Decided in the majority opinion of President Barak, against the opinion of Justice

M. Cheshin.

Today, 16 Av 5762 (July 25, 2002)

 The Supreme Court sitting as Court of Administrative Appeals

AAA 662/11

Before:                                                The Honorable Justice E. Hayut

                                                The Honorable Justice N. Hendel

                                                The Honorable Justice U. Vogelman

The Appellants:                       1.  Yehudit Sela

                                                2.  Sima Ben Haim

                                                3.  Peri Shahaf

                                                4.  Yinon Sela

                                                5.  Yoav Ben Haim

                                                6.  Katy Shilo Oliver

                                                7.  Michael Ayash

                                                8.  David Cohen

                                                9.  Amnon Ben Ami

                                                10. Zachary Grayson

                                                               v.

The Respondents:                   1.  Head of the Kfar Vradim Local Council, Sivan Yehieli

                                                2.  Kfar Vradim Local Council

                                                3.  Oriette Amzalag

                                                4.  Shimon Amzalag

                                                5.  Victor Haziza

                                                6.  Tibi Hertz

                                                7.  Jacques Ben Zaken

                                                8.   Nissim Avital

Appeal of the judgment of the Haifa Administrative Affairs Court (The Honorable Judge R. Sokol) in AP 21404-06-09 of Dec. 23, 2010.

Date of hearing: 29 Adar 5774 (March 31, 2014)

Attorneys for the Appellants: Avi Weinroth, Adv.; Amir Lockshinsky-Gal, Adv.

Attorney for the Respondents: Haim Pitchon, Adv.

Attorney for the State Attorney’s Office: Tadmor Etzion, Adv.

Facts:   An appeal of the decision of the Haifa Administrative Affairs Court, dismissing the petition of the Appellants and holding that the court should not intervene in the decision of the Kfar Vradim local council according to which a women’s mikve (ritual bath) would not be constructed in the town in the near future.

Held:   As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes. In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention.

            It is clear that the council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects.

            Although the council’s decision relied upon the recommendations of the committee for examining criteria for the construction of public buildings in the village, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. However, that does not mean that the council is bound by the recommendations of the criteria committee, which is merely an advisory body. Under the circumstances, the decision to rescind its decision to build a mikve in the village, adopt the recommendations of the criteria committee in full, and refrain from taking action in the near future to establish a mikve in the town does not pass the reasonableness test, and does not reasonably balance the needs of the religiously observant female residents of the community, who are required to fulfil their religious obligation of ritual immersion, against the budgetary considerations and the available land resources.

            The religious obligation of ritual immersion is an integral part of the life of a religiously observant, married woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to the free exercise of religion and religious practice. No mikve has ever been built in Kfar Vradim. Given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the nearby towns on foot.  Under the circumstances, the absence of a mikve in the town deprives the female residents of the town of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community.

            The primary consideration that led to the decision was the limited resources available to the council. In its deliberations, the council could, indisputably, give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, under the circumstances of the instant case, the resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant. Under those circumstances, the weight of the budgetary consideration relative to the opposing interest was limited.

            That being so, in circumstances in which appropriate weight was not given to the substantial harm to the religiously observant, female residents of the town by the absence of a mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was given disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the council due to external funding – The Court held that the council’s decision not to erect a mikve was unreasonable and must, therefore, be annulled.

Judgment

Justice U. Vogelman:

            An appeal of a judgment of the District Court sitting as a Court Administrative Affairs in Haifa (the Honorable Judge R. Sokol), denying the petition of the Appellants, and holding that the court would not intervene in the decision of the local council of Kfar Vradim (hereinafter: the Council or the Local Council) not to erect a mikve for the women of the town in the near future.

Background

1.         The town of Kfar Vradim was established in the western Galilee following a government decision made in 1978. The town currently has some 6,000 residents. Some of the residents (many dozens of families according to the Appellants) define themselves as religious or traditional. In the past, the authority to plan, develop and market building lots in the town was held by the Kfar Vradim Development Corporation Ltd. In 2008, that authority was transferred to the Council. In 2005, the Local Council and the Ma’ale Yosef Regional Religious Council agreed that the former would be responsible for providing religious services in the village, including “family purity and the instruction of brides”. No mikve was ever erected in Kfar Vradim, and the closest mikves [ritual baths] for women are a short drive away, in the neighboring communities. Over the last few years, some of the local residents began working toward the establishment of a mikve in the town.

2.         On March 12, 2007, the National Religious Services Authority in the Prime Minister’s Office (hereinafter: the Authority) undertook to provide an “extraordinary budget” in the amount of NIS 745,000 for the building of a mikve in the town (hereinafter: the EB). The Local Council was asked to approve the Authority’s offer in order to receive the EB, and on May 22, 2007, it decided to approve it on condition that the Authority agree to exempt the Council from any obligation to finance the construction or maintenance of the mikve. The Council then completed the necessary application for receiving the EB – deleting the sections regarding the Council’s obligation to participate in financing – and returned it to the Authority, while emphasizing the condition that the Council not be required to fund the construction or maintenance of the mikve in any way. At the Council meeting, the chairman at the time informed the Council that, in a meeting with the Minister for Religious Affairs, the Minister informed him that the application to receive the EB would not be approved due to the reservations and deletions made in the application, but added and promised that the maintenance of the mikve would be financed by the Religious Services Authority, and that no funding would be required of the Council. In the course of that Council meeting, Mr. Amnon Ben Ami (Appellant 9, hereinafter: the Donor) – a community resident who had contributed monies in the past for the construction of the community’s synagogue – asked that the mikve be attached to that synagogue, and agreed to guarantee that the maintenance of the mikve will not require funding by the Council. At the end of the meeting, the Council decided “to approve the EB as is, without any changes, and in the “Stage B zone” (by the term “Stage B”, the Council was referring to a particular area in the village).

3.         Pursuant to that decision, on Oct. 23, 2008, the Council published a public tender for the construction of the mikve (hereinafter: the Tender). A petition submitted in regard to alleged flaws in the tender process was dismissed on Nov. 6, 2008, following a declaration by the Council that it would not open the bid envelopes until after the elections for the Local Council and until a decision was reached by the new Council in regard to opening the envelopes (AAA 10/08 (Haifa Administrative) Akirav v. Kfar Vradim Local Council (Nov. 6, 20018)). On Nov. 11, 2008, elections were held for the Local Council, in which a new Council head was elected (Respondent 1). On Nov. 16, 2008, the outgoing Council head requested that the Israel Lands Administration suspend the Council’s request to allocate land for the construction of the mikve, and instead, allocate the land for the construction of the Tefen comprehensive high school. This suspension request resulted from a compromise agreement, granted court approval in 2008, under which the Council agreed to allocate land for the construction of the Tefen school in its jurisdiction (AP (Haifa Administrative) 630/08 Association for the Ma’alot and Region Experimental School (R.A.) v. Industrial Local Council Migdal Tefen (Sept. 4, 2008)).

4.         On Dec. 22, 2008, the new head of the Council informed the bidders of the cancellation of the Tender, and the sealed envelopes were returned to the bidders unopened. In the course of February 2009, a decision was taken to change the location for the construction of the Tefen school, and to allocate other land in the town for that purpose. A Council meeting was held on May 13, 2009. In the course of the discussion of the allocation of land for religious purposes, the head of the Council requested the repeal of the decision of the previous Council in the matter, and added that the Tender for the building of the mikve had been cancelled due to a problem concerning the allocation of the land, and because there was no available budget and the Donor had not provided his share. It was further noted that, in the meantime, the Ministry of Religious Services’ commitment to underwrite construction of the mikve had lapsed. At the end of the meeting, the Council decided to repeal the decision of the previous Council from Nov. 18, 2007 in regard to the synagogue and mikve in Stage B (hereinafter: the Repeal Decision). As a result of this decision, several dozen residents organized in order to bring about its repeal. When their efforts failed, they submitted a petition against the Council’s decision to the Haifa District Court in its capacity as a Court of Administrative Affairs.

Proceedings in the Lower Court

5.         In their petition to the lower court, the Appellants argued that the Council’s decision to suspend and cancel the Tender for building the mikve should be annulled, and that the Respondents should be ordered to publish a new tender. A hearing was held on Sept 8, 2009. In the course of the hearing, it was argued, inter alia, that a decision could not be made to construct a mikve, or any other public building, without clear criteria for the allocation of public resources. In the end, a procedural agreement was reached between the parties under which the proceedings in the case would be adjourned for six months, during which the Council would establish criteria for the allocation of land for public buildings and for budgetary support for public purposes. It was agreed that those criteria would “relate to all the needs of the village, including religious needs, among them the construction of a mikve”; and that “in the framework of the criteria that will be established by the Council, the Council will consider the public desire and all the public needs, and will take the public’s constitutional rights into account. In addition, the Council would consider the burden on the public purse […] [and in that regard] the possibility of obtaining public or other funding for the construction of public buildings, including public funding already approved […], and the possibility of combining different needs together in order to reduce and save expenses”. It was made clear that the agreement would not derogate from any of the parties’ claims in regard to the petition itself.

6.         On Dec. 14, 2009, pursuant to the procedural agreement, the Council decided to establish a committee to evaluate the criteria for constructing public buildings in the town (hereinafter: the Criteria Committee or the Committee). The Committee comprised nine members, including representatives of the Appellants. Following five meetings and a public discussion to which the entire community was invited, the Committee presented its conclusions. The Committee decided that the priorities for the construction of public buildings in the town should be based upon a group of criteria, and quantified the relative weight that should be given to each criterion, as follows:

            Criterion                                                                                              Relative Weight

1. Expected number of users                                                                                    30%
2. Necessary for well-being in the town                                                       25%
3. Appropriate to the character of the town                                     25%
4. Cost relative to number of expected users                                                10%
5. Possibility of fulfilling the need in neighboring communities                  10%

            In light of these criteria, the members of the Committee ranked the list of 17 public buildings required by the town. After the mikve placed last under each of the criteria, separately and cumulatively, the mikve was ranked last in priority for the construction of public buildings required for the town.

7.         On April 21, 2010, the Council ratified the Committee’s recommendations, and explained that the priorities would serve as a “compass” for the Council’s decisions in this area, but added that the recommendations do not relieve the Council of its authority to consider each case on its merits. Following the ratification of the recommendations, and in light of the low ranking given to the construction of the mikve, the Appellants submitted an amended petition in which they reiterated the claims made in the original petition, and added claims against the criteria established and the method for ranking public buildings.

The Judgment of the Lower Court

8.         On Dec 23, 2010, the lower court (the Hon. Judge R. Sokol) dismissed the petition and assessed NIS 20,000 against the Appellants for costs. At the beginning of its judgment, the court explained that the fundamental rights of the Appellants to freedom of religion and worship were not in question, but the discussion must be focused upon the question of the criteria for the allocation of public resources in the local authority and the lawfulness of the procedures adopted by the Respondents. The court found that the building of the mikve required the allocation of public resources – land and budget – for construction and maintenance. The court explained that even if the Appellants expect to raise contributions for the project, those contribution are not expected to eliminate the need for public resources, but only to limit the costs. Against this background, the court rejected the Appellants’ claims in regard to the Repeal Decision, as well as the Council’s decision – made following the recommendations of the Criteria Committee – to rank the mikve as the lowest priority in the list of public building construction in the town (April 21, 2010).

9.         As for the Repeal Decision, the court found that since the allocation of land for building of the mikve was contingent upon conditions that were not fulfilled – the money was not provided by the Donor, and the Religious Affairs Authority required an unconditional undertaking that the Council underwrite the construction and maintenance costs – the Council’s decisions were lawfully repealed. Moreover, the Council was at liberty to repeal those decisions inasmuch as they were not made in accordance with the criteria established later in accordance with the Council’s new policy, and because the circumstances under which the decisions were made had changed after it was decided to allocate the land for the building of a school.

10.       All of the Appellant’s arguments against ranking the mikve as the lowest priority for the construction of public buildings were dismissed, as well. As for the claim that there was insufficient factual basis, the court found that the Committee’s reliance upon the data of the Council, upon oral and written public requests, and upon the Committee members’ personal knowledge of the town was reasonable, and that the Appellants had been given an opportunity to present data to the Committee as they wished. It further held that the statements of the Committee members in regard to the town’s future did not testify to the existence of improper considerations in regard to preventing an increase in the number of observant residents in the town, and that that the worldviews of the Committee members in regard to the needs of the community were relevant and required for addressing the matter. As for the Appellants’ claim that the criteria established under the procedural agreement were not included in the final list of criteria, the court held that the procedural agreement could not limit the Council’s exercise of its discretion, and that the said agreement was not intended to establish the criteria, but rather to set out the considerations that the Council should take into account in deciding upon those criteria, which it did. It was further found in this regard that the Council’s decision not to include the availability of resources as a criterion was intended to prevent the use of contributions in order to erect buildings for which there was no real need, and was, therefore, a relevant, legitimate consideration. The court added that the ritual needs of the residents are seen to by the Ma’ale Yosef Regional Religious Council, and that there are mikves in neighboring communities. It held that the absence of a mikve in the town presented a hardship for residents seeking to fulfil the religious obligation of ritual immersion, but it did not prevent the fulfilment of that obligation. Lastly, the court held that, in view of the appropriate judicial restraint to be shown in regard to intervention in administrative discretion, the court should not intervene in the criteria in a manner that would grant priority to the construction of the mikve.

            That is the background that led to the appeal before this Court.

Arguments of the Appellants

11.       The Appellants ask that the Court set aside the judgment of the lower court, annul the Council’s decision of May 13, 2009 (in regard to the EB and the allocation of land for the construction of the mikve), and of April 4, 2010 (in regard to ranking the mikve as the lowest priority for public buildings required in the village), and invalidate the recommendations of the Criteria Committee. The Appellants further ask that we order that the Council erect a public mikve in reliance upon the funding from the Ministry of Religious Services, and apply for an extension for obtaining the EB, as may be necessary.

12.       According to the Appellants, the construction of a mikve in the town will protect the right of the residents to freedom of religion and worship, on the one hand, while not affecting the communal resources, on the other. The Appellants argue that the mikve can be combined with another public building, such that it will not detract from the land available for public use, while its construction and maintenance will be funded through state funding and not from the Council’s budget. Under those circumstances, they argue, the Council’s decision to refrain from building a mikve in the town was disproportionate and unreasonable, and derived from improper, extraneous considerations that arose from a desire to preserve the secular character of the community and keep religiously observant people out of the village. They further raised a series of flaws in the Council’s decision-making process in the matter. The Appellants also argued that there were factual errors in the lower court’s judgment, among them, the finding that the mikve was to be built in reliance upon funding by a private donor (whereas, they argues, the funding was to be provided by the State); the finding that the Appellants claimed only a burden upon their constitutional right to freedom of religion and worship (whereas, according to the Appellants, they claimed a real infringement and absolute denial of the ability to perform the religious obligation on the Sabbath and holidays); the finding that allocating land for the mikve was contingent upon conditions that were not met (whereas the Council decided, on Nov. 18, 2007, to waive the conditions it had previously set for the building of the mikve).

