rule is justified – even if only in exceptional circumstances of limited scope – would have engendered genuine questions about the reasonableness and proportionality of the rule. In actual practice, I am of the opinion that the said difficulty does not arise, in that the mechanism fixed in s. 36A of the Adoption Law has the capacity to include a process of review which allows for a departure from the maximum age difference rule  in suitable cases. Section 36A of the Adoption Law prescribes as follows:  

Appeals Tribunal

(a)        A person who considers himself harmed by a decision of the Welfare Officer regarding the determination of his eligibility to become an adopter or by a decision of a recognized adoption association concerning his eligibility to adopt a child in an intercountry adoption, may appeal the decision to an Appeals Tribunal comprising five members, who will be appointed by the Minister of Labour and Welfare in consultation with the Minister of Justice [emphasis added – D.B.].

(b)        The members of the appeals tribunal will be a judge of the family court, who will preside, two social workers, a clinical psychologist and an expert psychiatrist, provided that at least two of the members will not be state employees.

(c)        A decision of the appeals tribunal is not subject to further appeal.

Section 36A of the Adoption Law prescribes that the appeals tribunal it establishes will be competent to hear, inter alia, appeals on the decision of a recognized adoption association concerning eligibility to adopt a child in an intercountry adoption. Correct interpretation of s. 36A, in light of the abovementioned principles, leads to the conclusion that a person who seeks to adopt a child in an intercountry adoption and is deemed to be ineligible to do so – possibly, inter alia, because he does not fulfil the maximum age difference requirement – is entitled to appeal this decision to the appeals tribunal in a way that makes it possible to conduct an individualized examination of the circumstances of the case. In this context, I would like to stress two points: first, in the existing legal situation, the authority to depart from the rule is not granted to the private adoption associations, and the reasons for this were articulated by the State in its pleadings. At the same time, in keeping with the said interpretation of s. 36A of the Adoption Law, discretion to deviate from the maximum age difference rule in intercountry adoption will be exercised by the statutory appeals tribunal, which constitutes a public body with mixed administrative and quasi-judicial characteristics. This would seem to provide a response for the main fears raised by the State in its pleadings concerning the exercise of the said discretion by private bodies that compete amongst themselves. Secondly, the existence of a statutory mechanism for examining exceptional cases does not constitute an extensive breach of the bounds of the maximum age difference rule. It may be assumed that the appeals tribunal will formulate criteria for departing from the rule under discussion, and will limit these departures to special and unusual cases that justify the deviation. Moreover, since a maximum age difference of 43 years has been fixed for domestic adoption, whereas the difference was fixed at 48 years for intercountry adoption, it may be assumed that the number of exceptional cases in which justification will be found for departing from the maximum age difference in intercountry adoptions will be smaller than the number of exceptions – small in any case – in which justification is found for departing from the rule in domestic adoptions.

9.    Thus, the Adoption Law establishes a mechanism which, according to the interpretation that seems to me to be reasonable and appropriate, allows for departure from the maximum age difference rule in special cases that justify so doing. In this sense, the existing legislation provides a response to the main relief sought by the petitioners, i.e., to allow exceptions to the said rule and to the norm that was set in its framework. In light of this, and subject to the possibility of the appeals tribunal having discretion, according to my approach, the petition should be granted partially only, in the sense that the possibility of considering a departure from the maximum age difference rule in exceptional, unusual cases is not in the hands of the private adoption associations, as requested by the petitioners, but rather, in the hands of the statutory appeals tribunal the operates according to the Adoption Law.

 

Vice President E. Rivlin

1.    The legal question that lies at the heart of the case before us is not simple, and my two colleagues, President D. Beinisch and Justice A. Procaccia, each arrived at a different conclusion. After reading both the opinions, I have reached the conclusion that my position is closer to that of President Beinisch in relation to most of the issues, and I would even go further than she did had her ruling not provided an appropriate response to the question at issue. Rule 4(b)(1) of the Professional Rules and Guidelines for the Operation of a Recognized Non-Profit Organization under the Adoption of Children Law, 5741-1981 (hereinafter: the maximum age difference rule), enacted by the Minister for Welfare in 1998, raises questions on the constitutional and administrative planes. I concur in the position of my colleague, the President, that for the purpose of ruling on the petition, it is not necessary to decide on the constitutional questions that arise, and similar to her opinion, my position too is based on the administrative arguments raised by the petitioners. Nevertheless, I would like to briefly discuss the constitutional question at issue, addressed by my colleagues in their opinions.

The parameters of the constitutional right to parenthood

2.    My colleague Justice Procaccia ruled that the right to adopt a child is not a recognized legal right, and a fortiori, it is not a meta-legal constitutional right. She points out that the right to parenthood is in essence a “negative” right and it does not have the capacity to impose on the state a positive obligation to assist individuals in its realization. According to Justice Procaccia, the right to adopt, which is derived from the right to parenthood, involves active assistance on the part of the state in realizing the aspiration to parenthood, and consequently, it should not be recognized as a constitutional right. Another reason for not recognizing a constitutional right to adopt is attributed by Justice Procaccia to the fact that recognition of such a right might detract from the main purpose for which the institution of adoption was created – concern for the best interests of the adopted child. The President, on the other hand, preferred not to rule definitively on the constitutional question confronting us. Nevertheless, she pointed out that the right to parenthood by way of adoption is found “on a more exterior circle vis-à-vis natural childbirth (which . . .  is included in the ‘hard kernel’ of the right to family life and parenthood), and even vis-à-vis artificial reproductive techniques and embryo carrying agreements, which involve external involvement of the state but which are based on planning the birth of a child who will bear the genetic code of one or both of his parents.” The President is of the opinion that because of the remove of the right to adoption from the hard core of the right to parenthood, the degree of protection it enjoys is less.

3.    I would like to add a few words relating to the positions expressed by my colleagues on the constitutional question. I am not convinced that there is such a significant gap between realization of the right to natural parenthood and realization of the right by way of adoption, to the extent that it can be said definitively that one is situated within the kernel of the right to parenthood and the other on its margins. Indeed, ideal parenthood is by natural childbirth, and the assumption is justified that bearing a child who carries the genetic code of his parents creates a bond and responds to a stronger need than parenthood that is realized by way of adoption (para. 3 of the opinion of my colleague, the President; New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], at p. 448). It may also be assumed that many of those who apply to adopt do so as the default option after their desire to bring children into the world naturally has not been realized. Nevertheless, the underlying need is similar in essence in both cases – the desire for a child, for continuity. As noted by my colleague President Beinisch, “[]prima facie, it is plausible to argue that the yearning for a child is a deep, fundamental human need, and that this existential need is equally intense in the case of natural childbirth and where the couple are not able to bring children into the world by natural means.” The sound words appearing in the opinion of my colleague, Justice Procaccia, concerning the status and the great importance of the right to family life, are applicable, in my view, to both natural parenthood and to parenthood that is realized by way of adoption.

Moreover, it often happens that the yearning for a child is strongest in those who are not able to realize it in a simple manner. The cry of the childless for help has been heard since ancient times. In New Family v. Committee for the Approval of Surrogacy Agreements [8], Vice-President Cheshin described one of these cases:

‘Who does not remember the desperate cry of the barren Rachel in calling to her husband Jacob: “Give me children or else I die” (Gen. 30:1). (Neither will we forget Jacob’s harsh, irritated reply: “And Jacob’s anger was kindled against Rachel; and he said: Am I in God’s stead, who hath withheld from thee the fruit of the womb?”) This cry is the cry of the living being’s will to survive, a will which, with the birth of a child, will fulfill the “voice of blood” between parents and their children (as per Deputy President Sh.Z. Cheshin, in CA 50/55 Hershkovitz v. Greenberger [1955] IsrSC 9(2) 791, at p. 799, para. 30).

Rachel’s pain, and that of Hannah, who wandered around the Tabernacle when “she was in bitterness of soul, and prayed unto the Lord, and wept sore,” resound down the generations and express the great void created by the absence of a child. This, in many cases, is the situation of those who seek to adopt. Thus, for example, Rachel at the end of the day adopts a solution that is to a certain degree related to adoption, and she realizes her desire for continuity through the children of her handmaiden Bilhah. After the birth of the son of Bilhah and Jacob, Rachel declares: “God hath judged me, and hath also heard my voice, and hath given me a son,” and her cry is no longer heard.

4.    The legal status of the relationship that is created between the adoptee and the adopters after the adoption supports the position that the difference between biological parenthood and parenthood by way of adoption should not be seen as creating a difference of substantial normative significance. My colleague Justice Procaccia addressed this relationship, and noted that non-recognition of a constitutional right to adopt does not “detract from the fact that upon completion of the adoption process with the issuing of an adoption order, a relationship of full rights and obligations typical of the relations between parents and children is created between the adopter and the adoptee, replacing the biological blood ties of the child with the family of origin, and a new family unit is established that constitutes a subject of constitutional rights.” It is hard to believe that pursuant to the difference between biological parenthood and parenthood by way of adoption, a certain level of constitutional protection would be granted to the relations between a child and his parents in the case of a biological family, and inferior protection granted in the case of an adopted child (after the adoption). In light of all this, it appears that the difficulty in defending the right to parenthood in the case of adoption does not stem from a substantive difference between biological parenthood and parenthood by way of adoption, but from two other difficulties – the difference between a right which is of a “negative” nature and a right of a “positive” nature, and primarily, the great importance of the wellbeing of the adopted child.

5.    My colleague Justice Procaccia is of the opinion that the right to parenthood that is recognized in Israeli law is in essence a “negative” right, one that was designed to protect the individual from state intervention, and it contains nothing which would impose a positive duty on the authorities to enable the individual to adopt. Personally, even if I were to accept the distinction made by my colleague between “negative” rights and “positive” rights in Israeli law, I am not convinced that this distinction necessarily reflects the situation in our case. Justice Procaccia assumes that adoption necessarily involves a positive act on the part of the state that helps the adopters to come to complete the process. However, it is possible to look at the matter from a somewhat different angle. In an unconstrained world, adoption would be likely take place by means of agreements between prospective adopters and third parties. These agreements would make the adoptions actually happen with no intervention of the authorities. And indeed, prior to enactment of the Adoption of Children (Amendment no. 2) Law, 5756-1996, as described in the opinion of my colleague Justice Procaccia, there was a “wide-spread phenomenon of adoption of children with no oversight, sometimes without the children even being registered in the local register.” Accordingly, limiting the possibilities of adoption by means of statutory regulation can be seen as a violation of the right to parenthood in the “negative” sense. It will be stressed immediately that statutory restriction of the possibilities regarding adoption is legitimate as well as essential, in view of the need to protect the child’s interests; this however, does not change the fact of the violation of the right, but only affects the degree of protection that it is accorded.

Particularly apt here are the words of Vice President M. Cheshin in New Family v. Committee for the Approval of Surrogacy Agreements [8], written as a response to a similar argument that was raised in relation to the constitutionality of limitations that were imposed on people seeking to realize their right to parenthood by way of surrogacy:

‘The State further argues thus: the right to parenthood is indeed a right, but a right to surrogacy cannot be derived from the right to parenthood. The reason is that the right to natural parenthood means only a prohibition on the state to intervene in the life of the individual and in his autonomous will, whereas the right to surrogacy implies . . . a duty imposed on society to help the individual to realize the need throbbing in him for parenthood. We will not accept this argument either. Indeed, the right to parenthood is a right in the category of a liberty – it is a right that has no correlative duty imposed on another – whereas surrogacy necessitates the intervention of third parties. As stated in the Aloni Report  . . . “It is accepted, in the United States, that extension of the right [to bear a child – M.C.] to reproductive technologies does not obligate society to cover costs and expenses, just as it does not obligate the doctor or the technician to perform the procedure. The accepted explanation is that the right [to bear a child – M.C.] has a negative character – it has the power to prevent interference in procreation – and not a positive nature – to impose a duty on another body in order to assist in procreation.” However, I do not understand how this distinction bears on our case. We are not dealing with the imposition of any sort of duties on the state (or on any third party), but with a request of the petitioner that she not be prohibited from embarking on the process of surrogacy. A prohibition imposed on her by the state to resort to the process of surrogacy, so claims the petitioner, is what violates her right to parenthood, and the response of the State, which relies on the distinction between a liberty-type right and between a right that has a correlative duty is in any case not an answer’ (ibid., at pp. 448-449).

The Adoption Law, like the Embryo Carrying Agreement (Approval of Agreements and the Status of the Child) Law, 5756-1996, create a comprehensive system for realizing the right of parenthood in a certain manner, and even though most of the arrangements in these Laws fulfill the criteria of the limitations clause, it cannot be said that they involve no violation of the right to parenthood.

6.    The major problem attaching to the right to parenthood, in the context of adoption, concerns the great importance of the best interests of the child. On this matter, I agree with my colleague the President that the question of the best interests of the child ought not to be examined at the stage of actual recognition of the constitutional right, but rather, when we turn to the task of balancing and we examine the degree of protection afforded to this right. No one disputes that the best interests of the child is the crux of the legal adoption arrangement. A consequence of this is, as stated, that most of the statutory arrangements will fulfill the constitutional balancing criteria.  But it must again be stressed that the upholding of values, interests and competing rights, however strong they may be, should not affect the upholding per se of a distinct constitutional right, but only the degree of protection it is afforded. As I pointed out in another matter:

‘The actual definition of the right to establish a family should not be restricted. Even if it is not possible, due to permitted constraints, to enable the full realization of the right, this does not detract from recognition of the right. My colleague the Vice President notes that the constraints that are imposed on the constitutional right here do not touch upon the “kernel” of the right; rather, they are at its periphery. He therefore would define the disputed right in a more focused manner. My view is different. Even if this is a matter of a “peripheral” aspect of the right – as he assumes – this does not affect the definition of the right. The starting point must assume a generous definition. The restriction – which is likely to take into account the position of the matter on the periphery of the right or at is heart – must be taken into account in the framework of application of the limitations clause. The balance between the rights of the individual and the public interests, or between [these interests] themselves, must be effected in the framework of the limitations clause (Adalah v. Minister of the Interior [2], at para. 8 of my opinion).

As stated, the petition before us is not the appropriate forum in which to decide on the constitutional questions that were raised, and the ruling on the substance of the petition below will focus on the arguments on the administrative plane.

The administrative plane

7.    I, like my colleague the President, believe that the main problem with the maximum age difference rule lies in it being a rigid rule that does not allow for discretion to depart from it in appropriate cases. My colleague the President is of the opinion that negation of the possibility of deviating from the maximum age difference rule is incompatible with the accepted criteria of administrative law, and she dismisses the arguments of the State on this point one by one. I concur fully with the President’s position on this matter, and adopt her words completely.

As the President stressed, the lack of flexibility in the arrangements established by the Authority make one wonder about the reasonableness and the proportionality of these arrangements. This is generally the case, and all the more so when the arrangement causes real harm to a person’s basic legal right. In our case, the arrangement established by the State is substantively detrimental to the aspiration for parenthood of those seeking to adopt, and in these circumstances, the competent authority must point to reasons bearing substantial weight in order that the arrangement pass the tests of reasonableness and proportionality.

8.    Another matter is the relationship between the individual examination and the comprehensive arrangement. As a rule of thumb, it may be assumed that in cases such as that under discussion here, an individual examination will in most cases lead to a more precise, correct result than a comprehensive arrangement. Comprehensive arrangements, by their nature, are not adapted to all the possible circumstances, but are based on a general assessment, on a presumption concerning the appropriate rule. This is all the more true when we are dealing with the assessment of people, each of whom bears traits and characteristics peculiar to him. In the case of adoption, we find ourselves in a framework of an extremely complex task, the aim of which is to bring together separate people and make them into a family. There is, therefore, more than reasonable basis to assume that a meticulous individual examination, that weighs up all the relevant data, including, of course, the age of the applicant, will lead to a more correct answer in each individual case – more correct not only in relation to the applicants, but also, and primarily, in relation to the best interests of the child, for whom the most suitable arrangement will be found.

Indeed, sometimes the establishment of a sweeping arrangement, of which arbitrariness is an inseparable component, is unavoidable. But when is this so? When there is a clear advantage to such a sweeping arrangement – an advantage that outweighs the price it exacts. Thus, for example, it seems that there is a clear advantage to setting a minimum age for obtaining a driving license, which exceeds the advantage of individual examination. At other times, there are weighty reasons for recognizing the legitimacy of a sweeping arrangement. This is the case, for example, when the argument that it is impossible to conduct efficient individual examinations is justified (Adalah v. Minister of the Interior [2], per President Barak, at para. 89; per Vice President Cheshin, at para. 109). However, the case before us is one in which a meticulous, comprehensive and individual examination of each adopter actually takes place, reflecting and confirming the position that there is a clear advantage to individual examinations on the question of the suitability of the prospective adopter. Thus, in any case, there is an examination, inter alia, of the “eligibility and suitability of the person seeking to be an adoptive parent . . . the family background of the applicant and his present position . . . his social environment . . . [and] other matters to be determined by the Minister of Labor and Welfare, including a psychological assessment of the applicant and his family” (s. 28H of the Adoption Law). Similarly, in every case of an application to adopt, determination of the eligibility of the applicant is made in light of an individual report drawn up by a social worker (s. 28N of the Adoption Law). This examination places the emphasis on the concrete adopter and his suitability to adopt; it comprises many criteria that are all weighed, and in light of the result, the decision is made as to whether the applicant is indeed suitable to be an adoptive parent. In these circumstances, there must be special justification for deviating from the individual examination that already exists, justification which, as elucidated in the opinion of President Beinisch, apparently is not present in our case.

My colleague Justice Procaccia holds that the question of the age difference between the adopter and the adoptee is a question for professionals, subject “the clear discretion of the competent authority”. Indeed, the question of the effect of the age difference on the adoptee is a relevant question, which falls, as one of the considerations, within the discretion of the Authority. We are not denying the importance of the age difference, but we disagree with setting an age difference as a sweeping arrangement from which there can be no deviation in appropriate cases. A study of the expert positions presented by the respondents reveals that they recognize the importance of the age difference to the wellbeing of the child, but they do not address the position of the age difference within the whole set of relevant considerations relating to the child’s best interests. Calculation of all the data sometimes raises complex questions. For example, is it better for the prospective adoptee that he be handed over to a family in which one of the couple is 47 years old and the other is 70 years old, or to a family in which the couple are both aged 49? Would it be justified to hand over a child for adoption to adopters who are immeasurably superior to other candidates in all other criteria (such as socio-economic position, and personality structure) but they are just over the maximum age limit? No satisfactory answer to these difficult questions has been provided by the respondents. Nor has a satisfactory answer been given to the possibility of exceptions in domestic adoption as opposed to their absence in intercountry adoption, or to the fact that the ideal age difference is not the same for domestic and intercountry adoption, and even in intercountry adoption itself, the age difference was changed from 45 to 48. These matters seem to hint that there is no unequivocal justification for setting a comprehensive, sweeping arrangement on the question of the age difference from the point of view of both the best interests of the child and the interests of the applicants. The number of different arrangements in comparative law regarding the desirable age difference, as cited at length in the pleadings of both the petitioners and the respondents, is another indication that there is no one accepted age difference that crosses boundaries and experts. The only professional reference on the part of the respondents to the question of the possibility of exceptions to the rule is found in the summary of the position of the relevant committee that was drawn up by Professor Joseph Tamir, part of which was quoted in the opinion of my colleague Justice Procaccia. The opinion of my colleague the President contains a clear and incisive response to these arguments, and I can only concur with her on the matter.

10.    My colleague the President attributed weight to the argument of the respondents whereby in view of the fact that the process of intercountry adoption is implemented primarily by private adoption associations, and due to the concern that the competition between the adoption associations may be detrimental to the child’s interests, the existence of rigid rules for checking the eligibility of prospective adopters is justified. In my view, this argument cannot change significantly the answer to the question of the reasonableness and the proportionality of the maximum age difference rule. As stated, when an adoption association examines an application for adoption, it must check many parameters, some of which were mentioned above. This examination is conducted for each case individually, and weighing up of all the parameters is done with recourse to the report of the social worker. The process as a whole is subject by law to close oversight by the authorities. The concern expressed by the respondents is relevant to the process of adoption in general, but a sweeping, unequivocal rule that does not take into account other parameters for checking the eligibility of the adopter, exists – according to the material before us – only with respect to the question of the age difference. I have not found a good reason for the fact that according to the respondents, the private adoption associations can be relied on to weigh up the information regarding the applicants in an appropriate fashion, but they cannot be relied on to depart from the maximum age difference rule in suitable cases only. Similarly, I am not convinced that the regular oversight, which is designed to ensure that the individual examination be conducted in proper fashion, cannot ensure a similar result on the question of the significance of age for the eligibility of the adopter.

In view of all the above, I struggled hard with the question of whether there is no choice but to declare the nullity of Rule 4(b)(1) of the Rules and Professional Guidelines for the Operation of Recognized Non-profit Organizations by virtue of the Adoption Law. However, as stated, broad validation of the position of my colleague the President may obviate the need to totally nullify the rule. Indeed, empowerment of the appeals tribunal assumes necessarily that the rule itself is not absolute, for otherwise the tribunal would not be authorized to depart from it. One way or the other, whether the rule in its strict interpretation cannot stand or whether it stands because of the interpretation proposed by my colleague the President – the result is the same: it is possible, in appropriate circumstances, to approve adoption at the stage of the final examination even if the age difference exceeds that set in the rule, as proposed by my colleague the President.  

 

Decided by majority opinion, as stated in the judgment of President Beinisch, Vice President E. Rivlin concurring, Justice A. Procaccia dissenting.

 

No order was issued for costs.

 

28 Adar 5769

24 March 2009

       

 

 

 

 

 

       

 

            H.C.J  187/54

 

           

HALIMA SULIMAN BARRIYA

v.

THE KADI1) OF THE SHARIA MOSLEM COURT, ACRE (SHEIKH MUSSA-T-TABARI)

 AND ANOTHER

 

           

In the Supreme Court sitting as the High Court of Justice.

[July 19, 1955]

Before Olshan P., Goitein J., and Berinson J.

 

 

Moslem religious courts - Non-interference by High Court of Justice in procedure of religious courts - Moslem Law - Guardianship of minors - Women's Equal Rights Law, 1951 - Civil and Religious law.

 

            An application was made to a Moslem Religious Court by the aunt of three minor children to be appointed their guardian. The applicant's deceased brother, the father of the children, had directed before his death that the mother of the children should be their guardian. After his death the mother had remarried and the aunt, relying upon Moslem law, had taken the children into her care and had prevented them from remaining with their mother.

           

            In the course of the proceedings before the Moslem Religious Court the mother submitted (inter alia) that she was entitled to the guardianship by virtue of s. 3 of the Women's Equal Rights Law 2. The Moslem Religious judge (the Kadi) decided to deal with the legal arguments only after hearing and considering the evidence in the case. The mother believing that the Kadi had in effect already decided to apply Moslem religious law and to disregard the Women's Equal Rights Law applied for an order staying or setting aside the proceedings in the religious court.

           

            Held per Olshan P. : There was nothing in the record of the proceedings before the religious court to show that that court intended to disregard the civil law and rely only upon the religious law, and the order in which the religious court decided to proceed with the case was a matter of procedure with which the High Court would not interfere.

           

            per Goitein and Berinson JJ. : If in the event it is seen that the religious court confined itself to the Sharia 1) law and refused to take into account the civil law regarding equal rights for women, then it would be acting without jurisdiction and the High Court would come to the aid of the petitioner. The present petition was premature as there was nothing to show that the Kadi intended to disregard the civil law.

           

Darweesh and Angel for the petitioner.

No appearance for the first respondent.

Hawari for the second respondent.

Bar-Or, Deputy State Attorney, for the Attorney-General.

 

            OLSHAN P. This is the return to an order nisi, dated December 26, 1954, calling upon the first respondent to show cause why he should not be restrained from continuing the proceedings in the claim of the second respondent in File 26/54 of the Sharia Court2), or why an order should not be made setting those proceedings aside.

           

            The petitioner is the mother of three minor children, a son and two daughters. Her husband died six or seven years ago. The second respondent is the petitioner's sister-in-law, a sister of her deceased husband, and an aunt of the children. On October 14, 1954, the petitioner married her present husband and thereafter, in the language of the petitioner, "the second respondent took energetic steps to take from her the guardianship of the children" and "she succeeded by intimidation and persuasion in keeping them with her, and in preventing them from remaining with the petitioner".

           

            The second respondent applied to the first respondent to be appointed as guardian of the children alleging, inter alia, that her deceased brother had directed before his death that she should be the guardian of his children. The second respondent was represented before the Kadi by Mr. Hawari. The petitioner was not represented by counsel, but she was assisted by Mr. Darweesh as amicus curiae.

           

            We have been furnished with a copy of the record of the proceedings before the Kadi, the clarity and arrangement of which are to be commended.

           

            The record shows that:

(a)   The second respondent based her claim to be appointed guardian upon the allegation that the petitioner had married a second husband and had left the three children with the second respondent.

 

(b)   The petitioner submitted in support of her claim that she was entitled to the guardianship of her children. relying upon section 3 of the Women's Equal Rights Law, 1951. That section provides that the father and mother are the guardians of their children, and that upon the death of one of them the surviving parent continues as guardian unless the interests of the children require the appointment of some other person. The petitioner submitted that this section binds all religious courts and that the interests of the children required that she should continue to be their guardian.

 

(c)   Counsel for the second respondent submitted that the court should apply the religious law, according to which that person should be nominated who had been appointed as guardian by the father before his death. Counsel requested the first respondent to decide upon the preliminary points before hearing witnesses.

 

(d)   The first respondent decided that the sections of the Sharia Law relied upon by counsel for the second respondent should be considered after the hearing of evidence to determine whether the second respondent had in first been nominated as guardian, and that he would then deal with "the Sharia and legal aspects of the case."

 

(e)   At the second hearing, after the above decision had been given, witnesses were heard and the hearing adjourned for the purpose of examining the evidence taken, and determining to what extent the various witnesses had been consistent with each other. At that stage the petitioner applied to this court and the order nisi was issued.

 

            Counsel for the petitioner submitted before us that in view of the arguments advanced before the Kadi by counsel for the second respondent the decision referred to above must be regarded as a finding by the first respondent on the point argued before him, that is to say, that it is the religious law which must be considered and even preferred, and that the Women's Equal Rights Law must be disregarded. In view of this finding, he submits, the order nisi should be made absolute.

 

            Counsel for the petitioner also submits that the Sharia Law discriminates against the wife in this case and that the decision of the Kadi, therefore, in so far as it seeks to apply the Sharia Law, is in conflict with section 1 of the Women's Equal Rights Law which provides:

           

            "A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect".

           

            Counsel for the petitioner also submits that the decision referred to is in conflict with section 3 of the same law.

           

            It appears from the record that counsel for the second respondent did submit before the Kadi that the religious law is to be applied in matters of personal status, and pointed out that according to the law, in his opinion, a mother who has married a second husband is not to remain guardian, since the children may not be permitted to live under one roof with the second husband, who is unrelated to them. It follows, although he did not say this expresly, that the first respondent was being asked to disregard the Women's Equal Rights Law.

           

            Relying upon a book of the Sharia Law regarding the question of the guardianship of children, counsel tried to show that that law does not discriminate against the wife in the present case. He also submitted that the decision of the court should not be regarded as a decision that the Women's Equal Rights Law is not to be applied, and that since the first respondent has not yet given his ruling on the point, the present application is based upon mere apprehension and is accordingly premature.

           

            Mr. Bar-Or did not deal with the question of the remedy that the submission of counsel for the second respondent that the order nisi should be discharged.

           

            Mr. Bar-Or did not deal with the question of the remedy that might be available in the event of a religious court deciding the case without taking into account the provisions of the Women's Equal Rights Law. He confined his submissions to the specific matter before us.

 

            He submitted that the decision referred to is not a ruling on a point of law, as was submitted by counsel for the petitioner. Since the present petition is not one concerning the assumption by a court of the power to deal with a matter beyond its jurisdiction, this court cannot issue an order restraining the continuation of the proceedings.

           

            An additional submission of Mr. Bar-Or was that even if the decision referred to could be regarded as a ruling not to apply the Women's Equal Rights Law, even then this would be a decision on the merits of a case within the jurisdiction of the religious court, and if that decision was based upon an error in the interpretation of the law which governed the matter, the remedy was an appeal to the Religious Court of Appeals.

           

            The matter before the Kadi, Mr. Bar-Or submits, is one relating to the guardianship of children which, in accordance with the Palestine Order in Council, is within the exclusive jurisdiction of the religious court. It is therefore clear that there is here no matter of jurisdiction in respect of which an injunction could be issued. All the more so is this the case when the Kadi has only decided to postpone "the consideration of the Sharia and legal aspects" (and he emphasises the word "legal") until after the hearing of the witnesses. How can counsel for the petitioner know that when the Kadi reaches the stage of considering the "Sharia and legal aspects" of the problem, he will decide not to have regard to the interests of the children, in accordance with the provisions of section 3(b) of the Women's Equal Rights Law? 1)

           

            I agree with the submissions of counsel for the Attorney-General, and those of counsel for the second respondent which he made before us (but not with those advanced by him before the Kadi).

           

            We are not called upon to deal with the problem of whether the Sharia Law discriminates against women in matters of guardianship. In the present case there is no attempt to discriminate between a man and a woman, the matter dealt with in section 1 of the Women's Equal Rights Law, for the question that arises here is which of two women is to be guardian of the children.

           

            As far as section 3 of the statute referred to is concerned there is no doubt that it binds all courts and tribunals, even in cases where the application of the religious law would lead to different results. Section 7 of the statute is quite unequivocal, the only case which forms an exception to the rule and where it is permissible to depart from the provisions of section 3 is where the parties are of the age of eighteen years or more and have voluntarily agreed before the court that the litigation between them shall be conducted in accordance with the laws of the community to which they belong.

           

            I do not accept the interpretation placed by counsel for the petitioner upon the decision of the first respondent. The clear meaning of that decision is that the truth of the contention of the second respondent in regard to her having been selected by her deceased brother as guardian of the children must be investigated first. Should it be proved that this contention is incorrect, there will be no need to consider the legal questions raised by counsel for the second respondent, but if it should appear that there is substance in this contention, then the Kadi will deal with "the Sharia and legal aspects of the case." That is to say, the Kadi will then give his opinion upon the legal submissions of counsel for the second respondent based upon the Sharia Law, and also upon the legal submissions of the applicant based upon the secular law. The question of procedure is one for the religious court, and is not a matter with which this court will interfere.

           

            In my opinion that is the proper interpretation of the decision of the Kadi and if that be so it will be seen that the complaint of the applicant narrows down to this, namely, that the Kadi should first have decided the legal question before him, and if he had reached the correct conclusion, he would have been relieved of the necessity of hearing witnesses. This is a matter of procedure, and each religious court proceeds according to its own rules. This is not a matter, as I have said, in which we should interfere.

           

            I may add that it was counsel for the second respondent who requested that a decision on the preliminary points be given first and the Kadi did not accede to this request. This shows that the meaning of the decision referred to accords with the interpretation I have just given.

           

            The petition should, therefore, be dismissed, and the order nisi discharged. Should the decision of the religious court conflict with the Women's Equal Rights Law, questions will arise that are not before us in these proceedings.

 

            In regard to costs, I think that the bringing of this petition was caused to some extent by the submissions of counsel for the second respondent before the Kadi, upon which he did not rely before us.

           

I think it right that each party should pay its own costs.

 

GOITEIN J. I agree with the President that the order nisi should be discharged and I do so for two reasons. (a) In my opinion the application is premature. At present there is no hint in the record of the religious court that the Kadi intends to disregard the provisions of the Women's Equal Rights Law, 1951. It is true that counsel for one of the parties who appeared before him requested him to disregard this law, but there is no evidence whatever before us to show that the Kadi intends to accede to this request. (b) The Women's Equal Rights Law does not confer upon a mother an unappealable right to the guardianship of her children. Section 3(b) of the Law leaves the matter within the discretion of the competent court or tribunal "with the interests of the children as the sole consideration." It follows that every civil and religious court will regard the mother as the natural guardian of her children until it is proved that the interests of the child demand that the mother should cease to be the guardian.

 

            The above considerations give rise to two problems. (a) Suppose the religious law does not recognise that it is in the interests of the children that the mother should be their guardian, is the religious court then free to decide that the interests of the children demand that they should not remain under the guardianship of their mother? (b) Assuming the religious law is inconsistent with the Women's Equal Rights Law, yet the religious court decides in accordance with the religious law and its judgment is confirmed by the Religious Court of Appeals, may this court interfere?

           

            The first question was raised in argument before us. Moslem religious law, it would seem, does not regard it as in the interests of the children that their mother should remain their guardian after she has married a second time. May the religious court decide in accordance with the religious law? It seems to me that the answer is to be found in section 3(b) of the Women's Equal Rights Law, which provides:

 

"The provisions of sub-section (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interests of the children as the sole consideration."

           

            The emphasis is upon the word "sole" - that is to say, the test is objective and judges, when dealing with this subject, are to disregard the theoretical presumptions of the religious law as to what constitutes the interests of the children in a particular situation.

           

            It was not argued before us that if the father take a second wife he ceases, according to Moslem law, to be the natural guardian of his children. If his guardianship continues in such a case, then it seems to me that there is discrimination here against the mother by reason of her being a woman. A religious court, therefore, is not entitled to remove the children from the guardianship of their mother and to hand them to their aunt - as in the case before us - relying upon a law which discriminates against a woman by reason of her being a woman. However, as I have already said, there is no proof before us that the Kadi intends to deal with this problem without regard to the Women's Equal Rights Law.

           

            The second question is more difficult and no clear answer to it is to be found in the law of Israel. It has already been decided on innumerable occasions that this court, when sitting as the High Court of Justice, will not interfere with judgments of the religious courts unless they have acted without jurisdiction, or in cases where there has been a denial of natural justice, or in exceptional cases which call for our intervention for the administration of justice. It has therefore been held that this court will not turn itself into a court of appeal from judgments of the religious courts. That is to say, if those courts err in their interpretation of the law or disregard a particular statute, this court has no power to correct the mistake. The only remedy is an appeal to the religious court of appeals, and if that court also errs, its judgment stands. What then will be the fate of a judgment of a religious court in which it is clearly stated, or the text of which makes it clear, that the court disregarded the provisions of a particular statute - in this case the Women's Equal Rights Law, 1951? The answer, in my opinion, is to be found in Sections 1 and 7 of that Law. Section 1 provides:

 

"A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect."

           

Section 7 provides:

 

            "All courts shall act in accordance with this Law..."

           

            In the light of these sections, we say that the acts of any court which are contrary to the Law are of no effect, for the Women's Equal Rights Law restricted and confined the power of the religious courts to act in accordance with the religious law, as they had been doing before this statute was passed. The answer, therefore, to the question asked above is that when it appears on the face of a judgment that the court has failed to take notice of a law of the State, and that judgment is presented for execution, execution may be refused upon the ground that the religious court, in deciding as it did, exceeded its powers.

           

            It has been submitted before us that a shrewd judge in a religious court will be able to find a way of concealing the fact that he decided otherwise than in accordance with the laws of the State, and that it will then be impossible to invalidate his judgment in any civil court whatever. In my view there is no serious danger of a complainant being unable to establish upon the basis of which law the court gave its decision. If it emerges from proceedings, or from the record, that the religious court intentionally disregarded the laws of the State then this court as the High Court of Justice will restrain execution of the judgment. In the present case, as I have already said, there is no reason for us to suspect that the Kadi will not decide in accordance with the law as it stands, and there is therefore no reason for us to interfere.

           

            For these reasons I agree with the learned President that the order nisi should be discharged.

           

BERINSON J. I also agree that the order nisi be discharged for the reasons given by Mr. Justice Goitein, and I wish only to add a few words to clarify my attitude on one of the grounds advanced by him.

 

            Mr. Justice Goitein asks what would become of a judgment of a religious court when it is clear that that court disregarded the provisions of a particular statute such as, in this case, the Women's Equal Rights Law, 1951. His reply is that when it appears on the face of the judgment that the judges disregarded a law of the State, execution of the judgment may be refused upon the basis that the religious court, in deciding as it did, exceeded its powers. With this I agree, but it seems to me, with all respect, that this answer does not exhaust the matter, for in addition to attacking the judgment before the execution authorities, there are other ways of attacking an invalid judgment, given without proper authority. I assume that my colleague cited this method of setting aside the judgment before the execution authorities only as an example, as one of the ways, and did not intend to exclude others. As far as I am concerned, my view is that the ways of invalidating a judgment - such as the one here discussed - of a religious court, are no different or more restricted that those which are ordinarily open to an interested party for upsetting a judgment given by an inferior tribunal without authority. I will explain myself by reference to the facts of the petition before us. The subject of the dispute between the petitioner and the second respondent is the petitioner's guardianship of the three children who are now living with the second respondent, who is in possession of their property and administers it on their behalf. All that the second respondent seeks to obtain in the Sharia Court is the legal confirmation of this state of affairs. Let us assume that the Sharia Court issues an order of guardianship as applied for by the second respondent, basing itself upon the principles of the religious law, and totally disregards the Women's Equal Rights Law, that is to say, that it issues a judgment in excess of its powers. The second respondent need not present that judgment for execution for it merely confirms an existing state of affairs. Does it follow from this that every alternative legal method of invalidating this judgment is denied to the petitioner? An application could be made to this court for certiorari, contesting the validity of the judgment which was given in excess of authority. Again, an application for a writ of habeas corpus, directing the return of the children to her possession as their natural guardian in accordance with the Women's Equal Rights Law, could be lodged. It is beyond all doubt that these ways are not closed to the petitioner. In the result, I am of opinion that the judgment of a religious court given In excess of its powers by reason of its being in conflict with the provisions of a secular law which binds the court, may be invalidated in the same way as any other judgment of an inferior tribunal given in excess of its powers.

 

Order nisi discharged.

Judgment given on July 19, 1955.

 

1) Judge of Moslem Religious Court.

2) Women's Equal Rights Law, 1951, s. 3:

Equality in respect of guardianship.

3.         (a)         Both parents are the natural guardians of their children; where one parent dies, the survivor shall be the natural guardian.

(b)        The provisions of subsection (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interest of the children as the sole consideration.

1) Moslem religious law.

2) Moslem Religious Court

1) For text of s. 3(b) see supra p. 429.

CA 3798/94

A

v.                            

1. B

2. Attorney-General

3. Child Welfare Service

 

The Supreme Court sitting as the Court of Civil Appeals

[3 October 1996]

Before Vice-President S. Levin and Justices G. Bach, M. Cheshin,

I. Zamir, D. Dorner

 

Appeal on the judgment of the Jerusalem District Court (Justice S. Brenner) dated 16 June 1994 in AC 64/93.

 

Facts: The appellant and his wife were married for many years but remained childless. The appellant began a relationship with a 15 year-old girl, the first respondent, in order to have a child by her, and she did indeed become pregnant and bear his child. When the child was born, the girl wanted the child to be adopted by a third party, but the appellant wanted to raise the child with his wife.

The main witness in the trial court was Mr Rami Bar-Giora, an expert psychologist, who testified that if the child were raised by the appellant and the appellant’s wife, he foresaw major risks to the emotional health of the child because of the circumstances of the child’s birth, whether these were revealed to the child or concealed from him.

The trial court held that the child was adoptable for two reasons: under section 13(7) of the Adoption Children Law, the appellant was ‘incapable of looking after the child properly because of his behaviour or situation’, and under section 13(8) of the Law, his refusal to give his consent to the adoption derived ‘from an immoral motive’ or was ‘for an unlawful purpose’.

 

Held: (Justices D. Dorner, I. Zamir, G. Bach) The case fell within the scope of section 13(7) of the Adoption of Children Law. The appellant was incapable of looking after the child properly because of the unique circumstances of the case, as described by the expert in his opinion. Section 13(8) of the law was not applicable, since the refusal to consent to adoption was in itself not immoral or unlawful.

(Vice-President S. Levin) The case did not fall within the scope of any of the grounds in section 13 of the Law that allow a child to be declared adoptable. Nonetheless, the law should be read to include an additional rule, which provides that a parent may not object to his child being declared adoptable if this is contrary to reasons of public policy with respect to acts which led to the birth of the child.

(Justice M. Cheshin) The case did not fall within the scope of any of the grounds in section 13 of the Law that allow a child to be declared adoptable. Nonetheless, a fundamental and independent principle of Israeli law is the principle: ‘Have you committed murder and also taken the inheritance? (I Kings 21, 19). Under this principle, which has the same status as statute, a person may not be allowed to benefit from his misdeeds.

 

Appeal denied.

 

Basic Laws cited:

Basic Law: Administration of Justice, s. 6.

Basic Law: Freedom of Occupation.

Basic Law: Human Dignity and Liberty.

 

Statutes cited:

Adoption of Children Law, 5720-1960, s. 11(3).

Adoption of Children Law, 5741-1981, ss. 1(b), 8, 8(a), 13, 13(2), 13(4), 13(5), 13(6), 13(7), 13(8).

Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992, s. 1.

Foundations of Justice Law, 5740-1980, s. 1.

Inheritance Law, 5725-1965.

Judges Law, 5713-1953, s. 11.

Legal Capacity and Guardianship Law, 5722-1962, s. 15.

Penal Law (Amendment no. 39) (Preliminary Part and General Part), 5754-1994.

Penal Law, 5737-1977, s. 1.

Registrars Ordinance, 1936, ss, 8, 8(a).

 

Israeli Supreme Court cases cited:

[1]           CA 549/75 A v. Attorney-General [1976] IsrSC 30(1) 459.

[2]           CFH 7015/94 Attorney-General v. A [1996] IsrSC 50(1) 48.

[3]           CA 436/76 A v. State of Israel [1977] IsrSC 31(2) 239.

[4]           CA 577/83 Attorney-General v. A [1984] IsrSC 38(1) 461.

[5]           CA 212/85 A v. B [1985] IsrSC 39(4) 309.

[6]           CA 301/82 A v. Attorney-General [1983] IsrSC 37(4) 421.

[7]           CA 623/80 A v. Attorney-General [1981] IsrSC 35(2) 72.

[8]           CA 232/85 A v. Attorney-General [1986] IsrSC 40(1) 1.

[9]           CA 211/89 A v. Attorney-General [1989] IsrSC 43(2) 777.

[10]         CA 418/88 A v. Attorney-General [1990] IsrSC 44(3) 1.

[11]         CA 437/85 A v. Attorney-General [1990] IsrSC 44(3) 18.

[12]         CA 604/89 A v. Attorney-General [1991] IsrSC 45(1) 156.

[13]         CA 50/55 Hershkovitz v. Greenberger [1955] IsrSC 9 791; IsrSJ 2 411.

[14]         CA 493/88 Attorney-General v. A [1988] IsrSC 42(4) 860.

[15]         CA 3199/90 A v. Attorney-General [1991] IsrSC 45(3) 488.

[16]         CA 228/62 Tzemach v. Attorney-General [1963] IsrSC 17 306.

[17]         CA 339/71 Kommemi v. Attorney-General [1971] IsrSC 25(2) 795.

[18]         EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.

[19]         HCJ 4562/92 Zandberg v. Broadcasting Authority [1996] IsrSC 50(2) 793.

[20]         Mot 337/68 Malloyds v. Yaakov Yeffet & Co. Ltd [1968] IsrSC 22(2) 470.

[21]         CA 6106/92 A v. Attorney-General [1994] IsrSC 48(4) 221.

[22]         CA 1212/91 LIBI The Fund for Strengthening Israel’s Defence v. Binstock [1994] IsrSC 48(3) 705; [1992-4] IsrLR 369.

[23]         CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[24]         CrimApp 1986/94 State of Israel v. Amar [1984] IsrSC 38(3) 133.

[25]         CA 3077/90 A v. B [1995] IsrSC 49(2) 578.

[26]         CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[27]         CA 4628/93 State of Israel v. Apropim Housing and Promotions (1991) Ltd [1995] IsrSC 49(2) 265; [1995-6] IsrLR 63.

[28]         HCJ 1/49 Bajerno v. Minister of Police [1948] IsrSC 2 80.

[29]         HCJ 337/81 Miterani v. Minister of Transport [1983] IsrSC 37(3) 337.

[30]         EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.

[31]         LCA 7504/95 Yasin v. Parties Registrar [1996] IsrSC 50(2) 45.

[32]         LCA 2316/96 Isaacson v. Parties Registrar [1996] IsrSC 50(2) 529.

[33]         CA 522/87 A v. Attorney-General [1987] IsrSC 41(4) 436.

 

Israeli District Court cases cited:

[34]         AC (Hf) 9/70 A.B. v. Attorney-General IsrDC 71 326.

 

American cases cited:

[35]         Riggs v. Palmer 22 N.E. 188 (1889).

[36]         Craig v. Mia W 500 N.Y. Supp. 2d 568 (1986).

[37]         LaCroix v. Deyo 437 N.Y. Supp. 2d 517 (1981).

[38]         Hines v. Sullivan 431 N.Y. Supp. 2d 868 (1980).

 

English cases cited :

[39]         In re F. (T.) (An Infant) [1970] 1 W.L.R. 192 (C.A.).

 

Jewish Law sources cited:

[40]         Ezekiel 18, 2.

[41]         Jeremiah 31, 28.

[42]         II Samuel 13, 11-13.

[43]         Babylonian Talmud, Tractate Baba Metzia, 38b.

[44]         Psalms 16, 7; 103, 13.

[45]         Isaiah 49, 15.

[46]         Deuteronomy 32, 11.

[47]         Lamentations 4, 3.

[48]         Jerusalem Talmud, Tractate Berachot, 1, 5.

[49]         Babylonian Talmud, Tractate Yoma, 85a-b.

[50]         I Kings 21, 17-19, 23-24; 22, 37-38.

[51]         II Kings 9, 30-37.

[52]         M. Silberg, Kach Darko Shel Talmud (2nd ed., 1964).

[53]         Babylonian Talmud, Tractate Sukkah, 45b.

 

For the appellant — A. Yemini.

For the first respondent — I. Cahan.

For the second and third respondents — O. Reuveni, Senior Assistant to the State Attorney and Director of Civil Matters at the State Attorney’s Office.

 

 

JUDGMENT

 

 

Justice D. Dorner

1.             On 22 June 1995 we decided to deny the appellant’s appeal on the judgment of the Jerusalem District Court, in which his son was declared adoptable. The following are our reasons for denying the appeal.

2.             The appellant, who has been married for many years, had no children. The prolonged medical treatments that the appellant and his wife underwent did not help. The desire for a child became the centre of the couple’s lives and caused tension between them. In her statement to the police, the appellant’s wife said that after the doctors — who had despaired of treating her — raised the possibility that the appellant was the infertile one and suggested using a donor’s sperm, the appellant said to her on several occasions that he ‘will try with someone else to find out if he is alright, and should that girl becoming pregnant, then we will take the child away from her and raise it’.

He did exactly that. The appellant began to court a 15 year-old girl (hereafter — the girl), a daughter of a neighbouring family with whom he was friendly. The girl, whose mother had died of cancer shortly before, found in the appellant, who was twenty years older than her, the warmth and love that she needed. The girl was responsive to the appellant and had sexual relations with him; as a result, she became pregnant. When she told the appellant about her pregnancy, he did not inform her of the possibility of terminating the pregnancy, but he calmed her with conflicting promises. On one occasion he promised her that he would divorce his wife and marry her; on another occasion he told her that he and his wife would raise the baby. When the girl’s family found out, from an anonymous telephone call, about the intimate relations between her and the appellant, she was sent for a medical examination, and then it transpired that she was in the twenty-ninth week of her pregnancy and it was not possible at this late stage to terminate the pregnancy.

The family made a complaint to the police, and a month after the complaint was made, the appellant informed the Child Welfare Service that he intended, together with his wife, to raise the child that was about to be born. Meanwhile, criminal proceedings were begun against the appellant. He pleaded guilty and was convicted of the offence of having intercourse with a minor, and on 14 April 1993 he was sentenced to eighteen months’ imprisonment, of which six were a custodial sentence and the remainder was a suspended sentence.

3.             The child was born on 4 September 1993. Three days after the birth, on 7 September 1993, the girl signed a form consenting to adoption. She further said that she opposed giving the child to the appellant and his wife. The child was therefore placed with a foster family.

4.             The appellant filed an application in the Jerusalem District Court, in which he asked that the child be given to him. The Attorney-General, for his part, petitioned to have the child declared adoptable. The two applications were heard together. The parties agreed that the parenting skills of the appellant and his wife should be examined by a court-appointed expert. For this purpose the court appointed the psychologist Rami Bar-Giora. Mr Bar-Giora found that, in the circumstances, both the appellant and his wife were unable to act as parents, and that if they raised the child they would cause him serious damage. His conclusion was that the child should be placed for adoption. He wrote, inter alia, that:

‘… the intensive campaign of the [appellant] and [his wife] to “get a baby” does not necessarily imply, in my opinion, a guarantee of the parental skills required for the baby to be raised by [the appellant] — he will grow up deformed by two major scars: that he is the child of his father only, and that he is the product of a relationship marred by accusations and bitterness: the mental health of this child, should he be raised by his biological father, will not allow him to live under a veil of secrecy, while the scars that he bears are known to everyone around him but are hidden from him…

With regard to the mental health considerations, I therefore regard all these potential dangers as a cause of probable disaster which should in no way be encouraged…

…

… I foresee many problems with regard to the ability [of the appellant’s wife] to tell the child, if she is indeed allowed to raise him, the truth about his mother and his father and the circumstances of his birth; ¬I foresee many difficulties for the child if as stated she is allowed to raise him… It will be far more difficult for her [the appellant’s wife] if she is forced to leave the supportive environment of her family, if the family moves away. Should the baby be placed for adoption, he will be able to confront the circumstances of his birth when he is an adult and not dependent on those who gave birth to him: dealing with these circumstances when he is a child seems to me too complex and too hard a challenge [for the appellant and his wife] who want to raise him.

…

Therefore I recommend that the baby not be given to his biological father, despite his strong desire to raise him, because of the many serious potential dangers arising from this; these should certainly not be imposed on a newborn child whose future — which will not be easy — is still before him, and we should search for the least dangerous and most promising option for his healthy development: there is no alternative other than closed and anonymous adoption’ (parentheses and emphasis supplied).

The District Court (Justice S. Brenner) found, on the basis of the evidence brought before it, that the appellant planned to father a child for himself and his wife by having intercourse with the girl. Its conclusion was that this fact in itself showed — as a matter of law —that the appellant was incapable of raising the child, and that in the circumstances his refusal to allow the child to be adopted derived from an immoral motive. In relying also on the psychologist’s opinion and the welfare officers’ report, the Court decided to deny the appellant’s application to give him the child, and it declared the child adoptable under sections 13(7) and 13(8) of the Adoption of Children Law, 5741-1981. In his judgment, Justice Brenner wrote, inter alia, the following:

‘The case is exceptional and unique in its nature and circumstances. According to the expert’s opinion — which is strengthened by the report and testimony of the welfare officers for adoption (and even by the various answers given by the petitioner and his wife) — the inability of the appellant [and his wife] to raise the child has been clearly proved… The possibility of the respondent submitting an opinion (additional to, and different from, that of Mr Rami Bar-Giora) was raised by the respondent, during the trial, more than once. But no such opinion was actually submitted… I will add that I believe, from a legal viewpoint, that anyone capable of planning and fathering a child for himself and his wife by means of a girl who is a minor, as happened in this case, shows prima facie that he and his wife are both unfit to be parents. For… there is sufficient evidence to find that the pregnancy and birth of the child were planned (by the respondent and his wife) and I do not accept their explanations, in cross-examination, about the reply [of the appellant’s wife] at the police station, which was quoted above’ (square parentheses supplied).

An appeal was filed against this judgment

5.             The main argument of counsel for the appellant, Advocate Yemini, was that the Adoption of Children Law does not recognize immoral behaviour of a parent resulting in the birth of the child as a ground for adoption. The Law contains an exhaustive list of eight grounds for adoption, and the behaviour of the parent prior to the birth of the child is not one of them. He argues that the psychologist’s opinion does not rely on an objective lack of parenting ability on the part of the appellant and his wife, but merely on the best interests of the child, and the best interests of the child in themselves do not constitute a ground for adoption.

In the reply to the appeal, counsel for the Attorney-General, Advocate Reuveni, argued that the finding of the District Court that the appellant is not fit to raise the child is founded on the report of the welfare officers and the expert’s opinion, and there is no reason to set this finding aside. Alternatively it was argued that the Adoption of Children Law contains a lacuna, which the court may fill by relying on the basis of the fundamental principle — which reflects the purpose of the law — that a person cannot acquire a right by carrying out a criminal act. The appellant, who planned to father for himself a child by means of intercourse with a minor, lost his natural right to raise the child that was born from this forbidden intercourse.

6.             As stated, the District Court considered both applications together: the appellant’s petition to deliver the child into his custody and the Attorney-General’s application to declare the child adoptable. The Attorney-General’s argument regarding the filling of a lacuna in the Adoption Law, although argued in the alternative, is an independent argument. According to this argument, the appellant lost his right to raise the child in any case, even if the child is not given over for adoption — for example if the mother raises him herself — and even if being brought up by the appellant does not harm his best interests.

I cannot accept this argument.

7.             In my opinion, the moral principle underlying the argument does not apply to parental relationships and it is applicable only to property rights. For this reason, in comparative law and our case-law the principle has been applied only to such rights.

In the famous judgment of the Court of Appeal of the State of New York in Riggs v. Palmer (1889) [35], at p. 190, it was held that, in the absence of a statutory provision, a beneficiary under a will, who murdered the testator to prevent him from changing it, cannot inherit from him. Justice Earl wrote as follows:

‘No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are directed by public policy, have their foundations in universal law administered in all civilized countries, and have nowhere been superseded by statutes.’

In our law, the rule ex turpi causa non oritur actio (no action can be based on a disreputable cause) is applied only with regard to property rights and is accepted in the laws of contracts and torts (G. Shalev, The Laws of Contracts, Din, 2nd edition (1995), 355; A. Barak, ‘Denying the claim of an injured person for reasons of the Public Interest’, The Law of Torts — General Principles of Torts, Magnes, second edition, G. Tedeschi ed. (1977), 340).

8.             The law is different when we are concerned with the rights of a parent to raise his child. The rule established in American case-law is that the principle laid down in Riggs v. Palmer [35] should not be applied to this right of a parent. This was explained by Justice Weiss in Craig v. Mia W (1986) [36], at pp. 569-570:

‘… the rule delineated in Riggs v. Palmer… should not apply here. Rather, that rule should be limited to situations involving property rights, or economic or monetary gains, obtained as a result of wrongdoing… The commission of the crime of statutory rape does not preclude petitioner’s rights to maintain the paternity and custody proceedings. That conduct is to be considered only as it relates to the child’s best interest at the custody hearing…’

See also LaCroix v. Deyo (1981) [37], at p. 522.

It is possible that the case before us, in which the appellant committed the offence with the intention of fathering the child, could have been distinguished from the cases considered in American case-law, and that the rule that a person may not benefit from the fruits of his forbidden act could have been applied. But the right of the natural parent that he, rather than someone unrelated, should raise his child is also a duty. See the remarks of Justice H. Cohn in CA 549/75 A v. Attorney-General [1] and my remarks in CFH 7015/94 Attorney-General v. A [2], at pp. 65-66.

This duty of the parent must be weighed against the right of the child that his natural parents should provide for his emotional and material needs. See section 15 of the Legal Capacity and Guardianship Law, 5722-1962; CA 436/76 A v. State of Israel [3], at p. 243; CA 577/83 Attorney-General v. A [4], at pp. 467-468; and CA 212/85 A v. B [5], at p. 312).

The right of the child takes precedence. This priority is also reflected in the Adoption of Children Law, in which the best interests of the child are of prime importance. See section 1(b) of the Adoption of Children Law; CA 301/82 A by her guardian v. Attorney-General [6], at p. 424; Attorney-General v. A [2], at pp. 65-66). This right of the child is independent. It does not derive from the parent’s right. The child is not the property of the parent. He is an independent entity, and he has interests of his own (CFH 7015/94 Attorney-General v. A [2], ibid.). Where the best interests of the child so demand, he should not be denied his right to be raised by his natural parent — even if that parent acted wrongly in the way in which he fathered him. The criminal behaviour of the parent in the manner of fathering his child cannot affect the right of the child to be raised by the parent when being raised by the parent is in the best interests of the child. Of this the Bible literally says: ‘Shall fathers eat unripe fruit and their sons’ teeth be blunted?’ (Ezekiel 18, 2 [40]; see also Jeremiah 31, 28 [41]).

9.             Of course, the best interests of the child are not in themselves a ground for adoption. See, for example, CA 623/80 A v. Attorney-General [7], at p. 75. Notwithstanding, there is a correlation between the grounds set out in section 13 of the Adoption Law and the best interests of the child, since these grounds are merely a list of cases in which the best interests of the child are harmed because the parent does not carry out his duty towards him or is incapable of doing so.

It is indeed true that the eight grounds for adoption set out in section 13 are an exhaustive list; in other words, any case not included in section 13 cannot be a ground for adoption. See CA 235/85 A v. Attorney-General [8], at p. 13; CA 211/89 A v. Attorney-General [9], at p. 779.

Nonetheless, we should note that one of the grounds for adoption is a catch-all provision — namely the ground under section 13(7) which concerns a parent who is incapable, because of his situation or behaviour, of taking proper care of his child, i.e., of ensuring his welfare. The ‘situation’ or ‘behaviour’ that constitute a ground for adoption under section 13(7) are therefore determined according to the result they create, which is harm to the welfare of the child. This was discussed by Justice Cheshin (in CFH 7015/94 Attorney-General v. A [2], at pp. 108-109):

‘Knowing all of this, we can also know that the ground of parental incapacity derives solely from the duties of the parent to his child; the rights of the child vis-à-vis the parent; the recognised interest of the child; the best interests of the child. Can we honestly and wholeheartedly say that section 13(7) is not concerned with the “best interests” of the child? Admittedly, section 13(7) of the Adoption Law does not speak of a ground for adoption that is based on the “best interests of the child” per se — the best interests of the child on their own, the best interests of the child in vacuo. But I believe that if we examine more carefully the “incapacity” of a parent to “care properly for his child”, this will lead us to the best interests of the child and the welfare of the child in their purest sense...

…

We can therefore see that the best interests of the child and the welfare of the child are not expressly mentioned in section 13(7) of the Adoption Law, but they are the heart and soul of this ground for adoption: without these, the ground will not exist, and these are the essence of the ground from beginning to end.’

Indeed, whenever the best interests of the child are likely to be seriously harmed as a result of the situation or behaviour of the parent, to an extent that it can be said that the parent is incapable of looking after the child properly because of his situation or his behaviour, a ground for adoption comes into being.

10. A child is likely to be seriously harmed by being raised by a father who fathered him by means of illicit intercourse with his mother, and, what is more, did so in pursuit of a preconceived plan, in order to acquire a child for himself and his infertile wife. A child born in such circumstances is likely — because of the situation created thereby — to suffer serious harm.

11. In our case, the court appointed its own expert, with the appellant’s consent, to examine the appellant’s parental capacity. As stated, the expert found that, in the special circumstances of the case, the appellant did not have parental capacity, because of his situation that he created by fathering the child by means of a criminal offence. The appellant did not present a contrary opinion; consequently the opinion of the court expert is currently the only one before us. This opinion is logical and persuasive, and I see no reason not to accept it.

12. Even so, I can conceive of cases of illicit intercourse where the best interests of the child will require us to leave him with his parent. Indeed, the existence of a ground for adoption is not the final word on the subject, and the decision whether to declare a child adoptable after a ground of adoption has been proved depends on whether such a declaration is in his best interests.

In our case, I am persuaded, on the basis of the aforementioned opinion of the psychologist and because of the special circumstances of the case, that the best interests of the child require him to be placed for adoption. Once it has been proved that a ground for adoption exists, and that the best interests of the child are that he should be declared adoptable, I believe that the appeal should be denied.

 

 

Vice-President S. Levin

1. The appellant and his wife, who have been married for many years, had no children. Therefore the appellant decided to seduce the daughter of his neighbours (a girl who was fifteen years old), whose mother had recently died of cancer, so that she would bear him a child, who would be raised by himself and by his wife. The girl found in the appellant, who was twenty years older than her, support and love. She became pregnant from the appellant. He did not appraise her of the possibility of terminating the pregnancy, and when her family found out, it was already too late to terminate the pregnancy. On 4 September 1993, the joint child of the appellant and the girl was born. The girl signed a consent form for adoption. The appellant asked for the child to be given to him. The girl said that she was completely opposed to the appellant and his wife being given the child. The Jerusalem District Court declared the child adoptable, on the basis of paragraphs (7) and (8) of section 13 of the Adoption of Children Law (hereafter — the Law). This led to the appeal before us, which we denied. These are my reasons for denying the appeal.

2. It is hard to find words to describe the deeds of the appellant, who unashamedly made use of the body of a young girl in order to exploit her as an instrument for gratifying his desire for a child, while humiliating her feelings, her innocence, her dignity and the dignity of her family. The case is unparalleled throughout the world, and the parties could not find a similar case in all the vast literature in this field, and even my own research found nothing. Does the case fall within the scope of paragraphs (7) and (8) of section 13 of the Law?

The rule set out in section 8 of the Law is that an adoption order may not be given without the consent of the parents of the child under discussion. Under the aforementioned section 13, the court may declare a child adoptable even without parental consent, if it finds that one of the following exists:

‘(7) The parent is incapable of looking after the child properly because of his behaviour or situation, and there is no chance that his behaviour or situation will change in the foreseeable future, even with reasonable economic assistance and help of the kind usually provided by the welfare authorities for his rehabilitation;

(8) The refusal to give the consent derives from an immoral motive or is for an unlawful purpose.’

3.             As was stated in the Report of the Commission for Examining the Adoption of Children Law (1979), headed by Justice Etzioni (at p. 20), a report that served as the basis for the Law, the duties of natural parents to their children were defined on two levels: the first duty — the material one — to feed, maintain and take care of the material needs of the child, and the second duty — the spiritual one — to give the child the affection and love that cannot be bought with money, and to satisfy his psychological and emotional needs. A plain reading of the aforeaid section 13(7) shows that the court may declare a child adoptable if there is no parent that is able to take care of the child in both of the aforesaid two meanings, subject to the last part of the said paragraph. It is established case-law that this section should be used only with extreme caution: (CA 418/88 A v. Attorney-General [10]; CA 437/85 A v. Attorney-General [11]; CA 604/89 A v. Attorney-General [12]). Only in rare cases will the court declare a child adoptable merely because of the possibility that leaving him with his natural parents may cause the child harm as a result of a severe, serious and dangerous disability of his parents, and the best interests of the child are not usually taken into account, on their own, as a factor for declaring the child adoptable. It has been further held that the list of grounds set out in section 13 of the Law is a closed list: CA 235/85 A v. Attorney-General [8]). All these rulings, which justify a narrow interpretation of section 13(7), indicate that a heavy onus of proof rests with the party requesting that a minor be declared adoptable, in order to override the ‘blood ties’, within the meaning of this expression in the remarks of the late Vice-President S. Z. Cheshin in CA 50/55 Hershkovitz v. Greenberger [13], at p. 800 {420}; in other words, the presumption is that a child’s proper place is with his natural parents.

As stated in CA 232/85 A v. Attorney-General [8], the court must examine, in the first stage, whether the parent is indeed incapable of taking proper care of his child because of his behaviour or situation, both in the present and in the future, and, in the second stage, whether the child should be declared adoptable (see also CA 493/88 Attorney-General v. A [14]); note that we are concerned with the behaviour of the parent in the present and the future and not with behaviour in the past. In my opinion, it cannot be doubted that the appellant’s behaviour in the present or in the foreseeable future does not justify denying him his natural paternal right. Nor does it seem to me that the appellant’s ‘situation’ justifies this either. No-one questions the ability of the appellant to feed and support the child and to provide for his physical needs, and in my opinion it has not been proved that the appellant, who took such ‘pains’ to obtain a child by illicit methods, is incapable of giving the child the love and affection that a father normally gives his child.

4.             The learned judge relied on an obiter dictum of Vice-President Elon in CA 3199/90 A v. Attorney-General [15], at p. 491, that in especially serious cases — and this case is one of these — the court may declare a child adoptable even if there is no evidence that the parent has de facto been unable to look after his children improperly (cf. also CA 604/89 A v. Attorney-General [12], at pp. 161-162); I do not dispute this ruling, and if the condition of parental incapacity in the aforementioned sense existed, I would not disagree with the District Court’s reasoning. In this respect, the District Court relied upon the opinion of the expert Mr Rami Bar-Giora, from which it concluded that, in the present case, there exists a combination of personal characteristics of the appellant and his wife together with the unique situation that has been created, which was even unforeseen by the Etzioni Committee, and the appellant’s parental incapability was determined on the basis of this combination of factors. In this regard, the expert wrote in his opinion that dealing with the circumstances of the child’s birth seemed to him too complex and too great a challenge for the appellant and his wife who wished to raise the child; the appellant avoided answering whether he would tell the child the circumstances of his birth, and it emerged that he would not oppose a meeting between the child and his mother, leaving the consequences of this in the hands of fate. The District Court also quoted the following paragraph from the expert’s opinion:

‘If the family [of the appellant and his wife] raises the child, it must go into “exile” and it will always be in danger of discovery of the secret. In any event, the sensational story will pursue the child and whether it reaches the child before his parents’ explanations or reaches him after them, it will, because of the outlook of society, create a disturbing and problematic source of pressure on all the persons concerned’ (square parentheses supplied).

In the expert’s opinion, the raising of the child by the appellant’s family would constitute a trap:

‘In other words, there will be difficulties on all sides. It they tell him the truth, that is very complex, and if they hide it from him, that is very dangerous.’

The expert also considered the physical proximity of the homes of the two families, the appellant’s family and the family of the mother, the acquaintance between them and the fact that, over time, it would be impossible to hide from the child the circumstances of his birth. The expert testified in cross-examination also that he had:

‘nothing whatsoever to say against the parental capacity of both of them [the appellant and his wife]. All that I wrote, I wrote in connection with their potential parenting of this child with his unique circumstances’ (square parentheses supplied).

The learned judge did not ignore the case-law rule that the best interests of the child cannot constitute a ground for adoption on its own; but when he reached the conclusion that a ground for adoption had been proved, he thought that this consideration should be taken into account when the court exercised its discretion. The expert said as follows:

‘The mental health of this child, should he be raised by his biological father, will not allow him to live under a veil of secrecy, while the scars that he bears are known to everyone around him but are hidden from him. The possibility that his father will be arrested “because of him or because of the desire to bring him into the world” may be another immediate and burdensome scar that should not be imposed on [his wife] who will be obliged to raise him alone for a decisive and critical period of time for the bonding of mother and child. With regard to the mental health considerations, I therefore regard all these potential dangers as a cause of probable disaster which should in no way be encouraged.’

With regard to the aforementioned opinion and what the expert said in cross-examination, I accept that the complications likely to be caused to the child by keeping or disclosing the secret are likely to harm his best interests, but were it not for the special circumstances surrounding the background of his birth, and were we concerned with another secret arising from other circumstances, which could exist in many families, where the keeping or disclosing of the secret could harm the child, I am not sure that the expert would have recommended taking the child from the custody of the natural parents. Since everyone agrees that the best interests of the child cannot be considered a sole criterion for declaring a child adoptable, the special circumstances of this case do not, in my opinion, fall into the scope of section 13(7) of the Law. No matter how ‘vague’ the wording of this section (see CA 418/88 A v. Attorney-General [10]), it does not allow a child to be removed from the custody of his natural parent merely because of circumstances that are unrelated to the present or future situation or behaviour of the parent, when it has been proved that, apart from considerations relating to keeping or disclosing the secret, the appellant is capable of providing the child’s physical and emotional needs, and in any case there is no proof of the contrary. As for the period that the appellant was likely to spend in prison, it transpires, in retrospect, that the appellant was imprisoned only for a short time, and therefore this consideration should not be taken into account.

5.             The court’s reliance on the expert’s opinion is legitimate in so far as it relates to the best interests of the child, and as I shall show below, this in my view is not insignificant; however, the opinion does to some extent confuse considerations of the best interests of the child, on the one hand, with ethical considerations, on the other, and in this respect the expert is no more authoritative than the court.

I have therefore reached the conclusion that the case before us does not fall within the scope of section 13(7) of the Law.

6.             I have reached the conclusion that the case before us also does not fall within the scope of section 13(8) of the Law. In this respect, the learned trial judge was of the opinion that the immoral motive lay in the ‘original sin’ of the plan to ‘acquire’ the child by illicit means, and the refusal to hand the child over for adoption could only be expressed after the child’s birth.

Section 13(8) has been considered by the Supreme Court in only two instances: in CA 228/62 Tzemach v. Attorney-General [16]), the appellant divorced his wife, the mother of seven children, who was pregnant, and became involved with an unmarried woman aged 19, whom he made pregnant and who bore him a daughter. The two parents decided to place their daughter for adoption, but when the Attorney-General filed an application to have the child declared adoptable, the appellant revoked his consent and demanded that the child should be given to him, provided that his former wife consented to this. The District Court held that the appellant’s desire to have custody of the daughter and to remarry his former wife did not derive from paternal feelings and concern for the child. Originally the appellant had made his former wife pregnant with the intention of creating strife between the two rivals, and even now he was not prepared to return to his former wife and his seven children out of a desire to take care of them, but he made his return contingent upon her accepting the girl and used it as a threat so that she would agree to take in an additional child, the daughter of her rival, and look after her. In denying the appeal, the Supreme Court held that ‘a father, who ignores the fate of his daughter and regards her merely as a means of creating strife between his wife and his mistress, and who does not care if the child of this strife will be thrown in amongst his other neglected children, is necessarily acting out of immoral motives...’ (see at p. 307). The second case (CA 339/71 Kommemi v. Attorney-General [17]), arose when section 11(3) of the Adoption of Children Law, 5720-1960, which was replaced by section 13(8), was still valid. The case concerned a child born out of wedlock. The mother agreed to adoption and the father objected, but he did not express any readiness to support the child, and even gave notice that he would be prepared to give up the child if he were paid a sum of money to pay off his debts. It was held that the father’s refusal to hand over the child for adoption derived from immoral motives or was for an unlawful purpose.