Arguments of the Respondents

13.       The Respondents support the judgment of the lower court. First, they argue that there were no flaws in the work of the Criteria Committee. On point, the Respondents argue that the Criteria Committee rightly decided that the availability of resources should not serve as a criterion for the construction of public buildings, as otherwise, the Council would have to erect every building for which there was outside funding; that the possibility for combining a number of functions in one building should not be considered in the framework of establishing criteria, as it is a preliminary stage; and that the constitutional rights of the residents should not serve, in and of themselves, as a criterion, and it is sufficient that they are taken into account in the framework of the established criteria. It was further argued that, at present, there were other public buildings that remained to be built, for which the residents had long-ago paid the development costs The Respondents are of the opinion that once the parties decided upon the establishing of the Criteria Committee, there was no longer any justification for reexamining the Council’s decisions prior to the establishing of the Committee, and moreover, in light of the decision of the former Council head to build the Tefen school on the lot, the Council had no choice but to cancel the Tender; in any case, the Council is permitted to decide upon a change of policy; and that, in any case, the requisite preconditions for carrying out the repealed decision – full outside funding and available land – were not met.

Proceedings before this Court

14.       On Sept. 6, 2012, a hearing was held on the appeal (E. Hayut, U. Vogelman, Z. Zylbertal, JJ), in the course of which the Court recommended that the parties attempt to settle the dispute amicably and out of court, inter alia, in light of the suggestion that arose in the course of the hearing that it might be possible to build the mikve privately in the town’s commercial center. On Nov. 11, 2012, the parties informed the Court that no agreement had been reached, and that the possibility of building a private mikve as suggested was in doubt inasmuch as it was contingent, inter alia, upon obtaining a zoning variance. Following a further hearing before this panel (E. Hayut, U. Vogelman, N. Hendel, JJ) on Nov. 4, 2013, the Court requested that the State (the Ministry of Religious Services, and, if necessary, the Israel Lands Authority) declare its position on the matter.

15.       The State submitted its reply on Dec. 24, 2013. The reply stated that the Council could submit a request for funding for the construction of a mikve, which would be considered based upon the criteria of the Ministry of Religious Services, and that it was possible to erect a “standard” public mikve in reliance upon state funding. However, it was noted that there are cases in which the local council participates in certain related costs (such as, environmental development and various complimentary costs), and that, as a matter of course, the Ministry of Religious Services requires that the local authority undertake – as a condition for receiving funding – to pay the difference, if any, between the cost of construction and the funding. It was further made clear that there was no need to allocate specific land for the purpose of submitting the application, and that the salary of the mikve attendant would be provided by the Ministry of Religious Affairs, prorated in accordance with the number of users. It was further explained that the state does not participate in the construction or maintenance of private mikves. As far as the allocation of land was concerned, the Israel Lands Authority informed the Court that, after investigating the matter with the engineer of the Lower Galilee Local Building and Planning Committee, it found that there are three lots in the town– lots 718, 720 and 856 – that could be appropriate, in terms of planning, for the construction of a mikve. In light of the above, we were informed that “The State is of the opinion that there is a possible course for the erection of a mikve in Kfar Vradim, the construction of which will be funded (entirely or primarily) by funding from the Ministry of Religious Services. This, if an application is duly submitted on the prescribed dates, and subject to its examination in accordance with the criteria, and its approval”.

16.       Following the State’s reply, the Appellants submitted an urgent request for an interim order. The Appellants asked that we order the Respondents to submit an application to the Ministry of Religious Services for funding for the erection of a public mikve in accordance with the State’s recommendation, in order to meet the timetable for receiving the funding in 2014. The Respondents opposed the request, arguing that they should not be ordered to submit such a request before the matter is approved by the Council in an appropriate administrative procedure. On Dec. 29, 2013, we dismissed the request for an interim order, and ordered that a date be set for a further hearing of the appeal, in which the State’s representative would also participate.

17.       In updated notices submitted on Feb. 28, 2014 and March 3, 2014, the parties informed the Court that the attempt to initiate the erection of a private mikve had failed due to the Local Council’s decision to deny the request for a zoning variance, and that it the possibility of obtaining such a variance was now unclear inasmuch as it would only be possible to resubmit the request after the completion of the parcelization process for the commercial center. We were further informed that the parties remained divided on the issue of allocating Council resources for the construction and maintenance of a public mikve.

18.       On March 31, 2014, this panel conducted a further hearing of the appeal, in which the attorney for the Respondents claimed that there were planning and practical problems in regard to constructing the mikve on lot 856, which had been mentioned in the State’s reply. At the conclusion of the hearing, we ordered that the Respondent’s attorney submit a notice to the Court, no later than April 6, 2014, detailing the planning and other problems cited in his arguments in regard to lot 856, which had been found suitable, in terms of planning, for the erection of a mikve, as well as in regard to the other lots in the area that might be suitable, and that the State’s attorney then submit an updated notice in regard to the possibility for allocating a lot for the erection of a mikve.

19.       On April 6, 2014, the Respondents submitted an update in which they informed the Court that it would not be possible to build a mikve on lot 856, inasmuch as it would require a new urban development plan and the adjustment of infrastructures; because the type of use of the buildings surrounding the lot was not appropriate for the building of a mikve; and because part of the lot had been sold to a private individual. Therefore, according to the Respondents, the possibility of building the mikve in the commercial center would be preferable, since work on the project had begun (without a permit). On May 1, 2014, the State submitted a further notice in which it stated that building a mikve of lot 856 was possible. The State explained that there are no current negotiations for the transfer of parts of the lot to private hands; there is no need for a new, detailed plan for erecting a mikve, as the current plan is sufficient; and that nothing about the type of use of the surrounding lots would prevent the building of a mikve on the lot. It further noted that a mikve could also be built of lots 718 and 720, both from a planning and practical point of view. The State further explained that building a mikve in the area of the commercial center would involve planning and practical problems: under the relevant plan, the area is zoned for “commercial purposes”, and therefore the erection of a mikve would require initiating planning proceedings in order to change zoning; the proximity to commercial areas is incompatible with the operation of a mikve; and the ownership of the lot and construction violations had yet to be resolved. As for funding the building of the mikve, the Council could submit an application for funding to the Ministry of Religious Services for 2015, which would be reviewed in accordance with the Ministry’s criteria that would be published in the final months of the current year.

Deliberation and Decision

            Is the Kfar Vradim Council’s decision to rescind its decision to erect a mikve in the town and refrain from acting towards its construction compatible with the rules of public law? That is the question that we must decide.

The Scope of Judicial Review over a Local Authority’s Decision in regard to Allocating Public Resources

20.       The Kfar Vradim Council is a local council authorized to decide how resources will be allocated, subject to the provisions of the law. Indeed, “What use a local authority will make of its property, and to what extent will it permit an individual to use it and when will it refuse, is the question that the authority itself, through its elected representatives, is authorized to decide” (HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council, 16 IsrSC 2101, 2114 (1962) (hereinafter: the Peretz case)). As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes (whether we are concerned with a local authority or a governmental authority). In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention. Such restraint is a corollary of the principle of the separation of powers. In this regard, the words of Justice S. Netanyahu are apt:

“The Court will not instruct the authority how to allocated and divide its resources. Requiring an expenditure for a specific purpose must come at the expense of another, perhaps more important, purpose, or perhaps, require enlarging the budget it is granted by the state treasury, which must then come at the expense of other, perhaps more important, purposes. This Court is not the authorized body, and cannot treat of the allocation of the public’s resources” (HCJ 3472/92 Brand v. Minister of Communications, 47 (3) IsrSC 143, 153 (1993) (hereinafter: the Brand case); and see HCJ 2376/01 Federation of Local Authorities in Israel v. Minister of Science, Culture and Sport, 56 (6) IsrSC 803, 811 (2002)).

            Despite the broad reach of discretion and the narrow scope of judicial review that it implies, it is clear that the Council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. As Justice H. Cohn put it:

“The private sphere is not like the public sphere. In the former, one grants at will and denies at will. The latter exists for no reason other than to serve the public, and has nothing of its own. All it has is held in trust, and it has no other, different or separate rights or obligations than those that derive from that trust or that are granted or imposed by the authority of statutory provisions” (HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem, 25 (1) IsrSC 325, 331 (1971); and see HCJ Israel Contractors and Builders Center v. State of Israel, 34 (3) IsrSC 729, 743 (1980); the Peretz case, at p. 2115).

Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria (see: HCJ 3638/99 Blumethal v. Rehovot Municipality, 54 (4) IsrSC 220, 228 (2000); HCJ   5325/01 L.K.N. Association for the Advancement of Women’s Basketball v. Ramat Hasharon Local Council, para. 10 (June 2, 2004); AAA 5949/04 Mercaz Taxi Ltd. v. Hasharon Taxi Service Ltd., para. 16 (Nov. 28, 2005); and see and compare: HCJ 59/88 Tzaban v. Minister of Finance 42 (4) IsrSC 705, 706 (1989); HCJ 637/89 A Constitution of the State of Israel v. Minister of Finance, 46 (1) IsrSC 191, 200 (1991); HCJ 5023/91 Poraz v. Minister of Construction and Housing, 46 (2) IsrSC 793, 801 (1992); and also see: Dafna Barak-Erez, Administrative Law, 231-235 (2010) (Hebrew); Yitzhak Zamir, The Administrative Authority, 246-248 (2d ed., 2010) (Hebrew); for the anchoring of these principles in the Directives of the Ministry  of the Interior, see: Circular of the Director General of the Ministry of the Interior 5/2001 “Procedure for the allocation of land and buildings without or for minimal consideration” 4-11 (Sept. 12, 2001)). Before reaching a decision on the allocation of public resources, the authority is required to “establish for itself priorities and precedences, and rules and guiding criteria for their application, which must meet the test of reasonableness, and which it must apply equally. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects” (the Brand case, at p. 153).

We will now turn to an examination of whether the decision of the Local Council in the case before us was taken in a proper administrative process, and whether it falls within the scope of the discretion granted the Council.

Review of the Decision of the Local Council

21.       I will begin with the conclusion before presenting the analysis: In my opinion, the Council’s decision not to move forward with the building of a mikve for women in the town in the near future does not pass the reasonableness test. Under the special circumstances of the case, I find that the Council’s decision did not reasonably balance the need of religiously observant women to observe the religious obligation of immersion against the budgetary considerations and the available land resources. Under these circumstances, addressing the other claims of the Appellants in regard to flaws that they believe fell in the decision-making process is superfluous, as I shall explain.

22.       As we know, an administrative decision is reasonable if the decision is made as a result of a balance between relevant considerations and interests that have been given appropriate weight under the circumstances (see HCJ 389/80 Golden Pages Ltd. v. Broadcasting Authority, 35 (1) 421, 437 (1981)). Indeed, “A decision may be flawed even when the authority weighed only the relevant considerations, without a hint of an extraneous consideration in its deliberations, if the internal balance among the considerations and the internal weight assigned to each consideration were distorted” (HCJ 1027/04 Independent Cities Forum v. Israel Lands Authority Council, para. 42 (June 9, 2011); Barak-Erez, at p. 725). Examining the reasonableness of the Council’s decision therefore requires that we look at the nature of the considerations that it weighed when it reached that decision, upon the manner of striking the balance, and upon the weight assigned to each consideration. Although the Council’s decision relied upon the recommendations of the Criteria Committee established to set criteria for the construction of public buildings in the town, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits.

23.       What weight was the Council required to assign to the recommendations of the Criteria Committee in examining the possibility of acting to erect a mikve in the village? Having established the Criteria Committee for that purpose, the Council was required to take note of the Committee’s recommendations in deciding upon the manner for allocating the town’s resources. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. It is decided law that “in the absence of an administrative flaw in the opinion of the advisory body, special reasons and extenuating circumstances are required in order to justify deviation from its opinion, especially when the authority is the one that established the advisory body and authorized it to carry out its task” (HCJ 5657/09 The Movement for Quality Government in Israel v. Government of Israel, para. 48 (Nov. 24, 2009); and see HCJ 8912/05 Mifgashim Association for Educational and Social Involvement v. Minister of Education, Culture and Sport, para 16 (March 14, 2007)). However, that does not mean that the Council is bound by the recommendations of the Criteria Committee, which is merely an advisory body. On the contrary, the Council is required to exercise its discretion independently. As Justice Y. Zamir aptly stated: “[…] a recommendation is only a recommendation. In other words, a recommendation does not exempt the authority from the duty to exercise its own discretion. The authority must weigh the recommendation and decide if it would be appropriate, under the circumstances, to accept or reject the recommendation” (HCJ 9486/96 Ayalon v. Registration Committee under the Psychologists Law, 5737-1977, 52 (1) IsrSC 166, 183 (1988); and for a more detailed discussion, see Zamir, at pp. 1219-1222).

24.       Thus, the Local Council was required to examine each request to erect a public building individually, on the basis of the recommendations of the Criteria Committee, while taking into account all the considerations relevant to the decision. In the matter before us, the Council did not discuss the possibility of proceeding with the erection of the mikve in the town in its meeting on April 21, 2010, and from the documents submitted to us, it would appear that this possibility was also not addressed on its merits in the meetings held thereafter. In fact, it would appear that in the Council’s opinion – as can be inferred from the responses that it submitted throughout the proceedings in this case – there was no need for any concrete consideration of the possibility of erecting a mikve in the town once the project was ranked last in the list of public priorities. From the moment that the Council failed to consider the request to erect a mikve in the town on its merits, not deciding to consider the subject of erecting a mikve in the town in the near future was tantamount to a “decision” as defined by law (see sec. 2 of the Administrative Courts Law, 5760-2000, according to which the lack of a decision is deemed a “decision of an authority”; and see HCJ 3649/08 Shamnova v. Ministry of the Interior, para. 3 (May 20, 2008)). Against the said background, the question before us is whether, under the circumstances of the instant case, the Council’s decision to rescind its decision to build a mikve in the village, to accept the recommendations of the Criteria Committee in toto, and therefore refrain from acting in the near future toward the erection of a mikve in the village, does not deviate from the scope of its discretion.

The Reasonableness of the Council’s Decision – The Proper Balance of Relevant Considerations

A.        Considerations supporting the erecting of a mikve in the town – the needs of the religiously observant residents

25.       Section 7 of the Jewish Religious Services Law [Consolidated Version], 5731-1971 (hereinafter: the Jewish Religious Services Law) provides that the religious councils of the local authorities are competent to provide for the religious services of the residents. The subject of “family purity”, which concerns the operation of ritual baths, is among the religious services for which the religious councils are responsible (see: HCJ 516/75 Hupert v. Minister of Religion, 30 (2) IsrSC 490, 494 (1976); HCJ 6859/98 Ankonina v. Elections Official, 52 (5) IsrSC 433, 447-448 (1998); HCJ 4247/97 Meretz Faction in the Jerusalem Municipal Council v. Minister of Religious Affairs, 52 (5) IsrSC 241, 251 (1998); HCJ 2957/06 Hassan v. Ministry of Building and Housing – Religious Buildings Development Section (July 16, 2006); Shelly Mizrachi, Religious Councils 7-6 (Knesset Research and Information Center, 2012) (Hebrew); Hadar Lifshits and Gideon Sapir, “Jewish Religious Services Law––A Proposed Framework for Privatization Reform”, 23 Mehkarei Mishpat - Bar-Ilan Law Studies 117, 147-148, 153-154 (2006) (Hebrew)).