Counsel for the appellant brought before us the minutes of a meeting of the Constitution, Law and Justice Committee of the Knesset on 29 April 1981, in which (on p. 20) the members of the Committee were told of a case in which a girl, who was a minor, had a child with a married man. The man wished to continue his affair with the girl, and therefore offered to take the child into his home and raise her with his wife, provided that the affair with the girl would continue. The Committee members were told that this case led to the ground of the  ‘immoral motive’. I have also examined the case law of the District Courts and have not found any case similar to the one before us. The question of the interpretation of section 11(3) of the previous law arose incidentally in AC (Hf) 9/70 A.B. v. Attorney-General [34]. The case considered there was of a father who murdered his wife and was sentenced to life imprisonment. It was held in that case that, by committing the murder, the husband had chosen to place himself in a position in which he would be unable to discharge his obligations to his child. President Etzioni was doubtful as to whether the case could be included within the scope of section 11(3) of the previous law, nonetheless he was prepared to rule that the father, the murderer ‘…had denied himself the right to be called a father, and had severed the paternal relationship with the boy’ (at p. 328). A similar case came before the court in England in the case In re F. (T.) (An Infant) (1970) [39]. Here too the father was convicted of killing his wife, and the Court of Appeals was called upon to consider whether his refusal to give the child up for adoption was unreasonable, under section 5(1)(b) of the English Adoption Act of 1981. It was decided that the refusal was indeed unreasonable, as Justice Harman said (at p. 197):

‘It seems to me that a father, who has done the greatest wrong to his young daughter that a man can do, has small right to be heard in the choice of replacement so far as possible of the parent of whom he has deprived her.’

A study of the legislative history and the overall structure of section 13 in general of the language of paragraph (8) in particular, shows, in my opinion, that the present case does not fall within its scope, since it is of a narrower scope than its corresponding English section. Note that paragraph (8) is the only paragraph in section 13 that discusses a refusal to give consent, whereas the other paragraphs require positive proof of a ground for declaring a child adoptable. In my opinion, paragraph (8) should not be used unless the Attorney-General has proved the existence of a ground for adoption under one of the previous paragraphs, and the court is required to decide — in the second stage — whether to exercise its discretion in favour of the applicant; for if we do not say this, the result is that the Attorney-General may remove a child from the custody of his natural parents for the purpose of adoption, without any factual basis, unless the parents prove — and the burden of proof is on them — that the refusal to hand over the child for adoption does not derive from an immoral motive and is not for an unlawful purpose. Therefore, since we have held that the appellant’s case does not fall into any of the previous paragraphs, the aforesaid section 13(8) cannot apply.

Moreover there is no basis for the claim that the appellant’s refusal has an unlawful purpose or derives from an immoral motive, and in my opinion we must detach (for the purpose of interpreting the said paragraph) the events that led to the birth of the child from the said purpose or motive; there is nothing unlawful in the appellant receiving custody of the child (if the Court grants his application), and the motive for the appellant’s refusal to consent to adoption is his desire to raise him in his own family. This reason, in itself, does not contain any moral defect.

It follows that the appellant’s case does not fall into the scope of any of the sub-paragraphs of section 13.

7.             In the case before us, the appellant exploited a young girl, seduced her, made her pregnant, and now he wishes to receive her child in order to complete his plan. Will the law assist him in doing so? Are we compelled to surrender to the language of the law, deny the application of the second respondent and deliver the child into the custody of the appellant? It is indeed true that the list of grounds for declaring a child adoptable is a closed list, but are there no legitimate methods of interpretation or other techniques that allow us to prevent the said result, which is manifestly undesirable and unjust? It seems to me that we may reach the desired result either by means of interpretation or by means of filling a concealed lacuna. I will begin with four examples from the legal literature and case-law, I will then proceed to draw general conclusions and in the third stage I will apply my conclusions to the facts of the case before us.

(a) In EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18], this court held that even in the absence of a specific provision of statute, the Central Elections Committee was not compelled to approve a list of candidates that was unlawful, since its founders denied the integrity of the State of Israel and its very existence. In denying the appeal, Justice Sussman said (at p. 390):

‘Just as a person is not bound to consent to being killed, so too a State is not bound to consent to its own extermination and being wiped off the map. Judges may not sit idly and despair of the lack of positive law when a litigant is asking them to help him in order to bring about the destruction of the State.’

It was held that the case involved ‘super-constitutional’ principles that derive from the right of the organized society in the State to defend itself, whether this is called natural law or whether it is called by any other name. There was no positive provision of law that authorized the court to do what it did, but notwithstanding this the appeal was denied.

(b) HCJ 4562/92 Zandberg v. Broadcasting Authority [19]) considered section 1 of the Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992, which provided, inter alia, that:

‘In order to remove doubt, it is hereby determined that the fees for maintaining a radio or television receiver, which were determined under the Broadcasting Authority Law, 5725-1965, for the years 1985 to 1992, are valid under every law and for all intents and purposes from the day that they were determined; …’

This was a validation law, the wording of which was, prima facie, clear. But notwithstanding what was stated in the wording of the law, the court held, by means of purposive construction, that the fees charged in the years 1985-1992 would be given retroactive force, together with the linkage differentials thereon, but there would be no retroactive validity to any fine for arrears on those amounts.

(c) Legal literature and case-law have raised the question whether, in the absence of a specific provision of statute in this regard, an heir who murdered someone that bequeathed him his property in a will is entitled to inherit him. This was what happened in the well-known case of Riggs v. Palmer [35], and the court ruled in the negative.

(d) Section 8(a) of the Registrars Ordinance, 1936 was considered in Mot 337/68 Malloyds v. Yaakov Yeffet & Co. Ltd [20]. This provision states that a judgment given by a registrar ‘under section 6, paragraphs (b) (b1)’ is, for the purposes of an appeal, of the same status as a judgment given by the court, and the Supreme Court held that the limitation should be ignored and that every judgment of a registrar could be appealed before the Supreme Court.

In all of these cases, the court ruled contrary to the literal text of the law or by adding provisions to the law that it did not contain. In the first case (Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18]), it was held that the express wording of the statute was accompanied, by implication, by  ‘super-constitutional’ principles with regard to the right of society to protect itself against those who act to destroy it; in the second case (Zandberg v. Broadcasting Authority [19]), the Supreme Court reached the conclusion that the application of the validation law was retroactive, except with regard to fines for arrears. The reason for this decision was, inter alia, that the statute is accompanied by constitutional principles concerning the non-retroactive nature of a penal provision and of harm to property rights, and that the interpretation that leads to integration and creates harmony between the laws should be preferred to the interpretation that creates a conflict between them. In the third case (Riggs v. Palmer [35]), the Court of Appeals of the State of New York held that the general wording of the statute did not preclude the application of a universal principle that prevents a person from benefiting from the profits of his crime. As Justice Earl said (at p. 190):

‘No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are directed by public policy, have their foundations in universal law administered in all civilized countries, and have nowhere been superseded by statutes.’

This case was considered extensively in H. Hart and A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, Cambridge (1958), at pp. 93 et seq., as an example of the inclusion of restrictive clauses in the general wording of a statute. It was also considered in R. Dworkin, Taking Rights Seriously, London (1977) at p. 23) and in A. Barak, Interpretation in Law, vol. 1, The General Theory of Interpretation, Nevo (1992), at p. 482, as an example of an application of the doctrine of the hidden lacuna. In this regard, Justice B.N. Cardozo said the following in his book, The Nature of Judicial Process, New Haven (1921), at pp. 40-42:

‘Conflicting principles were there in competition for the mastery. One of them prevailed, and vanquished all the others. There was the principle of the binding force of a will disposing of the estate of a testator in conformity with the law. That principle, pushed to the limit of its logic, seemed to uphold the title of the murderer. There was the principle that civil courts may not add to the pains and penalties of crimes. That, pushed to the limits of its logic, seemed again to uphold his title. But over against these was another principle, of greater generality, its roots deeply fastened in the universal sentiments of justice, the principle that no man should profit from his own iniquity or take advantage of his own wrong. The logic of this principle prevailed over the logic of the others. I say its logic prevailed. The thing that really interests us, however, is why and how the choice was made between one logic and another. In this instance, the reason is not obscure. One path was followed, another closed, because of the conviction in the judicial mind that the one selected led to justice. Analogies and precedents and the principles behind them were brought together as rivals for precedence; in the end, the principle that was thought to be most fundamental, to represent the larger and deeper social interests, put its competitors to flight.’

In the fourth case (the appeal on a decision of the registrar), the court ignored the express wording of the legislation, which it held was ‘only written as an oversight’, in order to adapt section 8 of the Registrars Ordinance to the overall structure of the division of powers between the court and the registrar.

8.             In Zandberg v. Broadcasting Authority [19], the court reached its conclusions both by means of interpretation and on the basis of the doctrine of the concealed lacuna, which it left undecided. According to this doctrine, as explained by President Barak (at p. 814):

‘The lacuna in this case is of a special character. It finds expression in the absence of an exception. In Continental legal literature this lacuna is called a “concealed (or latent) lacuna”. The lacuna is “concealed”, since from the general language of the statute itself it may be inferred that the language applies to the situation that requires a decision. Only by studying the purpose of the statute can one conclude that the general language should not be applied to the circumstances of the special case.’

The source for using the technique of filling lacunae is in the Foundations of Justice Law, 5740-1980.

As Professor Barak wrote in Interpretation in Law, vol. 1, at p. 477, there is in principle a possibility of filling a lacuna in all fields of law, including family law, since it is a general doctrine. However, I do not need to say anything further about this, since it is possible to reach the proper result not only by virtue of the said doctrine but also by virtue of the rules of broad interpretation.

9.             Statutes are not enacted in a vacuum. They form part of an integral system that includes fundamental principles. They are presumed to have been enacted within the framework of these principles, which they are intended to realize (cf. Barak, Interpretation in Law, vol. 2, Statutory Interpretation, Nevo (1993), at pp. 479 et seq.). It is presumed that they operate in order to achieve justice and equality, and their application will prevent outcomes that are inconsistent with public policy. One of the rules of public policy is that the wrongdoer should not benefit from his misdeed. Indeed, the force of the said principle is likely to change from case to case and from time to time. We are not concerned with the individual assessment of a specific judge, but with special circumstances in which there exists a common social factor that assumes that a specific outcome is inconceivable because it conflicts with fundamental principles, and that the legislator never thought of it, and had he been asked, he certainly would say that it is not subject to the rule, or that it is subject to another rule.

If we apply the aforesaid to the area under consideration in this appeal, it emerges that we must read into section 13 of the Law an additional rule, which provides that a parent may not object to his child being declared adoptable if this is contrary to reasons of public policy with respect to acts that led to the birth of the child. This rule will apply irrespective of the grounds mentioned in section 13 of the Law, and it constitutes an application of the universal principle that a wrongdoer should not benefit from his misdeeds. The District Court and my esteemed colleague, Justice Dorner, found a way to reach this result within the framework of paragraphs (7) and (8) of section 13. I did not find a way to do this, and I was therefore compelled to complete the text by means of an additional rule. In doing so, I did not depart from the principle that the judge must be faithful to the statute, since I applied another principle that the legislator is presumed to have intended to follow, without affecting the closed list of grounds for adoption listed in the first seven paragraphs of section 13 of the Law. I could have reached the same result by invoking the doctrine of the concealed lacuna.

10. It seems to me that the case before us falls within the scope of the rule mentioned in the last paragraph, where the outcome of entrusting the child to the appellant is contrary to basic principles of public policy; the legislator did not foresee this, and had he been asked, he certainly would have said that it is subject to a rule that prevents this outcome.

In order to avoid misunderstandings, I wish to add the following two remarks:

a.             My opinion does not relate at all to the question of the right of unmarried fathers to prevent a girl or a woman, who became pregnant with their child, from placing their child for adoption (in this respect, see the recent survey written by Prof. Mary Shenley: ‘Unwed Fathers’ Rights, Adoption and Sex Equality: Gender-Neutrality and the Perpetuation of Patriarchy’, 95 Col. L. Rev. (1995) 60), nor to every case where the birth of a child occurs as a result of an offence. From the material before us, it appears that there are legal systems that distinguish different levels of offences for this purpose. Thus, for example, the laws of the State of New York provide that there is a justification for denying the right of a father who committed first-degree rape to oppose his child being placed for adoption, but this rule does not apply to second or third degree rape. I do not intend to adopt any position with regard to any cases other than the present one, in which the birth of a minor was the result of an offence. Nor do I intend to consider the ruling of the Family Courts in the State of New York, which holds that the ruling in Riggs v. Palmer [35] applies only to property matters. Not only are there extensive case-law to the contrary in the State of New York itself (see, for example, Hines v. Sullivan (1980) [38] (and conflicting judgments in this matter cannot serve as a precedent, even in their country of origin), but there is no reason or logic in limiting the rule in Riggs v. Palmer [35], as a rule of interpretation, merely to property law.

b.             As in any case of declaring a child adoptable, even when it has been proved that the circumstances of the child’s birth justify denying the natural father of his paternal rights, the matter is subject to the court’s discretion. In this I agree with the outlook of my esteemed colleague, Justice Dorner, that if, despite the existence of circumstances that in principle justify denying the natural father’s right to oppose adoption, it is possible to show that in the specific case giving the child over to the father is clearly in his best interests, the court may decide that the best interests of the child override conflicting reasons of public policy.

For these reasons, I also agreed with the outcome that the appeal should be denied.

 

 

 

Justice M. Cheshin

It is the law of nature that a child grows up in his home of his father and mother: they are the ones who will love him, give him food and drink, educate him and support him until he grows up and becomes a man. This is the right of a father and mother, and this is the right of the child. I have written this elsewhere, in greater detail: CA 6106/92 A v. Attorney-General [21], at p. 235; CFH 7015/94 Attorney-General v. A [2]. This right of a father and the mother came into being before there was a law and constitution. It is the law of nature, the law inscribed in our hearts. Even if these things are stated in a law or a constitution, they will only be an echo and a shadow of that natural right. This right came into existence at creation, and many branches of law are founded on it. The law of the State therefore follows in the footsteps of the law of nature. This is the source for the provision of section 8(a) of the Adoption of Children Law (hereafter — the Law), which says:

‘A court shall not make an adoption order unless it is satisfied that the parents of the adoptee have agreed that the child may be adopted or unless it declares him adoptable under section 13.’

2.             There are only two ways by which a child may be separated from his mother and father by means of adoption: one way is by the consent of the mother and the father that he may be adopted, and the other way is a separation by force of law, when there exists one of the grounds listed in section 13 of the Law for declaring a child adoptable. In our case, the mother consents to adoption; what is more, she requests and demands that her son is taken for adoption. The father, however, wishes to exercise his natural right and duty as a father to raise his child as a father raises a child.

3.             I must admit that after the facts were set out before me in full, I knew that I would not be a party to delivering the child into the custody of his natural father, the appellant. In my opinion, the appellant is as one who raped a minor — even if his act was not an act of ‘rape’ under the provisions of the Penal Law, 5737-1977 —and after the rape he misled the girl with lies and deceit until the embryo became viable and could no longer be aborted. He then deserted the girl while she was still pregnant, and when she gave birth to a living child, he came forward and staked a claim as if he had come into his own. The girl, the mother, requests and pleads that the child is adopted by strangers. She wants to escape from this trauma that she has undergone, to erase these terrible months from her memory. But the appellant insists that the child should be given into his custody, and he demands that he is allowed to raise him as a father raises his son. The appellant committed an act more despicable that almost any other. It is an act like that of Amnon and Tamar:

‘And he took hold of her and said to her: Come lie with me, my sister. And she said to him: No, my brother, do not force me, for such thing should not be done in Israel; do not do this shameful act. For where shall I take my shame? And you shall be like one of the most contemptible persons in Israel…’ (II Samuel 13, 11-13 [42]).

Amnon paid for his crime with his life (II Samuel 13, 28-33 [42]), whereas the appellant, who raped the body of the girl, stole her innocence and youth, trampled and violated her dignity, stands before a court in Israel, claiming rights, as someone who asks to be rewarded for committing a crime.

When the true facts became clear to me, my initial reaction was a strong instinctive reaction, that the appellant is not entitled to any relief. This feeling has not changed. It seems to me that the trial judge felt as I do, and so do my colleagues in this case. The differences between us only concern the reason for denying the application of the appellant. We differ on questions of legal theory, in the purest sense. I therefore wish to make several remarks.

Does the ground of parental incapacity apply in this case?

4.             As stated, adoption may not take place, nor may a child be taken from his father and mother for adoption, unless both of them consent to the adoption of their child by strangers, or if one of the grounds listed in section 13 of the Law exists. The father — the appellant before us — insists upon exercising his right to raise his son, and he vehemently opposes the adoption of the child by strangers. The question before us is therefore whether one of the grounds in section 13 applies. The main ground for our purposes is the one set out in section 13(7) of the Law, according to which the court may declare a child adoptable if it is satisfied that:

‘The parent is incapable of looking after the child properly because of his behaviour or situation, and there is no chance that his behaviour or situation will change in the foreseeable future, even with reasonable economic assistance and help of the kind usually provided by the welfare authorities for his rehabilitation.’

This ground is concerned with ‘parental incapacity’, and the question is whether the appellant is ‘capable’ of taking proper care of the minor or whether he is not ‘capable’ of doing so ‘because of his behaviour or situation’. With regard to this ground, I said elsewhere that prima facie it is talking about the mother and father (in our case — about the father only), but a close examination will show us, unsurprisingly, that it is the child who stands in centre-stage and that his status is what will ultimately determine the question whether the mother and father are ‘capable’ of ‘taking care’ of him ‘properly’ (see my opinion in CFH 7015/94 Attorney-General v. A [2], at pp. 108-109; see also the opinion of my colleague, Justice Dorner, at pp. 65-66). Where it is proved that the mother and father are incapable of taking proper care of their child, then a ground for adoption based on ‘parental incapacity’ will apply.

What is the connection between the ground of incapacity and ‘the best interests of the child’? Everyone agrees that ‘the best interests of the child’ — in themselves — do not constitute a ground for adoption. However, where the ‘best interests of the child’ are very seriously harmed, i.e., where the parent’s behaviour or situation harms the child to the extent that the parent can be assumed to be ‘incapable of taking care of his child properly’ — and where there is no chance that his behaviour or situation will change in the foreseeable future — then the ground is established.

The trial court judge was of the opinion that this ground of incapacity applied to the appellant (and his son), and some of my colleagues also think this. Notwithstanding their opinion, the Vice-President, my colleague Justice S. Levin, is of the opinion that the ground of incapability does not apply to the appellant. I agree with the Vice-President.

5.             What led my colleagues to think that the ground of parental incapacity has been proven? The ground of parental incapacity for adoption is invariably proved by the opinion of experts. Of course, an opinion given by an expert does not bind the court to rule according to the expert’s opinion. The responsibility for declaring a child adoptable rests with the court, which bears the responsibility even when ruling in accordance with the expert’s opinion. Moreover, the question of parental incapacity is a combined question of law and fact, and while the expert may determine a question of fact, this is not so with regard to the question of law that the court must decide. However, we know that the opinion of an expert usually has very great weight — even if it is not decisive — and it constitutes the essence of the judgment. I would add to all this that I have yet to hear of a case in which a child was declared adoptable on the ground of parental ‘incapacity’ notwithstanding the opinion of an expert submitted by the Attorney-General, according to which the parents have parental capacity. Nor will there ever be such a case, for in the absence of an expert opinion that the parents do not have parental capacity, no application will be filed to declare the child adoptable.

In our case, an opinion was given by the well-known expert Rami Bar-Giora, who is an adult and child psychoanalyst, an expert with considerable reputation, a person of many achievements and great experience. According to the expert, the child should not be given to his biological father, the appellant, and in his written opinion he gives reasons for this opinion. I respect the opinion of Mr Bar-Giora, but I must be mindful that the responsibility for entrusting — or not entrusting — the child to strangers is mine. I cannot therefore avoid responsibility merely by relying on the opinion. I must examine the opinion itself, and only a careful examination of this kind will guide me onto the right path. My colleague, Justice Dorner, and my colleague, Vice-President S. Levin, quote parts of Mr Bar-Giora’s opinion, and each of them reaches his own conclusions. I will go further than my colleagues, and I will take the unusual and circuitous step of quoting the opinion of Mr Bar-Giora in full. I will let the expert speak in his own words and style, and we will listen to these words very carefully. This is what Mr Bar-Giora says in his opinion:

‘1.            For the purpose of preparing this opinion, I examined R.Y. [the father] and his wife A, I met with the biological mother, her father and her older sister in their home… and I studied the documents that were submitted to me by the parties. All of these are sufficient, in my professional opinion, for preparing this opinion.

2.             The issue under discussion here raises many questions:

a.             What are the best interests of the child — that he should be adopted without any relationship with his blood relations, or that he should have a relationship with at least one of his parents?

b.             Is the child guaranteed wholehearted motherly love by the wife of his biological father, even though he is the result of his infidelity?

c.             Will revealing the circumstances of his birth be possible for the child at any stage when he grows up, and what will be the consequences of this?

Questions of a moral nature also arise:

d.             Should the father be allowed to commit rape (according to the mother) and also benefit from it?

e.             Does a mother who places her child for adoption have the right to stipulate conditions for his adoption?

3.             First, I would like to describe the personality of R.Y. and his wife A. Both of them are obsessed with a strong desire for a child. On the personality test that I gave them (the Rorschach test), there was clearly an abnormal occurrence of elements such as wombs, reproductive organs and fertility. In R.Y. I noticed an emotional state in which the desire for a child of his own flesh was so great that it could easily override other considerations, in the sense of the end justifying the means, or necessity knowing no law. A, his wife, seems to me doomed to depression and dejection because of her infertility, and she therefore has difficulty in saying what she really feels and has the attitude that she will do what her husband wants because she is dependent on him. When I asked her whether her maternal love would not be soured by the thought that the desired child was the result of his infidelity to her, she answered: “One forgets”. The essential point, for our purposes, is that both of them desperately need, each for his own reasons, a child to raise so that they can feel “normal”, whereas without a child they literally feel disabled and deficient.

4.             Without expressing an opinion about the indictment for rape that is pending against R, I find from my examination of him that receiving the proof that he is fertile and can produce a child and the yearning for a child of his own could have been very active factors in the relationship that he had with the biological mother, and they were certainly active in his request to take the child born from this relationship into his custody. I have no doubt that had he made a surrogacy agreement with a fertile woman, the situation would have been very different for his wife A, and in such a situation the likelihood that her future maternal capabilities would become more difficult and burdensome would have been far smaller than it is likely to be in the circumstances that will prevail if the child is given to her to raise.

The desire of R for the child is so great that he is prepared to promise that he will move away from the place where he grew up and do anything provided that he is given the child, whereas his wife A submits and gives in to his desire without properly considering the potential damage that such a move would cause her and the distance it would place between her and her family and the wishes of her family.

Although we have here a rare picture where nothing stands in the way of the child, underneath the surface there lies a strong possibility of complications, difficulties and pathology for the child and how he is to be brought up, if he is indeed brought up by R and A.

5.             R’s behaviour reminds me very much of what happens to single mothers whose desire for a child can lead them to do terrible and extreme things that are inconsistent with everyday behaviour and logic; but this emotional state of an obsession for one thing that overrides everything that stands in its way, an emotional state that leads to having a child, is not easily reconciled with the problems of raising the young child over the many years that come thereafter.

In any event, even though many single mothers succeed in the task of parenting, it is clear that from the viewpoint of the best interests of the child this kind of parenting is full of dangers in comparison with the normal parenting situation.

In other words, the intensive campaign of R and A to “get a baby” does not necessarily imply, in my opinion, a guarantee of the parental skills required for the baby to be raised by R — he will grow up deformed by two major scars: that he is the child of his father only, and that he is the product of a relationship marred by accusations and bitterness. The mental health of this child, should he be raised by his biological father, will not allow him to live under a veil of secrecy, while the scars that he bears are known to everyone around him but are hidden from him. The possibility that his father will be arrested “because of him or because of the desire to bring him into the world” may be another immediate and burdensome scar that should not be imposed on [his wife] who will be obliged to raise him alone for a decisive and critical period of time for the bonding of mother and child.

6.             With regard to the mental health considerations, I therefore regard all these potential dangers as a cause of probable disaster which should in no way be encouraged, which is not reduced by the eagerness of the desire for the child and which does not exist in the circumstances of adoption, even though adoption involves difficulties of another kind but on a much smaller scale; in any event, the effect of these is not felt in the period of early childhood which is a fateful and critical period for human development.

7.             Now I will try to answer the questions that I raised in paragraph 2 of my opinion.

Question a: When all other things are equal, it is probable that there is a benefit to biological parenting; but the biological aspect in itself is not as important as psychological benefits or the absence of psychological risks (see the major and accepted contribution on this subject by J. Goldstein, A. Freud and A.J. Solnit, Beyond the Best Interests of the Child, 1979, at pp. 17-20, 98).

Questions b and c: Although I do not doubt A’s hunger for motherhood, I foresee many problems with regard to her ability to tell the child, if she is indeed allowed to raise him, the truth about his mother and his father and the circumstances of his birth; ¬I foresee many difficulties for the child if as stated she is allowed to raise him and he remains her only child, or he is joined by adopted brothers or her own children, as she hopes. In any event, major differences can be anticipated between the relationship of his father and that of his mother to him and to his future brothers.

In any event, I foresee serious difficulties for the relationship with A if the father is sent to prison. In any event, many difficulties will stand in the way of A’s love, and it will be far more difficult for her if she is forced to leave the supportive environment of her family, if the family moves away. Should the baby be placed for adoption, he will be able to confront the circumstances of his birth when he is an adult and not dependent on those who gave birth to him. Dealing with these circumstances when he is a child seems to me too complex and too hard a challenge for R and A who want to raise him.

Question d: In order not to be persecuted by this question, if the family of R and A raises the child, it must go into “exile” and it will always be in danger of discovery of the secret. In any event, the sensational story will pursue the child and whether it reaches the child before or after his parents’ explanations, it will, because of the outlook of society, create a disturbing and problematic source of pressure on all the persons concerned.

Question e: Should the child be given to the biological father to be raised by him, this will inflict a serious and painful blow on the family of the biological mother which, inter alia, includes an adopted daughter whose best interests demand that “placing for adoption” is regarded as an ideal solution by all those involved. In the situation under discussion, the inevitable contact between the members of all the families and the lack of confidentiality and anonymity that normally characterize adoption, may lead — should the child be given to his biological father to be raised by him — to unpredictable situations that cause problems for the child under discussion.

8.             Therefore I recommend that the baby not be given to his biological father, despite his strong desire to raise him, because of the many serious potential dangers arising from this; these should certainly not be imposed on a newborn child whose future — which will not be easy — is still before him, and we should search for the least dangerous and most promising option for his healthy development: there is no alternative other than closed and anonymous adoption.

At the same time, I wish A success in her attempts to become a mother and that her hands that hunger for a child will hold her own child, to the joy and pride of her husband R.’

6.             Let us read and reread the opinion of Mr Bar-Giora. Let us read and ask ourselves: are we really persuaded that the ground of parental incapacity exists in the case of the appellant? Does the opinion really show that the appellant ‘is incapable of taking proper care of his child because of his behaviour or situation’ such that we should take away a child from his father forever? The expert recommends that we should not give the child to the appellant. But does he present a reasoned finding that the appellant is ‘incapable’ of taking care of the child? Indeed, because of that heinous crime that was committed, the expert foresees ‘many difficulties’, ‘serious difficulties’, ‘a strong possibility of complications’, ‘difficulties and pathology for the child’, etc.; but are these difficulties sufficient for us to say that a child should taken away from his biological father and entrusted to another? Do difficulties — even if they are ‘serious difficulties’ — establish a ground for adoption? In my opinion, the answer to the question is no.

Indeed, Mr Bar-Giora makes extensive use of terms and concepts that are intended to give expression to not a few obstacles and ‘complications’ that will stand in the way of bringing up the child, but in each case he is careful — so it seems to me — not to attribute to the father, the appellant, ‘incapacity’ with regard to raising his son, in the simple meaning of the term and as this concept is understood by the law. Mr Bar-Giora is an expert with a direct approach and rich experience. He knows the law of adoption thoroughly, but all that we hear from him is about ‘difficulties’ or ‘many difficulties’ (and similar expressions) that will be involved in raising the child. We have heard nothing about ‘incapacity’ or about difficulties that clearly amount to ‘incapacity’. Indeed, even had the expert spoken expressly of ‘incapacity’ (and he hints of this in his oral testimony), the mere use of the word would not be decisive. But the absence of words to this effect calls for our attention, and the silence is full of meaning. We can only conclude that while Mr Bar-Giora made the recommendation that he made, this was not for reasons of the father’s ‘incapacity’ to raise his son, i.e., incapacity in the technical sense as understood by the law.

For my part, I will add, that I too — like Mr Bar-Giora — have not been persuaded that the ground of ‘incapacity’ applies to the father, the appellant, in the sense in which that term has been understood and interpreted by the law until now. What did I do? I assembled all the facts of the case and combined them into one unit. I put the framework of the ground of parental ‘incapacity’ next to that unit. As a judge, I tried to fit the facts into the framework of the ground of incapacity. I tried once and failed; I tried again and failed again. After that I tried to work backwards, and to fit the framework around the facts. Once again I failed. So I concluded that the two cases are distinct and unlike one another. When I tried to fit our case into the scope of section 13(7) of the Law, I compared myself to the sages of Pumpeditha, whose intelligence was so great that they could ‘put an elephant through the eye of a needle’ (Babylonian Talmud, Tractate Bava Metzia, 38b [43]). When I discovered that an elephant will refuse to go through the eye of the needle, I said: if even the smallest of elephants cannot pass through the eye of a needle — whether because of the size of the elephant or the smallness of the eye of the needle — so too our case cannot fall within the scope of section 13(7) of the Law.

7.             In view of all this, I knew that it had not been proved to the court — by the experts — that the ground of incapacity to take proper care of the child applied to the appellant. We can at least say that that there is a doubt — and it is a big doubt — as to whether the ground of incapacity has been established. In these circumstances, in the absence of an unambiguous opinion as to the incapacity of the appellant to raise his child properly, the finding that the father falls within the scope of the ground for adoption stated in section 13(7) of the Law seems to me problematic. Indeed, before we decide that a child should be taken away from his biological father and place him for adoption only because of his father’s incapacity to take proper care of his son, we expect — as a rule — that an expert whose opinion is respected by the court will express an opinion to this effect. The opinion of psychoanalyst Rami Bar-Giora is respected by us as that of a top expert, but we did not clearly and unequivocally hear from him that the appellant is incapable of raising his son. From all this we know that the ground stated in section 13(7) of the Law has not been proved.

The ground of adoption under section 13(8) of the Adoption Law

8.             With regard to the ground set out in section 13(8) of the Law, which is the second ground discussed by the trial court, in the absence of a parent’s consent, the court has jurisdiction to declare a child adoptable in circumstances where:           

‘The refusal to give the consent derives from an immoral motive or is for an unlawful purpose.’

I have tried, but failed to see how our case can fit into the scope of this ground. Indeed, no matter what we do to the statute and however much we stretch the language in each direction, we will not succeed in fitting the case before us into the framework determined by the legislator in section 13(8) of the Law. We all agree that the appellant’s deed with respect to the girl, the mother, was scandalous. Moreover, the statement that his behaviour towards the girl resulted from ‘an immoral motive or for an unlawful purpose’, in the words of section 13(8), is a mere understatement that does not tell us even half the story. But it is important that we are precise with regard to the wording of the Law, which does not refer to the act that led to the birth of the child, but to the refusal of the parent to give his consent to a declaration that his son is adoptable. The relevant question is therefore whether the appellant’s refusal to give his consent to the adoption of his son derives from an illicit motive or is for an unlawful purpose. I have difficulty in answering this question in the affirmative. The behaviour of the appellant towards the girl was worse than bad, literally an act of infamy, but we cannot say that his refusal to give his consent to a declaration that his son is adoptable derives from an immoral or unlawful motive.

9.             In this context, my colleague, the Vice-President, says that the ground set out in section 13(8) has no independent existence, and that it is a mere adjunct of one of the other grounds set out in section 13 of the Law. I have difficulty in agreeing with the opinion of my colleague, but since we heard no argument on this subject, I am merely giving my initial thoughts. First, the provision of section 13(8) of the Law is prima facie stipulated as an independent ground, with its own parameters, and I have not found in the Law even a hint that it is merely derivative and an adjunct of one of the other grounds. Second, I fail to understand why this ground should be regarded merely as a derivative ground. A case that calls for the application of this ground is one where a father asks for a substantial sum to be given to him in return for his consent that his son is declared adoptable (cf. Kommemi v. Attorney-General [17]). In this case it is possible that the ground of incapacity will also be proved, automatically (since a father who is prepared to ‘sell’ his son may be regarded, because of his very act, to lack the capacity to raise him), but each of the two grounds — the ground of incapacity and the ground of the unlawful or immoral refusal — has its own existence, and I do not see why the one should be conditional on the other.

Indeed, it is possible that in these and other circumstances only the beginning of another ground will be proved. For example, one of the grounds listed in section 13 of the Law is the one in section 13(4), according to which a parent ‘… refrains, without reasonable cause, from maintaining personal contact with him [the child] for six consecutive months’. Let us assume that the father fulfils the requirements of section 13(4), but his inaction has lasted only three months, and after those three months the father demands payment in return for his consent to the adoption of his son. The ground in section 13(4) has therefore not matured, whereas the ground in section 13(8) — according to our assumption — does apply. See also the facts that were proved in Kommemi v. Attorney-General [17], which we mentioned above. It is true that one may almost assume that when the ground in section 13(8) exists, there will also exist one of the other grounds listed in section 13 of the Law. But it does not seem right to me that the ground in section 13(8) is a ground that depends on the existence of one of the other grounds. Quite the opposite; I think that the ground in section 13(8) has its own independent existence.

Whichever is correct, our opinion is that in our case the appellant does not fall within the scope of the ground set out in section 13(8) of the Law.

Should the law run its course?

10. No-one argued that one of the other grounds set out in section 13 of the Law applies to the appellant. From this we can draw two conclusions: first, the appellant did not give his consent to his son being declared adoptable in accordance with section 8 of the Law; second, in consequence of our remarks hitherto, none of the grounds set out in section 13 apply to the appellant. Prima facie, the application of the Attorney-General to have the child declared adoptable is therefore defeated.

It is the law of nature — so we said at the beginning of our remarks — that a child should be in the custody of his mother and father, or, to expand slightly, in the custody of his mother or his father. This is the basis on which the Law is built. Now that we have seen that the Law does not contain any permission to take the child from his father, we return to our starting point, and the child should therefore be in the custody of his father, the appellant. If this is so in principle, it is definitely the case in view of the well-established case-law that the grounds for adoption set out in section 13 of the law are the only grounds, and there are no others: CA 549/75 A v. Attorney-General [1], at p. 468; CA 232/85 A v. Attorney-General [8], at p. 13; CA 211/89 A v. Attorney-General [9], at p. 779. This is the law, and rightly so: a child should not be taken from the custody of his parents — or from the custody of one of his parents — unless the law permits this, and only within the scope of that permission. It could also be said that the law of adoption is similar to criminal law, for both concern the lives of human beings. Since in criminal law no punishment can be given without first declaring the law — or in the language of the law: ‘There is no offence nor is there any penalty therefor unless they are prescribed in the law or thereunder’ (section 1 of the Penal Law, after the Penal Law (Amendment no. 39) (Introductory Part and General Part), 5754-1994) — so too in the law of adoption, a child may not be taken permanently from his father or mother except in accordance with the express provision of statute. Since we have concluded that the statute does not permit this child to be taken from his father, the inescapable conclusion is that we are forbidden to take the child from his father.

11. The formalist — or let us be more extreme and say: the heartless formalist — would stop here and say: this is the law, this is what the legislator has laid down, and let the law run its course. Fiat iustitia et pereat mundus: let justice (?) be done though the world perishes. The companion of that formalist — also a formalist, but one with some heart in him — would sigh and say, dura lex, sed lex: (what can we do?); the law is hard, but it is the law. He might even go further and say that the legislator should take note of the matter and consider whether the law should be changed.

I do not know these formalists, and let me not be counted among them. Confronted with this conclusion, a conclusion that we cannot accept, since — in the words of my colleague, the Vice-President — it is ‘manifestly undesirable and unjust’, a harsh and difficult conclusion, let us arise and ask: are we judges indeed bound to adopt this conclusion and declare it to be law? When we were elevated to the bench, each of us took an oath to ‘… be faithful to the State of Israel and its laws, to do justice, neither to pervert justice nor to show partiality’ (section 6 of the Basic Law: Administration of Justice; in the previous version, under section 11 of the Judges Law, 5713-1953 the judicial oath was couched in the same language, except that the judge took an oath to do justice ‘to the people’; for our purposes, there is no difference between the earlier version and the later version). Oaths are meant to be kept, and our oath was to be faithful to the law and to do justice. Is it really the law of the State that this appellant before us should have custody of his child? Would justice be done if this were our decision? In my opinion, we would not be faithful to the law of the State not would we be doing justice, but injustice, if this were our decision. What then should be our course, the right course?

12. Were we to grant the appellant his desire, so we have said in our hearts, we would suffer a painful feeling that we have done something wrong. Even if our intentions — the intention of the formalist — were praiseworthy, our actions would not be, and our actions would lead us astray. How is it then that the flame so burns in our hearts and is imprisoned in our bones — to punish the villain according to his villainy, and not to reward a wrongdoer with the fruits of his wrongdoing — whereas the statute binds our hands in bonds and chains and compels us, seemingly, to leave the child in the custody of his biological father? Is it really the intention of statute — or to be more precise, the intention of the law — that we should decide in despite of our conscience and our expert instincts? I think not, and I will give my reasons below.

13. First we should say that we must distinguish at the outset between the substantive law — with its principles and rules — and the legal technique that we will adopt, or if you prefer, the well from which we will draw the substantive provisions up to the surface of the law. My colleague, the Vice-President, discussed this (in paragraph 7 of his opinion), and I agree with him (subject to what I shall say below). Indeed, it is possible that drawing substantive provisions from one well or another may affect the quality and the sphere of applicability of the substantive provisions — even if only in marginal cases — but the distinction, in itself, is an important one that we should recognize. It need not be said that our main concern is with the substantive law, and the technique for recognizing the substantive law is merely subordinate to the main goal. Let us therefore begin with the substantive law.

The law of nature and human instinct: the right of a parent to his child and the loss of that right; have you committed murder and also taken the inheritance?

14. We began our opinion by saying that it is the law of nature that underlies our deliberations, and that it is the law of nature that nourishes the right of a mother and father to custody of their child. We said of this that every mother — in as much as she is a mother — is entitled to have custody of her small child, to love him, caress him, give him food and drink, hold him in her arms and walk with him hand in hand (CA 6106/92 A v. Attorney-General [21], at pp. 235-236). This is the right of a mother and it is the right of a father. Is this right that derives from nature an absolute right? Did God create it as a right that cannot be gainsaid? Is it a right without exceptions — exceptions that also derive from nature? The answer to this question is that there are indeed exceptions to the right, exceptions that are built of the same material that created the right itself. The right itself, as my colleague the Vice-President remarked, is based on ‘blood ties’ (in the words of Vice-President Justice S. Z. Cheshin in Hershkovitz v. Greenberger [13]), and it is ‘… that primeval yearning of a mother for her child, a bonding of hearts that has neither beginning nor end…’ which cries out unceasingly (CA 6106/92 A v. Attorney-General [21], at p. 235). But there are cases where the system breaks down. ‘A mother may lose her right, and her behaviour may show us that the blood ties are severed’ (ibid. [21], at p. 236). The ‘blood ties’ establish the right and the ‘blood ties’ that are severed can take the right away.

Just as nature establishes the right of a mother and father to their child, so abandoning and neglecting the child can invalidate the right. We discussed this subject at length elsewhere and there is no need to add to it. See CFH 7015/94 Attorney-General v. A [2], at pp. 109 et seq.. Indeed, the grounds of abandoning and neglecting a child are expressly included in section 13 of the Law, in sub-paragraphs (2), (4), (5), (6) and (7). But the Law did not create the substance of these grounds. The source of these grounds lies in the law of nature, just like the right of a parent to have custody of his child. Both of these — the right and loss of the right — are the result of nature, and they are like the two sides of a coin. All that the Law does is to define the boundaries of these grounds. It does this, both by establishing specific and clear boundaries — for example, non-compliance with obligations towards the child during six consecutive months, and not a day less — or by establishing general grounds such as the ground of incapacity.

15. The legal system recognizes the right of parents to their children: the right itself and the exceptions thereto. In recognizing the right and the exceptions thereto, the legal system chooses to acknowledge a phenomenon of nature that is deeply rooted in human and animal nature. With regard to man: ‘As a father has mercy on his children, the Lord has mercy on those who fear him’ (Psalms 103, 13 [44]); or ‘Can a woman forget her baby and not have mercy on her offspring? Even these may forget, but I will not forget you’ (Isaiah 49, 15 [45]) (note the rule accompanied by the exception). The same is true of animals and birds: ‘Like an eagle that rouses her nest, hovers over its young, spreads it wings, takes them, bears them on its plumage’, (Deuteronomy 32, 11 [46]); or ‘Even jackals extend the breast, give suck to their cubs…’ (Lamentations 4, 3 [47]). This is the desire for life and the survival instinct of all living things, and the law is, as it were, compelled to embrace it (with various qualifications). This is merely an example of the recognition of human nature as a foundation of the law.

An additional example — which is moulded from the same material — is found in the doctrine of self-defence. The desire for life and survival in man (and the animal) induces a person to defend himself against someone who attacks him — even by attacking the attacker — and the recognition of the doctrine of self-defence as a defence in the criminal law is merely the law’s recognition of a phenomenon of nature. Criminal law has since earliest times recognized the doctrine of self-defence as a defence against a criminal indictment, and thereby it has acknowledged the instinct inherent in all of us to protect ourselves against those who attack us. This is the principle of self-defence with regard to the individual. The rule established in Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18] is, in essence, an application of the doctrine of self-defence also to the State and society or, if you prefer, an extension of the doctrine of self-defence recognized in the sphere of the individual to the right of the State to protect itself against those rising up against it to destroy it. Just as the individual is entitled to defend himself against those who attack him, so is the State entitled to defend itself against those who attack it, whether from without or from within. Another example in this context can be found in the defence of necessity. This defence also constitutes a recognition of the human instinct, the instinct to take action to defend oneself (or another). In this context we ought to mention the commandment of observing the Sabbath, which is one of the most exalted commandments: ‘this is the commandment of the Sabbath which is equivalent to all of the commandments of the Torah’ (Jerusalem Talmud, Tractate Berachot, 1, 5 [48]). Notwithstanding, this commandment withdraws before the saving of life:

‘Rabbi Yishmael and Rabbi Akiva and Rabbi Eleazar ben Azarya were going on a journey and Levi the net-maker and Rabbi Yishmael the son of Rabbi Eleazar ben Azarya were walking behind them. The following question was asked of them: From where do we know that saving life overrides the Sabbath?

… Rabbi Yehuda said in the name of Shemuel: … “and you shall live by them” — and not die by them…’ (Babylonian Talmud, Tractate Yoma, 85a-b [49]).

The Torah and its commandments were given for people to live by them, and not for people to die by them. Let a person therefore transgress a prohibition of observing the Sabbath and live. This is the desire for existence and survival and this is the cloak that envelops it. See also CA 1212/91 LIBI The Fund for Strengthening Israel’s Defence v. Binstock [22], at pp. 721 {387} et seq.).

Finally we should mention the doctrine of protecting property, which also is supposed to give expression to the human instinct. Thus, in the words of Oliver Wendell Holmes in his book on English Common Law: W. Holmes, The Common Law, Boston (1881), at p. 213:

‘Those who see in the history of law the formal expression of the development of society will be apt to think that the proximate ground of law must be empirical, even when that ground is the fact that a certain ideal or theory of government is generally entertained. Law, being a practical thing, must found itself on actual forces. It is quite enough, therefore, for the law, that man, by an instinct which he shares with the domestic dog, and of which the seal gives a most striking example, will not allow himself to be dispossessed, either by force or fraud, of what he holds, without trying to get it back again. Philosophy may find a hundred reasons to justify the instinct, but it would be totally immaterial if it should condemn it and bid us surrender without a murmur. As long as the instinct remains, it will be more comfortable for the law to satisfy it in an orderly manner, than to leave people to themselves. If it should do otherwise, it would become a matter for pedagogues, wholly devoid of reality.’

The remarks of the wise judge admittedly refer to the protection of property, but it need not be said that the logic of them applies also to other human instincts. The codeword is the human instinct, an instinct that the law acknowledges, embraces within its protection and cloaks in the form of a right.

16. We have spoken until now of human instinct as a factor in the creation of rights (and duties) in law. In addition to human instinct, and with the same degree of force, human behaviour is directed by morality: basic principles of morality, forces, feelings and modes of behaviour between human beings. Some of the moral duties take the form of legal rights and duties — rights and duties that are defined and can be easily identified — while others hover in the atmosphere of our world, the world of law, without attaching themselves to defined and recognized rights and duties. Our case belongs to the second group of moral duties. Note that we judges do not purport to invent moral obligations, or create duties with mere words and cloak them up in legal garb. All that we do is to give legal expression to the feelings of members of society, strong feelings built on moral foundations common to all mankind and moral principles that characterize the society in which we live.

17. We are concerned with a feeling that troubles us, an acute feeling of a moral wrong that we would do — to the young mother, her family, the society in which we live and even ourselves — if we but grant the appellant’s request and hand over his son to him. The difficulty is that if we give the appellant custody of his son — notwithstanding the desperate pleas of the young mother — we will be rewarding a villain with the fruits of his villainy, to our own shame and the shame of the society in which we live. ‘Have you committed murder and also taken the inheritance?’ So God instructed Elijah the Tishbite to cry out before Ahab on account of Naboth the Jezreelite. Thus Elijah indeed cried out, and the punishment of Ahab and of Jezebel his wife was determined accordingly:

‘And the word of the Lord came to Elijah the Tishbite, saying: Arise, go down to meet Ahab, king of Israel, who is in Samaria: behold he is in the vineyard of Naboth, whither he has gone down to inherit it. And you shall speak to him, saying: Thus says the Lord: Have you committed murder and also taken the inheritance? And you shall speak to him, saying: Thus says the Lord: Where the dogs licked the blood of Naboth, the dogs shall also lick your blood: … And also to Jezebel the Lord spoke, saying: the dogs shall eat Jezebel by the wall of Jezreel; whoever dies of Ahab in the city shall be eaten by the dogs, and whoever dies in the field shall be eaten by the birds of the sky’ (I Kings 21, 17-19, 23-24 [50]).

Ahab’s punishment was as God had spoken. Ahab was killed in the war with Aram, and his end was as the prophecy foretold:

‘So the king [Ahab] died, and was brought to Samaria, and they buried the king in Samaria. And they washed the chariot by the pool of Samaria and the dogs licked up his blood and washed the armour according to the word of the Lord that He spoke’ (I Kings 22, 37-38 [50])

Jezebel too, who initiated and perpetrated the legal murder of Naboth the Jezreelite, met her fate, according to the word of God spoken by Elijah the Tishbite:

‘And then Jehu came to Jezreel, and Jezebel heard and she painted her eyes and straightened her hair and looked out from the window. And Jehu came into the gate, and she said Is it peace, Zimri, killer of his master? And he looked up towards the window, and said: Who is with me, who? And two or three servants looked out in his direction. And he said: Throw her down, and they threw her down, and some of her blood splashed onto the wall, and on the horses and he trampled her. And he came and ate and drank, and he said: Please go to the accursed woman and bury her, for she is a king’s daughter; and they went to bury her, but they only found her skull and her feet and her hands. And they returned and told him, and he said: It is the word of the Lord that He spoke by means of His servant Elijah the Tishbite, saying: On the land of Jezreel the dogs will eat the flesh of Jezebel, and the dead body of Jezebel shall be as dung lying on the field on the land of Jezreel so that people will not say: This is Jezebel’ (II Kings 9, 30-37 [51]).

It can never be that a person will commit murder and inherit his victim. This moral imperative long ago became an accepted legal imperative, ever since the time of Adam. Cain murdered Abel, but even when he alone remained, Cain did not receive the Divine blessing that was given only to Abel.

This was also the case of David, Bathsheba and Uriah the Hittite. Bathsheba became pregnant with David’s child while she was married to Uriah the Hittite. In order to escape being convicted by a court, David ordered his soldiers as follows: ‘… Put Uriah in the front line of the fiercest battle, and retreat behind him, so that he is hit and dies (II Samuel 11, 15 [42]). Uriah was killed in battle and after the period of mourning ended, ‘David sent and gathered her into his house and she became his wife and bore him a son, but what David had done was evil in the sight of the Lord’ (II Samuel 11, 27 [42]). After this, Nathan the prophet told David the parable of the pauper’s lamb and David’s punishment was decreed as follows: ‘… the child born to you shall surely die’ (Samuel II 12, 14 [42]). And the punishment was not slow in coming:

‘… And the Lord made the child that Uriah’s wife bore to David sick, and it was on the point of death. And David entreated G-d for the child, and David fasted, and when he went in to sleep, he lay on the floor. And the elders of his household protested to make him arise from the floor, but he refused, and he would not eat with them. And it happened on the seventh day that the child died…’ (II Samuel 12, 16-18 [42]).

David loved his child — as a father loves his son — yet his child was taken from him and he did not see him again. In olden times, it was decreed that the child would die. In our times, the child will live. But just as the king of Israel did not have his child, so too the appellant will not have his child. Have you committed murder and also taken the inheritance?

18. In our society it is inconceivable that a person will commit murder and inherit his victim, and we will not accept — in principle — that a person can do wrong and profits from his wrongdoing. A clear and decisive legal expression of this moral imperative was given in Riggs v. Palmer [35], where it was held that a grandson who murdered his grandfather would not receive his inheritance from the grandfather under the will that the grandfather made in his grandson’s favour. According to the text of the law, the grandson was entitled to inherit his grandfather, for the grandfather had written a will in his favour. Nonetheless, the court held that by the act of murder the grandson had lost his right to inherit his grandfather. Why was this? Justice Earl made the following remarks, which have become a lesson for all time. My colleague, the Vice-President, cited his remarks and I will repeat them:

‘… all laws, as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are directed by public policy, have their foundations in universal law administered in all civilized countries, and have nowhere been superseded by statutes’ (ibid., at p. 190).

Justice Earl went on to say the following:

‘He therefore murdered the testator expressly to vest himself with an estate. Under such circumstances, what law, human or divine, will allow him to take the estate and enjoy the fruits of his crime? The will spoke and became operative at the death of the testator. He caused that death, and thus by his crime made it speak and have operation. Shall it speak and operate in his favor? If he had met the testator, and taken his property by force, he would have had no title to it. Shall he acquire title by murdering him? If he had gone to the testator's house, and by force compelled him, or by fraud or undue influence had induced him, to will him his property, the law would not allow him to hold it. But can he give effect and operation to a will by murder, and yet take the property? To answer these questions in the affirmative it seems to me would be a reproach to the jurisprudence of our state, and an offense against public policy.’

Let us consider the four question marks in the remarks of Justice Earl; these question marks follow four rhetorical questions. It is the practice of courts to make rulings and decisions. It is not the practice of courts to ask rhetorical questions, certainly not four rhetorical questions one after another. Indeed, these rhetorical questions indicate the judge’s state of mind, the stormy emotion within him, his firm decision not to allow the legal system to transgress the moral prohibition of ‘Have you committed murder and also taken the inheritance?’ (See also H. R. Hahlo, ‘When can a Murderer Inherit’, 16 Mod. L. Rev. (1953), 100-102).

Justice Earl relied on the statements of various scholars and on court rulings. He did not mention the tragedy of Naboth the Jezreelite, nor the tragic drama of Uriah the Hittite. We mention them, for they are part of our heritage. In our childhood, our fathers told us these ancient stories in our childhood and later we read them in our book, the Bible. We have grown up with them. They are our heritage. Their morality is our morality, and they are the pillar of fire and pillar of cloud that show us the way.

In conclusion I will cite what I said elsewhere with regard to the nature of the Basic Law: Human Dignity and Liberty. This Basic Law — so we thought then, and so we think even now — was mainly intended to give expression to rights that each and every one of us received directly from nature. Even after the Basic Law came into existence, the basic rights do not derive their moral and social strength from the Law but from the light, the heat and the strength hidden in them by virtue of their being the products of nature:

‘… In the future, we will mention the Basic Law — mention it and rely on it — as a document that incorporates basic rights. But we will know and remember the following two things: first, that those rights did not come into being with the Basic Law, and that the Basic Law, in principle, merely purported to give expression in statute to “natural” rights that existed before it. Second, the basic rights derive their moral and social strength not from the Basic Law as such but from themselves — from the light, strength and the heat hidden in them. They are like the bush that burned with fire but was not consumed. That bush has been with us since the earliest times. Others will say that the basic rights are the product of our moral and social outlook, and this is the source of their strength. Whichever is the case, the basic rights had strength and force before the Basic Law came into existence, and even then there was nothing that “forced” the courts to decide as they did, or prevented them from deciding otherwise. In substance, I have found nothing to have changed from then until now, even after the Basic Law came into existence’ (CrimApp 537/95 Ganimat v. State of Israel [23], at p. 401).

See also CrimApp 1986/94 State of Israel v. Amar [24], at p. 141; CA 3077/90 A v. B [25], at pp. 592, 594; M. Minervi, ‘Jus Naturale’, 3 HaMishpat (1996) 403.

19. All of this concerns the substance of the issues being addressed. We asked a question, and this is the answer: in principle, we will not allow a ruling to be made whereby a person may commit murder and also inherit, or do a wrong and benefit from his wrong. Another question — a separate question — is how will this moral imperative of ‘Have you committed murder and also taken the inheritance?’ find its way into Israeli law? This question arises particularly in view of the case-law rule that the grounds for adoption listed in section 13 of the Law constitute a closed list of grounds, unless a father gives his consent to the adoption of the child by a stranger, and the appellant has not given his consent. My colleague, the Vice-President, spoke of two methods of incorporating the rule in Israeli law, the first by way of interpretation and the second by filling a lacuna. Let us consider these two methods, one by one. We will begin with the method of interpretation

 ‘Have you committed murder and also taken the inheritance’ as a rule of interpretation

20. Those following the interpretative method — the method of broad interpretation — will say the following: the statute does not provide that the murderer will not inherit, but in interpreting the statute, we must do our best to try and ascertain what is the purpose of the statute, or in other words, what do we suppose the intention of the legislator would have been? What would the legislator have determined, had a set of facts like the one before us been placed before him? If we do this, we will know that the legislator would have determined — ab initio — that the murderer would not inherit. Therefore we will rule accordingly. In the words of Justice Earl in Riggs v. Palmer [35], at p. 189, citing from Bacon’s Abridgment:

‘In order to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him this question: Did you intend to comprehend this case? Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given.’

And further on (ibid. [35]):

‘If the law-makers could, as to this case, be consulted, would they say that they intended by their general language that the property of a testator or of an ancestor should pass to one who had taken his life for the express purpose of getting his property?’

Let us again note the question mark at the end of the rhetorical question.

He also says (ibid., at p. 190):

‘What could be more unreasonable than to suppose that it was the legislative intention in the general laws passed for the orderly, peaceable and just devolution of property that they should have operation in favor of one who murdered his ancestor that he might speedily come into the possession of his estate? Such an intention is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws.’

The method of broad construction is therefore the following: interpretation of the law, according to its language, leads us to a certain conclusion (that the murderer will inherit; that the father, the appellant, will be given his son). This conclusion defies justice, morality and common sense, and it is hard to assume that the legislator intended this to happen. Let us therefore consult the legislator — conceptually and normatively, of course — and ask him what would he have decided had he known what we know now. We know what reply the legislator would make, and we will determine the case accordingly. It need not be said that the personification of the legislator and our appearing before him for a consultation are merely a metaphor for interpreting the statute. The meaning is simply this, that we study the various provisions of the statute — in case we find a finger pointing in one direction or another — we look at the environment in which the statute was enacted and at the legal system as a whole, and first and foremost we consult our scruples and conscience, lest they reproach us at night. Last of all, we ‘interpret’ the law that requires interpretation by integrating it, as best we can, into the legal system as a whole and making it consistent with the basic principles of the legal system and our lives.

This method of broad interpretation is apparently accepted by Professor Ronald Dworkin (in his discussion of Riggs v. Palmer [35]: Dworkin, supra, at p. 23; R. Dworkin, Law’s Empire, Cambridge (1986), at p. 15 et seq.). Professor Dworkin summarizes the case of the murderer-heir: as follows (Law’s Empire, supra, at p. 20):

‘It was a dispute about what the law was, about what the real statute the legislators enacted really said.’

This, then, is broad interpretation and this, then, is the interpretation of the statute.

21. Personally, I find the interpretive approach in our case to be a path fraught with obstacles. Obviously, I agree with all of Justice Earl’s rhetorical questions — both the question and their implied answers. I also agree with the replies we assume that the legislator would have given us had we consulted him. I also agree that it is inconceivable that a person may inherit as a result of murdering the testator violently in order to gain an inheritance, and that we should come, after the murder, and give him his inheritance. I agree with all this. But I find it difficult to agree that, in the absence of a specific provision to this effect in the Inheritance Law, the interpretive approach is what leads us to this conclusion. Indeed, with respect to the case of the murderer-heir, the Inheritance Law, 5725-1965, expressly states that the person entitled under a will inherits. I therefore have difficulty in understanding how the ‘interpretation’ of that law can lead to a result which is the opposite of the one that the legislator directs. Indeed, it would be immoral and unjust were the murderer to inherit, and as we have said there is no doubt what the legislator would have replied had he been asked about the status of the murderer-heir. But none of this can change the wording of the law, even though it leads to an immoral, unjust and manifestly improper result; the words are clear. This same is true in the case before us, where according to the wording of the Law, the father, the appellant, is entitled to custody of his child. ‘Your intentions are desirable, but your actions are undesirable,’ said the angel to the king of the Khazars. I would say the same: the intentions of those advocating the use of the interpretive approach are desirable, but the actual use of the interpretive approach is undesirable.

22. I have difficulty following the interpretative approach, for the path is really not one of interpretation at all. The interpretation of a text that is before us involves the clarification and explanation of that text, idea and purpose. The text is in centre stage, and we the interpreters revolve around it. Indeed, the interpretation of a text is not merely the interpretation of the words in it, word by word. Letters form words, words combine into sentences, sentences organize themselves into a complete text, and the meaning of the words, the sentences and the text as a whole — the idea and purpose — are derived from all of these and whatever surrounds them, in many circles, some nearer and some not so near. But ultimately our intention is interpretation, and no matter how far out we go in those concentric circles — circles that surround and orbit the text — we will always return to the text. Indeed, we are concerned with interpretation of a text and with no other cognitive activity. Each word and each concept have their own spheres of subsistence, and even if the limits of those spheres of subsistence may be somewhat blurred, we know what they are in essence. Thus language is formed and this is the way that human beings communicate with one another. I said of this in another context, and I will be forgiven for repeating it (CrimFH 2316/95 Ganimat v. State of Israel [26], at pp. 639-640):

‘Language and speech, all language and all speech — language and speech in their broadest sense — are the creations of nature and man, and their purpose is to serve as a means of communication between human beings. This is true of animals, birds and the creature of the deep, and it is also true of man. Nor have we forgotten the Tower of Babel:

“And the whole earth was of one language and of common speech. And it came to pass when they journeyed from the east that they found a valley in the land of Shinar, and they dwelt there. And they said to one another: let us make bricks and burn them thoroughly; and they had brick for stone, and clay for mortar. And they said: let us build ourselves a city and a tower whose top is in heaven, and let us make ourselves a reputation, lest we are scattered over the face of the earth. And the Lord came down to see the city and the tower which the men had built. And the Lord said: behold it is one people and they all have one language, and this they have begun to do, and now they will stop at nothing that they conspire to do. Let us go down and we will confuse their language there, so that no-one understands the other’s language. And the Lord scattered them from there over the face of the whole earth and they stopped building the city. Therefore it was called Babel, for there the Lord confused the language of the whole earth, and from there the Lord scattered them over the face of the whole earth” (Genesis 11, 1-9).’

And in the words of the Midrash (Bereishit Rabba 38, 10 on Genesis 11, 7):

‘One of them would say to another: “Bring me water”, and he would bring him earth. He would hit him and smash his skull. “Bring me a spade”, and he would give him a rake; he would hit him and smash his skull. This is what is written: “and we will confuse their language there”…’

In their application to legal texts, the concepts of ‘interpretation’ and ‘meaning’ have their own significance, like every other abstract concept. These too have their own sphere of subsistence, and they also have limits that define their boundaries. Knowing all of this, I believe that those who adopt the interpretive approach in our case take the concept of ‘interpretation’ out of its proper context and give it a meaning which is entirely different. This is the case with the murderer-heir and it is the same with the case of the father-appellant before us. How can a text be ‘interpreted’ by reaching a conclusion that is inconsistent with the language of the text? How can we interpret ‘no’ to mean ‘yes’ or ‘yes’ to mean ‘no’? ‘No’ means ‘no’ and ‘yes’ means ‘yes’ whichever way we look at them, from below, from the side or from above.

A verdict that a murderer-heir will not inherit — even though the conclusion implied by the statute is, prima facie, that it is his right to inherit — may be a desirable verdict, and it is indeed desirable; it may be a moral verdict, and it is indeed moral; it may be a correct verdict, and it is indeed correct. But it is not an ‘interpretation’ of the statute, unless we go on to say that the concept of ‘interpretation’ encompasses also what is not ‘interpretation’ in the language of human beings, even if they are human beings involved in the law. If this is said, then we must regard ourselves as having climbed the Tower of Babel. Let the ‘interpretationalists’ come out and say openly: we describe as ‘interpretation’ of a text even what is not interpretation, for we are compelled to do so. We are creating an ‘interpretive’ fiction because this is the only way that we can do justice. Were they to say this, I would understand (but not agree). But to dress up as ‘interpretation’ what is not interpretation, and to bow to a naked emperor with a label reading ‘interpretation’ on his sceptre — I would rather compare myself to that small boy who says: ‘I do not understand and I do not agree’. Moreover, were they to say that they wish to extend and stretch not the concept of interpretation, but rather the subject of the interpretation — in other words, the interpretation is indeed interpretation, in spirit and letter, but the subject of the interpretation is no longer a specific statute, but rather the legal system that includes the statute — I would understand this. But if so, I think that the concept of ‘interpretation’ is inappropriate and another concept should be used, one which evokes different connotations and associations than those evoked by the concept of ‘interpretation’.

23. The result is that we find it problematic to adopt an interpretive approach that is not interpretive at all — in the simple and normal meaning of the concept of interpretation — but only in the language of the people of the Tower of Babel. And we all know what happened to the Tower of Babel.

 ‘Have you committed murder and also taken the inheritance?’ as a rule for filling a lacuna

24. We began by saying that we knew our goal, namely the purpose of the law. The question before us now is which way should we go in order to achieve the purpose of the law. We tried to follow the interpretive approach; we started upon it until we found that it was impassable. Therefore we turned around and returned to our starting point. Let us now try to go a different way, the way of the lacuna. In his work, Interpretation in Law (vol. 1, at p. 432), President Barak compares the legal system to a stone wall, and a lacuna in the legal system to a gap in the wall. As he puts it (following Prof. Canaris):

‘Just as there can be a gap in a stone wall where the builder forgot to place one of the stones needed to complete the wall, so too can there be a lacuna in the legal norm, or in the legal arrangement, which are built by the legislator (by his legislation)… when the creator of the norm forgets to complete them.’

It is clear and agreed that initially the interpreter — which means, for our purposes, the judge — should interpret the text that requires interpretation, and that only when he has finished the work of interpretation will he know whether there is a lacuna in the text. President Barak goes on to point out — following other legal scholars — the distinction between a ‘manifest’ lacuna and a ‘concealed’ lacuna. A ‘manifest’ lacuna will be seen to occur where the statute — if we are speaking of a statute — does not supply an answer to a set of facts that requires an answer and should be decided by that statute:

‘A manifest lacuna exists where the judge is confronted with the choice of whether to fill the lacuna or remain in a situation where there is no norm by which he is required to judge, and therefore he must refrain from judging. With this type of lacuna, the legal norm is incomplete, since it does not include situations that, in view of its purpose, should have been included in it. Because of this lacuna, the judge cannot apply the norm without completing it… the judge must fill the lacuna, for otherwise he is unable to give judgment… without filling the lacuna, the judge has no norm with which to decide the dispute, and he faces the choice of filling the lacuna or refraining from giving judgment… the lacuna is “manifest”, since from the language of the legal norm it is manifest that it does not apply to the situation which the judge is required to decide’ (ibid., at p. 481).

A ‘manifest’ lacuna is therefore literally a lacuna: the judge must decide certain disagreements, but there exists no norm that provides an answer to the question (nor does the statute’s silence indicate a negative arrangement). Neither the statute nor the legal system as a whole include a norm that applies to the set of facts. See also CA 4628/93 State of Israel v. Apropim Housing & Promotions (1991) Ltd [27], at pp. 316-318, 323 et seq. {125-127, 136 et seq.} (per President Barak).

Alongside the manifest lacuna, there also exists the ‘concealed’ (hidden) lacuna. The definition of this lacuna is more subtle than the definition of the manifest lacuna (see Barak, supra, vol. 1, at pp. 481-482):

‘… A concealed lacuna exists where the norm, according to its language, applies to a situation that requires a decision. Notwithstanding, according to the purpose of the norm, an exception or limitation should be recognized with regard to this situation. The norm is defective because the exception or the limitation are not recognized by it, and the judge fills the lacuna by recognizing them. In these circumstances, the judge is not confronted by a choice of completing the lacuna or refusing to give judgment. Even without completing the norm, it applies to the situation that requires a decision, since its language extends to this situation. Notwithstanding, applying the norm to that situation is contrary to the purpose of the norm. The lacuna is “concealed” because from the language of the norm itself one can conclude that it applies to the situation requiring a decision, and only by studying the purpose of the legislation can one conclude that the norm should not be applied to that situation.’

As an example of a concealed lacuna, Barak discusses Riggs v. Palmer [35] (although he does not mention it by name), and he says, in his aforesaid book (vol. 1, at p. 482):

‘… Suppose that the Inheritance Law did not provide that someone who murders the testator cannot inherit. It could be said, that according to the (general) language of the statute, even the heir-murderer inherits. This is contrary to the purpose of legislation, which incorporates, inter alia, the principle that a person should not benefit from the fruits of his forbidden acts. The absence of an express exception in this regard is a concealed lacuna, which will be filled by a (judicial) recognition of an exception with regard to the heir-murderer.’

From these remarks we can see that an inheritance law that does not rule out the inheritance of an heir-murderer contains a ‘concealed’ lacuna. The same can also be said in our case, that the statute contains a ‘concealed’ lacuna in so far as it says that the child should be given to the appellant, his biological father.

24. I said that the definition of ‘concealed’ is a more subtle definition than the definition of the ‘manifest’ lacuna. The definition is so subtle that one could argue that a ‘concealed’ lacuna is not a lacuna at all. Indeed, in my opinion the ‘concealed lacuna’ is a framework that appears to be different from what it really is. The bottle has a label with the words ‘concealed lacuna’, but the drink in the bottle does not taste like a lacuna. Let me explain.

As we have seen, a ‘manifest’ lacuna is apparent to everyone (even though even in our case arguments can be made that are similar to those that we make in a case of the ‘concealed’ lacuna). You look at the stone wall and see that a stone is missing. You want to find in a statute an answer to a question that should be regulated by that statute, and you find that the statute does not have a provision that answers the question. The ‘concealed’ lacuna is different. A ‘concealed’ lacuna can exist even where, prima facie, there is no ‘genuine’ lacuna in the statute. On the contrary, the statute provides a full and complete answer to the question, but the answer is not exactly to our liking, such as, for example, the answer of the inheritance law that the heir-murderer will inherit, or that the appellant should be given his child because he is his biological father. We do not like these answers, and we think that the legislator should have stipulated an exception in these cases. Thus, for example, in the case of the heir-murderer, ‘it is inconceivable’ that the legislator intended — in principle — to give him the estate of the murder victim. The same is true of the appellant before us, who trampled and violated the body and soul of the mother of his child, and made her into a kind of test tube and womb on demand, to satisfy his desire for a child. Did the legislator seriously intend to give the appellant his child? This is our question, and following Justice Earl (in Riggs v. Palmer [35]) the answer lies hidden in the question. Now that we have equipped ourselves with the answer, let us turn back, return to our point of departure, and say: we have now discovered a ‘lacuna’ in the statute, and the ‘lacuna’ is that the legislator did not prescribe an exception in the case of a murderer-heir and in the case of someone like the appellant before us. Let us therefore fill that ‘lacuna’ — like a lacuna that was manifest from the outset — and let us prescribe an exception to the rule.

If we regard the ‘concealed’ lacuna in this way, we will also realize that our case does not involve a ‘lacuna’ in its simple and normal meaning in human language. A ‘concealed’ lacuna is not a lacuna, unless we overextend the concept of the ‘lacuna’ and widen its scope inappropriately. Indeed, whereas a ‘manifest’ lacuna is indeed a lacuna, in the simple sense, a ‘concealed’ lacuna can be described as a ‘purposeful’ lacuna, a ‘fitting’ lacuna, a ‘required’ lacuna, a lacuna that we see in our minds because we think that we ought to see a lacuna. It is as if we said: there should be a lacuna and therefore there is a lacuna. We create a ‘concealed’ lacuna with mere words, and we create it simply in order to inject into the legal system the norms that we deem proper, norms that we think are lacking in the legal system. Such a lacuna is not a ‘genuine’ lacuna at all; it is an illusion, like laser beams wandering through space, a mirage. It looks like a lacuna, but is not a lacuna. See also Zandberg v. Broadcasting Authority [19], at p. 824, per President Barak). We should also point out and clarify that the concealed lacuna is different from the basic principles that we use regularly in interpretation. The latter help us to choose from among the variety of possible interpretations that method of interpretation that is consistent with basic principles, whereas in our case they purport to dictate to us a solution that the statute does not prescribe at all, and, what is more, that solution proposed to us conflicts with the prima facie stipulation of the statute.

Let us conclude by saying that in the opinion of Kelsen, the concept of the ‘lacuna’ in the legal system is nothing more than a fiction. According to Kelsen, in a functioning legal system there are no lacunae — neither manifest nor concealed. See H. Kelsen, General Theory of Law and State, trans. A. Wedberg, Cambridge (1949), at pp. 146-149. Unlike Kelsen, we are only attacking the ‘concealed’ lacuna.