26.       Mikve services for women are necessary to maintaining the religious lifestyle of Israel’s religiously observant population. Ritual immersion in a mikve is a vital need for those who observe the laws of “family purity”, which require a women to immerse in a mikve after her monthly period. As is commonly known, the observance of the religious obligation of immersion is deemed very important in Jewish law, to the extent that religious decisors have ruled that erecting a mikve takes precedence even over erecting a synagogue (Yalkut Yosef, Reading the Torah and the Synagogue, secs. 152-153) (Hebrew). The obligation to immerse in a mikve forms an integral part of the life of an observant, married Jewish woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to freedom of religion and worship, which our legal system has recognized as a fundamental right of every person in Israel, although the case law has not yet established that it imposes a positive obligation requiring that the State allocate public resources for the provision of religious services. In the framework of this appeal, I will not attempt to provide a precise definition of the interrelationship between the right to freedom of religion and worship and the State’s obligation to provide religious services, as in any event, as will be explained below, an administrative review of the authority’s decision in this case, in accordance with the accepted standard of review, leads to the granting of the appeal (on the recognition of the importance of the right to freedom of religion and worship in this Court’s decisions, see: CrimA 112/50 Yosifof v. Attorney General 5 (1) IsrSC 481, 486 (1951) [http://versa.cardozo.yu.edu/opinions/yosifof-v-attorney-general]; HCJ 866/78 Morad v. Government of Israel, 34 (2) IsrSC 657, 663 (1980); HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, 34 (2) IsrSC 657, 663 (1980); HCJ Foundation of the Movement for Progressive Judaism in Israel v. Minister of Religion, 43 (2) IsrSC 661, 692 (1989); HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 3261/93 Manning v. Minister of Justice, 47 (3) IsrSC 282, 286 (1993); HCJ 4298/93 Jabarin v. Minister of Education, 48 (5) IsrSC 199, 203 (1994); HCJ 257/89 Hoffman v. Director of the Western Wall, 48 (2) IsrSC 265, 340-341 (1994); HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority, 55 (4) IsrSC 267, 277 (2001) [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r... HCJ 11585/05 Israel Movement for Progressive Judaism v. Ministry of Absorption, para. 16 (May 19, 2009); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras. 71-72 (Aug. 1, 2010); and see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter-Rights, vol. 2, 769-774 (2014) (Hebrew) [published in English translation as: Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge, 2015)]; Amnon Rubenstein and Barak Medina, The Constitutional Law of the State of Israel, 354-378 (6^th ed., 2005) (Hebrew); Daniel Statman and Gideon Sapir, “Freedom of Religion, Freedom from Religion and the Protection of Religious Feelings”, 21 Mehkarei Mishpat - Bar-Ilan Law Studies 5, 7-38 (2004) (Hebrew)).

27.       As noted, there is no religious council in Kfar Vradim (the Ma’ale Yosef Regional Religious Council is responsible for providing religious services in the town, under an agreement signed in 2005 with the Local Council). Therefore, the Appellants directed their request to the Local Council. No mikve has ever been built in Kfar Vradim, and the religiously observant residents of the town must travel to neighboring towns in the Ma’ale Yosef Regional Council District in which there are mikves, and that are a short drive from the town. According to the Respondents, inasmuch as there are mikves in the neighboring towns, the harm to the ability of the town’s religiously observant residents in observing the obligation of immersion is not significant, and is merely an inconvenience. It is further argued that even if there were a mikve in the town, due to the town’s topography and the winter weather, the residents would have to drive to the mikve and could not go on foot. And in any case, the ratio of the number of mikves in the area relative to the population is among the highest in the country when compared to various cities. As opposed to this, the Appellants argue that we are not concerned with a mere “inconvenience” but with an absolute denial of the possibility of performing the religious obligation of ritual immersion. They argue that the absence of a mikve in the town deprives women whose day of immersion falls on a Sabbath eve or on a holiday from performing the obligation at its prescribed time. It is argued that when the immersion day falls on a Sabbath eve or on a holiday, one cannot drive to the mikve, and since it is practically impossible to walk to the neighboring mikves, the possibility of observing the obligation of immersion on such days is entirely denied them. In this regard, the Appellants explain that Jewish religious law ascribes supreme importance to the observance of the obligation of immersion at its prescribed time, because “[…] it is a religious obligation to immerse at the prescribed time so as not to refrain from procreation even for one night” (Shulhan Arukh, Yoreh De’ah, Laws concerning Niddah, 197:2). It is further argued that the said harm is exacerbated because not immersing at the prescribed time deprives the observant families of the ability to observe the obligation of onah (marital relations), sometimes for several days (when holidays coincide with the Sabbath eve). Lastly, the Appellants argue that the absence of a mikve in the town even makes it difficult to observe the obligation of immersion on weekdays, as there is no available public transportation by which one can travel to the mikves in the neighboring communities.

28.       After considering the arguments, I find that given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the neighboring communities on foot.  Under the circumstances, the absence of a mikve in the town cannot be said merely to “inconvenience” the religiously observant residents. The absence of a mikve in the town – given its particular circumstances – completely deprives the female residents of the town whose prescribed day of immersion falls on a Sabbath eve or holiday of the ability to perform the religious obligation of immersion at its proper time, and as a result, also deprives them of the possibility of performing of the religious obligation of onah. Thus, the women of the town are deprived of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community, and which is substantively connected to the expression of their personal and group identity. As Justice E. Arbel aptly stated:

“We recognize the importance of a mikve for the public, and certainly for the public that uses it. The mikve is of great importance for the traditionally observant family unit, and the authorities are required to provide this service for the interested public as part of the provision of religious services by the authorities. It is also important that the mikve be situated within reasonable walking distance from the homes of the public, for those who are Sabbath observant. However, these considerations, that should not be underestimated, must be weighed against other needs that are of public importance, and against the character of the community that resides in the place, as well as against other alternatives for the erection of public buildings, as noted” (AAA 2846/11 Rehovot Religious Council v. Claudio, para. 19 (Feb. 13, 2013) (hereinafter: the Claudio case).

            Thus, the need of the religiously observant female residents to observe the obligation of ritual immersion at its prescribed time – a practice whose realization derives from the autonomy granted every person, as such, to follow the dictates of her conscience and faith, and observe the rules and customs of her faith – must be granted significant weight in the framework of the decision-making process in regard to the erection of public buildings in the town (compare: the Gur Aryeh case, at p. 278). However, the need of the religiously observant residents for the erection of a mikve in the town must be balanced against the opposing considerations. What, then, are the opposing considerations that tilted the scales in favor of the Council’s decision not to move forward on the construction of a mikve in the town in the near future?

B.        The “Budgetary” Consideration

29.       As best we can understand from the Respondent’s response, the primary consideration that led to adopting the decision was the limited public resources available to the Council. According to the Respondents, the construction of a mikve in the town would require that the Council allocate public monies and land at the expense of other public construction of greater importance. Indeed, “it is decided law that a public authority may, and even must, consider budgetary restrictions in the framework of its discretion, as part of its public obligation” (see: HCJ 3071/05 Louzon v. Government of Israel, 63 (1) IsrSC 1, 39-40 (2008) [http://versa.cardozo.yu.edu/opinions/louzon-v-government-israel]; HCJ 3627/92 Fruit Growers Association v. Government of Israel, 47 (3) IsrSC 387, 391 (1993); HCJ 2223/04 Nissim v. State of Israel, para. 29 (Sept. 4, 2006); HCJ 9863/06 Association of Combat Leg Amputees v. The State of Israel, para. 13 (July 28, 2008); HCJ 1662/05 Levi v. State of Israel, para. 51 (March 3, 2009); Barak-Erez, at pp. 661-663, 745-746; Aharon Barak, Proportionality in Law: Infringing Constitutional Rights and its Limits, 460-461 (2010) (Hebrew) [published in English translation as Proportionality: Constitutional Rights and their Limitations (Cambridge, 2012)]).  In the matter before us, among its considerations, the Council could certainly give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, as shall be explained below, under the circumstances of the instant case, the Council resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant.

30.       In regard to the allocation of land for the construction of the building, the State informed us that there are, at present, at least three available lots in the town that would be appropriate for the construction of a mikve, in terms of both existing planning and practicality. In addition, there is a possibility – that the Respondents do not deny – of incorporating the mikve in other public buildings. In such a case, building the mikve will not come at the expense of public land earmarked for other purposes. As for financing, the matter can be divided into two parts: the monies required for constructing the building, and the monies needed for maintenance. As far as financing the construction is concerned, it is clear from the State’s response that if the Council’s application for funding the construction of a mikve is approved – and there is no reason to believe that it will not be reapproved, in light of the letters from the Ministry of Religious Services and the fact that an EB was already approved in the past for the construction of a mikve in the town – the construction of the mikve will be financed from state funds, and not from the Council’s budget. The Local Council will incur expenses only if the cost of construction exceeds the funding due to deviation from the budgetary framework, or if it will be required to bear certain related costs (such as environmental development and complementary costs). As for maintenance costs, according to the State’s response and the letters from the Ministry of Religious Services, the salary of the mikve attendant will be paid from the budget of the Ministry of Religious Services, prorated to the number of users, while maintenance (electricity, water, etc.) will be funded in part by users’ fees collected by the attendant. Thus, the Council can expect to pay only a small, insignificant part of the ongoing expenses of maintaining the building. Under these circumstances, in which the construction and maintenance are barely likely to come at the expense of the limited resources of the Council, the weight of the budgetary consideration is limited relative to the opposing interest.

2.         Preserving the Secular Character of the Town

31.       The parties are divided on the question of whether the Council’s decision gave weight to the consideration of protecting the town's secular character. According to the Appellants, the main consideration that grounded the Council’s decision not to erect a mikve in the town was the desire – that they consider an extraneous, improper consideration – to preserve the secular character of the town and to keep the religious community away. As opposed to this, the Respondents claim that the consideration of preserving the secular character of the town had no weight in the Council’s decision. The question if and under what circumstances a local authority may entertain the consideration of preserving a particular character of the town is complex (and compare: HCJ 528/88 Avitan v. Israel Lands Administration, 43 (4) IsrSC 297 (1989); HCJ 4906/98 “Am Hofshi” Association for Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing, 54 (2) IsrSC 503, 508-509 (2000); and for an opposing view: HCJ 6698/95 Ka’adan v. Israel Lands Administration, 54 (1) IsrSC 258 (2000) [http://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-admin... and see: HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister for Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras 68-90 (Aug. 1, 2010); the Claudio case, at para. 12; Statman and Sapir; Gershon Gontovnik, Discrimination in Housing and Cultural Groups, 113-127, 201-209 (2014) (Hebrew)). We need not decide this issue in the matter before us, as even if we assume – to the Respondent’s benefit – that the consideration of preserving the town’s character carried no weight in the Council’s decision – as they claim – the decision must, nevertheless, be voided because it did not strike a proper balance between the considerations that were taken into account even according to the Respondents, as we shall explain below.

C.        Balancing the various Considerations and Examining the Reasonableness of the Decision

32.       Having reviewed the considerations on both sides of the scales, all that remains is to examine whether the decision struck a reasonable balance between those considerations. In doing so, we should bear in mind that such balancing does not, generally, lead to a single, reasonable result. Indeed, the Council enjoys some latitude in which different and even opposing decisions may coexist. However, in the circumstances of the instant case, I find that the Council’s decision not to act toward the erecting of a mikve in the town does not fall within that discretionary latitude. As is commonly known, the weight to be assigned to budgetary considerations is examined, inter alia, in relation to the importance of the opposing rights and interests (see: Barak-Erez, at pp. 746-747; and also see the citations at fn 86, loc. cit.). In the matter before us, the harm to the religiously observant women in the town, which I discussed above, is of significant force, whereas the “price” involved in erecting the mikve is minor. In this context, we should recall that the Council already decided several years ago to erect a mikve in the town, but chose to rescind that decision for “budgetary” reasons that would seem no longer to exist. In this situation, the Council’s decision not to erect a mikve in the near future does not grant adequate weight to the harm caused to the religiously observant women, to the availability of external funding that would render the burden upon the Council insignificant, and to the possibility of incorporating the construction of the mikve within the framework of a building with another purpose, in a manner that would limit the need for a separate allocation of public land, and preserve it for other, necessary public purposes.

33.       In the final analysis, in the circumstances of the present case, in which appropriate weight was not assigned to the substantial harm to the religiously observant, female residents of the town due to the absence of mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was granted disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the Council due to external financing, I find that the Council’s decision not to erect a mikve was unreasonable and must, therefore, be quashed. In light of the long “history” of the proceedings in this matter, we do not find it appropriate to remand the matter to Council, yet again, inasmuch as, under the circumstances, the decision required is the erection of the mikve with due haste (and compare, for example: HCJ 1920/00 Galon v. Release Board, 54 (2) IsrSC 313, 328 (2000); HCJ 89/01 Public Committee against Torture in Israel v. Release Board, 55 (2) 838, 878 (2001); AAA 9135/03 Council for Higher Education v. Haaretz, 60 (4) IsrSC 217, 253 (2006) [http://versa.cardozo.yu.edu/opinions/council-higher-education-v-haaretz]; AAA 9353/10 Yakovlev v. Ministry of the Interior, para. 19 (Dec. 1, 2013).

Conclusion

34.       Given the conclusion reached, I would recommend to my colleagues that we grant the appeal such that the judgment of the lower court be reversed and the appeal granted. The Kfar Vradim Council is ordered to act immediately to erect a mikve on one of the lots in the town listed in the State’s reply – or some other lot that it may find appropriate – such that construction will commence as soon as possible, and no later than a year and a half from the date of this judgment. The Council may submit an application for funding support for the erection of the mikve from the Ministry of Religious Services with due speed. Respondent 2 will pay the Appellants’ costs in both instances in the amount of NIS 25,000.

                                                                                                            Justice

Justice E. Hayut:

I concur.

                                                                                                            Justice

Justice N. Hendel:

I concur.

                                                                                                            Justice

Decided in accordance with the opinion of Justice U. Vogelman.

Given this 14^th day of Elul 5774 (Sept. 9, 2014).

HCJ 5228/14

Petitioner:                                B'Tselem - The Israeli Information Center for Human Rights in the Occupied Territories

                                                                        v.

Respondents:                          1. Broadcasting Authority

                                                2. Director General of the Broadcasting Authority   

                                                3. Appeals Committee under reg. 6 of the Broadcasting Authority Regulations

                                                4. Minister of Communications

Attorneys for the Appellants: Hagai Kalai, Adv.; Gilad Barnea, Adv.

Attorneys for Respondents 1 - 3: Moti Arad, Adv.; Meirav Eliahu, Adv.   

Attorney for the Attorney General: Shosh Shmueli, Adv.