25. We therefore conclude that the path of the lacuna will also not succeed, and it too will merely lead us into a vicious cycle, with no beginning and no end. Let us therefore return to our starting point and try to choose our path.

26. As we said at the beginning of our opinion, we must distinguish between substance and the legal technique used to inject that substance into the legal system, or to be more precise, the method of recognizing that substance — the incorporation of that substance — into the legal system. With regard to the substance, I believe that my colleague, the Vice-President, and I agree, and I share his opinion that we should do our utmost to ensure that the wrongdoer does not profit from his wrongdoing. The disagreement between us merely concerns the legal technique for recognizing the existence of that principle in Israeli law, whether we can integrate that principle into Israeli law by means of interpretation or by means of filling a ‘concealed’ lacuna. My colleague believes that the principle of ‘have you committed murder and also taken the inheritance?’ — as a general principle — can be recruited by our law both into the ranks of interpretation and into the ranks of the concealed lacuna, whereas I believe that neither interpretation nor the concealed lacuna — neither the one nor the other — can sustain the burden of a proposed solution. Not only is that solution not implied by the language of the statute, but it even contradicts, prima facie, the provisions of the statute.

‘Have you committed murder and also taken the inheritance?’ as a substantive principle of law

27. If we do not follow the way of interpretation nor the way of the lacuna, what path shall we take? In order to discover the path, let us go back somewhat and remember what we said in our opening remarks, namely that we knew from the beginning that the appellant was unworthy to be given his son. Legal intuition — the conscience and instinct of the expert — inspire a judge at all times, and it is a major factor in his judicial work. See Cardozo, supra, at pp. 165 et seq.; Dworkin, Law’s Empire, supra, at p. 10; A. Barak, Judicial Discretion, Papyrus (1986), at pp. 196-198. In our case, that intuition is acute to the point of being painful, exactly like the feeling of Justice Earl, in Riggs v. Palmer [35], and the feeling of all of us with regard to the case of Naboth the Jezreelite and the case of Uriah the Hittite. After we discussed the substance, we set out on a journey to search for a way to integrate that substance into Israeli law. As we stand at the crossroads, knowing clearly where we wish to go, I think that it is proper that we should be honest with ourselves and with others, for frank speech may in itself map out our path. This, in truth, is our opinion; the same substance that dictates our decision will also pave the path that we are trying to find.

Prima facie, the matter is simple: that substance is, in truth, a binding legal norm in Israeli law, an independent fundamental principle, a creature that stands on its own feet, speaks with its own voice and its own language. This creature speaks for itself and does not need a mouthpiece to announce its message to Israeli law, neither the mouthpiece of interpretation nor the mouthpiece of a lacuna. This basic principle exists independently in the sphere of Israeli law, alongside other fundamental principles and alongside statutes, Basic Laws and other elements that comprise Israeli law in its entirety. This basic principle is on a level with statute, and it is a companion to statutes. It is, in essence, neither a rule of interpretation, nor a rule of lacunae (even though in its application it may assist also in interpretation and in filling a lacuna). It has independent existence, stands on its own feet and speaks to statutes as an equal amongst equals.

If an analogy is required, we will mention the principle of the freedom of occupation before the enactment of the Basic Law: Freedom of Occupation. The freedom of occupation, it will be remembered, was established in HCJ 1/49 Bajerno v. Minister of Police [28], and its status was the status of statute. In other words, the freedom of occupation was recognized as a fundamental principle in Israeli law — as if written expressly in statute — and only statute could override it. See, for example, HCJ 337/81 Miterani v. Minister of Transport [29], at p. 363, per Vice-President Shamgar. Indeed, it is obvious that only a statute can set aside or restrict a right that also has the force of statute. This was the status of the freedom of occupation before the enactment of the Basic Law: Freedom of Occupation. This is the status of the basic rights today, even if they have not found themselves a home in the Basic Laws; and this is the force of that substance in our case. The fundamental principle that a murderer may not inherit his victim — a principle expressed in the cry ‘Have you committed murder and also taken the inheritance?’ — is a fundamental principle which has the status of statute, and its relationship to the Inheritance Law is like the relationship of a lex specialis to a lex generalis. It is the law when someone has committed an infamous act, an act that — as a matter of principle — must not benefit him. This principle is also a fundamental principle of Israeli law, and its status is that of statute. It stands together with statutes, regarding them as an equal among equals.

In other words, the doctrine of ‘Have you committed murder and also taken the inheritance’ in its broad sense does not need to hide behind other basic legal principles or rules. It is no credit to us nor to it to reveal it to us with a mask of interpretation or filling a lacuna. It is not proper for us to do this, either to it or to ourselves. Is it fitting — is it creditable — that a fundamental doctrine like the doctrine of ‘Have you committed murder and also taken the inheritance?’ should enter into Israeli law only by virtue of an alleged ‘lacuna’ that appears in the law? We cannot say this. Let us walk together with the doctrine openly in the street, since it is a living creature that is independent. We are not ashamed of it, and let it not be ashamed of us. Let us not call it a rule of interpretation; let us not reduce its stature so that it becomes merely a minor force in the law. Let us not regard it as a kind of understudy called onto the stage only when there is a ‘lacuna’. There is no justification for doing so.

28. Let us confront the issue squarely. In Riggs v. Palmer [35], under the provisions of the statute — interpreted literally — the grandson, the murderer, would have inherited from his grandfather, the murder victim. Notwithstanding, the court ruled — albeit by majority opinion, but without hesitation — that the grandson would not inherit from his grandfather. The court therefore ruled, prima facie, contrary to the provisions of the statute. The same is true in our case. According to a literal interpretation of the statute, the father, the appellant, should be given his child as he wishes. Nonetheless, we are ruling that by his infamous act the father has lost his right to his child. Thus we are proposing to rule — exactly like Justice Earl in Riggs v. Palmer [35] — prima facie, contrary to the provisions of the specific statute. In both cases the statute is clear. Nonetheless, Justice Earl made his decision, and we too are making our decision. Assuming that our decision is ‘correct’ — and that is now our assumption — is it right, is it reasonable, is it creditable, is it sufficiently persuasive that we should say that we are making our ruling on the basis of rules of ‘interpretation’ or by filling a ‘lacuna’? The answer to this question, in my opinion, is emphatically no. The force of the reasons that led Justice Earl to make his ruling, the force that leads us to make our ruling, is too great and powerful to be included in rules of ‘interpretation’ or to be called upon to fill a supposed ‘lacuna’. The force is, at least, the force of statute, and if this is so, then we are obliged to proclaim this publicly.

29. The matter can also be presented in the following manner: we are dealing with a rule and an exception to the rule. The rule is that a beneficiary under a will inherits; the exception to the rule is that a murderer may not inherit from his victim. The question is merely who has the ‘burden’ of establishing the exception. Shall we say that the legislator has the duty of prescribing both the rule and the exception thereto, and when he did not prescribe the exception to the rule the rule will apply and the heir-murderer will receive the inheritance? Or should we say, the rule is universally accepted, but to the same extent — and with the same force — the exception to the rule is also accepted as an accepted principle of Israeli law, namely that the murderer-heir may not inherit. Thus, if the legislator nonetheless wanted the heir-murderer also to inherit, he should have legislated this expressly. And if he did not legislate to this effect, the exception will apply as if automatically, like the rule itself. Our opinion is consonant with the second alternative, since it has the force of an independent rule.

30. Our opinion is therefore that the principle of ‘have you committed murder and also taken the inheritance?’ — in its broad sense — is an independent principle in Israeli law, and it has the status of statute. Indeed, this principle — alongside other similar principles — is one of the sources of Israeli law, alongside statute and the other sources of law.

Concerning the Foundations of Justice Law

31. Here we wish to make a remark on our methodology, as a continuation of what we said above with regard to the ‘concealed’ lacuna, which in our opinion is merely a lacuna that we ourselves created by calling it such. Under the Foundations of Justice Law, 5740-1980, when a judge is confronted with a question of law that requires a decision, the court is supposed to seek for an answer to the question in statute, case-law or by way of an analogy. If the court finds in one of these sources an answer to the question of law that came before it, so much the better; but if it does not find an answer to the question, then — and only then — the court will decide the question ‘in view of the principles of liberty, justice, equity and peace in Jewish heritage’, as stated in the Foundations of Justice Law:

‘Supple-mentary sources of law        1.             If the court identifies a question of law that requires a decision, and it does not find an answer to it in statute, case-law or by way of an analogy, it shall decide it in the light of the principles of liberty, justice, equity and peace of Jewish heritage.’

This formulation of the sources of law and the order of priority between them not only beckons and invites the reader to the conflicts between them (which we will not consider now), but it itself contains a kind of unanswered question. The question is this: when, and in what circumstances, will the court identify a ‘question of law that requires a decision’? To emphasize the point: When and in what circumstances will it be said of the court that ‘… it does not find an answer to it [the question of law] in statute, case law or by way of an analogy…?’. This is precisely the case of Riggs v. Palmer [35]: is the murderer-heir entitled to come into the inheritance? The statute does not make any special provision for the murderer-heir, and, reading the text literally, he too is supposed to inherit from his victim, the testator. This is what the murderer-grandson argued before that Court. Then the party opposing this stood up and argued: indeed, we intend, and we are commanded, to respect the wishes of the deceased in his will. That is indeed the law as a rule, but it is not the law with regard to a murderer who murders the testator in order to come into an inheritance under the will. Each party makes his argument, and thus a ‘question of law that requires a decision’ presents itself before the court: is the heir-murderer entitled to come into the inheritance?

32. The Court therefore sets out on a journey — to try and find ‘… an answer to it [a legal question] in statute, case-law or by way of an analogy…’ — and first it encounters ‘statute’, i.e., the Inheritance Law. As commanded by the legislator, the court enters into the edifice of the Inheritance Law, going into its different sections, exploring its rooms and lighting up its passages. Has the court ‘found’ or has it not ‘found’ an answer to the question? One party (on behalf of the grandson) argues that the Court has indeed found an answer to the question, and the answer is this: the grandson, the murderer, is supposed to inherit under the will of his grandfather, the murder victim. This is the plain meaning of the text and the law contains no provision that denies the grandson this right. It follows that the statute provides an answer to the question. The court has ‘found an answer to it [the question] in statute…’. The grandson will receive his grandfather’s estate and the court will not even consider the other sources listed in the Foundations of Justice Law — case-law, analogy, and certainly not the principles of liberty, justice, equity and peace of Jewish heritage. A simple answer.

But is this really the case? Is it really true that in the case of the grandson-murderer the Inheritance Law provides an ‘answer’ and the grandson inherits? There are those who think that this is indeed the law, and they cannot be dismissed lightly. See, for example, the article published by the great Roscoe Pound on the case of Riggs v. Palmer [35]: ‘Spurious Interpretation’, 7 Colum. L. Rev. (1907), 379 [56]. Pound refers to the path adopted by Justice Earl in his decision as ‘spurious interpretation’ (or, if you prefer, contrived interpretation or unlawful interpretation) and vehemently criticizes the decision on the merits. (Incidentally, I will point out that I agree that the decision in Riggs v. Palmer [35] is not based, in truth, on ‘interpretation’ of the statute — we have discussed this at length — but I do not agree that the decision was wrong. It is possible that this is the difference between the academic whose thoughts are merely theoretical, no matter how brilliant and learned he is, and the judge — even in the lowest court — whose decision will rest on his conscience: ‘Even at night my conscience tortured me’: Psalms 16, 7 [44]). This is the argument of one party.

33. The other party oppose this and say: the combination of words ‘a question of law requiring a decision’ creates a loaded formula. The formula is not concerned only with a question that arises from a study of the words of the statute that require interpretation, as if we are dealing with a technical question and a technical answer. The formula (also) concerns a question that — in itself — is a question worthy of coming before the court for a decision. The formula is not merely a technical-mechanical formula. It also includes an ethical message, as if the statute were saying to us: ‘a question of law that requires a decision’ is a question of law that is worthy of being decided. This is said of a question that comes before the court for a decision, and the measure of the question is also the measure of the answer. The combination of words ‘… and it does not find an answer to it in statute’ does not mean the naked statute, as if the statute existed alone in a world of its own. Were we to say this, then in Riggs v. Palmer [35] we wound find an answer in the statute, and the answer is that the grandson-murderer will inherit from his grandfather, the victim. But when we start with a question of law that is worthy of being decided in its own right — should we give the grandson, the murderer, the estate of his victim — it is only natural that we should expect the statute to provide a worthy answer, a specific answer to that question. For it can be presumed that in his legislation the legislator will give worthy answers to worthy questions, specific answers to specific questions. We have found a worthy question, but we have not found a worthy and specific answer. Therefore the second party will say in conclusion: ‘… the court has not found an answer to it [the question] in statute…’, i.e., the Inheritance Law.

34. According to the second party, is the meaning of their remarks that we should now consider the other sources of Israeli law, including ‘the principles of liberty, justice, equity and peace of Jewish heritage”? The answer to this question is not simple and we will not be drawn into it. We will merely hint at the following: we said that the combination of words ‘a question of law that requires a decision’ is a ‘loaded’ phrase, and it refers to a question that is worthy of coming before the court for a decision. In classifying the question as a ‘worthy’ question, it is as if we have added, in a whisper or a wink, that an heir-murderer is not worthy of inheriting from his victim. The answer to the question lay in the very classification of the question as a ‘worthy’ question. Moreover, how do we ‘know’ that the question is a ‘worthy’ one, and how do we also ‘know’ in our sub-conscience the answer to the question? The answer to this is that it is because of who we are, because we are motivated by feelings of morality and integrity that beat violently within us. And these derive from the principles of liberty, justice, equity and peace of Jewish heritage. This source of Israeli law is admittedly the last source according to the Foundations of Justice Law, yet we found it inside us at the beginning of our journey. The ‘law of nature’ and Jewish heritage are like one; we have come full circle and east meets west.

Law and morality and the difference between them

35. We have said that the principle ‘Have you committed murder and also taken the inheritance’ is numbered among the sources of Israeli law; its status is that of a principle, its stature is that of statute. We all know that this principle is a moral one, and that morality directs our actions and thoughts, as though inherent in our genetic code, and it is a force whose intensity may be compared — in its normative sense — to the intensity of the desire for existence and survival. It would appear that shortly after we recognized that Cain acted wrongly in killing Abel, we also recognized that we would not permit a murderer to inherit from his victim. Nonetheless, in its important parts statute ought to give normative-legal expression to moral imperatives that we have been commanded to observe. In the words of Prof. M. Silberg, a justice of the Supreme Court of Israel, in his book Kach Darko Shel Talmud, 2nd edition (1964), at p. 67:

‘The realms of morality and law form two concentric circles that overlap only partially — the more that the dividing line between them retreats, the greater the moral area and content of the law. The ideal position is that the two circles will overlap totally, as water covers the sea.’

(Personally, I believe that law and morality are like two excentric circles that create three areas; the two circles move back and forth all the time like the movement of continents. But we will not expand).

Morality and its imperatives are like a lake of pure water, and the law and its imperatives are like water lilies, spread over the surface of the water and drawing life and strength from the water. Morality nourishes the law at the roots and it surrounds the law. Some of the water lilies give legal force to moral imperatives; other water lilies act as basic legal concepts that are filled with content by the imperatives of personal and social morality, such as with the concepts of ‘morality’ and ‘justice’, and also the concept of ‘good faith’. Sometimes morality finds its place amongst us as is, without needing any intermediaries, and there are water lilies that exist without any basis in morality. The water lily known as the Adoption of Children Law — and the same is true of the water lily known as the Inheritance Law — are both nourished by the waters of morality, and these waters surround them. Thus we ‘know’ that the question ‘Have you committed murder and also taken the inheritance’ is a ‘worthy’ question; thus we ‘know’ that this question has no answer in the Inheritance Law; thus we ‘know’ that this question does have an answer in the law of inheritance. Thus we also ‘know’ that the question whether a particular question is a ‘worthy’ question, and whether it has an ‘answer in statute’, is a question — it may be called: the ultimate question — that nourishes itself with the principles of morality that beat within us, principles of morality that are derived from the principles of liberty, justice, equity and peace of Jewish heritage. As we have said elsewhere (‘Jewish heritage and the Law of the State’, Civil Rights in Israel, Articles in Honour of Haim H. Cohn, The Association of Civil rights in Israel, R. Gavison, ed. (1982), 47 [50], at p. 97):

‘… legislation of the Knesset — together with case-law made by the courts in the past and the present, from time to time, without any basis in express legislation — are nothing more than trees planted by streams of water, islands in the sea, plants in a greenhouse; someone who is supposed to determine the law must bathe himself in the stream, sail on the sea, experience the atmosphere of the greenhouse.’

36. My colleague, the Vice-President, and I have chosen a difficult path. The path is easy for the moralist, but it is not so easy for persons involved in the law. The moralist will do as his heart tells him, and live. Persons involved in the law cannot always do what their heart tells them. Sometimes he is compelled by words, and sometimes he is compelled by circumstances. The question of whether he is compelled by words (which words?) or not is also a difficult decision that a judge must make. These issues struggle with one another inside his heart, and his path is a hard one. The case is a hard one and the path is a hard one.

Hard cases make bad law

37. Our case is a difficult one and we are know that ‘hard cases make bad law’. We must therefore go cautiously and consider our remarks very well. Ours is a ‘hard case’ and caution is needed in case we decide and make ‘bad law’. Why do people in the law fear that ‘hard cases’ will lead to ‘bad law’? The people who say this are not referring to the result of the specific case before the court. Quite the opposite, a ‘hard case’ in our context is a case where the decision is difficult because statute points, prima facia, to the north, whereas the heart of the judge points to the south. It is as though the law has not ‘adapted’ itself to the special set of facts before the court. This is the source of the apparent gulf between the law and the heart, and the source of the difficulty experienced by the judge. At the end of the trial in that ‘hard case’, the judge decides according to the dictates of his heart, but that decision has difficulty in finding a place within the framework of the specific statute or within the framework of the general law. Justice is done in that case — this is agreed by all — and the fear is merely that perhaps in the future, in circumstances that are not identical to the circumstances of the case in which the ruling was made, the courts will follow the ruling that was made, and the law will become absurd in the extreme. I do not have any suggestion or solution for all kinds of ‘hard cases’, but with regard to our case I will say a few words.

38. Without doubt, our case presents us with an unique and special instance of two disciplines that affect one another and overlap with one another: the discipline of law and the discipline of morality. It can be said that legal authority has stated its position, seemingly, but we have said that moral authority will make legal authority complete. The decision is an unique and special decision, literally a ‘royal edict’. If, then, it is a royal edict — and this is indeed what it is — let us give it a place in the room where royal edicts are kept. In this room we will find, for example, the decision in Riggs v. Palmer [35]. Here too we will find the decision made in Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18]. The decision in Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18] was the only child in its family, and the proof of this is that subsequently the court refused to apply the ruling in Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18] — the case-law rule of defensive democracy — in similar, possibly very similar, cases, but cases that were similar but not identical. Indeed, it was in EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset [30] that the court refused to extend the case-law rule regarding defensive democracy and apply it also to a racist political party. See also CLA 7504/95 Yasin v. Parties Registrar [31], and CLA 2316/96 Isaacson v. Parties Registrar [32].

As a ‘royal edict’, our decision in this matter is subject to the law of kings, and not to the law of the common people, and we cannot derive the law of the common people from the law of kings. The royal edict may be likened to those ‘noble’ elements of nature, elements that constitute a kind of closed order that no others can enter. ‘I have seen the noble people, and they are few’ (Babylonian Talmud, Tractate Sukkah, 45b [52]). If we regard this ruling as such — and this is how it should be regarded — we will not fear for the future. The case is a hard one, but there is no fear that the ruling is a bad one. If in the future a case similar to this one arises, we will examine it on its merits and decide it as it ought to be decided.

The judge as an interpreter of life

39. The life of the appellant and his wife has not been an easy one. Despite their many efforts, they did not succeed in producing a child. The appellant’s strong desire for his own child put into his mind a perverse idea as to how he could have his own child and continue his family life as before. He thought and acted. Now he asks that we too shall be accessories to his act, if only accessories after the fact.

Elsewhere I compared a judge to a writer and poet, a painter and sculptor, a composer and a playwright. I went on to say that the judge, like all of these, ‘is also an interpreter of life, a creative interpreter’ (M. Shamgar — A President of Judges — A Judge and Man’, 26 Mishpatim (1995) 203 [51], at pp. 206-207). We have interpreted the life of the father-appellant. We have interpreted the life of the young mother. We have looked around us and interpreted our own life. The conclusion that we reached is the only conclusion that we could have reached. There is no other.

 

 

Justice I. Zamir

I agree with the opinion of my colleague, Justice Dorner.

My colleagues, Vice-President S. Levin and Justice M. Cheshin, also agree that the list of grounds for declaring a child adoptable, as set out in section 13 of the Adoption of Children Law, is a closed list. This is apparent from the wording of the section and this has been held in case-law. Notwithstanding, Vice-President S. Levin adds (in paragraph 9) an additional ground not mentioned in the list, namely ‘that a parent is not permitted to refuse to have a minor declared eligible for adoption if doing so contradicts public policy regarding the deeds that lead to the birth of the minor’. Justice Cheshin, in his own way, adds as a ground (by way of analogy) that a murderer may not inherit. It therefore follows that, in the opinion of my colleagues, although in theory the list is a closed one, they have in practice a key that allows them, if and when they think fit, to open up the list to other grounds. How is this so?

Indeed, the appellant behaved like a wretch, and from a moral viewpoint, and perhaps also from the viewpoint of public policy, he is not entitled to benefit from the fruits of his wrongdoing. But immorality, of whatever kind and to whatever degree, is not included in the list of grounds for adoption set out in section 13 of the Adoption of Children Law. There are parents who have committed abominable crimes, and there are other parents whose behaviour is immoral in the extreme, but these in themselves are not a ground, in theory or in practice, for taking away their children for the purpose of adoption. This is not because the legislator was oblivious to morality: section 13(8) of the Adoption of Children Law provides that a refusal to give consent to adoption for an immoral motive is a ground (whether an independent ground or a supplementary ground) for adoption. But the statute does not provide that immoral behaviour in the past is also a ground for adoption, unless, of course, this behaviour establishes one of the grounds stipulated in section 13.

It is true that the wording of a statute, in any statute, does not necessarily constitute an insuperable barrier before the court when it seeks to do justice in accordance with the purpose of the statute. There are situations in which there are especially powerful reasons of justice or necessity, public or personal, that may induce the court to rely upon a hidden intention or a presumed intention of the legislator, not only to interpret a text other than in accordance with its literal meaning, but even in order to turn the text on its head. This is what happened, for example, in the famous case of Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [18]. Nonetheless, it is clear to me that Vice-President S. Levin and Justice Cheshin, who cite this case as an example, both agree that the court should only take this path in a rare case, when all other paths are unavailable.

In my opinion, in the case before us there is no need to take this path, and it is immaterial whether we call this broad construction or filling a lacuna, according to the method of Vice-President Levin, or a fundamental principle, according to the method of Justice Cheshin. In the case before us there is no justification for breaking out of the framework of the list of grounds prescribed in section 13, since the case falls within the scope of this section, without it being necessary to distort the language of the section or to depart from the case-law that has held that this section provides a closed list of grounds. The following is the wording of section 13(7):

‘The parent is incapable of looking after the child properly because of his behaviour or situation, and there is no chance that his behaviour or situation will change in the foreseeable future, even with reasonable economic assistance and help of the kind usually provided by the welfare authorities for his rehabilitation.’

Even though case-law provides that the best interests of the child, in themselves, are not a ground for adoption, but rather a ground for adoption among the grounds set out in section 13 of the Adoption of Children Law must be found, it is clear that all the grounds in this section are merely, as Justice Dorner says (in paragraph 9), ‘a list of cases in which the best interests of the child are harmed because the parent does not carry out his duty towards him or is incapable of doing so’. Moreover, subsection 13(7) of the Adoption of Children Law, more than any other subsection, clearly and firmly places the best interests of the child within the framework of the ground stated there; for under this subsection, a child may be declared adoptable if ‘the parent is incapable of looking after the child properly’. In other words, if the parent is incapable, because of his behaviour or situation, of ensuring the best interests of the child. This is also what Justice Cheshin says (paragraph 4). See also the remarks of Justice Cheshin in CFH 7015/94 Attorney-General v. A [2], at pp. 104-109.

The incapacity of the parent may derive, as stated in section 13(7), from two factors: the behaviour of the parent or the situation of the parent. ‘Behaviour’ and ‘situation’ are broad and flexible terms. They include many strange circumstances, and perhaps it may be said that they include every circumstance that relates to a parent, if it leads to his incapacity to take proper care of his child. The following was said by the Commission for Examining the Adoption of Children Law, whose report first recommended the legislation of this subsection, at p. 35 of the aforesaid report:

‘The idea underlying this provision is that it is impossible for the legislator to define, in pure legal language, all the situations and elements that must be taken into account in the considerations of the court, for life is usually more complex and varied than anything that the legislator can imagine.’

It follows that subsection 13(7) of the Adoption of Children Law is, in fact, a kind of ‘catch-all’ provision. As Justice Bach said in CA 522/87 A v. Attorney-General [33], at p. 440, ‘the words “or his situation” refer to all aspects of the objective circumstances’.

Admittedly, as a rule, when referring to the ‘situation’ of a parent, we mean his personal situation, or one might say his subjective situation, i.e., his own physical, emotional or mental situation. The most common case in which use is made of subsection 13(7) of the Adoption of Children Law is the case where a parent is addicted to drugs, or he is emotionally or mentally disturbed, or he has a disability or a defect that prevent him from caring properly for his child. But the term ‘situation’ is not limited and ought not to be limited, either with regard to the language of the statute or with regard to the purpose of the statute, to the subjective situation of the parent. It also includes the parent’s objective situation, namely the situation in which he finds himself, including his environment, especially if he finds himself in that situation because of his behaviour. If the situation, in this sense, makes him incapable of caring properly for his child, and there is no chance that the situation will change in the foreseeable future, this constitutes a ground under subsection 13(7) of the Adoption of Children Law. Admittedly, the court must be particularly careful when it determines that the objective situation of a parent causes parental incapacity, but with regard to the language and the purpose of the statute, the main point is the result and not the cause: the parent is incapable of properly caring for the child.

I believe that, in the case before us, there is sufficient evidence before the court that the appellant is incapable of properly caring for his child. It may perhaps be said that he is incapable of this because of his behaviour in the past, and in any event he is incapable of this because of his situation today, and also because of his situation in the foreseeable future. It is clear that in this special situation there is no reason to expect that reasonable economic and welfare assistance, of the kind normally provided by the welfare authorities, will change the situation, from the viewpoint of the anticipated harm to the child. Such help is irrelevant to the danger to which the child would be exposed, were he to grow up in the appellant’s home.

The court-appointed expert explained succinctly, and there is no need to repeat the quotes from his opinion, that as a result of the situation in which the appellant found himself, and in which he finds himself, he foresees disaster, complications and many difficulties for the child. The expert says that if the child grows up with the appellant, he will be exposed to risks in terms of his mental health. These risks derive from the home in which he would be raised, and particularly from the difficulties inherent in the situation of the father’s wife, who is supposed to raise him, and the environment in which he would live, in the shadow of the ‘sensational story’. As the expert says, ‘underneath the surface there lies a strong possibility of complications, difficulties and pathology for the child and how he is to be brought up, if he is indeed brought up by R and A.’

The duty of a parent towards his child includes, as Vice-President S. Levin explains (in paragraph 3), also the duty to provide the psychological and emotional needs of the child. The appellant, however, is incapable, because of his behaviour in the past and his situation in the present, of properly providing for these needs. Try as he may, he is incapable, because of his situation — both now and in the foreseeable future — of ensuring that his child can live and develop properly, like children who do not have, in the words of the expert, such a scar, which has come about because of the appellant’s behaviour. On the contrary, if the child grows up with the appellant it is foreseeable, on the evidence, that the appellant will involuntarily warp the child’s psyche and cripple his emotions. The child is likely to grow up with an incurable emotional disability, all of which as a direct result of the situation in which the appellant finds himself because of his behaviour. This led to the expert’s conclusion:

‘Therefore I recommend that the baby not be given to his biological father, despite his strong desire to raise him, because of the many serious potential dangers arising from this; these should certainly not be imposed on a newborn child whose future — which will not be easy — is still before him, and we should search for the least dangerous and most promising option for his healthy development: there is no alternative other than closed and anonymous adoption.’

If so, there is a basis for holding that the child is adoptable under section 13(7) of the Adoption of Children Law, and there is no need or justification to search for any other ground beyond this section.

In cases where all the judges agree on the same outcome, as in the case before us, the method is the message. The court can, and sometimes should, follow the path of judicial legislation, entirely divorced from the language of the statute, and perhaps even contrary to the language of the statute, in order to achieve the purpose of the statute or to protect basic values. But this is a method for emergency cases, which involve dangers to the legal system and the administration of justice. It is therefore preferable, if at all possible, for the court to take the safe, paved road of interpretation that arises from the language of the statute. In the case before us, it is possible and desirable to follow this path.

Therefore I do not share the view of Vice-President Levin or Justice Cheshin. Even were one were to say, and I do not say this, that there remains a doubt as to whether, in the circumstances of the case, incapacity has been proved within the framework of section 13(7) of the Adoption of Children Law, I still prefer to rule under the shadow of that doubt, rather than to break open the framework to create a new ground which undoubtedly falls outside the scope of section 13. This is especially true in view of the fear that other grounds will try, in the name of basic principles or public policy, to enter through that breach. I am therefore in agreement with the opinion of Justice Dorner.

 

 

Justice G. Bach

1.             I agree with the opinion of my colleagues that the appeal should be denied and that the decision of the Jerusalem District Court, declaring the child of the appellant adoptable, should be confirmed.

2.             The different approaches in the opinions of my four colleagues concern the ground on which it is possible to base the said decision under the law. My colleagues, Justices Dorner and Zamir, are of the opinion that the court’s decision to declare the child adoptable can be based on section 13(7) of the Adoption of Children Law, whereas my colleagues Vice-President Levin and Justice Cheshin are of the opinion that one cannot make such a declaration on the basis of any one of the grounds listed in section 13 of the Adoption of Children Law, and that it is therefore necessary to add, by means of judicial legislation, to the grounds for adoption in the statute an additional ground that suits the special situation outlined in this case.

3.             With regard to the issue in dispute, I agree with the opinion of my colleagues Justices Dorner and Zamir. I also accept the reasoning set out in their opinions and would like to add to this several remarks of my own.

Both the Vice-President and Justice Cheshin point out that one cannot declare a child adoptable unless his mother and father consent thereto, or unless one of the grounds listed in section 13 of the Adoption of Children Law, which prima facie constitutes a closed list, is fulfilled. But they argue that none of these grounds exist in this case. The father, the appellant, does not consent to the adoption, and in their opinion none of the grounds set out in section 13 are applicable.

I agree that this is the case with regard to each of the grounds in section 13 of the Adoption of Children Law, with the exception of the ground set out in section 13(7) of the Law. I especially agree with my colleagues that there is no basis for applying to the case before us the ground in section 13(8) of the Law, on which, inter alia, the District Court relied, and which refers to cases where ‘the refusal to give the consent derives from an immoral motive or is for an unlawful purpose’. It is also my opinion that the immorality or the illegality for the purpose of this section must relate to the refusal to give the consent to adoption, and not to the circumstances which led to the birth of the child.

4.             We must therefore focus on the question whether facts have been proved that justify the determination of the District Court that there is a ground for declaring the child adoptable under section 13(7) of the Law. In order to facilitate comprehension of the matter, let us quote once more the language of this subsection:

‘The parent is incapable of looking after the child properly because of his behaviour or situation, and there is no chance that his behaviour or situation will change in the foreseeable future, even with reasonable economic assistance and help of the kind usually provided by the welfare authorities for his rehabilitation.’

The last part of the subsection is irrelevant for our purposes; so the question remains whether it is possible to determine that the appellant is a parent who ‘is incapable of looking after the child properly because of his behaviour or situation…’.

My colleague, Justice Cheshin, quotes extensively in his opinion from the opinion of the expert psychologist, Mr Rami Bar-Giora. He notes that Mr Bar-Giora points out serious difficulties that the child will face if he is raised in the appellant’s home, but he says that ‘we have heard nothing about “incapacity” or about difficulties that clearly amount to “incapacity”.’ But my colleague adds: ‘Indeed, even had the expert spoken expressly of “incapacity” (and he hints of this in his oral testimony), the mere use of the word would not be decisive’.

Before we try to draw conclusions from the expert’s opinion, let us first examine what that expert actually said in his testimony before the court, evidence that in my opinion is of no less weight that what is stated in the initial written opinion of that witness.

Inter alia the expert testified as follows:

‘… I say once again, the most serious matter is that the raising of this baby by the family of Y poses a dilemma, not a dilemma — a trap. This is to say, difficulty on all sides. If they tell him the truth, it is very complex, if they hide the truth from him, it is very dangerous. In any case, this casts a shadow on the parenting…’

And when he was asked directly in cross-examination:

‘I understand that you do not have anything to say against the parental capacity of Mr Y, unconditionally, in principle. You wrote nothing about this, and I believe that this is the case.’

The witness replied:

‘I wish to point out and I said to Mr Y and his wife… I have no problem at all with the parental capacity of the two of them; all that I wrote was written with regard to the possible parenting of this baby with his special circumstances.’

And further on the expert refers to another case that he treated, and explains:

‘Of all the dozens of my opinions about parental capacity, one case sticks in my memory. This case was about a father and mother with five children where two were literally outcasts within the family, and with regard to one of them I was asked to write an opinion. I encountered a family that had raised, with relative success, the children that were in their home, yet at the same time there was obvious, blatant and clear incapacity with regard to two special children, and since then this case has become the model and classic example that parental capacity is examined with regard to a specific child, and only in rare cases can it be said that it does not exist a priori; for this a person needs to be retarded, crazy. Then it is possible to say that it is not worthwhile trying one way or the other.’

In my view, it is clear from the expert’s opinion, together with his testimony in Court, that in his view the appellant lacks parental capacity with respect to the specific child in this case. This does not mean that the appellant is incapable of being a parent at all. There are no indications of this. But because of the difficulties that the child can be expected to encounter if he is raised in the appellant’s home — difficulties that the appellant cannot prevent or neutralize — he lacks parental capacity with regard to this child. This position seems to me reasonable and persuasive, and I see no reason not to adopt it.

5.             My colleague Justice Zamir mentioned in his opinion the decision in CA 522/87 A v. Attorney-General [33], at p. 440, where I wrote that, with respect to section 13(7) of the Adoption of Children Law, ‘the words “or his situation” refer to all aspects of the objective circumstances’.

To elucidate this position of mine, we should mention the facts to which that appeal referred. The case concerned a married couple, the parents of three minor children, who had been declared adoptable. It was proved that the mother was a mentally-ill person who endangered her children’s welfare, and it was universally agreed that she was incapable of raising the children. It transpired that the father, on his own, did not lack parental capacity, but since he believed that his wife would recover and was not prepared to leave her, and since it was inconceivable that the children’s health should be endangered by leaving them in their parents’ home, it was decided that they should be declared adoptable vis-à-vis both parents, despite the fact that the father, on his own, could have had parental capacity. This shows that a person’s parental capacity in a specific situation is not determined merely on the basis of the general capabilities of that person and his ability to function in principle as a father, but by taking into consideration all the facts and circumstances in which he finds himself, which constitute ‘his situation’, within the meaning of section 13(7) of the Adoption of Children Law.