The Supreme Court sitting as High Court of Justice

4 Av 5774 (July 31, 2014)

Before: Justice E. Rubinstein, Justice N. Hendel, Justice U. Shoham

Petition for an Order Nisi

Mini-Ratio: The infusion of political matter into advertisements should be limited to the utmost extent. Even under the approach that does not entirely preclude informational broadcasts as opposed to political persuasion, a broadcast of a partial list of the names of Palestinian children killed in Operation Protective Edge would clearly fall within the scope a “prohibited broadcast” under rule 2(7), as being “on a matter which is the subject of public political-ideological controversy”, inasmuch as it is intended for political persuasion and not purely informational.

Broadcasting – Content of broadcasts – Political advertisements

Communications – Broadcasting Authority – Commercials

Constitutional Law – Individual rights – Freedom of expression

A petition seeking to quash the decision of the Broadcasting Authority to preclude the broadcasting of a commercial by B’Tselem comprising a partial list of the names of Palestinian children killed in the course of Operation Protective Edge. The dispute concerned whether this commercial constituted a prohibited broadcast under rule 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993, concerning – inter alia – “a broadcast on a matter which is the subject of public political-ideological controversy”.

The High Court of Justice (per E. Rubinstein J., N. Hendel and U. Shoham JJ. concurring) denied the petition, holding:

In accordance with the case law, the infusion of political matter into advertisements should be limited to the utmost extent, in keeping with the view that paid advertising, per se, does not fall within the scope of freedom of expression. Even if the case law has not hermetically barred advertising of a political character that is not of a persuasive nature, that approach has been significantly restricted in holding that the dominant factor test must be narrowly construed so as to prevent the infiltration of a political current into advertising. At the end of the day, we are concerned with the “reasonableness and common sense” test, and there is no need for a new test. The ruling in the Hamateh Lehatzalat Ha’am Veha’aretz case is sufficient, and the narrower it is construed the better. Even under the approach that does not entirely preclude informational broadcasts as opposed to political persuasion, a broadcast of a partial list of the names of Palestinian children killed in Operation Protective Edge would clearly fall within the scope a “prohibited broadcast” under rule 2(7), as being “on a matter which is the subject of public political-ideological controversy”, inasmuch as it is intended for political persuasion and not purely informational. In this regard, Hendel J. added that the timing of the broadcast – during a period of combat – intensifies not only the purpose of the broadcast, but also its objective significance. In conclusion, the Court noted that the relevant authorities would be well advised to establish clear procedures in this matter.

Judgment

Justice E. Rubinstein:

1.            Does the broadcasting of an advertisement by B’Tselem that comprises partial lists of the names of Palestinian children killed in “Operation Protective Edge” constitute a prohibited advertisement under rule 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993, which concerns, inter alia, “a broadcast on a matter which is the subject of public political-ideological controversy”? That is the question before the Court in this petition.

Background

2.            On July 16, 2014, B'Tselem - The Israeli Information Center for Human Rights in the Occupied Territories (hereinafter: B’Tselem) requested that Shapam-Afikim Ltd. – through which the Broadcasting Authority carries out advertising on Israel Radio broadcasts – approve a broadcast on its behalf. This is the content of the broadcast:

In the course of Operation Protective Edge, the following children were killed: Muhammad Malekeh, two years old; Siraj Al-‘Al, 8; Basem Kaware, 10; Amal al-Batsh,2; Saher Abu Namus, 4. A partial list. B’Tselem.

Similarly, the requested broadcasts included additional lists of children.

3.            On July 17, 2014, a reply was sent to B’Tselem by Advocate Tomer Karni, Deputy Legal Advisor of the Broadcasting Authority, stating that he was of the opinion that the broadcast was prohibited as it fell within the scope of the prohibition established under the said rule 7(2). Advocate Karni’s decision stated:

While the broadcast comprises facts (on the assumption that the details are correct), nevertheless, we are clearly concerned here with part of a political campaign. The reporting of the names of casualties belongs in a news broadcast, where it is subject to the recognized rules for journalistic coverage and reporting, and not in the framework of an advertisement financed by a third party. It is also clear that the purpose of the broadcast is not merely journalistic reporting, but the communication of a particular political message. The war situation further emphasizes this. In light of the above, I am of the opinion that the broadcast falls within the scope of the prohibition under rule 7(2) of the advertisements rules, a broadcast which is the subject of public political-ideological controversy.

4.            Pursuant to that decision, B’Tselem filed an appeal under rule 6 of the Broadcasting Authority Rules. We would note procedurally that – under rules 3-5 – the decision is to be made by the Director General, and the appeal is to be submitted to an appeals committee (rule 6). The appeal argued that while it would be proper for the names to be reported in the news broadcasts, the various Israeli media outlets, among them Israel Radio, “are absolutely and unreasonably strict in not identifying Palestinian casualties by name”, and therefore B’Tselem must purchase advertisements “in order to inform the public of these facts”.

5.            Rather than conduct a hearing of the appeal, on July 22, 2014, in a letter headed “Appeal of the Prevention of a Broadcast on Israel Radio and Unlawful Rejection of the Broadcasting of the names of Killed Palestinian Children”, the Director General of the Broadcasting Authority, Mr. Yoni Ben Menachem, rejected the appeal, under unclear authority (unless it is seen as a reconsideration of the decision of Advocate Karni) for the stated reason that “although the advertisement comprises facts, the context of the matter is the subject of political controversy, and it is therefore my opinion that the requested advertisement cannot be broadcasted.” It was noted that the decision was based upon rule 7(2), and that B’Tselem had the right to appeal the decision before the appeals committee headed by the Chairman of the Authority, Dr. Amir Gilat. An additional appeal was submitted that very day.

6.            On July 23, 2014, the appeals committee held an urgent telephone conference with the participation of: Amir Gilat, Geulah Avidan and Yaakov Borofsky, together with the Director General of the Broadcasting Authority and Advocate Karni. The committee decided to reject the appeal, holding that, for the following reasons, there was no defect in the Director General’s decision: we are concerned with a political broadcast intended to circumvent the news broadcasts; the seemingly neutral reading of the names has a political cast due to B’Tselem being political in character; it is highly probable that the broadcast will raise political controversy in a time of war; the broadcast impliedly supports the position of the Hamas that Israel is responsible for the deaths of civilians in the Gaza Strip; the absence of mention of Israeli casualties, and the statement “partial list” point to a lack of objectivity or, alternatively, to political protest; broadcasting the advertisement would open the door to demands by other parties seeking to use the advertising platform; the use of advertising to circumvent the news broadcasts should not be permitted.

               In light of the appeals committee’s decision, on July 28, 2014, B’Tselem submitted the current petition asking to quash the Broadcasting Authority’s decision to forbid the broadcast.

Pleadings

7.            The petition argues that the dominant factor of the precluded broadcast is factual, that therefore the broadcast meets the test established in the case law, and Respondents 1 -3 do not have the authority to prevent its broadcast. B’Tselem also disagrees with defining the broadcast as “controversial” inasmuch as, in its view, the broadcast is purely informative. It is argued that since the Broadcasting Authority does not fulfill its duty to provide balanced public broadcasting, B’Tselem seeks to expose the public to relevant information by means of the advertisement. It is further argued that disallowing the broadcast breaches the public’s right to know and receive information needed to form its opinion and position. It is further stated that the decision to preclude the broadcast is discriminatory, inasmuch as similar broadcasts were recently made on behalf of the Mateh Lehosen Leumi, supporting the fighting, and by the Chabad-Lubavitch Youth Movement, calling for donning tefillin [phylacteries]. From a legal perspective, it is argued that, in accordance with the case law, freedom of expression and the public’s right to know justify the broadcast. We are not concerned with the portrayal of a spectrum of opinions in accordance with the “fairness doctrine”, but rather with revealing information without any attempt at persuading, and therefore the matter does not deviate from the bounds of the case law. It is argued that the very fact that revealing the information may lead to controversy does not constitute grounds for preventing it, and in any case, we are concerned with giving the public access to information that is not provided to the public by the majority of communications media.

8.            On July 28, 2014, Justice Zylbertal scheduled the appeal for a hearing on July 31, 2014, and the Respondents were asked to respond to the petition by July 30, 2014.

9.            In their preliminary response (July 30, 2104), Respondents 1 -3 argued that freedom of expression does not grant a right to its realization specifically by means of paid political advertising, and that the high road for airing political expression – as established by the case law – is by means of the broadcasts themselves and not by means of advertising. It was further argued that on July 23, 2014, B’Tselem uploaded the advertisement on YouTube and garnered some 300,000 views and some 900 shares, such that B”Tselem cannot claim an infringement of freedom of expression. It was also argued that the broadcast was purely political and therefore prohibited under the provisions of the law and by the case law. Moreover, inasmuch as the broadcast is intended to agitate the public and bring about a change in Israeli public opinion in regard to the operation, it was argued that the broadcast did not meet the test of a predominantly non-political character, that is, the requirement that the primary purpose of the broadcast be the providing of information and not an attempt to persuade. As for the claim of discrimination as compared to other broadcasts (of Chabad and the Mateh Lehosen Leumi), it was stated that upon review, it was decided that they would not be rebroadcasted.

10.          The petition was originally filed against the Minister of Communications, who is responsible for the Broadcasting Authority. The state requested (July 30, 2014) that the Minister be removed from the petition due to a lack of authority in regard to the content of broadcasts (the Minister was removed in our decision following the hearing on July 31, 2014). In a decision handed down on July 30, 2014, it was decided that the state would be represented by the Attorney General.

11.          In the hearing, B’Tselem’s attorneys argued that the broadcast was intended to balance and provide a more complete report, particularly in regard to uninvolved children who are harmed, as a moral consideration. It was contended that the purpose was the humanization of the narrative, and that B’Tselem has no agenda, and that its sole interest is in human rights and a voice that must be heard. The broadcasts meet the case-law criteria, and moreover, other broadcasts were permitted, as noted. It was further argued that the case law permits purely factual presentations, as opposed to political advocacy, in broadcasts, and that the Petitioner’s emphasis is upon freedom of expression and human rights.

12.          The Broadcasting Authority argued that the legality of the rules having already been established, the construction of rule 7(2) is that of a reasonable person listening to the broadcast. In this case, it is clear that the purpose was political shock. Moreover, even facts can be politicized. Thus, following the reasoning of the Petitioner, it would be conceivable to request a that a broadcast about the children killed by terrorism be aired on the eve of a release of terrorists, or that in another context, a list of Arab villages destroyed in 1948 be read. The rules, it was argued, prohibit broadcasts with such connotations. Moreover, information concerning the children killed in the course of the operation are, in any case, the subject of vast coverage on media sites and social networks. In addition, the prior broadcasts regarding which a claim of discrimination was raised (of Chabad and the Mateh Lehosen Leumi) were broadcast by mistake – although in response to our question, we were informed that there is no examination procedure for such cases. It was further argued that the source of B’Tselem’s data is unclear.

13.          The State Attorney’s Office requested time to consult with the Attorney General in person.

14.          The parties agreed that the hearing would be deemed as if an order nisi had been granted.

Response of the Attorney General

15.          In presenting his position, the Attorney General stated (Aug. 4, 2014) that there are no grounds for intervention in the decision to preclude the broadcast. It was argued that political expression should not be permitted in advertisements inasmuch as it is not possible to ensure balanced broadcasting in that context, as required by the “fairness doctrine”, and the fear that only money will talk. It was further argued that the requested broadcast also does not meet the “dominant factor” test in light of the politically freighted message delivered by the “dry” facts. It was argued that it is proper that the dominant factor test be narrowly construed, perhaps even more so than in the past (para. 27), and that this construction is grounded upon the narrow approach presented in HCJ 7192/08 Hamateh Lehatzalat Ha’am Veha’aretz v. Second Authority for Television and Radio (2009) (hereinafter: the Hamateh Lehatzalat Ha’am Veha’aretz case). “Thinner than thin” distinctions should not be made in regard to different types of information, and the “dominant factor” test should be left for clear cases of actually manipulative information, and not applied to broadcasts intended to deliver a message about a controversial issue (para. 28).

16.          In its response to the position of the Attorney General (Aug. 6. 2014), B”Tselem stated that, in effect, the Attorney General and the Respondents were seeking to change the rule set down in HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62 (4) 715 (2008) [English translation: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general] (hereinafter: the Hamifkad Haleumi case) which established the legality of the  Broadcasting Authority (Radio Advertisements and Announcements) Rules, inasmuch as that case stated, per (then) Justice Naor writing for the majority (para. 59 at p. 795), and pursuant to a previous case (HCJ 10182/03 T.L. Education for Peace Ltd. v. Broadcasting Authority, IsrSC 59 (3) 409 (2004)), that “the proportionality of the Rules is reinforced by the interpretation of the Rules in HCJ 10182/03 Education for Peace, which permitted the broadcast of political advertisements provided that the focus be exclusively on the factual message”. It was averred that HCJ 7144/01 Gush Shalom v. Broadcasting Authority, IsrSC 56 (2) 887 (2002), which adopted the test of the interpretation that the hearer might give to the broadcast, was overturned pursuant to the Education for Peace and Mifkad Haleumi decisions. As argued, the test is therefore that of the dominant factor, and there is no room for the claim that a broadcast should be precluded for being contrary to the government’s position, and the same applies in regard to the claim that BTselem is a political organization, which would constitute an attempt to categorize advertisers in accordance with their ideological views. It was further argued that the “actual informational content” test suggested by the Attorney General, would infringe freedom of expression inasmuch as “the right to deliver a political message in a commercial broadcast is grounded in the constitutional right to freedom of expression” (para. 18), and “it is unacceptable to construe the Broadcasting Authority Rules as permitting the preclusion of presenting information to the public simply because publicizing the information might led to public debate or criticism of governmental actions”. It was argued that the test recommended by the Attorney General raises constitutional problems, is discriminatory, and infringes the rights of equality and freedom of expression. Further arguments also concerned a double standard for various broadcasts (from the right as opposed to the left) in light of the aforementioned broadcasts that were permitted. In conclusion, it was argued that the Respondents and the Attorney General are attempting to overturn or change the Hamifkad Haleumi rule, and their position is liable to prevent the exposure of facts “that might arouse public debate, because they are inconvenient for the government and raise doubt as to the justification of its action” (para. 36). It was stated that insofar as the intention is to overturn the Hamifkad Haleumi and Education for Peace rules, an expanded panel is requested. In the opinion of the Petitioner, the test is that of influence, i.e., if the Authority intends to preclude a broadcast due to controversy, it must bear the burden of proving that the information was fairly expressed in public broadcasts. It was further stated that the broadcast in question meets the dominant factor test, that it concerns facts, and also that there is no requirement of balance in broadcasts (in response to the Respondents’ claim that the broadcast concerns only Palestinian casualties). It was further argued that B’Tselem is willing to present all of the Palestinian casualties and not just a partial list, and that the broadcast would not state the name “B’Tselem”. The Petitioner requested that it be awarded costs for its contribution to improving the procedures of the Broadcasting Authority.

Decision

17.          We will begin by stating that we have reached the conclusion that the petition should be denied, as the requested broadcast – which we listened to attentively – falls within the scope of a “prohibited advertisement” under rule 2(7) of the Rules, in that it concerns “a matter which is the subject of public political-ideological controversy”. In accordance with the case law, which will be presented in brief below, the infusion of political matter into advertisements should be limited to the utmost extent, inasmuch as they are a commercial tool intended for commercial purposes, i.e., subsidizing the budget of the Broadcasting Authority. This Court has addressed this matter in the past, and the trend of the case law is to distinguish, as far as possible, between commercial advertisement and advertisement of political matters that are by their nature – as is the nature of politics – the subject of controversy. And even if they are presented from a viewpoint that appears innocent and purely factual, they generally have an inherent message, and that message is the spirit of the broadcast, which is to say, the words of the message must be take account of their spirit in order to understand whether or not the broadcast is controversial. Indeed, even if the case law has not hermetically barred advertising of a political character that is not of a persuasive nature, such an approach has been largely limited such that the crack in the doorway is very narrow. As we shall explain, the trend of the case law shows a limiting tendency that we see as very appropriate in every way. Moreover, even under the approach that does not entirely preclude informational broadcasts as opposed to political persuasion, when one listens to and watches the broadcast under discussion in terms of its nature and message, and not merely in terms of its “dry” words, it is plainly and clearly controversial in that it is intended on its face to persuade, and thus falls within the scope of rule 2(7). In our view, there is no need for a new test. The construction of the Education for Peace rule given in the Hamateh Lehatzalat Ha’am Veha’aretz case, decided in 2009 (incidentally, in regard to “a broadcast from the right” as opposed to the current “broadcast from the left”) is, at present, the last word in the case law in this field – which incidentally, receives no mention in the Petitioner’s response other than noting that a particular, factual broadcast was permitted therein – and is sufficient for the matter at hand. Moreover, we are not of the opinion that the Gush Shalom case has been consigned to the dung heap of history following the decisions in the Education for Peace and Hamifkad Haleumi cases, as we shall address below. Advertising is not part of the marketplace of ideas, which is the role of the broadcasts themselves, and the borderline between information and persuasion, more often than not, marks a distinction without a difference.

18.          This is the place to state clearly, first, that as human beings we are deeply saddened by the death of innocents in Gaza, and all the more so of children. I had the opportunity to write in the past (see my 2002 article “Public Law in Times of War and Crisis” in my book Netivei Mimshal Umishpat (5763 – 2003) (Hebrew) following Operation Defensive Shield and the claims about a massacre in Jenin:

Combat in which the enemy employs civilians in various ways, is particularly difficult. However, the IDF, which conducted a hard battle and paid the price in its soldiers’ blood, did not massacre Palestinians. Those who say so are guilty of a blood libel in the best tradition.

Indeed, there must be empathy for the Palestinians and their losses. A compassionate person feels the pain of others. They pay a high price for their leadership, such as it is. Their losses, too, are to be regretted. Anyone who daily sheds tears for the bereavement of the daughters of his nation, anyone who cannot but join in the pain and grief of the people of his nation, must also feel the pain of others … but the real, moral, public and legal address guilty of those crimes is Yasser Arafat, who sent people to butcher Israeli citizens mercilessly and with chilling cold heartedness. It is important to state this in a clear voice.

Israel, a Jewish and democratic state fighting a cruel enemy that treats the blood of Israeli and Palestinians with equanimity, fights in self-defense and in the defense of its citizens, its cities and their security, and as we see in the fighting in Operation Protective Edge, for the defense and security of large parts of the state. However, Israel is also aware, and must be aware, of the suffering of innocents on the other side, among them children, both in the planning and operational stages, in the proportionality of military operations as far as possible, and in terms of humanitarian relief. Educating the military forces in this regard has always been the duty – and I, myself, devoted considerable time to this as Attorney General – of the civilian and military legal advisers of the government and the IDF. Indeed, the distress of citizens who are used, along with their homes, for military purposes by terrorist organizations, and who are therefore harmed in the course of battle, is not unknown to Israel, and Israel cannot but address it. Even if some of those citizens are not innocent, and offer aid to the terrorists, it is reasonable to assume that many others do so under duress and in fear, or have no interest in the fighting, and see the words of Deputy President H. Cohn in HCJ 320/80 Kawasmeh v. Minister of Defense, IsrSC 35 (3) 113, 132, and see HCJ 5290/14 Kawasmeh v. Military Commander (Aug. 11, 2014), para. 25, per Danziger J.

19.          In the context of Jewish law, I would add that Rabbi Shlomo Goren writes (Meishiv Milhama, v. I (5743) (Hebrew) in the chapter “Combat Morality in light of the Halakha”, 3:14): “However, notwithstanding the express biblical commandment to do battle, we are commanded to show compassion for the enemy and not kill even in war, except when there is a self-defense need that requires conquest and victory, and not to harm the non-combatant population, and it is certainly prohibited to harm women and children who do not take part in the fighting”. And see the words of Rabbi Shaul Yisraeli in “Reprisals in light of Halakha” (Hebrew) (following the Qibya operation in 1953) in Tzomet Hatorah Vehamedina 3 (5751 -1992), 253, which addresses all the aspects of the question. Similarly, in a recent lecture on “Harming Innocents in War” (Mas’ei, 5774) (Hebrew) in which Rabbi Asher Weiss addressed the subject in light of recent events, he stated his view that even if “in principle, one need not refrain from killing the murderers even if innocents may be killed alongside them, nevertheless, one must endeavor to prevent the deaths of those who did no wrong, although when it is not possible, they too will be killed with those who must be killed…” (pp. 7-8). And see Yosef Achituv, “The Wars of Israel and the Sanctity of Life,” in I. Gafni & E. Ravitzky, eds. The Sanctity of Life and Martyrdom - Studies in Memory of Amir Yekutiel (5753 -1992), 255, 259-260.

20.          It is also our impression that no inconsiderable expression has been devoted to the suffering of the Palestinian population and to what is happening in Gaza in the Israeli media, in all its forms, on the Internet, and as noted, on social networks, even if there are those who are of the view that, in the framework of freedom of thought and expression, broader media coverage is needed. No one is hiding the destruction and the death of civilians. Details of the number of casualties in the Gaza Strip, even if generally without their names, are regularly provided by the media as supplied by official medical sources in Gaza, as far as we can tell, and this Court dwells among its people [2 Kings 4:13] and it, too, listens and watches.

21.          We will take the bull by the horns, i.e., does reading the names of killed children in a broadcast fall within the scope of “a matter which is the subject of public political-ideological controversy”, which is prohibited under rule 7(2)?

22.          In the Education for Peace decision, given some ten years ago (2004), the opinion of Justice Hayut, following the decision in HCJ 1893/92 Reshef v. Broadcasting Authority, IsrSC 46 (4) 816, 820 (1992) (per Barak J.), addressed the “dominant element” of a broadcast, that is, whether it is primarily composed of information without presenting a position or an element of persuasion (see pp. 418-419). The subject was addressed in the Hamifkad Haleumi case, and in the main opinion, per Justice Naor writing for the majority, it was noted, inter alia, (as was more extensively quoted in HCJ 7192/08 Hamateh Lehatzalat Ha’am Veha’aretz v. Second Authority for Television and Radio (2009), para. 29, and see the following paragraphs there), that “the means adopted by the Rules to realize this goal [of the fairness doctrine – E.R.]  is the total prohibition of the broadcast of political messages in the framework of advertisements”. The constitutionality of the rules with which we are concerned was established in the Hamifkad Haleumi case, in which several justices – including dissenters – pointed out the circumscribed approach to the application of freedom of political expression to advertising broadcasts. It was stated that – on the contrary – the broadcasting of political advertisements might infringe equality (“the wealthy will broadcast”), both in regard to the fairness doctrine (with which we are not directly concerned in this case), and in regard to the commercial purpose of advertising (see, e.g., para 3 (p. 797) per Levy J., para. 3 (p. 842) per Hayut J., and para. 43 (p. 869) per Procaccia J.).

23.          In the Hamateh Lehatzalat Ha’am Veha’aretz case, there were broadcasts related to the remembering of Gush Katif that referred to the “Gush Katif expulsion”, and we stated (para. 25 of my opinion) that “we are not concerned with commercial advertising at all – it is saturated with political content, which is its dominant factor… we are concerned with the disengagement from Gush Katif, which is undisputedly a matter of public controversy, legitimate, painful controversy that has not yet ended … that being the case, it is beyond our comprehension how the authorities originally considered permitting the broadcasts: were they thinking of the monetary consideration, did they do it in order to avoid dispute with political bodies and in the pursuit of peace? Under them – the provisions of the law – commercial advertising and political controversy are mutually exclusive …”. The judgment extensively surveyed the prior case law, and it can be read there.

24.          We are not of the opinion that the aforementioned quote of Justice Naor in para. 59 (p. 795) of the Hamifkad Haleumi case should be understood, as suggested by B’Tselem, as a conclusive, “final” interpretation granting “authorization of political advertising”. The Hamifkad Haleumi case concerned the constitutionality of the Rules, and that statement was part of reasoning in that context. The statement did not “adopt” political advertising, but rather addressed the “dominant factor” test in the Reshef and Education for Peace cases, distinguishing between facts and attempts to persuade in those contexts within the boundaries of freedom of expression. However, as opposed to B’Tselem’s claim, several judges, as noted, took exception to political advertising in the Hamifkad Haleumi case.

25.          At the end of the day, we are concerned with the “reasonableness and common sense” test (HCJ 524/83 Association for the Wellbeing of Israel's Soldiers v. Broadcasting Authority. IsrSC 37 (4) 85, 89 per S. Levin J.); and see Gush Shalom v. Broadcasting Authority at p. 893, where Justice Strasberg-Cohen noted in a related matter – a petition to broadcast advertisements warning IDF soldiers against the perpetration of war crimes – “The connotation of the advertisements is political-ideological and not, as the Petitioners claim, purely informational." Reasonableness and common sense have not yet, we hope, abandoned us, and there is not an iota in the Hamifkad Haleumi judgment to the contrary. Indeed, as noted, the doorway has not been hermetically sealed before informational advertisements as opposed to persuasion, but the differences between the two are slight, and they require that, in the scope of that reasonableness and common sense, we act with utmost restraint.

26.          I will quote para. 35 of the Hamateh Lehatzalat Ha’am Veha’aretz case, which summarizes the approach adopted by the Court and which should also guide us in the matter before us:

In my opinion, what arises from the majority opinion in the Hamifkad Haleumi case, with which I humbly agree, is as we stated above – the restriction of the “political space” in advertising to a minimum, in accordance with the view that paid advertising does not, in and of itself, fall within the sphere of freedom of expression. I would add that, in my opinion, in light of the Hamifkad Haleumi rule, the rule established in the Education for Peace case should be narrowly construed. Indeed, that does not infringe the essence of freedom of expression, and we are not concerned here with Orwell’s Big Brother (1984). Freedom of expression, which is dear to all who seek democracy and a free marketplace of ideas, remains as it was, protected and encouraged as far as possible, even in the spirit of the prophets of Israel quoted by the Petitioner, and other prophets who courageously railed at the gates against power, and there is no need to elaborate. But the field of advertising, which is not a level playing field – and this must be particularly emphasized – and where the wealthy can control the message absorbed through repeated broadcasts, is not its natural place. As for myself, I would be contented if political subjects would not be granted a foot in the door of advertising, as some of my aforementioned colleagues expressed it, and no more need be said. This, as such matters are generally controversial by their nature. But even under the approach that permits informational advertising, that is not what we are concerned with here. In any case, in my opinion, looking to the future, in view of the Hamifkad Haleumi judgment, the authorities must narrowly construe any intrusion of political matters into commercial advertising, by scrupulously examination … as stated, this is the approach that should be adopted in similar cases, to the right and to the left, center, religious, Haredi [ultra-Orthodox], secular, Arabs, or any other body or party, for if not, there will be no end to the matter, and it is clear to all what type of “commercial” advertisements might result. The basic question is not, therefore, this or that terminology, but the nature of the advertisement.

My colleagues Justices Joubran and Danziger concurred.

27.          As for the matter at bar, knowledge is easy for one who understands [Proverbs 14:6], and it is clear that, although we are deeply saddened by their deaths, reading a list of the names of children killed serves a political rather than purely informational purpose. Its purpose, which requires no arcane knowledge to ascertain, is to urge the public to cause the government to end the IDF’s operation in Gaza due to the casualties among the civilian population, and among children in particular. Can one say that this – i.e., the continued combat – is not a matter of political controversy? Even under the dominant factor test – which, as noted, must be narrowly construed so as to prevent the infiltration of a political current into advertising – that factor in the matter before us is plainly public-political persuasion, and saying that it is purely informational is, with all due respect, preposterous. Justice Strasberg-Cohen’s aforementioned statement in the Gush Shalom case is appropriate here. The context is as clear as the noonday sun. We repeat: the place for such political matters is not in advertising, and the Broadcasting Authority must avoid such matters by a very wide berth. There is, therefore, no need for a new test, but rather the ruling in the Hamateh Lehatzalat Ha’am Veha’aretz case is sufficient, and the narrower the better. The facts of the matter at bar thus fall clearly within the scope of the existing rule. The proper place for the matter raised by B’Tselem is in the regular media broadcasts that now inundate us, and there is no reason to assume that opinions at odds with that of the government and its approach will not be heard, as they are indeed heard.

28.          Before concluding, we should address the Petitioner’s claim, which the Respondents acknowledge to be of merit, that the Authority broadcasted two commercials of a “persuasive” nature by the Mateh Lehosen Leumi and Chabad. As noted, the Authority’s legal advisor informed us that this was an error and that they would not be rebroadcasted. Without addressing the fine points of the content of those broadcasts, and to each his own tastes, the question that must be asked is how the Authority – which is bound by the precedents of this Court – and its legal advisors did not apply the rulings in the Hamateh Lehatzalat Ha’am Veha’aretz case and its predecessors under which advertisements must be scrupulously examined.  How can such “scrupulous” examination be conducted without a simple review procedure in an authority that has – if we understood correctly – placed the matter in the hands of a commercial company? The absence of such a review procedure leads to the type of blunders that occurred here. We reiterate that we do not know if the motive of the Authority and its proxies in accepting commercials is financial or otherwise, but it is obligated to uphold the rules under which it operates, and not selectively. We require that a procedure be established within 60 days. In this regard we would note that just recently the Knesset adopted the Public Broadcasting Law, 5774-2014 (S.H. 2471, 15 Av 5774, Aug. 11, 2014), and Chapter 12 thereof treats of commercials and sponsorships. Section 70 concerns the broadcasting of paid commercials and sponsorship notices that that the Public Broadcasting Corporation is permitted to broadcast on the radio (ss. (a)), and the Council, in consultation with the Director General, is required to establish rules, inter alia (ss. (b)(1)), “in regard to prohibitions and restrictions upon commercials and sponsorship notices”. In accordance with sec. 75, the Council is to establish rules “in regard to prohibitions and restrictions” inter alia, for commercials, as detailed there. Section 76 establishes the appointment of a supervisory subcommittee, inter alia, in regard to commercials. One may hope that what we have stated here will be taken into account in the framework of those new rules, and the supervision established under the Law.