In our case, because of his conduct, the appellant finds himself in a situation in which he does not have the capacity to raise the child under discussion, in conditions in which the child is entitled to be raised, namely without being exposed to serious psychological risks and traps as described by the expert psychologist.

I therefore see no difficulty, nor even any artificiality, in applying the provisions of section 13(7) of the Adoption of Children Law to this case.

6.             My colleague, Vice-President Levin, wrote in his opinion that we must read into section 13 of the Law an additional rule, which provides that a parent may not oppose a declaration of a child as adoptable if this conflicts with reasons of public policy relating to the acts that led to the birth of the child. He adds that this possibility did not occur to the legislator, but that, had he been asked, he would certainly have provided that such a rule should be applied in order to prevent the child being given to the appellant.

To this I must say that, if indeed we may assume that the legislator would have been prepared to include an additional rule in section 13 that is not included in it in its current wording, then it certainly can be assumed, a fortiori, that had he been asked, the legislator would have agreed to a construction of the existing section 13(7) that parental incapacity because of a parent’s ‘behaviour or situation’ may be applied to the facts in cases like the one before us.

I too do not wish to rule out the possibility that, in rare and exceptional cases, the court will find it necessary to add to the specific provisions of a statute a provision not included therein, by means of a kind of implied construction, in order to prevent results that are inconceivable or that make a mockery of the law or that are manifestly contrary to public policy. But in this case I do not think there is any need to consider resorting to such methods.

Therefore it is my opinion that the decision of the District Court declaring the child adoptable on the ground included in section 13(7) of the Adoption of Children Law should be confirmed.

 

 

Appeal denied.

20 Tishrei 5757.

3 October 1996.

 

President A. Barak

We have before us an appeal, after leave was given, against the judgment of the Tel-Aviv–Jaffa District Court, which ruled by majority opinion that a breach of a promise of marriage that was made by the first respondent (hereafter — ‘the respondent’) to the appellant, when he was married to another woman, does not entitle the appellant to damages, since the promise was contrary to public policy.

Background

1.            The appellant became acquainted with the respondent in the course of her employment at a cigarette factory in Lod, where she worked as a secretary. The respondent worked as the manager of the packing department. When they first became acquainted, the appellant was a young spinster and the respondent was a married man and the father of children. A close relationship developed between the two, which was at first merely a friendship but progressed to intimate relations that continued for several years. The appellant was married (in 1977) and after several years her first child, a son, was born. For most of the marriage, the appellant was separated from her husband. The relationship between the appellant and the respondent was close. The respondent provided for the appellant, he bought her a car and he showered her son with gifts. He had a key to the appellant’s apartment and went there every day. The respondent encouraged the appellant to obtain a divorce from her husband, and even financed legal representation for the appellant in the divorce proceedings. The respondent even suggested to the appellant that she forego maintenance for her son, promising that he would take care of all his needs. He promised her that after she was divorced, he would divorce his wife, and the two of them would start a family together. Although the appellant obtained a divorce from her husband, the respondent’s divorce remained an unfulfilled promise. Notwithstanding, the relationship between the appellant and the respondent continued, and the respondent was possessive towards the appellant and thwarted any attempt on her part to end the relationship. After her divorce, the appellant conceived the respondent’s child, for the fifth time, but unlike the previous four times when she underwent an abortion, this time the appellant wanted to continue the pregnancy. Against this background, the respondent reneged on his agreement to marry her. At the end of 1988, the appellant gave birth to a daughter, who was declared the daughter of the respondent. At this stage, the relationship between the respondent and the appellant was finally severed.

The Magistrates Court

2.            The appellant filed a claim in the Tel-Aviv–Jaffa Magistrates Court, in which she alleged a breach of a promise of marriage, loss of marriage expectations, mental anguish and loss of spiritual and emotional support. The appellant applied to have the respondent found liable to pay her a monthly sum of 1,000 new sheqels until she married or, alternatively, to have him found liable to make a lump-sum payment of a total of 35,000 new sheqels. The Magistrates Court accepted the claim and awarded the appellant the full amount of the alternative compensation that she sought. The Magistrates Court believed the appellant’s witnesses and accepted the appellant’s testimony that the respondent explicitly and implicitly promised her, over a long period of time, that he was about to divorce his wife and marry her, a promise that he eventually breached. With respect to the amount of the compensation, the respondent did not address the sum claimed in his defence, nor did he deny the heads of damage. The court held that the amount claimed was reasonable and consistent with accepted case law, and as aforesaid it found the respondent liable accordingly.

The District Court

3.            The appeal of the respondent in the District Court was allowed by a majority. Justice Y. Gross, with whom Justice Y. Ben-Shlomo agreed, accepted the respondent’s argument that a contract that is made by two married persons, for the purpose of terminating their respective marriages in order to marry one another, is a contract that is contrary to public policy. Relying on a series of judgments from the 1960s (CA 337/62 Riezenfeld v. Jacobson [1]; CA 4/66 Peretz v. Helmut [2]; CA 609/68 Natan v. Abdallah (Ilan) [3]), the court held that ‘the rule, as it was formulated, is that a promise of a married man to marry a woman will be valid, as long as the marriage had fundamentally broken down at the time of the promise. However, in a situation where the plaintiff does not succeed in proving that the marriage had broken down, the court will not uphold such a promise and it will void it for being immoral and contrary to public policy.’ The court said that even today the institution of marriage is one of the few institutions whose sanctity is almost unquestioned by all parts of Israeli society. This leads to the desire to protect the status of this institution. The voidance of marriage agreements by married men allows the married man to try to rehabilitate his marriage. If the married man is bound by his promise to divorce his wife, he would never have such a possibility. In this case, the appellant neither claimed nor brought any evidence to the effect that, when the promise was made, the marriage of the respondent had broken down. Consequently the majority judges held that the promise was void for being contrary to public policy.

4.            Justice M. Rubinstein gave the minority opinion, that there is no basis for distinguishing between a promise of a married man and a promise of a single man with regard to the existence of a cause of action for breach of a promise of marriage. She was of the opinion that such a distinction discriminates against women. A married man should not be given a protected and special status. The judge emphasized that the cause of action does not enforce performance of the promise, but merely awards financial compensation to the injured party, who believed the promise and was injured by the breach thereof. This does not create a risk of harming existing marriages, but only of having to compensate the injured party. The minority judge also addressed the difficulties in evidence that confront a woman who is required to bring proof of the nature of the marital relationship between the man and his lawful wife. With respect to public policy, the judge added the following:

‘Moreover, a promise of marriage made by a married man that is not kept may cause the same damage as a promise by a single man, and I do not think that public policy will be saved by the fact that there will be married men who can with their promises harm women whom they have made miserable, without incurring any risk of being held liable for damages. From the viewpoint of the nature of the promise, it does not matter whether the person who made the promise is married or not;

…

As to the risk to existing marriages, I will add that the quality of the marital relationship is measured, inter alia, also by the way the man, who has a relationship with another woman while he is married, conducts himself. Anyone who ignores the significance of this is establishing a norm that, in effect, creates a privileged status of persons who are entitled to hurt others without suffering any damage themselves.

The case before us shows that public policy and justice demand that we do not discriminate between a man and a woman, and certainly we should not grant an exemption from liability under the law of contracts to a married man (as opposed to a single man) who made a promise that he had apparently [not] intended to keep from the beginning, and found a victim who believed him for ten years.

In summary, giving an exemption from legal risk to a married man will harm public policy more than the theoretical risk that a married man will divorce his wife merely in order to avoid paying damages to a woman whom he promised to marry.’

5.            An application for leave to appeal the judgment was filed in this court. The appellant was given leave to appeal ‘on the question of the legal validity of a promise of marriage given to a woman by a married man.’ Subsequently, the Attorney-General gave notice of his attendance in the proceeding (under s. 1 of the Procedure (Attendance of the Attorney-General) Ordinance [New Version]).

The arguments of the parties

6.            The appellant is asking in her appeal that we adopt the position of the minority judge in the District Court. She adds that the argument that the promise is contrary to public policy is a defence argument of the kind where the respondent has the burden of proof. According to her, in view of the moral flaws in the respondent’s conduct, he is precluded from raising any moral arguments against the appellant. The appellant is further of the opinion that the ‘sanctity’ that the court attributed to the institution of marriage is out of place in view of the extensive recognition of the institution of ‘cohabitation.’

7.            The respondent, for his part, supports the majority opinion in the District Court. He emphasizes the centrality and importance of the institution of marriage in society, which public policy ought to protect. He argues that allowing the claim will seriously harm the institution of marriage, particularly in view of the fact that the appellant also was married during the period when she had a relationship with the respondent. According to him, the appellant’s claim is tainted by a lack of good faith, since she caused the respondent to break the marriage contract and the trust between him and his wife. The respondent warns that should he be held liable for damages, the money will come from the joint family kitty, which may destroy the family unit. Likewise, allowing the claim will harm the freedom of marriage and the dignity of his wife. Alternatively, the respondent asks that we set the damages at a minimal (symbolic) amount. He argues that the appellant did not suffer any real damage, and the compensation that the respondent was found liable to pay was merely for suffering and mental anguish. Moreover, the respondent supported the appellant generously during the years of the relationship.

The position of the Attorney-General

8.            The Attorney-General, who decided to attend the proceeding, explained his position on the general issue of the cause of action of breach of a promise of marriage and on the specific issue being litigated before us: the legal validity of a promise of marriage made by a married man. The position of the Attorney-General is that the contractual cause of action of a breach of a promise of marriage should continue to exist, though in a limited format. In his opinion, within the framework of the limited cause of action, compensation should be awarded only for special, pecuniary loss that is suffered by the injured party as a result of reliance upon the agreement. Non-pecuniary damages, such as emotional damage and mental anguish, should not usually be recognized within the framework of the contractual claim. Restricting the compensation reduces the fear of claims motivated by extortion and revenge, and the fear of harming the freedom of marriage. On the specific issue, the position of the Attorney-General is that we should change the existing rule that an agreement of marriage between parties, where one of them is married, is a contract that is contrary to public policy, unless the injured party proves that the marriage of the party in breach had broken down. The Attorney-General is of the opinion that the relief of damages (in a limited form) should not be denied even in cases where the party that breached the promise was married to another person, and even if his marriage had not broken down when he made the promise, since the distinction between a married man and a single man in this context leads to undesirable outcomes.

9.            I shall begin the consideration of the issue before us with the first question — whether an agreement to marry between two single persons is legally valid. A positive answer to this question will lead me to the second and main question in this appeal — whether a breach of an agreement to marry, where one of the parties was married at the time it was made, gives the other party a right to compensation (ss. 30 and 31 of the Contracts (General Part) Law, 5733-1973).

Agreement to marry between single people

10. A man and a woman agree to marry. Does this consent form the basis of an agreement between the parties to marry? The answer to this question may be found in the law of contracts. If the two parties wish to create a legal-contractual relationship between them, there is nothing in principle to prevent the promises of marriage that they have made to one another from being part of a contract between them (see G. Shalev, ‘Gentlemen’s Agreements,’ 32 Hebrew Univ. L. Rev. (Mishpatim) 3 (2002)). Of course, as in any other case, it is necessary to prove the content of the mutual promises (see HCJ 1635/90 Jerzhevski v. Prime Minister [4]). We must examine ‘circumstantial evidence of the making of the promise, since usually the change of “status” that comes with a promise of marriage does not remain a secret between him and her, but also manifests itself outwardly in signs as to which other evidence can be brought’ (per Justice Landau in CA 460/67 A v. B [5], at p. 160). In this respect, ‘it is sufficient to prove facts that can lead to the conclusion that the parties reached the “basic agreement,” i.e., “to make a life contract with the woman you love” ’ (per Justice Shamgar in CA 647/89 Shifberg v. Avtalion [6], at p. 174, citing the remarks of Justice H.H Cohn in CA 545/77 A v. B [7], at p. 399). If the facts required to establish the mutual promises of the parties are properly proved, the court will recognize the existence of a contract between the parties.

11. The recognition of the contractual validity of a promise of marriage is not free of doubt. It is possible to argue that the agreement to marry is of an intimate nature and falls within the realm of emotion, and therefore it is right to recognize the freedom of each party to be released from his promise, without thereby breaching the right of the other party. According to this approach, while a promise of marriage has a place in the legal system, it is not found in the sphere where the law recognizes a contractual undertaking to honour promises, but it is found in the sphere where the law recognizes the freedom of the individual to honour his promise or not to honour it. The reason for this is based on the fear of harming the freedom of marriage (see P. Shifman, Israeli Family Law (second edition, vol. 1, 1998), at p. 202) and the abuse of the right to marry, reasons that have been extensively addressed by my colleague, Justice Rivlin. Indeed, in several countries it has been established (in legislation or in case law) that a promise of marriage is not binding (see in England — the Law Reform (Miscellaneous Provisions) Act 1970, s. 1; in Ontario, Canada — the Marriage Act, R.S.O. 1990, c. M.3, s. 32; in British Columbia — the Family Relations Act, R.S.B.C. 1996, s. 128; for details of legislation in the United States, see Gilbert v. Barkes [30], at p. 775).

12. Notwithstanding these arguments, I believe that the law cannot be indifferent to a consent to marry and this consent cannot be left in the sphere that grants freedom of decision to each of the parties. There are two reasons for this. First, a breach of a promise of marriage may cause damage to the other party. There is no objective justification for not allowing damages to be awarded for this damage. Freedom of marriage does not give rise to a freedom to cause damage to others. The promise of marriage sometimes leads to reliance and various plans for realizing it. The plan to marry may also have ramifications on other plans of the couple and lead to an adverse change in their position in various respects. Ignoring this reality of life is wrong and unjustifiable. Often a promise of marriage involves substantial financial expenditure. Why should the party who changes his mind be released from paying those expenses? Friedman and Cohen rightly point out that ‘unlike a mere agreement of friendship, a promise of marriage involves property aspects, and it constitutes a preparation for a patently legal relationship, the relationship of marriage’ (D. Friedman and N. Cohen, Contracts (vol. 1, 1991), at p. 370). An infringement of the property aspect of the promise of marriage should lead to ‘property’ consequences, in the form of compensation for the damage suffered.

13. Second, the law of contracts in Israel does not stop on the threshold of the family home. The law does not deny the legal validity of contracts (even implicit contracts) that are based upon emotional foundations and are created in intimate, inter-personal circumstances. Thus, the law recognizes contracts that determine property rights between parties; it recognizes a contract of joint ownership of assets between spouses; it recognizes a contract to have a civil wedding outside Israel and the liability for maintenance that this contract may create (LCA 8256/99, A v. B [8]). G. Shalev has rightly pointed out that the ‘distinction between the family sphere and the business sphere as a criterion for proving the absence or existence of an intention to create a legal-contractual relationship is tendentious, since it assumes ab initio the existence of the intention in those spheres which the law seeks to govern, and its absence in spheres which the law seeks to leave alone… there is no clear reason for exempting a person from his family and social obligations on the ground that he did not intend to create a legal relationship, and at the same time for enforcing business obligations that he undertook outside his family and social environment’ (Shalev, ‘Gentlemen’s Agreements,’ supra, at pp. 22-23). Recognition of the validity of contracts of this type, including an agreement to marry, guarantees proper legal protection even for injured parties in the intimate family circle. A breach of undertakings in the family and marital sphere also leads to expenses and damages. There is no justification for exposing either spouse to damage arising from a breach of the undertaking without the law coming to their aid. The expenses and damages should not be borne randomly by one of the parties (usually the weaker party), but this should be determined by the rules of contractual liability.

14. Israeli law therefore holds that a ‘promise of marriage is… in our legal system, a binding contract’ (per Justice Strasberg-Cohen in CA 5587/93 Nahmani v. Nahmani [9], at p. 508 {27}). In principle, there is nothing in agreements to marry, per se, that prevents the application of the law of contracts to relationships between couples, but the contract is created if the parties intended to create a binding legal relationship between them. The question whether the couple regard themselves as legally bound, or whether the undertaking between them is only in the social or moral sphere, is a question that must be examined on the basis of the circumstances of each case. It is necessary to examine, inter alia, the conduct of the parties, the nature of the relationship and the content of the promises. Of course, reliance on the part of the recipient of a promise and an adverse change of status may be an indication that we are in the contractual sphere (see: Friedman and Cohen, Contracts, supra, at p. 373; Shifman, Israeli Family Law, supra, at p. 206). We must also remember that the contract to marry is a unique type of contract (see Friedman and Cohen, ibid., at p. 368). Thus, for example, the natural remedy for a breach of contract is specific performance. This remedy is not available to the recipient of the promise when it has been breached (whether because of s. 3(2) of the Contracts (Remedies for Breach of Contract) Law, 5731-1970, or whether because of s. 3(4) of that law). The injured party will have to settle for compensation (for pecuniary loss and non-pecuniary damage).

A marriage agreement with a married man

15. A man and a woman agree to marry. If both are single, the agreement creates contractual rights and obligations between the parties. Are these rights and obligations not created merely because one of the parties to the contract is married to someone else? The ‘geometric place’ where an answer to this question may be found is in ss. 30 and 31 of the Contracts (General Part) Law. Section 30 provides:

‘A contract whose creation, content or purpose is illegal, immoral or contrary to public policy, is void.’

                Section 31 provides:

‘… in voidance under s. 30, the court may, if it thinks it just to do so and on such conditions as it sees fit, exempt a party from the duty under s. 21 [i.e., the duty of restitution after cancellation], in whole or in part, and to the extent that another party has carried out his obligation under the contract, it may find the other party liable to carry out the corresponding obligation, in whole or in part.’

Does an agreement to marry, when one of the parties to the agreement is married to a third person, give the recipient of the promise a right to compensation?

16. This question arose in case law in the 1960s (see Riezenfeld v. Jacobson [1]; CA 563/65 Yeger (Plink) v. Flavitz [10], at p. 249; Natan v. Abdallah (Ilan) [3]). It was held that the validity of the agreement is contingent on the question whether, at the time it was made, the marriage with the other spouse had broken down or not. If the relationship between the married spouses had ‘broken down, and they no longer had the same relationship of mutual affection and loyalty that could be harmed by the agreement,’ then the agreement cannot be regarded as immoral (Riezenfeld v. Jacobson [1], at p. 1029 {117}). It was said that ‘when it has been proved to the court that the relationship between a husband and wife has broken down, and the marriage exists on paper only, why should the law protect the fiction of a relationship of trust and affection that characterizes a healthy marital relationship, when that relationship has in practice ended and exists no more?’ (per President Sussman in CA 116/75 Haik v. Sefya [11], at p. 92). On the other hand, if the marital relationship has not reached a crisis, the contract of marriage should be regarded as immoral. The contract is void, and the damage rests where it falls.

17. Forty years have passed since this ruling. The concepts of morality and public policy — this ground was added in s. 30 of the Contracts (General Part) Law — have changed. ‘Public policy’ means the main and essential values, interests and principles that a given society at a given time wishes to uphold, preserve and develop’ (HCJ 693/91 Efrat v. Director of Population Register, Ministry of Interior [12], at p. 778). With the help of ‘public policy,’ the legal system ensures proper conduct in inter-personal relationships. This proper conduct changes with the times (HCJFH 4191/97 Recanat v. National Labour Court [13], at p. 363). ‘Public policy’ is influenced by the social climate. Its content varies from society to society; it changes in a given society from time to time (CA 614/76 A v. B [14], at p. 94). In determining the scope of ‘public policy,’ an internal balance is required between conflicting values and interests (CA 6601/96 AES System Inc. v. Saar [15], at p. 861; CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [16], at p. 534; Recanat v. National Labour Court [13], at p. 364).

18. What are the conflicting values and principles that shape public policy in the matter before us? On the one hand, we have the institution of marriage and the social centrality of the family unit. By virtue of this consideration, the obligation given by a married man to marry should not be recognized as valid. On the other hand, we have the social outlook that promises should be kept, and whoever breaches his promise and causes damage can expect to be found liable for this. In my opinion, an internal balance between these values leads to the conclusion that the agreement to marry, even if one of the parties is married when it is made, is not contrary to public policy and is not void as such. There are several reasons for this.

19. First, since the 1960s a significant change has occurred in the public perception of morality and public policy. Significant changes have occurred in the social attitude towards the dissolution of the bonds of matrimony and the phenomenon of divorce. The rule that promises of marriage by a married person are contrary to public policy was formulated in English law at the beginning of the twentieth century (Spiers v. Hunt [32]; Wilson v. Carnley [33]). This rule was based on the perception that a termination of the relationship with the lawful spouse for a different partnership that involves a promise to divorce and to marry someone else is completely wrong. The courts feared that recognizing the validity of the promise would encourage immoral conduct (adultery) and even criminal conduct (bigamy). The rule was adopted in Israeli law in a limited form, by focusing on the public interest in upholding the institution of marriage as a basic social unit. An agreement that is intended to harm this, to destroy family life or to ‘promote’ divorce was rejected on the grounds of public policy (Riezenfeld v. Jacobson [1], at p. 1027 {114-115}). In Riezenfeld v. Jacobson [1], Justice Silberg wrote that ‘accepted concepts of morality… regard extra-marital relations between a man and a woman as improper and vile’ (ibid., at p. 1021 {107}).

20. There is no doubt that preserving the family unit is a part of public policy in Israel even in the present. It is in the interest of society to support stable marriages. The institution of marriage is central to our society. Against this background, I said in one case that ‘within the framework of the family unit, the preservation of the institution of marriage is a central social value, which constitutes a part of public policy in Israel’ (Efrat v. Director of Population Register, Ministry of Interior [12], at p. 783). Notwithstanding, over the years social perceptions have changed with regard to the dissolution of the bonds of marriage and the phenomenon of divorce. There is a recognition of the fact that divorce has become part of the reality of life (CFH 2401/95 Nahmani v. Nahmani [17], at p. 792 {487}). Property agreements made before marriage, which deal with the possibility of divorce, are not considered today to be contrary to public policy. Explicit divorce agreements are also given validity (CA 3833/93 Levin v. Levin [18]). Even the abhorrence of extra-marital relationships does not reflect the attitude of Israeli society today, and the laws applying to cohabitees — which were developed jointly by the legislature and the court — prove this. The old rule, which makes the validity of the contract conditional upon the question whether the relationship between the parties has broken down or not seems to me inconsistent with the attitudes of Israeli society today.

21. Second, the institution of marriage will not be protected by sacrificing the rights of a victim of a breach of a promise of marriage. The injured party should not be made to pay the price of socio-legal support of the institution of marriage. Moreover, when a married person promises to obtain a divorce and to marry another, it may be assumed that the marital relationship is a weak one. It certainly does not have the mutual loyalty and affection that characterize this relationship. It is difficult to justify strong protection of the law for this weak relationship (see Haik v. Sefya [11]). It should be remembered in this context that making enquiries as to the ‘stability’ of the marriage requires an invasive examination of the family life of the married couple. This invasive enquiry into intimate information is likely to cause considerable and unnecessary suffering to all the parties concerned, and it appears to be preferable to adopt the presumption that when a married person undertakes to obtain a divorce and to marry a third party, his marriage at that time is not ‘stable.’

22. Third, it is not the recognition of the validity of the contract that harms the marital relationship, but it is the fragile marital relationship that leads to making the contract. It is difficult to see how immunity for the married man, who establishes interpersonal relationships outside the framework of marriage and bandies about promises, contributes to the strengthening and stabilization of the institution of marriage. The married person who chooses an interpersonal relationship outside of marriage does so of his own free will, and this should in no way affect the legal status or the rights of any of the litigants (cf. CA 416/91 Maman v. Triki [19], at p. 659). The destruction of the marriage, like any other harm to the lawful spouse, derives from the conduct of the married person. This conduct, and not the award of damages, is what undermines the institution of marriage. This conduct causes a double wrong: granting an exemption from (contractual) liability with respect to this conduct merely reinforces the wrong that has been caused, without serving a real social purpose. In a certain sense, the exemption even gives approval to such conduct, in so far as it imposes the losses and the risks upon the other party, in their entirety.

23. Fourth, the duty of keeping one’s word and keeping promises is also a part of public policy (G. Shalev, The Law of Contracts (second edition, 1998), at p. 367, and the references cited there). We must exercise caution when denying the validity of an agreement and exempting a party from an undertaking that he has taken upon himself (Levin v. Levin [18], at p. 875). Judge Witkon rightly said in Riezenfeld v. Jacobson [1] that ‘the party that relies upon the invalid aspect of his promise and seeks to escape it does not do so out of unselfish motives, and usually the wrongdoer ends up benefiting’ (ibid., at p. 1027 {114-115}). The possible harm to the institution of marriage is countered by the legitimate interests of the parties themselves and the public interest in the honouring of undertakings.

24. My conclusion is therefore that an agreement to marry, where one of the parties thereto is a married person, is not void for being contrary to public policy. Of course, there may be special cases where an agreement that is based upon a promise of marriage may be contrary to public policy, when, for example, there is intentional harm to a third party. Thus an arrangement that includes a fraudulent transfer of assets from the legal spouse to the future spouse, for the purpose of harming the property rights arising from the divorce, may be found to be invalid for this reason. This is not the normal position, in which an unstable relationship between a married couple leads to making the contract with the unmarried person, and it is not the recognition of the validity of the contract that will lead to the breakdown of the relationship; it is merely its outcome. Indeed, a solution of the problem is not simple. Justice Witkon rightly pointed out that ‘we have before us a question that is really a sociological, not a legal, question’ (Riezenfeld v. Jacobson [1], at p. 1026 {113}). It would be best if the legislature were to consider this matter.

25. In obiter, I will add that even had I thought that the agreement to marry was void under s. 30 of the Contracts (General Part) Law, there still would be no justification for denying it all legal significance. The results of a contract being void were changed unrecognizably by the addition of a new provision (s. 31). According to the new law of contracts, the damage does not rest where it falls. According to the approach of the District Court, the fact that the agreement to marry is contrary to public policy automatically leads to the denial of any legal remedy to the appellant. I cannot agree with this determination. The approach of the District Court is inconsistent with the new law of contracts, which provides a new legal arrangement with respect to improper contracts. In view of the new arrangement, the determination that an agreement is contrary to public policy does not exempt the court from examining the remedies that are available to the plaintiff within the framework of s. 31 of the law. According to the new rule, the court may, ‘if it thinks it just to do so,’ hold the maker of the promise liable to carry out his undertaking, if the other party has performed his obligations under the contract (HCJ 6231/92 Zagouri v. National Labour Court [20], at p. 784). If the contract is unenforceable, the court may award damages by virtue of its authority to give validity to an obligation, validity that entails a liability for damages for the breach involved in its non-implementation (see O. Grosskopf, ‘An Improper Contract,’ in Friedman and Cohen, Contracts (vol 3, 2004), at p. 624). It follows that with respect to a promise of marriage, the court may find a party that does not honour his undertaking liable to pay damages, if the other party did everything in order to uphold his part of the contract.

From the general to the specific

26. It was agreed between the appellant and the respondent that they would each end their legal marriage, and that they would marry each other. The circumstances of the case all indicate that the couple intended to create a legal-contractual relationship between them. The marriage plan was not a secret shared only by the couple. Their colleagues at work and those around them knew of it. The respondent gave expression to his undertaking to the appellant on various occasions. Thus, for example, the attorney who represented the appellant in the divorce proceedings (who was retained by the respondent) testified that he found himself involved in one of the quarrels between the couple that occurred because of the respondent’s failure to keep his promise to divorce. The respondent begged the attorney to persuade the appellant not to leave him and made an undertaking in his presence that within six months, at most, he would divorce his wife and marry the appellant. The marriage plan was the basis for the appellant’s divorce, which was obtained with the encouragement and funding of the respondent. The appellant relied upon the marriage plan, she gave up her status and her rights as a married woman. All the circumstances clearly indicate that the joint plan of marriage was not confined merely to the social sphere. The plan also moved into the legal sphere, and a binding contract was made between the respondent and the appellant.

27. This contract is not contrary to public policy. The mere fact that the respondent was a married man when he undertook to divorce his wife and marry the appellant does not lead to the voidance of the contract on the grounds of public policy. The respondent did not argue that the marriage plan included an intention of harming a third party, or that there were other special circumstances that are contrary to public policy. In fact the respondent did not even show that the promise of marriage resulted in a deterioration in his relationship with his lawful spouse. It may be assumed that before the promise there had already been a deterioration in the relationship of fidelity and mutual affection that characterizes a married couple. In any case, the appellant should not be blamed for the harm to the respondent’s wife or family, in so far as there was any such harm. Certainly the appellant should not pay the price for protecting the respondent’s family unit. Since the respondent did not keep his promise to the appellant, there is no justification for exempting him from legal liability. The appellant is therefore entitled to compensation for the pecuniary and non-pecuniary damages that she suffered as a result of the breach of the contract. With regard to the scope of the compensation, it was not brought before us (since it is not included in the application for leave to appeal), and there is no basis for considering it.

28. It should be noted that the relief of damages would be available to the appellant even if I thought that the agreement to marry was void under s. 30 of the Contracts (General Part) Law. Section 31 of the law is entirely relevant to this case. The appellant fulfilled her obligations under the agreement. She obtained a divorce from her husband, with assistance provided to her by the respondent, and as a single woman she was willing at any time to marry the respondent and sacrificed the best years of her life to that end. She had a lengthy relationship with the respondent. Justice demands — and it is hard to imagine a case more extreme than the case before us — that the appellant should be compensated for her damage.

The result is that the appeal is allowed; the judgment of the District Court is set aside, and the judgment of the Magistrates Court is reinstated. The first respondent shall be liable for the appellant’s costs in a total amount of 10,000 new sheqels.

 

 

Justice E. Rivlin

1.            This appeal focuses on the nature of the cause of action that is usually referred to as ‘breach of a promise of marriage.’ The discussion of this cause of action necessarily involves social and cultural outlooks, and prima facie it requires the court to examine emotional relationships in a contractual context.

The appeal raises two fundamental questions with respect to this complex legal cause of action. The first and the more central and general question concerns the scope of the cause of action for a breach of a promise of marriage in Israeli law and the nature of the reliefs that it can make available to the litigant. The other question, which is more limited in its scope of application, concerns the possibility of a claim based on a promise of marriage that was made by a man when he was still married to another woman.

2.            I will begin with the second question, because, unlike with the first question, I agree with the remarks of my colleague, President Barak, and therefore I do not need to say anything further on it. My colleague, President Barak, explains well why there is no basis for continuing to hold that a promise of marriage is void for being contrary to public policy, if it was made by a married man whose marriage has not completely broken down. I agree with my colleague’s opinion on this point, and also with the reasons that led him to adopt it.

3.            With respect to the other issue, concerning the general validity of the cause of action of a breach of a promise of marriage, my opinion is different.

The contractual cause of action that is based on a breach of a promise of marriage was adopted by Israeli law from English common law. Following traditional English case law, once a plaintiff has proven the basic elements of the cause of action, the plaintiff is entitled to compensation both for ‘special’ pecuniary loss that was suffered as a result of the breached promise, and also for the ‘general’ damage that was suffered. The general damage is comprised of the emotional damage that prima facie was suffered as a result of the breach of the promise. This is the law that was adopted in Israel. My colleague, President Barak, described the distaste that this cause of action, which is based upon a breach of a promise of marriage, creates in modern law. This distaste is clearly stated in CA 461/64 Tamsit v. Fahima [21], at p. 131. Acting President Silberg maintained in that case that an action for the breach of a promise of marriage is —

‘… one of the kinds of action that are not especially popular… such an action almost always contains something distasteful, because it is based on the premise that the fiancé or fiancée should have married the other partner, merely because of the promise that was made, even though there are no feelings of love between them. Even the ancient Romans regarded such an action as contrary to public morality… but what can we do when the common law regards these actions as valid contractual actions, and our courts have also adopted this approach.’

Justice Berinson also agreed with this position in Natan v. Abdallah (Ilan) [3], at p. 464:

‘It is well known… that the courts do not regard actions for a breach of a promise of marriage in a favourable light.’

4.            Several reasons have been advanced against the very existence of a cause of action for a breach of a promise of marriage. The first and main reason was mentioned in the aforesaid remarks of Vice-President Silberg. This reason concerns the freedom of marriage. It is undisputed that the decision to marry must be a free and voluntary decision. No one believes that a man who wanted to marry a woman, or a woman who wanted to marry a man, and then underwent a change of mind, should be compelled to keep his or her word. Quite the reverse; I think that society has an interest that such a marriage — which appears doomed to failure from the outset — should not take place. There is therefore a difficulty in the existence of the possibility that a man or a woman may be sued because he or she decided not to marry. Admittedly, it may be assumed that the liability to pay compensation as a result of such a claim is not in itself a deterrent, and it will not induce someone to marry against his will. But the very liability to pay compensation is an expression of a socio-legal outlook that a person who goes back on his word in such matters is acting wrongly, whereas in practice, as we have said, the accepted outlook in society and in the court is that someone who changed her mind, and no longer wishes to build a future together with the person who was just recently her chosen partner, is entitled, and maybe even obliged, to follow her heart. This contradiction is regarded as undesirable. Indeed, there are many who recommend that we develop legal tools that are different from the cause of action of breach of a promise of marriage, in order to protect the interest of the recipient of the promise.

The scholar P. Shifman gives two additional reasons that strengthen the conclusion that the contractual cause of action of breach of a promise of marriage should be cancelled (Shifman, Israeli Family Law, supra, at pp. 200-205). The first of these is the fear of abusing the action for blackmailing the other party. The second is the sex-bias that has historically been involved in this cause of action, which is almost exclusive to women (in the 180 years that preceded the cancellation of the cause of action in England, no action is known to have been filed by a man: ibid., at p. 201; a study of case law shows that the number of actions of this type is also negligible in Israel, the United States (in this regard, see also Gilbert v. Barkes [30], at pp. 774-775) and France (in the last forty-five years, only one action filed by a man for breach of a promise of marriage has been heard by the Cour de Cassation (Cour de Cassation, 4 Octobre 1965, no. 507 [35]); his claim was dismissed)). Therefore it appears that the cause of action is often abused in order to perpetuate the outlook that women, unlike men, need marriage in order to fulfil themselves.

5.            Ultimately, it appears that the main difficulty with the cause of action of breach of a promise of marriage lies in the attempt to impose the law of contracts on a situation in which it is of questionable suitability. This difficulty raises doubt as to the very nature of a promise of marriage as a contract.

This was discussed by Justice Kister in CA 401/66 Marom v. Marom [22], at p. 679:

‘It is questionable whether [an agreement to marry is] a contract for which damages can be awarded at all. Surely it is hardly logical that a marriage agreement between a man and a woman is treated the same as an agreement for the supply of agricultural produce.’

It is easy to demonstrate the difficulty involved in analyzing the institution of a promise of marriage with contractual tools. Consider the case of a woman who made a promise of marriage and then discovered that, contrary to her previous belief, she has no feelings of love for the man to whom she gave the promise. Should it be said that she made a fundamental mistake that allows the rescission of the contract under s. 14 of the Contracts (General Part) Law, or is this perhaps ‘a mistake as to the whether the transaction is worthwhile,’ which does not grant a right of rescission (s. 14(d))? Can the woman who gave the promise argue that the performance of the contract has been frustrated under s. 18 of the Contracts (Remedies for Breach of Contract) Law or, alternatively, is it possible, in view of the understanding of the parties (s. 25 of the Contracts (General Part) Law) to interpret the contract — the promise of marriage — as a conditional contract (s. 27) where the condition is the existence of feelings of love? If so, can the woman who gave the promise and then stopped loving the recipient of the promise build a case based on the condition, when she herself was ‘responsible’ for its frustration (s. 28 of the Contracts (General Part) Law)? (For a discussion of the defects in the making of a contract of a promise of marriage and the possibility of making it conditional, see Maman v. Triki [19]).

And what of a case where the man who gave a promise discovers that, contrary to his previous belief, the woman to whom he gave the promise does not have any feeling of love to him? Is he the victim of a misrepresentation? Or perhaps we can say that by concealing information from the man who gave the promise, the recipient of the promise acted in bad faith in negotiations (s. 12 of the Contracts (General Part) Law)? Whoever hears this will laugh and shy away from the law of contracts.

It can simply be said that ‘it is difficult to apply contractual criteria based on the existence of commercial standards to the emotional sphere.’ These remarks do indeed lead the scholars D. Friedman and N. Cohen to the conclusion that ‘a promise of marriage is a problematic contract that lies on the very edge of justiciability’ (Friedman and Cohen, Contracts, supra, at pp. 368, 369).

6.            In most western jurisdictions, the cause of action of breach of a promise of marriage has been cancelled or restricted. One authority describes this cause of action as follows:

‘It is a barbarous remedy, outgrown by advancing civilization and, like other outgrown relics of a barbarous age, it must go’ (H.F. Wright, ‘The Action for Breach of the Marriage Promise,’ 10 Va. L. Rev. (1923-1924) 361, at p. 382).

Even in England, from which we derived this special cause of action, it was determined in s. 1 of the Law Reform (Miscellaneous Provisions) Act 1970 that an agreement to marry is not deemed a legally enforceable contract, and that a breach of such an agreement does not give rise to a cause of action. The act regulates conflicts concerning property aspects of a promise of marriage, by applying, in s. 2(1), some of the provisions governing the assets of married couples to certain assets of the couple, and by providing, in s. 3(1), a mechanism for the restitution of gifts. It should be emphasized that this restitution does not depend at all on the identity of the person who ‘broke’ the promise — even the person who broke the promise of marriage is entitled to benefit from the restitution (see further N.V. Lowe, G. Douglas, Bromley’s Family Law (ninth edition, 1998), at pp. 24-28; S.M. Cretney, J.M. Masson, Principles of Family Law (sixth edition, 1997), at pp. 184-185; Halsbury, The Laws of England, (fourth edition (reissue), 2001), vol. 29(3), at pp. 37-38).

7.            Like the legislature in England, the legislature in Australia has also repealed the possibility of filing an action for damages for a breach of a promise of marriage, while retaining the possibility of an action for the restitution of gifts (s. 111A of the Marriage Act 1961). Similar legislation has been adopted in several Canadian provinces: in Ontario (s. 32 of the Marriage Act, R.S.O. 1990; under s. 33, gifts shall be returned irrespective of fault); and also in British Columbia (s. 123 of the Family Relations Act, R.S.B.C. c. 128). In Manitoba both the contractual cause of action for a breach of the promise and the cause of action for fraud with regard to a promise of marriage were repealed (s. 4 of the Equality of Status Act, C.C.S.M., c. E130). In Alberta, the cause of action of breach of a promise of marriage was not repealed, but the statute provides that the breach can give rise to compensation only for property damage (s. 101 of the Family Law Act, S.A. 2003, c. F-4.5); under s. 102 of that statute, gifts shall be returned irrespective of fault.

8.            In the United States, most states have repealed the cause of action of breach of a promise of marriage in legislation (these statutes, which were enacted from 1935 onwards, are called ‘Heart Balm’ statutes). This legislation has frequently been interpreted as also preventing the filing of an action on grounds that are not contractual in nature — such as fraud and negligent misrepresentation — based on a promise of marriage (see: 12 Am. Jur. 2d (Breach of Promise), §§13-14; ‘Note: Heartbalm Statutes and Deceit Actions,’ 83 Mich. L. Rev. (1984-1985) 1770). In two states, the cause of action was cancelled in decisions of the court (in Utah — Jackson v. Brown [31], and in Kentucky — Gilbert v. Barkes [30]), while retaining the other civil causes of action. The courts in both states explained that the property damage of the recipient of the promise can find relief in contractual theories, whereas the emotional damage can be addressed by the tortious causes of action of fraud or negligent misrepresentation, in appropriate cases.

9.            In France, the cause of action of breach of a promise of marriage existed for hundreds of years. Its origins were in German customs that in time entered Canon law (P. Weidenbaum, ‘Breach of Promise in Private International Law,’ 14 N. Y. U. L. Q. Rev. (1936-1937) 451, at pp. 451-452). After the revolution, which led to the removal of religious traditions from the statute books, the cause of action did not appear in the Civil Code. The courts interpreted this failure to mention the action as its cancellation, because it harmed the freedom of marriage. Notwithstanding, it was held that this did not prevent the existence of a cause of action in torts, based upon the breach of promise (see, for example, Cour de Cassation, Civ., 30 Mai 1838, B. c. C. [36]). In order to show a cause of action in torts under ss. 1382 and 1383 of the Civil Code (which are the sections that govern the law of torts in France), a plaintiff is required to prove that there was fault in the way in which the promise was breached; in other words, the breach itself is insufficient in order to find the party in breach liable for damages: the breach must be accompanied by a faute delictuelle or quasi-delictuelle (see, for example, Cour de Cassation, Civ. 1, 31 Janvier 1961 [37]; Cour de Cassation, Civ. 2, 7 Juin 1967, no. 210 [38]; Cour de Cassation, Civ. 1, 22 Juillet 1964, no. 412 [39]). In these cases, the court therefore focused on the question whether the conduct of the party in breach was unreasonable — whether it was a rupture abusive de promesse de mariage (for examples of cases where it was held that the breach of marriage was without fault, see: Cour de Cassation, Civ. 1, 19 Juillet 1966, no. 443 [40]; 92-21767 Cour de Cassation, Civ. 1, 4 Janvier 1995 [41]; by contrast, for examples of cases where the party in breach was held liable to pay tortious damages, see: 71-13001 Cour de Cassation, Civ. 2, 18 Janvier 1973, no. 25 [42], at p. 19; Cour de Cassation, Civ. 1, 9 Octobre 1961, no. 440 [43]). The issue of gifts that were given in connection with an intended marriage is regulated in s. 1088 of the Civil Code, which provides that such gifts shall be cancelled if the marriage plans are not realized.

10. In Germany, a breach of a promise of marriage is not a cause of action (s. 1297(1) of the BGB), unless no reason was given for the breach (s. 1298). In the latter case, it is only possible to sue for compensation for the damage that was suffered as a result of reasonable expenses that were incurred and reasonable undertakings that were made in anticipation of the marriage. Gifts that were given shall be returned, irrespective of this action, based upon the laws of unjust enrichment (s. 1301 of the BGB). Compensation for emotional damage was recognized in the past, only in a case where, as a result of the promise, a ‘pure’ (unbescholtene) woman was seduced into having sexual relations (s. 1300). This section was recently cancelled.

In Spain, an unjustified breach of the promise gives rise only to the right to restitution for the expenses that were incurred and the undertakings that were made for the purpose of the promised marriage (ss. 42 and 43 of the Código Civil). In Switzerland, whereas in the past the Civil Code allowed an action for emotional damage in special cases of a breach of a promise of marriage, the Civil Code now provides that an action is only possible for a contribution to expenses and losses of income that were caused by the intended marriage (s. 92), as well as an action for the restitution of gifts (s. 91). Such actions are not affected by the identity of the party in breach.

11. This survey of comparative law, although not comprehensive, shows that even in other legal systems, like in Israel, dissatisfaction has been expressed as to the existence of the cause of action for breach of a promise of marriage. This approach has led to the cancellation of the cause of action, or at least to a significant restriction thereof, throughout the western world. Even in Arab countries, where personal law is based on Islamic law, a breach of a promise of marriage itself gives rise, at most, to a right to the restitution of gifts (see the survey included in J.J. Nasir, The Islamic Law of Personal Status (third edition, 2002), at pp. 46-48.)

As for me, I am of the opinion that the time has indeed come to cancel this contractual cause of action, as it is recognized in Israel today, while ensuring a possibility of a no-fault action for property damages that are suffered as a result of a breach of a promise of marriage. These damages are likely to include damages for reliance or expenses that were incurred in preparation for the marriage, as well as wedding gifts that were given before the marriage (with respect to gifts, see D. Frimer, ‘The Restitution of Engagement Gifts for a Breach of a Promise of Marriage, in view of the New Civil Legislation,’ 10 Hebrew Univ. L. Rev. (Mishpatim) (1980) 329). It is also possible that we should consider the possibility of adopting the system accepted in France, and now also in other countries, whereby the compensation for a breach of a promise of marriage is awarded, if at all, in the sphere of torts. Today in Israel, tortious damages for breach of a promise of marriage are awarded only in cases where the tort of fraud is proved (see, for example, Natan v. Abdallah (Ilan) [3]). Given the basic elements of the tort, which are set out in s. 56 of the Torts Ordinance [New Version], the plaintiff is required, in order to succeed in his action, to prove that already when he gave the promise, the promissor intended not to keep it.

In this respect, perhaps we ought to extend the possibility of filing an action also to cases where the promise of marriage does not amount to fraud, but it does involve false representation (ss. 35 and 36 of the Torts Ordinance [New Version]), i.e., cases where the promissor acted unreasonably, and there are conditions that give rise to a duty of care for false representation. This is the position of the scholar G. Shalev, who calls for abandoning the contractual cause of action and replacing it with a tortious cause of action, in order to protect the principle of freedom of contracts and the freedom of the parties to enter into a relationship that is outside the law (Shalev, ‘Gentlemen’s Agreements,’ supra, at pp. 29-30).

12. The problem is, as this court has said on more than one occasion, that such a cancellation of the contractual cause of action, in view of its established position in case law, must be made in legislation (Shifberg v. Avtalion [6], at p. 176; Maman v. Triki [19], at p. 657). But does this mean that we are unable to do anything in order to alleviate the force of the case law rule that no longer appears reasonable to us? Not necessarily.

In my opinion, a proper interim solution would be to determine that the damages awarded for breach of a promise of marriage are restricted to pecuniary loss (this was proposed by Justice Mazza in Shifberg v. Avtalion [6], at p. 176, which followed remarks made by Prof. Shifman in Israeli Family Law, supra, at p. 204. Even before this, a similar position was expressed by Prof. G. Tedeschi in ‘Notes on the draft Individual and Family Law,’ in G. Tedeschi, Studies in our Private Law (1959) 264, at pp. 282-283). Counsel for the State also agrees with these remarks in her summations.

13. The main difficulty with a remedy involved in the cause of action for breach of a promise of marriage lies in the compensation that is awarded for non-pecuniary damage. Therefore, it is no wonder that in most countries where the cause of action has been preserved, it has been restricted to pecuniary loss.

While no one denies that the law cannot remain indifferent to the property aspects of the breach of a promise of marriage (Friedman and Cohen, Contracts, supra, at p. 370), it is very questionable whether ordinary legal tools are capable of dealing with the emotional damage that is created in and as a result of emotional-personal relationships:

‘The natural sphere of the law of contracts is the sphere of commerce. The spiritual or emotional province falls outside the traditional sphere of the law of contracts. Emotions are not a commodity. One cannot trade in them… in principle, emotions are not a proper subject for a contract’ (N. Cohen, ‘Status, Contracts and Inducing a Breach of Contract,’ 39 HaPraklit 304 (1989-1991), at p. 317).

(For the opposite position, cf. H. Keren, The Law of Contracts from a Feminist Perspective [64], at pp. 97-134, 397-403).

14. For the sake of illustration, as we know, the law does not provide a cause of action for emotional damage involved in divorce proceedings (see and cf. CA 264/77 Dror v. Dror [23], at p. 832), even though in many cases the dissolution of a long-term marriage involves emotional damage that is far greater than the emotional damage that is caused as a result of a breach of a promise of marriage (and therefore there are those who go so far as to explain the conclusion that compensation should not be awarded for the emotional damage from a breach of a promise on the grounds that the breach prevented the realization of greater emotional damage, had the promise been kept (N.G. Williams, ‘What to Do When There’s No “I Do:” A Model for Awarding Damages Under Promissory Estoppel,’ 70 Wash. L. Rev. (1995) 1019, at pp. 1055-1056). Similarly, there is no remedy in our legal system for someone who has suffered emotional damage from an adultery committed by that person’s spouse (see G. Tedeschi, ‘A Crisis in the Family and the Proponents of Tradition,’ Legal Studies in Memory of Abraham Rosenthal (G. Tedeschi ed., 1964) at pp. 291-295). As a rule, the separation of persons who had a romantic relationship, which is a common event that undoubtedly involves strong feelings, does not in itself give rise to any legal remedy (even though it is perhaps possible for damages to be awarded in the event of a sudden eviction from the home: CA 805/82 Versano v. Cohen [24]). How is a breach of a promise of marriage worse than these cases? And why is it precisely the dissolution of a personal relationship in which such a promise has been made that entitles a person to damages? It appears that here we have a distinction without a difference.

15. Admittedly, the law, as my colleague President Barak says, does not stop on the threshold of the family home, but the law refrains from trying to regulate emotional relationships. The law has difficulty providing a remedy for injured feelings and an aching heart. The spouse who is unfaithful, adulterous, breaks up a relationship without justification is deserving of moral, religious or social condemnation, but the injured party will have difficulty finding a remedy in law.

For these reasons, it seems to me that in a contractual claim for a breach of promise of marriage the court should exercise the discretion given to it under s. 13 of the Contracts (Remedies for Breach of Contract) Law (and see Shalev, Contracts, supra, at p. 586), and refrain from awarding compensation for non-pecuniary damage.

16. In my opinion, the essence of the matter is that where a breach of a promise of marriage has been proved, compensation should be awarded only for pecuniary loss that was suffered as a result of the breach. With respect to such an action, it makes no difference, in my opinion, whether the promise was made between an unmarried couple or it was made between a couple where one of them was married. Therefore I believe that no argument should be heard against an action that is filed in the latter instance to the effect that the promise is contrary to public policy. With respect to the non-pecuniary damages, the remedy for this can be found solely within the framework of a claim in tort, if and in so far as the basic elements required for this exist in the case under consideration.

Let us turn from these principles to the case before us. Indeed, the claim of the appellant should have been denied, but not for the reasons given by the District Court. The appellant based her claim on a contractual cause of action, and the compensation that she sought was entirely intended to repair the general, emotional damage that she suffered. The appellant did not argue the existence of a tortious cause of action, and since the hearing in the Magistrates Court focused only on the question whether the promise was given by the respondent, nothing was proved with respect to the circumstances that surrounded the giving of the promise and its breach, and in any event no tortious cause of action was considered. Indeed, the leave to appeal that the appellant received was limited solely to the question of the ‘legal validity of a promise of marriage that was made to a woman by a married man,’ but this restriction that was imposed on the appellant actually caused procedural harm to the respondent, because of the difficulty in considering other questions that have an impact on the liability. In any event, even on the merits the conclusion that I have reached — that a promise of marriage has contractual validity with limited consequences — falls within the scope of the legal dispute, as it was defined when leave to appeal was granted. Consequently, in my opinion there is no alternative but to deny the appeal.

 

 

Justice A. Procaccia

I agree with the opinion of the President and all his reasons. I wish to add the following remarks:

Breach of a promise of marriage as a contractual cause of action

1.            From its very inception, Israeli law regarded a promise of marriage as a binding contract that gives rise to a cause of action for its breach. This was done by virtue of the rules of English common law, which were absorbed by virtue of art. 46 of the Palestine Order in Council, 1922 (CA 129/42 Jarrous v. Adas (1942) [29]; CC (TA) 1279/54 Berghoiz v. Silber [28]; CA 174/65 Badash v. Sadeh [25]). Since then, this cause of action has been repealed in England by legislation, in the Law Reform (Miscellaneous Provisions) Act 1970. At the same time, the Contracts (General Part) Law was enacted in Israel, and in s. 63, the dependence of Israeli law on English common law was terminated. Notwithstanding, even after the enactment of the Contracts (General Part) Law, Israeli law recognized the cause of action of breach of a promise of marriage (see, for example, CA 545/77 A v. B [7]; Shifberg v. Avtalion [6]). This is a contractual action, as distinct from an action in torts that is based upon the cause of fraud or false representation. Consequently, the injured party has the right to receive compensation, even without proof of fraudulent intent or false representation on the part of the promissor. There are some who have criticized the existence of a contractual cause of action for breach of a promise of marriage, and have argued that an action for a breach of promise as aforesaid should be based on a tortious cause of action only (Shifman, Israeli Family Law, supra, at p. 198; Shalev, Contracts, supra, at p. 29). Notwithstanding, recognition of the contractual cause of action for breach of a promise of marriage has remained in force and, in any event, the approach in case law is that uprooting it is a matter for the legislature, rather than judicial legislation (Shifberg v. Avtalion [6], at p. 176). Recognition of the contractual cause of action for breach of a promise of marriage was therefore firmly established in case law even before the founding of the State. It reflects an awareness of the social, moral and legal need to give effect to binding promises between two people who are conducting an intimate personal relationship, where the giver of a promise makes a representation as to his intention to be bound by it and keep it, and the recipient of the promise relies upon this, and sometimes even acts and changes his position on the basis thereof. There is no moral, social or legal reason for excluding the promise of marriage from the scope of the law, and for thereby allowing the existence of marriage agreements that bind the parties thereto in a relationship of mutual commitment, without that commitment having any legal consequences when the breach of the commitment by one of the parties causes damage, and sometimes serious damage, to the other party. The pecuniary loss and the non-pecuniary damage that accompany the breach of a promise of marriage may sometimes be even more serious than damage that is caused as a result of the breach of contracts that govern ordinary market transactions, and the law must provide means and remedies that can compensate for damage that is caused in this context. The contractual cause of action for breach of a promise of marriage is therefore an appropriate one and one that is required as a response to situations in which a person has been injured by a breach of promise, even where he is unable to establish a cause of action in torts for fraud or false representation that accompany such a breach. I agree with all of the objective reasons given in the opinion of the President with respect to the importance of recognizing the contractual cause of action for breach of a promise of marriage as an institution that is controlled by the law. This approach is not consistent with the approach of my colleague, Justice Rivlin, who believes, for the reasons given in his opinion, that recognition of the contractual cause of action for breach of a promise of marriage should be cancelled, or, at the very least, the compensation for this should be restricted to pecuniary loss only, whereas the remedy for non-pecuniary should be found in an action in torts, if and in so far as its basic elements exist in our case.

When is a promise of marriage considered a binding contract?

2.            A condition for establishing a cause of action for breach of a promise of marriage is the existence of a binding promise from the viewpoint of the law of contracts. This condition requires a promise that is specific and testifies to the resolve of the offeror, thereby making it possible to accept the offer, which may be effected either in words or by conduct (ss. 1, 2, 5 and 6 of the Contracts (General Part) Law). In an intricate and complex relationship between a couple that is conducting an intimate relationship, not every statement or expression of prospective hope or intent amounts to a promise of marriage, nor does all conduct that indicates a desire for the continuity of the relationship and an expectation as to its future permanence amount to a commitment to marriage. Alongside the social value that seeks to compensate someone who has been injured as a result of reliance upon a promise of marriage that was breached, there is the value of personal freedom and autonomy of a person to chose his partner and to conduct interpersonal and cohabitational relationships in a social world that is characterized by openness, freedom, the absence of coercion and no intervention by the law. Intervention by the law occurs only when the circumstances clearly indicate the existence of a real commitment to a permanent cohabitational relationship which goes beyond mere expectation or expression of wishes or intent. The real difficulty that characterizes the topic under discussion that we are dealing with is finding the dividing line between an expression of intent, wishes or expectation and a legally binding promise. This dividing line may be very fine indeed.

The difficulty of proving the existence of a binding promise of marriage is a salient characteristic of this topic. Where a promise of marriage is made formally and explicitly, it is easy to deduce from this an intention to create a legal relationship. By contrast, when the agreement is not a formal one, caution must be shown in reaching conclusions as to the existence of such an intention, since otherwise,

‘… we expose every courtship of a woman by a man, or vice versa, to the danger that the conduct of the parties will be interpreted, at some stage, as an implied expression of a promise of marriage, without the two of them, or at least one of them, being aware of the full significance thereof’ (Shifman, Israeli Family Law, supra, at pp. 205-206).

The evidential requirements for proving a binding promise vary from one legal system to another. Thus, for example, in the State of Kentucky in the United States, a relatively low threshold of evidence has been established:

‘The offer, however, need not be formal. “Any expression… of readiness to be married is sufficient” ’ (Gilbert v. Barkes [30], at p. 774).

On the other hand, the English courts have taken a more prudent approach, raising the level of the requirements of the rules of evidence with respect to interpersonal agreements between a couple:

‘… in family or quasi-family situations there is always the question whether the parties intended to create a legally binding contract between them. The more general and less precise the language of the so-called contract, the more difficult it will be to infer that intention’ (Layton v. Martin [34]).

In most cases, a promise of marriage is not explicit at all, but can be deduced from the conduct of the parties, and therefore the court should examine all of the circumstances surrounding the relationship between the couple, in order to establish whether a binding contract was made between the parties (CA 460/67 A v. B [5], at p. 160; and in United States law: H.H. Clark, The Law of Domestic Relations in the United States (second edition, 1988), at pp. 4-5). Indeed, most agreements for the purpose of marriage are made informally, without witnesses and without any written documentation, and in many cases even without exchanging any explicit promises. The intention of the couple to establish a viable relationship with one another usually occurs almost imperceptibly, as a result of frequent meetings, an intimate relationship and the development of reciprocal wishes and hopes. It cannot always be seen to occur at a given point in time. Therefore, the courts have always recognized the need to deduce the existence of a contract to marry from the circumstances. This solved one problem, but at the same time it created another — a tangible danger of frivolous actions that lack credibility. This area does indeed raises difficulties in evidence that are inherent in the very unique and special nature of an agreement involving a promise of marriage.

There are those who believe, in this context, that deducing the existence of an intention to create a legal relationship should be limited to cases in which the agreement between the couple also has economic significance and not merely an emotional element (Shifman, Israeli Family Law, supra, at p. 206). Case law has not followed this path, and it has examined the intentions of the parties against the background of all the circumstances of the case, without attributing special importance to any particular aspect of the relationship between the couple. Indeed, the economic aspect of the relationship between the couple should not be given decisive weight. A couple may decide to live as ‘cohabitees’ and run a joint household by pooling their resources, without any intention of marriage, whereas a couple may decide to marry without the commitment between them having any economic basis, such as if they have registered for marriage at the Rabbinate, but have not yet entered into any financial relationship (CA 58/73 Shaked v. Silberfarb [26]; CA 473/75 Ron v. Hazan [27]; Maman v. Triki [19]). We must therefore examine all of the circumstances surrounding the relationship between the couple in order to deduce from it whether a binding promise of marriage was given and then breached. In view of the need to deduce the existence of a binding promise from all the circumstances, and in view of the innate fear of unsubstantiated actions in the sphere of human sensibilities and intimacy, which is naturally replete with strong emotions, it follows that a heavy burden of persuasion rests with the plaintiff to prove the existence of a promise of marriage that was breached, as required by the nature and complexity of the matter. The line that separates a close relationship without any real commitment from conduct that creates a binding promise of marriage is sometimes blurred, and special caution is therefore needed before we recognize a contractual cause of action for breach of a promise of marriage. This caution compels us to set a high threshold of proof, with special weight, to prove a binding promise, as required by the nature of the matter.

Remedies for breach of a promise of marriage

3.            When it has been established that a promise of marriage was made and breached, the question of damages arises for the party injured by the breach. Due to the special nature of the contract, it is certain that an order of specific performance cannot be granted within the framework of the Contracts (Remedies for Breach of Contract) Law. I also agree with the opinion that expectation damages cannot be claimed for the breach (Cohen, ‘Status, Contracts and Inducing a Breach of Contract,’ supra, at p. 311, note 34). The injured party is not entitled to damages that reflect the expectation interest that is measured on the basis of the assumption that the couple actually married. Notwithstanding, the injured party will be entitled to damages for harm to the reliance interest (i.e., expenses that were incurred and other economic damage that was suffered as a result of the promise), for pecuniary loss (Berghoiz v. Silber [28], at p. 386; Shifberg v. Avtalion [6], at p. 176), and also for non-pecuniary damage that was suffered (Ron v. Hazan [27]).

In the dispute among legal and judicial authorities as to whether reliance damages should be limited to compensation for pecuniary loss only, or extended also to general damages, I agree with the broader approach. Once a breach of a promise of marriage has been proved, there is no moral or legal reason not to award the injured party general compensation where it has been proved that the injured party experienced suffering, anguish and pain, which are recognized by the law as heads of damage in the law of remedies for breach of contract. Precisely in a case of breach of a contract in the sphere of human emotion and intimacy, the emotional damage caused by the breaking of the relationship between the couple may, in most cases, be the main damage and the one most worthy of compensation. Limiting the contractual remedy in such a case to pecuniary loss only does not usually reflect the real damage in its entirety, and it is liable to defeat the main purpose of compensation, according to accepted legal concepts. The provisions of s. 13 of the Contracts (Remedies for Breach of Contract) Law should therefore be applied to a breach of a promise of marriage, in such amount as the court thinks fit in the circumstances of the case.

A promise of marriage made by a married man

4.            I agree with all of the President’s reasoning, that the rule applying the principles of public policy to a promise of marriage made by a married man, which in certain conditions nullifies the promise, can no longer stand. Lifestyles and social perceptions have changed unrecognizably since this rule was originally formulated, and the changes that have taken place in the values of modern society with respect to human intimacy justify the cancellation of the historical distinction between a promise of marriage made by a single man and one made by a married man. The fundamental changes that took place in the second half of the twentieth century in the perceptions of morality, and the processes of emancipation from thought patterns, concepts and lifestyles that were accepted in the past, have had an impact on the content of the concept of ‘public policy,’ which is a dynamic concept that reflects the most important values, interests and principles that society seeks to protect and develop. This concept naturally also reflects the changes in social outlooks that occur from time to time (Efrat v. Director of Population Register, Ministry of Interior [12], at p. 778). The Western world, including Israel, has in recent decades undergone radical changes to basic value systems that are characterized by conceptual and moral pluralism, with increasing recognition of the value of freedom of the individual to determine his lifestyle in every respect. These changes significantly affect lifestyles and legal outlooks (A. Rubinstein, The Enforcement of Morality in a Liberal Society (1975), at p. 140). These changes affect the question of the relationship between the value of protecting the institution of marriage — which was and still is a value of paramount importance in human life — and the obligation of the law to someone who has been injured by a breach of a promise of marriage — whether the injury is a pecuniary one or not. In the balance between the need to provide a remedy that will compensate for the injury suffered by someone who relied on a promise of marriage that was breached and who, on the basis of the promise, developed hopes and expectations of a joint future with a partner, and the danger that finding the party in breach liable for damages will hurt his marriage, the first value prevails. This is certainly the case in the absence of a direct correlation between the liability of the person who breached the promise of marriage to compensate the injured party, and the existence of direct harm to the marriage of the party in breach as a result of such a liability. There is therefore no basis for distinguishing between a promise of marriage made by a married man and one made by a single man; the same law and the same remedies apply to them and to the remedies for breaching them.

From the general to the specific

5.            The circumstances of this case, as described in the opinion of the President, leave no doubt that the respondent breached a promise of marriage that he made to the appellant. His promise can be seen clearly from the relationship that they had for many years, which had a very significant effect on the life of the appellant and left its mark on her lifestyle and her fate for many years. The respondent’s promise, his breach thereof, and the injury to the appellant as a result of her reliance on the respondent’s undertaking to marry her cannot be allowed to pass without a proper legal response. They lie at the heart of the law, and are not marginal to it. The fact that the respondent was married should not affect the legal consequences of his undertaking that was breached, and we must enforce his liability to pay the appellant compensation for the damage and the injury that he caused her. This outcome is consistent with criteria of justice and fairness, and it satisfies the requirements of public policy, according to the concepts of the time, the place and the hour. I therefore agree with the conclusions of the President in full.

 

 

Appeal allowed, by majority opinion (Justice E. Rivlin dissenting).

25 Tammuz 5754.

14 July 2004.

Justice D. Beinisch

1. Appellant requests, through the legal mechanism of the Children Adoption Law-1981, to adopt Gil, a youth of 26 years old, who the appellant has raised and educated since infancy. The question before us is whether, given the fact that Gil is now an adult, may we issue an adoption order that would grant legal status to the de facto parent-child relationship between the appellant and Gil—an adoption order in which they are both interested.

 

The Facts

 

2. Gil parents divorced when he was two months old. He remained, together with his three year old brother, in the custody of his mother. When Gil was two years old, his mother married the appellant who, ever since, has acted as Gil's father. In 1975, when Gil was four years old, appellant approached the courts and requested to adopt Gil and his brother. For the purposes of the adoption proceedings, the court made use of the opinion of a Family Welfare Officer. The Officer recommended allowing the appellant to adopt Gil, noting that Gil's biological father had not been in contact with Gil, that he had left Israel, and that he had started another family. This adoption request was cancelled, however, due to the lack of the biological father's consent to the adoption. The parties agreed to appoint the appellant as Gil's legal guardian. The parties also agreed that the children would use the appellant's surname, in addition to the surname of their biological father. This agreement has the force of a court order. Appellant, together with the children's mother, raised Gil and his late brother, who was killed in 1992 in a gunfire accident. No intervention or supervision of the welfare office was ever required.

 

In 1983, appellant and Gil's mother divorced. This, however, did not cast a shadow over appellant's relationship with Gil. The biological father continued to live outside of Israel, never contributed to raising Gil, and came neither to celebrate Gil's Bar Mitzvah nor to mourn with and comfort him after the loss of his brother. Even so, the adoption request was never renewed until, in 1995, appellant approached the Tel-Aviv/Jaffa District Court with a request to adopt Gil.   

 

Gil's biological father was not a party to the court proceedings. Gil himself expressed the desire that the appellant adopt him. The Attorney-General opposed the adoption request, as the statutory requirements for adoption has not been satisfied. The Family Welfare Officer notified the court that the adoption was recommended by the Israel Children's Society.

 

The district court rejected the request for adoption. In its decision, the court held that section 25(1) of the Adoption Law, which presents the requirements for the adoption of one of majority age, had not been satisfied. The court also stated that, without the consent of the biological father, the court could not order an adoption without a prior declaration that the potential adoptee was fit for adoption. The court held that section 8(a) of the Adoption Law also applied to a potential adoptee of majority age, such that either the adoptee had to be declared as fit for adoption under section 13 of the law, or the consent of the biological father had to be obtained. In taking this position, the court accepted the legal stance of Attorney-General. The court added that granting the requested adoption order would allow for the circumvention of the Adoption Law. As such, the court rejected the petition, stating that "[t]here is no legal reason to accept the petition."

 

Majority Age Adoption—the Rule and its Exception

 

3. As known, Israel possesses no special law for the adoption of adults. The only applicable law is the Children Adoption Law. Even so, the word "Children" in the title of the law should not be taken as proof of the legislature's intent to restrict adoption to minors. The Hebrew term "yeled," as the English word "child," has two meanings, both in the spoken idiom and in legal terminology. The term refers to a minor at the initial stages of his development, as well as referring to the progeny of a person. One remains the "child" of his parents for his entire life. Take the definition of child in the Oxford Dictionary:

 

1.a. A young human being below the age of puberty…

2. One's son or daughter (at any age).

 

See The Concise Oxford Dictionary of Current English Language (1995). The Even Shushan Hebrew dictionary has a similar definition:

 

1. The young of a person, from his birth until approximately the age of Bar-Mitzvah.

2. A general term for sons and daughters. See Genesis 33:5 "And he lifted up his eyes, and saw the women and the children"; I Samuel 1:2 "and Peninnah had children, but Hannah had no children."

 

In different statutes the legislature has used both meanings of the term. In this context, it refers to a child of any age. Similarly, the term has an analogous meaning in section 12 of the Inheritance Law-1965, and section 20 of the Tenant Protection Law-1972. For our purposes, we find the words of Wadlington to be fitting:

 

Although "children" is synonymous with "minors" in the minds of many persons, the former term obviously can include adults when we are speaking in terms of relationship. X, the adult son of Y and Z, is also the "child" of Y and Z

 

W. Wadlington, Adoption of Adults: A Family Law Anomaly, 54 Cornell L. Rev. 566, 569 (1968) [18]. Even so, it is clear that the primary purpose of the law was to set up a legal framework for the adoption of minors.

 

4. Section 2 of the Adoption Law provides:

 

There will be no adoption except of one who has not reached 18 years of age.

 

The words of the statute correspond to the primary purpose of the law, and establish that standard adoption is that of a minor. At the same time, section 25 of the law provides:

 

25. Authority to Depart from Statutory Limitations

 

If the court believes that adoption is in the best interests of the potential adoptee it may, under special and appropriate circumstances, depart from the following statutory limitations:

(1)          The age of the potential adoptee under section 2

 

Section 2 of the law establishes the general rule, while section 25(1) provides the exception to this rule. This exception grants the court broad discretion in deciding what constitutes special and appropriate circumstances. The legislature saw fit to point out the relevant factors, while leaving room for judicial discretion. As such, we must determine the proper balance between the exception and the rule.

 

The Development of the Institution of Adoption

 

5. The Adoption Law, together with its various amendments over the years, establishes a mechanism to create a legal parent-child relationship. This creation of this legal relationship has far-reaching consequences. The adopting parent assumes the legal rights and obligations of the parent-child relationship, as well as the standard authority that a parent has with regard to his child. See the Children Adoption Law, § 16.

 

Even ancient systems of law had mechanisms of adoption. In Roman law, the head of a household would be able to bestow, upon his dependent, his own status, property, and rights. The "child" that was so adopted was not necessarily a minor. Similarly, in later law, the term "child" expressed the relationship between a parent and his son or daughter, but not necessarily that between a parent and a minor. See John Brosnan, The Law of Adoption, 22 Colum. L. Rev. 332 (1922) [19]; see also CA 179/53 Cohen v. Cohen [1] (Cheshin, Acting P.); N. Maimon, The Law of Adption 2-5 (1984) [10].

 

The institution of adoption developed in different systems of law. On the continent, its development followed the path of the Roman law. In common law countries, the institution was recognized at a relatively late stage. In England, adoption was instituted through statute. See W.W. Buckland & Arnold D. McNair, Roman Law & Common Law 39-42 (1936) [16]; 5(2) Halsbury's Laws of England paras. 1021-22 (4th ed. 1993) [15]

 

During earlier historical stages of the law of adoption, the law placed a greater emphasis on the needs of the adopting parent, and upon the adopting parent's request to bestow his own status and property upon the "child." Over the years, the center of gravity of the law shifted from the desire of the parent towards the "benefit of the child." In the modern world, this "child" is most often a minor who is in need of a guardian to tend to his physical and psychological needs. See H.E. Still-Caris, Legislative Reform: Redefining the Parent-Child Relationship in Cases of Adoption, 71 Iowa L. Rev. 265, 266-67 (1985) [20]; Walter Wadlington, Adoption of Adults: A Family Law Anomaly, 568 Cornell L. Rev. 566, 567-68 (1969) [18]; Maimon, supra at 20-22 [10]

 

In Israel, the institution of adoption was initially the result of personal and social needs, and developed without a specific statute. The issue of adoption was considered part of a person's personal status, to be regulated by personal religious law under His Majesty's Palestine Order-in-Council-1922. The regulation of the issue through Jewish Law, however, did not prove to be completely satisfactory, see CA 179/53 supra [1], at 1174-75. As such, the Children Adoption Law-1960 was enacted.