29.          In view of all the above, we do not grant the petition, and we make no order for costs.

Justice N. Hendel:

               The subject requiring our decision is whether it would be appropriate to intervene in the decision of the Respondents not to broadcast a commercial by the Petitioner that comprises a reading of the names of Palestinian children who were killed in the course of Operation Protective Edge. The legal question before us is whether such a broadcast is prohibited for being “a broadcast on a matter which is the subject of public political-ideological controversy” (rule 2(7) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993.

               Needless to say, the Court takes no pleasure in expressing a position in regard to a “public political-ideological controversy”, and all the more so in all that regards a military operation and the resulting questions that naturally arise among the public. However, there is a clear difference between the Court’s taking a position in regard to a political or ideological controversy – which, in my opinion, is not required by this Petition – and the decision required in the framework of High Court review of whether a particular broadcast concerns a political or ideological controversy that, therefore, must be precluded. Taking a stand on a controversy is one thing, and recognizing the existence of a controversy is something else.

               The matters that are being publicly addressed as a result of the operation in Gaza are, indeed, important and complex. But the Court’s room and realm rightly stand beyond the theater of this dispute. Precisely because, at times, the Court is called upon – pursuant to its function – to decide agonizing matters, it must, I believe, exercise restraint in its approach to such matters, which need not be decided in the Petition at bar.

               Broadcasting a commercial is not a regular aspect of freedom of expression. We should bear in mind that the Authority’s broadcasts belong to the public sphere. This collective proprietorship supports an approach that would preclude controversy from this arena. We are not concerned, for example, with a privately owned newspaper or with a demonstration. This refraining from political and ideological controversy in the framework of the Authority’s broadcasts was subjected to the constitutional review of this Court (HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62 (4) 715 (2008) [English translation: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]), and the Petitioner does not argue against it.

               The Petitioner’s claim is that because what is concerned is the providing of information – names and ages – the broadcast should not be characterized as controversial. In rejecting this argument, and in addition to the case law summoned by my colleague Justice Rubinstein, one may refer to the context test. Words and facts have power. Selecting only particular facts from the entire mosaic was not performed randomly. Its purpose was to deliver a message and connect with the public. Another aspect of context, which in my view facilitates this decision, is the timing of the broadcast – during a period of combat. This is not to say that timing alone constitutes a condition. However, it intensifies not only the purpose of the broadcast, but also its objective significance. It would appear to me that a different conclusion, that we are concerned, as it were, with purely providing information, would bear the taint of willful blindness and deafness.  Of course, the Petitioner has the right to present facts and positions in accordance with its views. But the issue here is whether the Broadcasting Authority is the “forum conveniens” for that under the law.

               In conclusion, I concur with my colleague that the Petition must be denied, and that the relevant bodies would do well to establish a procedure (and see secs. 75-76 of the Public Broadcasting Law, 5774-2014, which was just recently enacted). Even if it will be a general procedure, it would be preferable to ongoing case-by-case decisions.

Justice U. Shoham:

               I concur in the opinion of my colleague Justice E. Rubinstein, and with the comments of my colleague Justice N. Hendel to the extent that they are statements of principal, although I do not believe that they are entirely necessary for the instant case.

               I, too, am of the opinion that the Petition must be denied, both due to the content of the requested broadcast and due to its timing, at a time when the roar of combat has not yet subsided.

               Like my colleagues, I believe that clear procedures should be established in this matter, and the sooner the better.

Given this 17^th day of Av 5774 (Aug. 13, 2014).

In the Supreme Court

Sitting as a Court of Administrative Appeals

AAA 3908/11

Before:                                    Her Honor, Justice (ret.) E. Arbel

                                                His Honor, Justice Y. Danziger

His Honor, Justice N. Hendel

His Honor, Justice E. Rubinstein

                                                His Honor, Justice S. Joubran

                                                Her Honor, Justice E. Hayut               

                                                His Honor, Justice U. Vogelman                                                         

The Appellants:              1.      State of Israel, Courts Administration

   2.      Supervisor under Freedom of Information Law in the Courts Administration

v.

The Respondents:           1.      TheMarker – HaAretz Newspaper Ltd.

   2.      Hila Raz, Journalist, “TheMarker”

Appeal against the judgment of the Administrative Affairs Court in Jerusalem on April 14, 2011, in AP 43366-03-10 by Her Honor President M. Arad

Date of Session:                       Tevet 5, 5773 (December 18, 2012)

On behalf of the Appellants:   Adv. S. Rotshenkar

On behalf of the Respondents:            Adv. P. Moser

Judgment

Justice (Ret.) E. Arbel

The Administrative Affairs Court in Jerusalem (Hon. President M. Arad) ordered appellant no. 1, the Courts Administration, to hand over to the respondents, TheMarker newspaper and the journalist Hila Raz, for their scrutiny, information concerning the number of open cases being heard in the Supreme Court and in the district courts before every judge; and also the length of time that has elapsed since each case was opened. In every case, the name of the judge was to be mentioned. Before us is an appeal on this judgment.

Does the public’s right to information by virtue of the Freedom of Information Law, 5758-1998 (hereinafter: the “Law” or the “Freedom of Information Law”)­—by means of the newspaper TheMarker — also apply to the requested information that concerns open cases in the district courts and the Supreme Court, with the names of the judges hearing the cases being identified? This is the question upon which we must decide in this appeal.

Background

1.    On August 18^th 2009, respondent no. 2, journalist Hila Raz, submitted a request to appellant no. 2, the supervisor for the implementation of the Freedom of Information Law in the Courts Administration, to obtain information under that Law, as specified in a list that was submitted together with the request. The information was sought “in light of the supreme public importance with respect to the burden imposed upon the courts system.” A response to the request was sent by appellant no. 2 on December 14, 2009, noting that he had the information that was sought with respect to two of the items: “quantitative information about the number of open cases being heard by each district court judge in the country and the justices of the Supreme Court” as well as “information about the length of time that has elapsed since the opening of each of the principal open cases.” Despite this, on February 3, 2010 respondent no. 2 received a letter from Adv. Barak Lazar, professional advisor to appellant no. 1, which stated as follows:

The number of cases assigned to a judge does not constitute a measure of the case load. Court cases are differentiated from each other according to the type of matter (civil, criminal, administrative), the bench before which the proceedings are conducted (a bench of three or a single judge) and the complexity of the legal dispute. Therefore, presentation of the details of the number of cases assigned to each judge would provide a misleading representation, attesting to nothing, save the numerical assignment of anonymous cases to a judicial functionary.

The presentation of data that reflects a true index of burden requires the development of a tool for classification of cases which takes into account the time and the resources allocated to each and every case; the purpose of this is to create a basis for comparison.

In the past, an attempt involving extensive research was made to develop such a tool. Several flaws were discovered in this research, which prevent effective use of the tool that was developed. At the present time, we are making plans to conduct complementary research and to develop the said tool for assessing case-load, especially in view of the relevancy of that information for improving efficiency in the courts. Clearly such complementary research cannot be carried out in the time allocated to us for the purpose of responding to the request that has been submitted pursuant to the Freedom of Information Law.

This is also the case with respect to data concerning the length of a case’s lifetime. Production of such data requires an analysis of the database in the system, which is conducted by external factors and involves substantial costs.

Respondent no. 2 also referred to the half-yearly report and the Freedom of Information Report published by appellant no. 1; these are public reports that include quantitative information about pending cases, cases that have been closed and cases that were opened in Israeli courts, as well as data concerning the average lifetime of a case in the courts system. There is no dispute between the parties about the fact that the information included in these reports does not fully correspond to the information requested by respondent no. 2. After a further attempt of the respondents to obtain information from the appellants was not successful, an administrative petition was filed.

The Judgment of the Administrative Court

2.    The District Court granted the petition. First, the appellants’ argument that delivering the information would necessitate an unreasonable allocation of funds was rejected. The Court determined that the appellants possess the requested information, and that its delivery involves the production of a computer report and does not require the allocation of substantial resources. The Court noted that the respondents did not request anything beyond the specified information, and that they did not ask that it be processed for them. The Court therefore rejected the appellants’ argument that because the number of open cases does not reflect the judge’s case-load, complex research, requiring an unreasonable allocation of funds, would be necessary, in order to produce data that could serve as an index of overload.

The appellants’ argument that making the information available to the respondents was liable to disrupt the functioning of the Authority was also rejected. It was mentioned that this reservation to the obligation of disclosure applied, in accordance with the case law, only where there was near certainty of serious interference with the functioning of the Authority, and that the anticipated interference had to be “grave and serious” (AAA 398/07 Movement for Freedom of Information v. State of Israel – Tax Authority [2008] IsrSC 63(1) 284 (hereinafter:  Tax Authority), at p. 346).  However, the Court found that the argument that publication of the information would lead, with a high degree of certainty, to real interference with the functioning of the court system was not substantiated. The argument that the court system would have to provide complementary explanations with respect to an enormous number of cases for the information to serve as an index of the overload was also dismissed. It was made clear that public criticism that is liable to arise against the Authority as a result of publication of the information does not constitute the sort of “disruption” in the functioning of the Authority that would justify refusal to disclose the information. The Court was aware of the fact that the requested information could not serve as an index of the burden borne by the court or by judges, and of the fact that negligent reporting making use of this information would be baseless and misleading. However, it was decided that concealing information was not the way to deal with biased or unsubstantiated publications, and that judges could be presumed to perform their work faithfully even if a misleading article were to be published. It was also noted that it should not be assumed that the respondents, or any other body, would misuse the information, or that any publication would be issued without first receiving the reaction of the courts administration.

The argument that making information available was liable to harm public confidence in the judges and in the legal system was dismissed, and it was noted that precisely the opposite is true. The concern expressed by the appellants about harm to the efforts of the courts system to improve and become more efficient was dismissed as being too speculative.  The concern about increased complaints and requests to recuse judges, or about attempts at “forum shopping” after publication of the information, was also found to be baseless. It was therefore found that handing over the information would not disrupt the functioning of the Authority, and that, in any event,there is no near certainty of serious interference with its functioning which would justify non-disclosure of the information.

3.    The Court did not accept the appellants’ argument that the information about the stock of cases, segmented according to judge, falls within the category of “information about the content of a judicial proceeding” (sec. 2 of the Law), which was excluded from the application of the Law. It was decided that information about the number of cases being handled by a judge and the date on which they were opened is administrative information, and the provisions of the Interpretation Law (1981) should not be used in a manner that broadens the scope of information that is not to be  available to the public.

4.    The attempt of the appellants to base themselves on the legal situation pertaining in other countries, too, was unsuccessful, after the Court determined that it is unnecessary to resort to foreign law where the Israeli law was explicitly applied to the courts system; furthermore, it was held that the comparative law that was cited did not clearly support the appellants’ position.

5.    The Court clarified that its conclusion was applicable, both in relation to the Supreme Court and to the district courts. It ruled that in the framework of the information  handed over, it was possible to mark the year that the case was opened, but there was no requirement to provide such information for cases that had not yet been assigned to a judge, since the information that had been requested was “per judge”. As for the Supreme Court, in which cases are not immediately assigned to a justice upon being opened, it was pointed out that it is possible to publish the requested information with respect to cases that had been assigned to a judge or a panel, together with details of the date on which the case was so assigned, in order to ensure delivery of information that was as complete as possible.

The State is appealing the judgment of the Administrative Affairs Court.

6.    Before we review and discuss the pleadings of the parties, it should be mentioned that on July 12, 2011, this Court (Justice H. Melcer) order a stay of execution of the judgment of the Administrative Affairs Court. On December 19, 2011, this Court ([then] Justices A. Grunis and M. Naor, and Justice U. Vogelman) ordered a continuation of the hearing on the appeal before an expanded bench, by virtue of its authority under sec. 26(2) of the Courts Law [Consolidated Version] 5744-1984. On 18 December 2012 the pleadings of the parties were heard before the expanded panel.

Pleadings of the Appellants

7.    The appellants opened their pleadings with a clarification that in a letter of appellant no. 2 dated  December 14, 2009, he agreed to deliver the quantitative information that had been requested, but he expressed no intention of delivering the information together with exposure of the identities of the judges. Appellants contend that Adv. Laizer’s letter was sent only when it became clear that respondent no. 2 would not be satisfied with information that did not include the names of the judges.

8.    On the merits, the appellants’ opinion is that they are under no obligation to hand over the requested information, in accordance with sec. 9(b)(1) of the Freedom of Information Law, which deals with non-delivery of information whose disclosure is liable to disrupt the proper functioning of the public authority or its ability to carry out its duties. They argue that delivering personal information about the performance of the judges is liable to harm the principles on which the orderly functioning of the courts system relies—public confidence and judicial independence. This, they say, would nearly certainly interfere with the functioning of the system. The appellants explained at length what constitutes interference with the proper functioning of the system, which they claim is liable to ensue if the requested information is handed over.  They say that the requested data itself cannot create a complete and reliable picture that will attest to efficiency or overload, neither of the system as a whole, nor of the individual judge. Thus, for example, they explained that there are various features that impact significantly on the input and the time required to conduct proceedings, which are not reflected in the quantitative data that was requested.

9.    The appellants contend that a distinction must be made, in the context of the Freedom of Information Law, between institutional and personal information. In their view, the purpose of the Law is to create transparency with respect to the activities of the public authority, which bears systemic responsibility for the nature of the service that is provided for the citizen and for the employment of its workers; therefore, concretization of the requested information and its connection to a particular worker is not necessarily justified. It was further argued that connecting the requested information to a particular worker is liable to harm the worker’s reputation and to harm public confidence him, for it contains elements of imposing liability for the ills of the system on the worker. It was explained that the worker cannot protect his reputation in public. The appellants believe that it cannot be assumed that the worker’s functioning will be unaffected if he is publicly tried on the basis of purely quantifiable parameters which do not accurately reflect the quality of his work and its nature. It was also argued that impugning an individual in public on the basis of incomplete and misleading information will affect the ability of the public system to recruit the finest candidates into its ranks. In conclusion it was pointed out that delivery of personal information, particularly when it does not present a complete picture, involves greater potential for misuse of the information than a situation in which “systemic” information is handed over.

10.  The appellants believe that the above arguments hold even more so in relation to the judiciary, and for the purpose of maintaining public confidence in it and for its independent functioning. They claim that publication of personal statistical information that is misleading will lead to contempt for the judges, which may affect public confidence in them, as well as to the conduct of “kangaroo courts” which will harm the regular functioning of the judges. It was stressed that in order to fulfill the goals of the judicial system, there must be assurance that, despite the complexity of the arena in which the judge operates, his considerations will always be relevant and that his decisions will be of a high quality.

11.  In the appellants’ opinion, the balance between the principle of independence and public confidence. on the one hand, and the public interest in oversight of an authority that acts as a public trustee on the other, should be achieved in a manner that allows for effective oversight of the judicial system without causing the aforementioned potential harm.  In their pleadings, the appellants enumerated the various frameworks in which oversight of the legal system is possible. They also pointed to the presently existing mechanisms for maintaining the personal and professional independence of judges and their public standing. The appellants also refer to the position adopted by Professor Segal, according to which the appropriate solution is to publish the information without attaching the names of the judges (Ze’ev Segal, The Right to Know in Light of the Freedom of Information Law (2000), 143-144 [hereinafter: Segal]). It was further claimed that the issue of the appropriate balance between the interest of preserving judicial independence and the judges’ duty to report was discussed and decided by the legislator in the framework of the Ombudsman for Complaints against Judges Law, 2002 (hereinafter: Ombudsman’s Law). According to the Ombudsman’s Law, the work of the Ombudsman’s Office is protected by a statutory duty of confidentiality, and the reports that it publishes do not indicate the names of the judges against whom complaints have been lodged. The appellants argue that an analogy should be drawn from that arrangement to our matter.