 

The Adoption Law—Legislative History

 

6. Before the enactment of the Children Adoption Law-1960, the Knesset discussed the option of allowing the adoption of persons already of majority age. See Minutes of the Knesset 25:944 (M.K. Araditi); 28:534 (M.K. Nir-Rafalks); 29:2135 (M.K. Yonitzman). Even so, the legislature decided to only allow the adoption of those below the age of 18. At the same time, however, the Adoption Law incorporated a transition provision in the form of section 21, which allowed for the adoption of one of majority age, provided that the adoption request was pres    ented within a year after the enactment of the law, and provided that an effective parent-child relationship had already existed for three years. This transition provision brought relatively few cases before the courts. See CA 152/65 A. v. The Attorney-General [2]; CA 362/70 Avogoz v. The Attorney-General [3].

 

Section 25(1) of the 1981 Adoption Law changed the earlier provisions. The commentary to the law stated:

 

Similarly, the bill proposes to allow the courts, under special circumstances, to order the adoption of one over 18 years of age for one legally incompetent, for example, or for one who requires a guardian for other reasons.

 

In the Knesset, the Minister of Justice stated, when presenting the bill:

 

The list of special circumstances in section 22 of the law will include two new provisions that will allow, under certain cases, to allow the courts to depart from the statutory limitations. One, for example, will allow the courts to allow for the adoption of one over 18 years of age, for example, in cases of one who is legally incompetent, or one who needs a guardian for other reasons.

 

Even though the example brought in the legislative  history refer to an adoptee who is legally incompetent or otherwise requires a guardian—situations where the need for adoption is especially apparent—the legislature did not limit the exception to these two cases, and did not specifically define the "special circumstances" that would justify the adoption of one over majority age. The sole limitation placed upon the court was the requirement to consider the "good of the adoptee." The legislature did not provide limitations regarding the age of the adoptee, and did not provide for conditions similar to the earlier law, which required a three year period of "effective adoption." Practically, since the enactment of the Adoption Law-1981, there have been no requests for the adoption of one over 18 years of age. See Maimon, supra at 104.

 

The Relationship of a Parent to an Adult Child

 

7. In general, the law is intended to establish a legal parent-child relationship, and ensure that the adopting parent fulfills all standard parental responsibilities established by law, including physical, psychological and educational needs. This legal parental relationship has the unique characteristics of a biological parental relationship; it applies not only to the supervision of the adopting parent over the adoptee, but to all facets of the parent-child relationship. "The status of a parent is special and unique. It is bound up with the essence of man, and comes with both rights and responsibilities." CFH 2401/95 Nahmani v. Nahmani [4], para. 1 (Barak, J.) Aside from providing the substance and consequences of the adoption relationship, the law also lays out the procedural aspects of establishing the relationship.

 

According to the intention of the legislature, the law is primarily geared towards minors. For many reasons, we may say that the parental relationship is properly a relationship between an adult and a minor. This is especially true because, during the minority years, the parent-child relationship is expressed in all its aspects, as these are understood on both social and psychological levels.

 

Becoming a parent means the acceptance of both rights and responsibilities. When a person becomes a parent, the law imposes upon him the responsibility to care for his child. And this care is not simply ordinary care—it is the responsibility to put the welfare of the child first. A parent cannot simply refuse to care for his child if he finds it inconvenient or uncomfortable. The responsibility of a parent to his child also has civil and criminal aspects. The responsibility expresses the normative expectations of our social structure and our legal system.

 

CFH 2401/95 supra [4], at 683 (Strasberg-Cohen, J.) .

 

   Simply because the parental-child relationship sees its more complete expression in the period when the child is a minor, does not mean that the relationship is devoid of content when the child reaches adulthood, and becomes self-sufficient and legally competent. Parents supply crucial needs—both physical and psychological—even when their child has become an adult. Israeli law, as the law of many other jurisdictions, gives legal expression to the parent-child relationship even after the child has reached the age of majority. This legal expression may be somewhat limited. However, it comes to the fore it several situations. In pecuniary matters, it will suffice to mention the law of inheritance, see the Inheritance Law-1965, §§ 10(2), 16, the provisions of the National Insurance Law which relate to the definition of a parent and a child, see the National Insurance Law-1995, §130(a)(3), the support a parent owes his child, see the Family Law (Support)-1959, § 4 (providing for broad support responsibilities), and the tax law, see the Income Tax Ordinance [New Version], §§ 44-45. See also Children Adoption Law, § 11 (requiring consultation with the grandparents of an adoptee whose parents have passed away). Other legal areas that provide for a parental relationship even towards adult children include privacy law and defamation law, which allow the relatives of the injured person to continue the suit of a deceased, see Privacy Protection Law-1981, § 25; Defamation Law-1965, § 25, as well as the law of evidence, see the Evidence Law [New Version]-1971, § 4. See also the Equal Opportunities in Employment Law-1988 (defining a "relative"). Of course, we cannot forget the provisions of the Children Adoption Law itself.

 

As such, parental status comes with legal ramifications and consequences even with regard to adult children. As such, different systems of law also allow for an adoptive relationship between two adults, even though this option is naturally limited, as will be explained in greater detail below.

 

Special Circumstances Justifying the Adoption of an Adult

 

8. When a court grants an adoption order for a child of majority age, pursuant to section 25(1) of the adoption law, it must contend with two main problems. First, the legislature obviously saw such an order as an exception, and not the rule, which could only be justified by the existence of special circumstances. As such, the court must determine whether such special circumstances exist, and how, in general, they should be defined. Second, the procedures and mechanisms of the Adoption Law are obviously intended for the adoption of a non-adult child. These procedures and mechanisms are not always appropriate for the adoption of a child of majority age, even when a court finds that the existence of "special circumstances" justify that child's adoption. As such, the court must ensure that it wields that law's procedures and mechanisms in a manner that is appropriate for the adoption of a child of majority age. To decide the case before us, we must contend with these two issues—one substantive, the other procedural.

 

9. In interpreting the provisions of section 25(1) of the Adoption Law, we must examine the statute as whole, as well as the interaction of section 25(1) with the rest of the statute, and the interaction of both of these with our legal system.

 

As noted, the intention of the legislature, in establishing a framework for adoption, was to allow for the adoption of a non-adult child while leaving room for an exception that would, under special circumstances, allow for the adoption of a child of majority age.  In this context, we must interpret the relevant sections of the statute, examine the scope of the exception within it, and outline the path that a court should take in establishing what constitutes special circumstances.

 

In determining the statutory purposes of section 25(1), we must determine the purposes that it intends to realize within society, within the framework of the fundamental values of our legal system. In the words of Justice Barak, in HCJ 693/91 Efrat v. Population Registrar, [5] at 763:

 

The purpose of a piece of legislation—a normative concept—is made up of both subjective and objective purposes. The subjective purpose of the statute is the purpose that the legislature sought to pursue in enacting the statute. This is the "legislative intention." The objective purpose of the statute is the purpose that the purpose that the statute is meant to pursue in a democratic statute. This is the "statutory purpose."

 

See also CA 105/92 Re'em Engineers and Contractors v. The Municipality of Upper Nazareth [6] at 198.

 

10. The issue before us is the desire of two adults to arrange the legal relationship between them—a legal parent-child relationship, under the framework of the Adoption Law.  The question is to what extent we should limit their ability to realize this desire.

 

We recall the statement of President Shamgar, in CA 294/91 Jerusalem Burial Society v. Kestenbaum [7], at 481:

 

A free society minimizes the limits it imposes on the freedom of the individual.

 

These words are especially true in the context of an individual's aspirations to realize his personality, and in the context of his desire to give expression to his relationship with family and home, and his feelings towards them. In our times, when "human dignity" is a fundamental right, we must respect an individual's desire to actualize himself. For this reason, we should honor his wishes regarding the family unit to which he wishes to belong.

 

Human dignity, in the constitutional framework, is a legal term. Its practical implementation, however, is in the context of each individual's daily life, and in the citizen's interaction with the state and with the courts. Human dignity is reflected in the individual's ability to freely realize his personality, to give expression to his aspirations, not to be subject to arbitrary acts of compulsion, and to be treated appropriately by the government and by other individuals.

 

CA 5492/92 A  v. B [8], at 842. In this spirit this Court has held that the right of an individual to change his name, without the interference of the state, should be respected, as long as the change harms neither another individual nor the public interest:

 

A person's name is a part of his personality and his social identity. It is the key which he uses to walk the paths of society. It is not simply an identification number. It is an expression of his personality, his feelings, his obligations, traditions and aspirations. In different historical periods people had different names; radical changes often lead people to change their names. See 31 The Hebrew Encyclopedia 1007 (1979). A democratic society respects this freedom. It respects the individual's desire to chose his own name, to choose how he will be called, and to change that name if he feels that another name would better suit him. Indeed, recognition of the person's freedom to change his name is the recognition of his personal autonomy, which is every person's right in a democratic society.

 

HCJ 693/91 supra [5], at 770.

 

 Similarly, a person's parents and children are part of his personality and social identity, perhaps even more so than his name. Of course, a person cannot choose his parents. However, a person's choice to relate to another as his child, or the choice to relate another as one's parent, is an expression of that person's personality. In appropriate circumstances, it is suitable to give this desire legal form. Sometimes, a person can form a relationship with another that is like a parental-child relationship. It is fitting that this relationship be respected, since it forms part of one's human dignity. It would not be an exaggeration to say that this relationship is entitled to no less respect that than any other agreement that is freely entered into, provided that it does not harm another person or the public interest.

 

In other words, the legislature provided for an exception, which allows adoption between two adults, only under special circumstances. We can presume, however, that it did not, at the same time, intend to limit this exception, apart from circumstances where such adoption would not be in the public interest, or where it would harm the interests of another, or where it would not serve the interests of establishing an adoptive parent-child relationship.

 

The Public Interest

 

11. When will an adoption order act not be in the public interest?

 

Many statutes impose rights and responsibilities in the family context. Such legislation can be found in, for example, the law of personal status, in the context of damages in tort law, and in the context of tort law and the law of evidence. In the context of many laws, the parent-child relationship has financial implications, such as in property law, taxes, and government programs. See supra para. 7. Once the legislature has established such rights and responsibilities, it is in the public interest that they not be circumvented or abused through a fictitious adoptive relationship.

 

We can imagine cases where adoption would only provide cover for a relationship that, while close to a parent-child relationship, is not identical to it. Take, for example, a case where adoption is intended to ease a tax burden, where it is intended to arrange a division of property between two adults, or where it is intended to circumvent the provisions of inheritance law. All of these are situations that point to a lack of good faith, and a desire to circumvent the law and abuse the institution of adoption. When the existence of such circumstances are proven, the law should intervene and prevent the establishment of an adoptive relationship. Examples of such circumstances can be found in several states of the United States that recognize adult adoption, as well as in other countries. See Matter of Adoption of Robert Paul P., 471 N.E.2d 424 (N.Y. Ct. Appeals 1984) [11]; in re Jones, 411 A.2d 910 (R.I. 1980) [12]; Stevens v. Halstead, 168 N.Y. Supp 142 (N.Y. Sup. Ct. 1917) [13].

 

As such, it is appropriate that adoption should not be allowed, whenever there is suspicion that it is intended to abuse the benefits that society bestows upon the parent-child relationship.

 

Factors in Adult Adoption

 

12. The legislature intended to allow for the institution of an adoptive relationship only where such legal status is requested in good faith, and where it reflects a true parent-child relationship. The difficulty lies in identifying such circumstances. We may learn from the experiences of other countries, whose laws of adoption have similar foundations to ours—where adoption laws emerged in the culture of a democratic society that respects the will of the individual and his freedom, where such laws recognize adoption as granting the same status as the biological parent-child relationship, and whose central focus in on the good of the adoptee.

 

An expression of this general approach, which requires granting the possibility of adoption in appropriate circumstances, was laid down in Matter of Adoption of Robert Paul P., 471 N.E.2d 424 (N.Y. Ct. Appeals 1984) [11], by the Court of Appeals of the State of New York:

 

There are many reasons why one adult might wish to adopt another that would be entirely consistent with the basic nature of adoption, including the following: a childless individual might wish to perpetuate a family name; two individuals might develop strong filial affection for one another; a stepparent might wish to adopt the spouse's adult children; or adoption may have been forgone, for whatever reasons, at an earlier date.

 

Other states and countries that wished to provide for adult adoption, whether through special legislation or in laws that relate to adoption in general, established special arrangements that are appropriate for such circumstances. See Code Civil §§ 360-379.2 (France); BGB § 1767 (Germany); Cal. Fam. Code. §§ 9300-9340 (1996); NY CLS Dom. Rel. § 111(4) (1996). It is interesting to note that, in Australia, the legislature used similar language to our own law, allowing adult adoption under "special circumstances," which are determined according to the judgment of the court:

 

The grounds on which the court is to exercise its discretion to make adoptive orders re modified in the case of adoption of adults. There is some variation among the jurisdictions, but essentially, criteria appropriate to minors are replaced by a more general formulation, such as that the adoption order should be made if the court is satisfied that special circumstances make it desirable that the [adults] should be adopted.

 

17.9 The Laws of Australia para. 19, Adoption of Children (1995) [17]. Using standards similar to ours, Australian courts tend to allow adult adoption when it is in the best interests of the adoptee and does not harm the public interest.

 

We in Israel do not possess a special legislative arrangement regarding this matter. Instead, the relevant laws form a part of the adoption law as a whole. Even so, we can utilize the jurisprudence of other countries in determining what should constitute special circumstances under our law. 

 

A.            The Existence of a Parent-Child Relationship

 

It would seem that a guiding line of most legislative arrangements for the adoption of adults is the existence of a parent-child relationship. As such, section 5-107(b)(4) of the Uniform Adoption Act, which was adopted by the American Conference of Commissioners of Uniform State Laws in 1994, provided that a condition of adoption would be that the adoption was intended to create a parent-child relationship, and that the parties were aware of this fact:

[T]he adoption is for the purpose of creating the relationship of parent and child between the appellants and the appellant understand the consequences of the relationship.

 

In the United States, adoption is regulated by the States, each of which has enacted different legislation in the matter. As such, it is difficult to say whether American case law is uniform in this regard. Sometimes, courts have emphasized the centrality of the above test; at other times, courts have emphasized different tests. One case, The Matter of Adoption of Elizabeth P.S., 509 N.Y. Supp. 2d 746 (N.Y. Fam. Ct. 1986) [14], is an example of a court granting significant weight to the establishment of a parent-child relationship. In that case, the adopting parent was a nun who cared for the adoptee. The age gap between the two was only one year. Even so, the court believed that the adopting parent could properly fulfill the role of a parent and allowed the adoption, stating:

 

Eileen maintains the role of parent, providing leadership, guidance, nurturing, care and affection for Elizabeth, her ward. Elizabeth, in turn, looks to Eileen for the structure and maturity that a parent normally gives, finding in her the comfort and direction so desperately needed.

 

Id., at 748. Other examples of the centrality of this issue, can be found in cases where courts have refused to grant an adoption order because they were convinced that no parent-child relationship existed. For example, one case discussed a homosexual who desired to adopt his partner as a substitute for the legal marital relationship. See Matter of Adoption of Robert Paul P., 471 N.E.2d 424 (N.Y. Ct. Appeals 1984) [11].

 

It is proper that Israeli courts, in determining the existence of “special circumstances” under section 25, should place this test—the existence of a parent-child relationship—at the heart of the issue. The magnitude of the significance of this test is such that it should be an essential condition in deciding whether to allow an adult adoption. All other tests only help clarify the answer to this central question: whether there is a parent-child relationship.

 

It seems to me that, as per the formulation and purposes of the statute before us, that we should not arrive at the situation existing in many states of the United States, in which the court (not to mention the state itself) is not allowed to examine the nature of the relationship between the two adults requesting the adoption order. It seems patently obvious, from a reading of section 25 in the context of the statute, that the correct interpretation of “special circumstances” should not include situations in which a parent-child relationship does not exist. I believe that this result is also justified by the general approach of our legal system. Adoption does not only affect the adoptee and the adopting parent. Adoption has many legal ramifications. It is not proper that we should use the legal tool of adoption not in the context of a parent-child relationship. Otherwise, we would find ourselves granting the special legal status that the legislature wished to reserve for parent-child relationships to other relationships also.

 

As such, when deciding whether there exists “special circumstances” that justify an exception to the rule of section 2, the court should first check to see whether a parent-child relationship exists. If the answer is affirmative, the court should then decide whether it is appropriate to allow adoption under the exception of section 25 of the law. If there is an honest intention to have a parent-child relationship, and the facts show that such a relationship already exists, then it would seem that the condition of “special circumstances” has been fulfilled. Then, if the adoption is in the best interests of the adoptee, the court must decide whether there are good reasons not to give legal effect to this relationship through an adoption order.

 

In examining whether a parent-child relationship exists, the court may use other secondary tests which are intended to shed light on the nature of the relationship between the two requesting adults.

 

B.            Duration of the Parent-Child Relationship

 

14. Take a situation in which the parent-child relationship existed even before the child reached majority age but, for some reason, this relationship was not given de jure legal status. It would seem that this would unequivocally fulfill the requirement of “special circumstances.”

 

Under certain circumstances in the State of Virginia, in the United States, an adult adoption order can only be granted if the adoptee lived with the adopting parent, before he reached majority age, for at least three months. In other situations, Virginia law demands that the two have been acquainted for at several years. See Va. Code. Ann. § 63.1-222 (1996). A similar position was taken by Australia, see 17.9 The Laws of Australia [17], para. 19. In Victoria, Australia, the law provides that the adoptee:

 

has been brought up, maintained, and educated by the applicant.

 

See Adoption Act 1984 (Vic.) § 10(1)(b). Similarly, section 1767 of the German Civil Code provides that an adult adoption order will be granted if the adoption is appropriate on moral grounds and “especially if a parent-child relationship existed previously.”

 

I believe that most cases that come before our courts will be similar—the court will be requested to give legal form to an already existing parent-child relationship. Even so, I do not believe that we should set down a hard and fast rule regarding this matter. Situations may arise in which it is proper to grant an adoption order despite the fact that a parent-child relationship did not exist before the adoptee reached majority age. This will be the case where the parent-child relationship was created because the adult adoptee required protection or guardianship because of his physical or psychological state, because he was legally incompetent, or because he required medical care. Other situations are also imaginable. As such, it is proper that we not set down bright line rules in this matter. 

 

As such, in determining whether “special circumstances” exist, the court should give significant weight to the duration of the existence of the parent-child relationship, and to do the occasion that they were created. The longer the duration of the relationship, and the earlier the relationship was created, the more the court should tend towards recognizing that “special circumstances” justify an adoption order.  

 

C.            Minimum Age Difference

 

15. The legislature, in section 4 of the Adoption Law, granted significance to the age difference between the adoptee and the adopting parent:

 

4. There will be no adoption except by one who is at least 18 years older than the adoptee.

 

The legislature, however, saw fit to qualify this requirement twice. First, this requirement is qualified at the end of section 4, which discusses an adopting parent who is married to the biological parent of the adoptee. Second, this requirement is qualified at the end of section 25, which subjects the implementation of the age difference requirement to the general discretion of the court.

 

Several countries in Europe, and many states in the United States, provide for a similar requirement of a minimum age difference between the adoptee and the adopting parent. Some jurisdictions specify the minimum age difference. See Utah Code Ann. §§ 78-30-2, 78-30-3; N.J. Stat. Ann. § 2A:22-2 (1996); the French Civil Code § 344. Other jurisdictions are more flexible, and simply provide that the adopting parent must be older than the adoptee. See Cal. Fam. Code § 9320(a) (1996).

 

As such, I believe that that the age difference between the adoptee and the potential adopting parent can serve as a test that—among other tests—can help the court decide whether there exists “special circumstances” and whether there exists a true parent-child relationship. Where an age gap does not exist, a court may find it difficult to establish that a parent-child relationship exists. We need not decide here whether the law should recognize a parent-child relationship even when there is no such age gap. It is enough that the matter is left to the discretion of the court, who will take the age gap into consideration.

 

Injury to the Rights of the Biological Parents

 

16. The law, in recognizing the adoptive relationship, grants that relationship all the rights and responsibilities inherent to the parent-child relationship. As such, granting an adoption order can injure the legal status of the biological parents.  This injury is a direct result of section 16 of the Adoption Law, which provides that adoption “ends the rights and responsibilities between the adoptee and between his biological parents and his other biological relatives.”

 

This Court has already stated:

 

The taking of a child from his natural family, and his subsequent adoption by a different family, constitutes a profound intervention in the fabric of the family unit. Adoption may forever break the bonds between a parent and child, as it creates a legal bond between that child and the adopting parent. These long-lasting and irreversible changes are justified, and not only because they serve the good of the child.

 

CA 232/85 A. v. The Attorney-General [9], at 8. (Barak, J.). As such, Justice Barak there stated, at 9:

 

Consent of the natural parents is usually required for adoption. This consent opens the closed box of the family unit, which is usually closed to the intervention of the state. Some justify this intervention by appealing to the interests of the child. See CA 549/75 at 461; CA 680/77 at 412. I myself believe that the explanation is broader than that. This requirement of consent also protects the constitutional rights of the parents. Only once consent to adoption is granted may we begin to consider the good of the child.

 

Section 8(a) of the law provides that an adoption order may only be issued after the consent of the biological parents is granted, or after the potential adoptee is declared by the court to be fit for adoption. Section 13 of the law details the grounds for declaring a child to be fit for adoption. The combination of these two sections is intended to balance between the rights of the child and the rights of the biological parent, whose child should not be taken from him without his consent unless there are essential reasons for doing so. In accord with the general spirit of the law, the court will declare a minor child to be fit for adoption is he requires protection. In declaring such a child fit for adoption, the court acts in the capacity of his parent. In the same spirit, the Attorney-General is the one who must request from the court to declare the child as fit for adoption. Only the authorities, who are responsible for the good and safety of the child when his natural parents or guardians do not fulfill their responsibilities, can set the wheels of the mechanism of adoption in motion.

 

17. In adoption proceedings, the central question is the intervention of the state in the family unit. Such intervention is usually for the purpose of ensuring the safety and welfare of a minor child in need of physical and psychological care. However, when the adoptee is an adult who, by his own initiative, approaches the state and requests that he be disconnected from his natural family unit, the balance between the relevant interests must necessarily be different. Practically, and even to some extent from a legal perspective, an adult child can separate himself from his biological family without the intervention of the state. In other words, in the case of an adult who wishes to separate himself from his parents and join a different family unit, the intervention of the state is not necessary to actually separate the adoptee from his natural parents.  The state’s intervention is only necessary to the extent it changes the parties’ legal relationships.

 

It would seem that, in the context of adult adoption, there is no justification for requiring the consent of the biological parents. The adult can choose his future and destiny by himself, according to his wishes, and he is legally competent. The source of the statutory requirement of parental consent is in the fact that the statute was primarily intended for the adoption of minors. Even so, since an adoption order breaks the legal parent-child relationship, even in the context of an adult child, it is appropriate to grant a certain place to parental consent, even though, in the context of adult adoption, its place and purpose will naturally differ.

 

18. In weighing the need for the consent of the biological parents, we must recall that, even in the case of a minor, parental consent is not an absolute requirement, a fortiori in the case of an adult child.

 

The consent of the natural parents is not the only cause for intervention by the court. The court may also intervene in the family unity if one of the alternatives of section 8(a) of the law are fulfilled, which will justify a declaration by the court that the child is fit for adoption. The Adoption Law provides for a closed list of eight causes that will allow the court, even without the consent of the biological parents, to declare the child as fit for adoption.

 

 

See CA 232/85 supra [9], at 10. A child may be adopted if the court declares him to be fit for adoption, and this procedure has nothing to do with the consent of the biological parents. The court will declare the child to be fit for adoption simply if one of the alternatives provided by the statute are fulfilled. These provisions—as the rest of the statute—were intended for the adoption of a minor child. The section, as such, discusses the responsibilities of a parent towards his children. Non-fulfillment of these responsibilities will cause the parent to be declared unfit to serve as a parent. None of these statutory provisions are relevant for an adult child.

 

19. Despite all this, the Attorney-General was correct in his claim that, when section 25(1) of the law allowed the court to deviate from the statutory requirements, it did not also provide that the court could dispense with section 8(a) or section 13 of the law. As such, it cannot be said that these provisions do not apply in the case of adult adoption. Even so, when applying the provisions of the statute, it is appropriate that we apply them in a manner that is consistent with the case before us.

 

It is possible that there is significance to parts of section 13 of the Adoption Law, which deals with abandonment or neglect of the child or the unsuitability of the parents, even in the context of adult adoption. These sections may apply in the case of an adoptee who is legally incompetent, or who requires care and supervision. See Uniform Adoption Act § 5-101(a)(2)(4) (applying the provisions of the law intended for the adoption of a minor to the adoption of a legally incompetent adult). It is doubtful, however, whether it is possible to establish, in the context of an adult child, that the parents are unfit. Of course, one cannot establish abandonment or neglect in the context of an independent adult child.

 

Moreover, in the case of the adoption of an adult who is not legally incompetent, it is not appropriate that only the Attorney-General, as one who represents the public interest, be able to initiate legal proceedings. In such cases, the potential adoptee is no longer in need of protection and is capable of representing himself.

 

In order to give meaning to the purposes of the law, and in order that it should not be emptied of all significance, we must apply the remaining provisions of the law in a manner appropriate to those purposes. Otherwise, the dissonance between the statute and reality will frustrate the intentions of the legislature.

 

In CA 152/65 [2], this Court had the opportunity to point out the need to fit the provisions of the law to the situation of adult adoption. In that case, a man requested to adopt the child of his wife from a previous marriage. That case did not fit into the provisions of the Children Adoption Law-1960, the statute that was then in force. There, in the context of the restrictions of section 21 of that law, the Court held:

 

It seems to me that the legislature was concerned with ordinary cases. It was not, however, especially concerned with exceptional or improbable cases. As such, it gave the courts the discretion to apply section 21 of the statute to other provisions of the law, in order that that it could find a just solution.

 

Id., at 314 (Kester, J.) Since, in that situation, the court reached the conclusion that justice required the grant of an adoption order, the court also ordered that the adoption order would apply retroactively, “with the result being that the daughter will be considered adopted from the day she petitioned the court or from the day she turned eighteen years old.” Id., at 315.

 

That case reflects an attempt to fit the interpretation of the law to the special circumstances of adult adoption. If the command of the legislature is that the court cannot disregard the requirements of section 8(a) of the law in any case of adoption, then the court should apply that section in a way that it will not lose all significance in the context of the special circumstances before it.

 

The proper balance between the substance of the adoption order, and between the procedures of the statute, demands a restricted interpretation of the alternative requirements of parental consent and the declaration of the child as fit for adoption.

 

20. Section 8(a) of the law provides:

 

The court should not grant an adoption order unless the parents of the child have consented that their child should be adopted, or unless the child has been declared as fit for adoption under section 13 of the law.

 

I believe that, in general, granting the biological parents the possibility of opposing the adoption order is enough to fulfill the requirements of section 8(a). It can be assumed that, in the case of adult adoption, when the adoptee and the potential adopting parents can point, in all honesty and good faith, to the existence of a parent-like relationship between them, a biological parent who opposes the adoption order must point to a concrete and serious injury to his own rights. Any other reason for opposing the adoption order would not be in good faith, and should not be recognized.

 

Even more so, to the extent a biological parent can point to a substantial injury to his rights, this injury, and the resulting opposition to the adoption order, should also be examined from the perspective of the two other participants in the adoption process—the adoptee and the potential adopting parents. In such case, the court should also examine the possibility of responding to the opposition by limiting the consequences of the adoption order, as per section 16(1) of the law.

 

I will add that this conclusion with regard to the station of the biological parent, and to his consent or opposition to the adoption order in the context of an adult adoption, is similar to the position taken by many other jurisdictions that recognize the institution of adult adoption. In many jurisdictions that recognize adult adoption there is no requirement that the biological parents consent to the adoption order. This is the case  in Australia, see Adoption Act, 1993 (ACT) § 27; Adoption of Children Act, 1965 (NSW) § 26(6); Adoption of Children Act (NT) § 27(4); Adoption Act (SA) § 13(2)(b); Adoption Act (Tas) § 19(1)(b); Adoption Act 1984 (Vic) § 15(2); Adoption Act 1994 (WA) § 69, and in New York State, see NY CLS Dom. Rel. § 111(4) (1996). In the State of California the court can issue a notice to any person that may have an interest in the matter, see Cal. Fam. Code. § 9323 (1996). In the State of Florida, the court must issue a notice to the biological parents, see Fla. Stat. § 63.062(5)(b) (1996).

 

21. Even the requirement that the child be declared to be fit for adoption, if this is required as an alternative to parental consent, should correspond to the existence of special circumstances. Such would be the case where the adoption is intended to give legal effect to a long-lasting parent-like relationship that has existed since the child was a minor. In accordance with this approach, the declaration that the child is fit for adoption is only a recognition of existing circumstances.

 

If a parent-child relationship exists, and the biological parents have abandoned or neglected the child, or proven to be unsuitable parents, the court should find that there is cause for adoption, since the child was fit for adoption at the pertinent time—when he was a minor. This is all the more so if this situation has continued into the child's adulthood. In any case, section 8(a) of the law—which requires the consent of the biological parents—and section 13 of the law—which requires that the child be declared as fit for adoption—should be applied in a restricted sense, as appropriate under the circumstances of the case.

 

It should also be pointed out that other statutory requirements may present problems in situations of an adult adoption. This is the case with regard to section 3 of the law, which requires that the two adopting parents be husband and wife. This requirement is also a result of the fact that the law was primarily intended to apply to minors, and the desire to ensure that the minor is cared for by a warm and loving family. The existence of this requirement, however, should not lead to the immediate conclusion that adult adoption is impossible. This section will also only be applied in accordance with the circumstances, each case unto itself.

 

 

Summary: Can an Adult be Legally Adopted?

 

22. Can an adult be legally adopted under the provisions of the Adoption Law? Our conclusion is that the law was not originally intended to serve as an everyday mechanism for the adoption of adults. Even so, the law provided for the possibility of adult adoption under special circumstances. As per the provisions of the law, as they should be interpreted in light of our general legal approach, the adoption of an adult should be allowed as long as it does not injure any protected interests. These protected interests may be the public interests or the interests of an individual. The court should see the “special circumstances” requirement of section 25(1) of the law as fulfilled when adoption reflects the critical needs of the participants in the process, or gives legal expression to an existing parent-child relationship. In any case, the court should not grant an adoption order unless it believes that such would be for the benefit of the adoptee.

 

The preliminary requirements for the granting of an adoption order may not be appropriate for the adoption of an adult, and they should be implemented in accordance with the situation. In general, I should point out that once the legislature has seen fit to provide that an adult may be adopted under “special circumstances,” it should also provide for mechanisms and conditions that would allow the application of this exception.

 

From the General to the Specific

 

23. As in any case before this Court, we have not scoured the perimeters of adoption law except for the purpose of applying them in the concrete circumstances before us. Appellant wishes to adopt Gil, after he has cared for Gil throughout the latter’s formative years, and through his childhood, youth, and adult years.

 

I will not take the approach of the lower court, which held that there were "no facts to justify the existence of special circumstances, and nothing that would justify issuing an adoption order."

 

The appellant, who was the spouse of the biological mother of Gil, wishes to give legal effect to the parent-child relationship that he has had with Gil since the latter was an infant. No one claims that a proper parent-child relationship did not exist. Since the moment that Gil’s father closed his eyes to the existence of his son, the appellant has been there for Gil, through good and bad. The reports of the Israel Children's Society, since 1975, have consistently painted the same picture: that Gil and the appellant have such a parent-child relationship, and that Gil has ceased to have any connection with his biological father. During Gil's childhood, the appellant was Gil's legal guardian. Gil himself submitted a brief to this court, in which he detailed his long relationship with the appellant, and poignantly described how the appellant has supported him in his childhood, in school, in youth groups, on his Bar Mitzvah day, when he enlisted in the Israeli Defense Forces, during the course of his military service, and even after his wedding. Gil's wife and mother have submitted similar briefs.

 

If there be any circumstances at all that could possibly justify adult adoption (aside from one who is helpless or legally incompetent), they are the circumstances we see before us in this case. I hold that the fact presented above present appropriate circumstances for implementing the exception that would allow adult adoption.

 

24. I do not agree with the lower court, which held that the facts did not show that adoption would be in the best interests of the adoptee. The "benefit of the adoptee," in the context of an independent and mature person, can only refer to the wishes of the adoptee, his aspirations and desires, as long as they spring from proper motivations. The term "in the benefit of the adoptee," in the context of a mature and healthy adult, does not have the same meaning as it does in the context of a minor in need of care and supervision. The presumption is that a mature and able adult knows what it is in his own benefit.

 

"Human Dignity" demands that we give weight and standing to the wishes of a man who aspires to give expression to the deep relationship he has had with one who was his father through both happiness and sorrow. These wishes are identical with his "benefit," which the court must honor.

 

As such, there are special circumstances here that justify issuing an adoption order, and that this adoption order is in the best interests of the adoptee.

 

25. Under section 8(a) of the Adoption Law, we must still contend with the alternative requirements of parental consent or of declaring Gil to be fit for adoption. I believe that he facts before us suffice to show cause to declare Gil as fit for adoption. Such cause has existed since Gil was a minor, when the original adoption request was presented. The facts regarding this matter have been presented in the briefs that were presented to the district court as well as in the reports of the Israel Children's Society. These facts suffice to show cause, as per sections 13(4) and 13(5) of the Adoption Law, that Gil could already be declared a fit for adoption during his childhood. As the facts that gave rise to that cause have not changed, Gil may still be declared as fit for adoption, even now. If we hesitate to do so, it is only because Gil's biological father has not been given notice of these proceedings. The way is now open for the appellant to approach the Attorney-General and request that Gil be declared as fit for adoption. And it is appropriate that the Attorney-General accept his request.

 

 

Once this request is submitted, Gil's biological father should be given notice of these proceedings, by being joined to them as a respondent under the Civil Procedure Regulations-1984. This shall give the biological father the opportunity to present his position.

 

If the biological father does not appear—or if he does appear but does not raise any substantive objections—the requested declaration should be granted. After this declaration is granted, there should be no obstacle to granting the adoption order.

 

If my opinion is accepted, the appeal will be granted, in the sense that the circumstances here should be considered "special circumstances" as per section 25 of the Adoption Law, that the grant of the adoption order should be considered to be in the best interests of the adoptee, and that, after a proceeding in which the biological father is given an opportunity to present his position, the court may declare Gil to be fit for adoption, and grant the adoption order as requested.

 

Justice E. Goldberg

 

I agree.

 

Justice T. Strassberg-Cohen

 

I agree.

 

Decided as per the opinion of Justice Beinish.

17 April 1997