According to the appellants, in the balance between the need to maintain the independence of the judiciary and public confidence therein and other important interests, to the extent that the matter is one of information that relates to the functioning of a worker in a personal manner, the stricter standard of near certainty should not be applied, and proving a “reasonable basis for concern” or “reasonable possibility of harm to justice”, should suffice, due to the sensitivity of the concrete information. In this context, reference was made to case law that established the standard of “reasonable possibility” for the purpose of balancing between freedom of information and the interest of ensuring that justice be done by the judiciary. They referred specifically to CrimA 126/62 Dissenchik & Hon v. Attorney General [1963] IsrSC 17 169 (hereinafter: Dissenchik), and to CrimA 696/81 Azulai v. State of Israel [1983] IsrSc 37(2) 565 (hereinafter: Azulai).

12.  The appellants explain that in order to amend the data with explanations, a very sizeable allocation of resources will be required of them. Moreover, they think that such information which is capable of explaining the statistical-technical data. “encroaches” on the area of judicial discretion in the conduct of cases—and such information was excluded from the application of the Freedom of Information Law.

13.  The appellants maintain that, considering that the information was sought for the sake of the public interest in pointing out the burden imposed upon the courts system, these goals of examining the information can still be achieved if the information is handed over to the respondents with the information segmented according to judge, without mentioning individual names. According to them, this is a good legal solution, compatible with the provisions of sec. 11 of the Freedom of Information Law.

Pleadings of the Respondents

14.  The respondents explained that publishing information about the activities of public authorities, including the judiciary, is part of their occupation in the area of communications and journalism; therefore, failure to hand over the information infringes upon their freedom of occupation. They stressed the public’s right to know about the judiciary, and explained that their goal was not to besmirch judges, and that prior to each publication, the response of appellant no. 1 would be sought.

15.  The respondents complained that their request was rejected in the letter of Adv. Laizer, who is not the authorized party for matters of freedom of information on the part of appellant no. 1; and this only a few months after appellant no. 2 notified them that the information would be delivered. They also pointed out that in the statements of pleadings, appellants claimed that producing the requested information involves an unreasonable allocation of resources, which is likely to disrupt the orderly functioning of the authority. However, when the Court ordered the appellants to submit an affidavit concerning the estimated cost of carrying out this task, it emerged that the computer program used by the appellants enables the data to be produced without any unreasonable allocation of resources. Despite this, the appellants performed an about-face and raised new arguments in support of their refusal to deliver information.

16.  The respondents contend that the information they are requesting is not information about the “content[s] of a judicial proceeding”, but rather, information about the administrative side of the legal system, which falls within the rule of disclosure under the Law. According to them, in order to fall within the exception to the delivery of information under sec. 9(b)(1) of the Law, the appellants would have had to prove that disclosure of the information would cause disruption in the functioning of the Authority, with a high degree of certainty, of real, severe harm. Such proof was not forthcoming. They object to the appellants’ argument that in matters concerning the judiciary, a lenient criterion of “reasonable possibility of harm” should be applied, and they stress that this was raised only in the appellants’ summations. Moreover, they are of the opinion that the case law on which the appellants sought to rely is based on the assumption that disclosure of the requested information involves harm to the pursuit of justice or the purity of the legal process, which was not the case here. They say that there is no place for the concern that the judge will not be able to withstand criticism relating to his performance, for exposure to such criticism is an intrinsic part of his judicial role. It was claimed that the judiciary acquires the confidence of the public, in part due to its transparency, and that, regardless, this confidence is liable to be harmed by the revelation of information about case overload. According to the respondents, the fact that the requested information cannot serve as an index of the burden borne by the court, or by a particular judge, cannot justify its being withheld.

The respondents are also of the opinion that the Ombudsman’s Law has no relevance for the matter at hand, and that the distinction the appellants wished to draw between systemic information and personal information has no statutory basis.

Deliberations

17.  The appeal before us is unlike other appeals under the Freedom of Information Law. If, until now, appeals under this Law dealt with the implementation of the Law on the part of other authorities, the present appeal is concerned with the implementation of the Law by the courts system, and we, who are an integral part of that system, are being asked to decide the matter, In doing so we are bound, as in every appeal under the Freedom of Information Law, by the provisions of the Law, which must provide the guidance for the path we take, joined by professional discretion, conscience, and the sense of justice. In making such a determination we are obliged, naturally, to be doubly and triply cautious, and it has often been said in the past by President Barak that “when we sit in judgment, we are being judged” (Aharon Barak, “Law and Judgment”, Selected Writings 1 (5760-2000); Aharon Barak, “Speech in the Supreme Court on his Retirement from the Bench”, Mishpatim 38 (1) 3, at pp. 10-11 (5768-2008) (hereinafter: Barak, “Retirement”).

18.  Let me state from the outset, in brief, that my conclusion, after having examined the pleadings of the parties and all the material relevant to the subject, is that respondents have a right to obtain the requested information, and that the appellants have not succeeded in showing that the interference with the activities of the courts as a result of the publication, as they claim, is a near certainty. I found that the information that was requested is in essence administrative information, to which the Freedom of Information Law applies; in other words, this is information to which the public has a right of access. In my view, the public interest in the information also emerges from the identity of the parties: on one end, the courts system, a public authority, whose influence on the lives of the individual and whose effect in shaping these lives is substantial, and knowledge of whose activity there is a clear public interest, whereas on the other end the fact that the information was sought by people from the media who are interested in the information for the purpose of fulfilling their journalistic function, and whose activity is extremely important in the realization of freedom of expression of the public and the fashioning of a civilized society. As stated, I did not find that the appellants could invoke the exception to the publication of information under sec. 9(b)(1) of the Freedom of Information Law, which deals with interference with the functioning of the authority. The activity of the courts is characterized by transparency that is not only systemic: it also involves personal transparency in relation to the judges trying the cases, which exposes them, even today, to harsh public criticism. This being the case, it is difficult to accept the argument that publication of the requested data will detract from the judicial independence of judges, to their functioning and to public confidence in them. As I will show, even if it is not possible to rule out the possibility of the consequences against which the appellants warn, such as harm to the esteem which judges have been accorded or misuse of the information, many of the arguments raised in this context are conjectural, focusing on cases of callous, litigious reporting, which is the exception rather than the rule. These arguments do not attribute the appropriate weight to the right of the public to know about the judiciary and the possibility that most of the reporting will be neutral, or at least fair. I found that appropriate weight must be attributed to the high standard of conduct that is expected of a judge, as well as to the fortitude required from a person selected to fulfill a judicial function and who is expected to rule according to the law, even when faced with enormous pressure. When one takes into account the transparency characterizing the activity of the courts, including in weighty cases that involve substantive matters, it is difficult to justify not according the same treatment to quantitative data concerning the activity of the system. I believe that transparency on this matter, too, will only strengthen confidence in the system. The position taken by the appellants seeks to create a different attitude to courts vis-à-vis other governmental authorities that were made subject to the Freedom of Information Law. I did not find—even given the distinctive nature of the judicial function—that any reasons were given that would warrant such a differentiation.

19.  The subject under discussion includes within its purview various rights and interests, some in concert, some in conflict. All of them are worthy of representation, while above them hovers the spirit of the Freedom of Information Law, the purpose of which is to “help promote social values, including equality, the rule of law, respect for human rights, and also to allow more efficient oversight of the public of the acts of the government” (Freedom of Information Bill, 5757-1997). In our matter, on the one hand stand the rights of the public to know and to obtain information about the modes of action of the public authority—and in this case, the courts—as well as the right of the public to oversee the governmental authorities; and on the other hand, the status, mode and orderly functioning of the courts and the judges. This interest is seemingly independent, but it incorporates weighty rights in our system such as the right to due process. The place of the value of human dignity, of the dignity of the judge and the right not to be put to shame and not to be denigrated should not be ignored, but neither should the dignity of the system, which is essential for ensuring its proper functioning. These are the topics that I shall discuss.

I will begin with the normative framework within which the discussion will be conducted – the Freedom of Information Law.

The Normative Framework – the Freedom of Information Law

20.  The Freedom of Information Law developed from the right to examine documents held by a public authority. In the evolution of the right to examine, Israeli law first recognized a private right of examination—the right of the individual to view the documents held by an administrative authority and which were used in the making of a decision which concerned him (HCJ 142/70 Shapira v. Jerusalem District Committee of the Israel Bar Association [1971] IsrSC 28(1)  325 (hereinafter: Shapira); HCJ 337/66 Estate of Kalman Fital v. Assessment Committee, Holon Municipality [1967] IsrSC 21(1) 69 (hereinafter: Fital), at p. 71; CA 6926/93 Israel Shipyards v. Israel Electric Corporation [1994] IsrSC  48(3) 749, at p. 796; AAA 8282/02; HaAretz Newspaper Ltd. v. State of Israel, Office of the State Comptroller [2003] IsrSC 58(1) 465 (hereinafter: HaAretz), at p. 469). This right, which is one of the foundations of the democratic regime, is derived from the right to be heard and from the duty of the public administration to act in a transparent fashion (LCA 291/99 D.N.D. Jerusalem Stone Supply v. V.A.T. Director [2004] IsrSC 58(4) 221 (hereinafter: Jerusalem Stone), at p. 232). Its source is in the case law, in that it is one of the principles of natural justice (Fital, at p. 72).

A significant development occurred in 1998, with the enactment of the Freedom of Information Law and recognition of the right of the individual to view documents held by the authority, even where there is no personal interest in the information, and subject to the exceptions prescribed by the Law (Segal, p. 11; Tax Authority; HaAretz, at p. 472; Explanatory Notes to the Bill). Our interest, therefore, is in the public right of inspection.

21.  The right of the individual to obtain information about the activities of the governmental authorities “is one of the cornerstones of a free society” (AAA 9135/03 Council for Higher Education v. HaAretz Newspaper [2006] IsrSC60(4) 217 (hereinafter: Council for Higher Education), at p. 233. See also Jerusalem Stone, at pp. 232-33); “The foundations of democratic culture” (sec. 15 of my opinion in AAA 9341/05 Movement for Freedom of Information v. Government Corporations Authority [Nevo – May 19, 2009] (hereinafter: Government Corporations). It is “a preliminary condition for the realization of other rights, and a basis upon which, in a democratic society, it is possible to build a culture of rights” (Aharon Barak, “Freedom of Information and the Court”, Kiryat Hamishpat 3 (5763-2003) 95, 97 (hereinafter: Barak, “Freedom of Information”). The right to obtain information is based on the conception of a governmental authority as a public trustee. As a public trustee, the administrative authority is held to a standard of detailed accountability to the public it represents, which will allow the public to understand how it has exercised its authority and the power that was placed in its hands, the range of its activities etc.

22.  The principle of freedom of information has several purposes, the realization of which must guide us when we address any petition or appeal dealing with freedom of information. First, the right to obtain information about public authorities is closely connected to freedom of expression and the public’s right to know. As is known, under the broad span of freedom of expression are to be found other freedoms that are essentially connected to it, derived from it, and vital to its realization. The broad protection enjoyed by the freedom of expression covers these as well and impacts the extent of their reach (HCJ 5771/93 Citrin v. Minister of Justice [1993] IsrSC 48(1) 661, at p. 673). Realization of the right to know involves the right to information: “There is no freedom of expression without the right to know, and there is no right to know without freedom of information” (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60 (hereinafter: Ministry of Transport), at p. 73). The purposes served by freedom of expression mandate recognition of a broad right to know, and therefore also of a broad right of access to information. The fact that freedom of expression underlies the right to information and is bound up with it led to its recognition as a constitutional right, even though it is not entrenched explicitly in Basic Law: Human Dignity and Liberty (AAA 11120/08 Movement for Freedom of Information v. State of Israel – Antitrust Authority [Nevo –  November 17, 2010] (hereinafter: Antitrust Authority), para. 9 and the references there).

The second purpose of the principle of freedom of information is the exercise of effective civilian review and oversight of the activities of governmental authorities. “The public eye is not only an expression of the right to know, but it is a reflection of the right of oversight” (HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353, at p. 361; see also AAA 10845/06 Keshet Broadcasting Co. v. Second Authority for Television and Radio [Nevo – November 11, 2008] (hereinafter: Keshet Broadcasting), para. 65); Segal, at p. 102). The accessibility of information is a condition of the ability of the public to oversee the governmental authorities, to form an informed view of their activity, “to demonstrate involvement in governmental activity and to take part in the formation and fashioning of appropriate governmental culture . . .“ (Government Corporations, at para. 15). It makes possible the realization of political and civil rights and is an important component in the fostering of active, involved citizenship. The flip side of the coin is that transparency of the activity of the authority ensures an important contribution to “public hygiene”, as described by Justice Hayut in Council for Higher Education, at p. 231, for improving the quality of governmental decisions and its activities.

A third purpose of the right to information is ensuring public confidence in public authorities. The knowledge that the authority is subject to oversight, which can be exercised by any individual, contributes to the confidence in the governmental authorities (Antitrust Authority; Segal, at p. 101.) As I mentioned in the past, without public confidence in the system, democratic society cannot exist (HCJ 5853/07 Emunah – National Religious Women’s Organization v. Prime Minister [2007] IsrSC 62(3) 445, at p. 493).

The fourth purpose of the right to information is proprietary. In its capacity as a body serving as a trustee for the public, the public authority holds information in trust for the public. The public is the owner of the information, and the authority cannot act in respect of this information as if it were the owner of property belonging to it. The importance of this goal is highlighted in the commentary to the Bill, whereby “… in fact, it would appear that it is difficult to uproot the proclivity of the authorities for regarding information as their property and not property that is held in trust by them for the public and on its behalf” (See Freedom of Information Bill). Accordingly, every one of the individuals constituting the public has the right to obtain information from the authority, even if he has no direct, personal interest in that information, when there are no good reasons for withholding it (HCJ 2283/07 Legal Forum for Israel v. Judicial Selection Committee under Section 4 of Basic Law: The Judiciary [Nevo – May 5, 2008], per Justice Hayut, para. 5;  HaAretz, at p. 471; AAA 7744/10 National Insurance Institute v. Adv. Yafit Mangel [Nevo – November 15, 2012] (hereinafter: National Insurance Institute), per Justice Hendel, para. 5).

23.  I would point out that the hierarchy amongst the various purposes of the right to information is in dispute. There are those who viewed the protection of freedom of expression as the main purpose that the Law is designed to realize (Ministry of Transport, at pp. 72-73); some saw it in the value of transparency and the ability to maintain oversight of governmental activity (Government Corporations, at para. 37; Tax Authority, per my opinion, para. 56). As I pointed out in Antitrust Authority, I do not think that any one of these purposes should outrank any other. The different purposes are all foundational to the Law. To a great extent, they are bound up with and affect one another. In the circumstances of a particular case, one of these purposes will be the focus of the discussion, and at times, the discussion will touch upon several of them. One way or another, I believe that “…rather than examining the centrality of any particular purpose that lies at the basis of the Law and examining the request for information in its light, one must examine which of the purposes underlie the concrete request and examine their combined weight” (para. 9).

24.  A person’s entitlement to information held by a public authority arises if he succeeds in passing through the three filters on which the Law is based, as Justice Cheshin put it (HaAretz, at pp. 472-472).

The first filter is to be found in sec. 1 of the Law, which sets the parameters of the broad, principled range of the right to information:

Every Israeli citizen or resident has the right to obtain information from a public authority in accordance with the provisions of this Law.

The second filter prescribes exceptions to the right to information (secs. 8 – 9 of the Law), which define the cases in which information will not be delivered by the public authority or in which it is not obliged to deliver information, due to the existence of other, potentially conflicting interests and rights. Like all rights, the right to information is not absolute, but rather is relative. At times, it yields to other rights that merit protection, such as the right to privacy and to reputation, or to weighty interests, such as state security or foreign relations. In sec. 8, the Law enumerates a list of cases in which the public authority has discretion as to whether to grant the request for information. One can generalize and say that these cases are concerned with “administrative efficiency and practical constraints” (HCJ 2398/08 State of Israel – Ministry of Justice v. Segal [Nevo – June 19, 2011] (hereinafter: Segal), per (then) Justice Naor, para. 26); Eliezer Shraga & Barak Shahar, Administrative Law – Basic Principles vol. 1 (2009), 357), in view of which the authority is authorized to dismiss the request for information. The Law also provides a list of exceptions to delivery of information (sec. 9), distinguishing between cases in which information is not to be delivered, such as a case of concern of harm to national security or foreign relations (sec. 9(a)(1)-(2) of the Law) or harm to a person’s privacy (sec. 9(a)(3) of the Law), and cases in which the authority is granted discretion as to whether to hand over the information (sec. 9(b) of the Law). These exceptions express various points of balance between the right to information and other rights and interests, and place broad discretion in the hands of the public authority. The main consideration that the public authority must weigh in its decision is that of the public interest in disclosure of the information (Segal, at p. 199).

The third filter (sec. 17 of the Law) grants the court authority to order the disclosure of information contrary to the position of the public authority (and see also HaAretz, at pp. 472-473).

To these three filters are adjoined the provisions of the Law that limit the realization of the right to information:  inter alia, sec. 10, which deals with the considerations of the public authority; sec. 11, dealing with the possibility of delivering partial information or with conditions attached; sec. 13 which deals with protection of third parties; and sec. 14 of the Law, which contains a list of bodies that are not subject to the Law.

25.  This is the normative framework of the deliberation. Before we examine the arguments of the parties, I will discuss the issues that define the dispute before us. First, I will consider the nature of the judicial function and the principle of judicial independence which lies at its core. Juxtaposed to this I will present the mechanisms of supervision to which governing judges are subject, which are of importance in the present matter due to the fact that the purpose of the present petition is to increase the transparency of the activity of the courts. I will then proceed to examine the arguments that were raised by the parties in order to ground their contention that handing over the requested information will cause disruption with the proper functioning of the courts system, and that they may therefore invoke the exception to the delivery of information specified in sec. 9(b)(1) of the Freedom of Information Law; I will then decide on these arguments.

On Judging and the Image of the Judge

26.  Judging is a calling.  It is not like other occupations. It is not a trade. To choose a judicial career is to choose a destiny, a way of life. The task that befalls a judge—to decide disputes and to adapt the law to the changing exigencies of life, to preserve and protect the rule of law, human rights and all other values of Israel as a Jewish and democratic state (Aharon Barak, “On My Role as a Judge” Mishpat Umimshal  7 (5764-2004) 33; Tova Strasberg-Cohen and Moran Svorai, “Justice Bach – The Image of a Judge” Gabriel Bach Volume  (2011) 731, 740 (hereinafter: Strasberg-Cohen & Svorai, Bach Volume)) — is a weighty one. The authority and the power vested in the judge’s hands have the capacity to affect—sometimes very profoundly—the life of the individual and his rights; they can have a significant impact on shaping the face of society. Vice-President M. Cheshin and (then) Justice E. Rivlin described the distinctive nature of the vocation of the judge as follows:

The judicial profession is no ordinary profession: it is a profession that is one of a kind; a profession of destiny that imposes upon the judge, almost of itself, special tasks and norms of behavior. The judge has a heavy—extremely heavy—burden placed on his shoulders: to judge and to decide the law. A person’s fate is entrusted to his hands—not only metaphorically — his liberty, his money, and his rights. This requires the judge to act with integrity, discretion, moderation, caution, and precision, and to continually ensure that he does not deprive the litigants before him of their rights (DC 2461/05 Minister of Justice v. Judge Cohen [2005] IsrSC 60(1) 457 (hereinafter: Judge Cohen), at p. 461).

The special nature of judging characterizes those who have chosen this profession and were chosen for it. A person who merited donning the judicial robes is obligated to justify, in all aspects of his life, in his conduct both in the court and outside of it, the trust that has been placed in him. The highest personal, professional, moral, and ethical standard is demanded of him (Tova Strasberg-Cohen, “The Image of the Judge” Parliament, 72, available at the website of the Israeli Democracy Institute, www.idi.org.il, hereinafter: Strasberg-Cohen, Parliament). He is required to encapsulate in his personality a blend of personal attributes, professional sills, responsibility, wisdom and discretion that will guide him, as a kind of inner compass:

From the special nature of the judicial system—with which the judge is occupied in making fateful decisions, in the criminal law and in preserving the rule of law, human rights and democratic values—is derived the requirement that he requires a special personality, special characteristics, and a special nature to qualify him for his position. Principal amongst the required qualities are: personal honesty, integrity, moral rectitude, clean hands, professionalism, independence of thought, objectivity, and neutrality. In addition to these qualities, the judge must—when sitting in judgment—be attentive, sensitive, tolerant, and patient. He must hold the reins of the judicial process and conduct the trial fairly and efficiently. He must display a judicial temperament even though the process—by its very nature—is fraught with tension and pressure. (Ibid)

And as the prophet said:

He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God (Micah 6:8).

The judge is a symbol of values, conscience, and morality. In his conduct, and in all that he does, he must constitute a shining example for the public in his respect for the law, in his meticulous adherence to it, and in his exemplary, respectful, and respecting personal conduct.

A preliminary, essential condition of the judge’s ability to serve in that capacity is the confidence of the public, which recognizes his authority to judge and will accept his decisions as binding. Not only is the matter of the individual judge at issue before us, but also public confidence in the system as a whole (and see Judge Cohen, at p. 461).

Judicial Independence

27.  The judiciary is one of the three branches of government on which the democratic regime is founded. The alignment of the relations between the judiciary, the legislature and the executive is based on a balance between the authority of these branches in a way that allows for autonomy on the one hand, and mutual oversight on the other—the existence of separate governmental authorities that amongst themselves maintain mutual relations of “checks and balances”:

One principal is that of the separation of powers: the legislature will legislate, the executive branch (the government) will execute and the judiciary will sit in judgment.  The combination of words “separation of powers” does not indicate the full content of the expression. The essence of this principle does not lie in the “separation of powers”, i.e. the separation between the branches for the sake of separation, but in the decentralization of power and authority between different and separate branches. The essence lies in the legislature engaging solely in legislative acts and not in executive ones, the executive solely in executive acts and not in legislative and judicial ones and the judiciary engaging solely in judicial acts and not in legislative and executive ones.” ((then) Justice M. Cheshin, HCJ 6971/98 Paritzky v. Government of Israel [1999] IsrSC 53(1) 763, at p. 790).

The principle of checks and balances between the governmental branches requires, therefore, that there be an independent judiciary, which is not susceptible to any inappropriate influence, either on the part of the other governmental braches or on the part of any interested party.

28.  Judicial independence is one of the basic values of the democratic system, and its existence is essential for the realization of all the other values of the system. It is one of the judge’s most important assets in fulfilling the weighty tasks laid upon his shoulders. It is the crux of judging, “the heart and soul of the judicial enterprise” (Tova Strasberg-Cohen, “Judicial Independence and the Supervision of Judges’ Conduct: Reflections on the Purposes of the Ombudsman for Complaints against Judges Law, 2002”, Mishpat Ve’Asakim 3 (5765-2005), hereinafter: Strasberg-Cohen, Mishpat Ve’Asakim), and it constitutes the basis and the condition for realization of the right to due process. At the core of judicial independence are to be found objectivity and neutrality, which are the first principles of judging (Strasberg-Cohen & Svorai, Bach Volume, at p. 737; Meir Shamgar, “Independence of the Judicial System as a Fundamental Element of Democratic Order” Hapraklit 42 (5755-1995), 245, 249 – hereinafter: Shamgar). The meaning of this is that the judge decides the case according to the law, with freedom of thought and conscience, without fear and without bias, acting in accordance with the law and with professional discretion and a sense of justice and conscience, with no pressure nor incentive applied to him (Strasberg-Cohen, Mishpat Ve’asakim, at p. 335; Aharon Barak, The Judge in a Democratic Society (2004), 124 – hereinafter: Barak, The Judge in a Democratic Society; Tova Strasberg-Cohen, “The Tension between Judicial Independence and Accountability”, Berenzon Volume (5767-2007) 127, 129 – hereinafter: Strasberg-Cohen, Berenzon Volume).

29.  Judicial independence ensures the pertinence and the quality of the judicial decision. It is mandated by, and warranted in view of, the powers that are placed in the hands of the judge—powers which may decide fates and change the courses of lives. Its importance, however, is not exhausted at the level of the individual litigant; significantly, for the public at large, this independence ensures equality before the law to all who cross the threshold of the court, as well as enabling the judge to fulfill his role in protecting human rights and the rule of law (see also: Strasberg-Cohen, Berenzon Volume, at p. 130; Eli Salzberger, “Temporary Appointments and Judicial Independence: Theoretical Thoughts and Empirical Findings from the Supreme Court of Israel”, Mehkherei Mishpat  19 (5763-2003) 541, 543; Michal Agmon-Gonen, “Judicial Autonomy? The Threat from Within”, HaMishpat 10 (5765-2005) 213, 216 (hereinafter: Agmon-Gonen)). In other words, more than protecting the judge, judicial independence protects the public whom he judges.

30.  There are two facets to judicial independence. The first facet is the personal independence of the judge who hears the case. Personal judicial independence is secured within two concentric circles. In the inner circle is to be found the personal substantive independence of the judge, i.e., the liberty granted to the judge to decide the law according to his best professional understanding and conscience, with no dependence on any external factor, in order to ensure neutrality and objectivity in the conduct of the case and the decisions made therein. Personal independence of the judge is prescribed in sec. 2 of Basic Law: The Judiciary, the heading of which is “Independence”: “A person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law” (and see sec. 5 of the Code of Ethics for Judges, 5767-2007, and in particular, sec. 5(c) of the Code, which states that “The judge shall fear no one, and shall not be influenced, in the fulfilling his role, by public opinion, concern about criticism or desire to please”). Of course, the decisions of a judge are subject to appellate review, but this is an integral, fundamental part of the judicial enterprise, which does not negate or erode the fact that at the time when the judge makes his decision in a case, he does so according to his conscience and his best judgment; hence the activity of the appeals court cannot constitute harm to his judicial independence (Shlomo Levin, “Judicial Autonomy – An Inside Look”, Iyunei Mishpat  29 (2005) 5, 11 (hereinafter: Levin)).

The autonomy of the judge is not intended to be confined to relations with the legislature and the executive; rather, it extends to fulfillment of the judicial role with administrative independence vis-à-vis every internal factor in the judicial system (Shamgar, at p. 254; Levin; Barak, The Judge in Democratic Society, at p. 125).

31.                                                                                           In the outer circle of personal independence are the rules that seek to prevent inappropriate interventions in the function of the judge that affect his substantive independence. These are rules which seek to ensure for the judge a professional working environment free from pressures and concerns regarding potential personal consequences stemming from a particular ruling (Shamgar, at p. 248; Shimon Shetreet, “Culture of Judicial Independence in Israel: Institutional and Substantive Aspects of the Justice System in a Historical Perspectives”, Law and Business 10 (5769-2009) 525, 529-533 (hereinafter: Shetreet)).  We will mention in particular those rules that set out the modes of appointment and conditions of office of the judge (Basic Law: The Judiciary, secs. 4, 7  and 10); the rules concerning the personal immunity of the judge in torts for an act done in the capacity of his judicial role (sec. 8 of the Civil Wrongs Ordinance [New Version], 5728-1968; LCA 6830/00 Bernowitz v. Te’umim [2003] IsrSC 57(5) 691, at p. 702; and rules about taking testimony from judges (LCA 3202/03 State of Israel v. Yosef [2004] IsrSC 58(3) 541).

32.  For the sake of completeness I will mention that the second aspect of judicial independence is institutional independence, i.e., the administrative and organizational independence of the judiciary. Institutional independence is closely connected to personal judicial independence. The latter draws sustenance from the former, without which it would not be possible to ensure, fully, the personal independence of judges. The issue of institutional independence is not the focus of our discussion, and I will therefore say no more on the subject (for elaboration of the subject see: Aharon Barak, “Judicial Independence – How?” Mivhar Ketavim 1 (5760-2000); Barak,  Judge in a Democratic Society, at pp. 125-127).

33.  To sum up this point: in matters of judging, the judge is not subject to the authority of any other person, or any governmental authority, or any office, or to the power of money. He is subject only to the authority of the law. Judicial independence is a precondition—and there is none more vital —for allowing the judiciary to fulfill its role in protecting the rule of law and ensuring the orderly functioning of the other branches, as well as its role in protecting human rights and the basic values of society, and most of all, in doing justice. It comes to ensure that the judge can fulfill his function with professionalism and without bias, in that it constitutes a barrier against abuse of authority or deviation from the bounds of competence by other governmental authorities (Shamgar, at p. 254), or against attempts by those with an interest and power to influence the proceedings. Judicial independence is fundamental in ensuring due judicial process. It is the basis for securing the confidence of the public in the legal system, that “judging is executed fairly, neutrally, with equal treatment of litigants and without even a smidgeon of personal interest in the outcome” (HCJ 732/84 MK Yair Tzaban v. Minister for Religious Affairs [1986] IsrSC 40(4) 141 (hereinafter:  Tzaban), at p. 148). As such, it is one of the basic values of democracy: there is no properly-functioning regime where the public has no confidence in the fact that the judiciary resolves disputes that come before it on the merits, objectively, and independently. Without public confidence in the characterization of the judicial system as described, society has no effective mechanism for deciding disputes and for the conduct of life in a cooperative, organized, and orderly framework. Public confidence and the independence of the judiciary operate reciprocally: judicial independence provides the basis for public confidence in the judiciary, whereas public confidence strengthens judicial independence and is the source of its power (Strasberg-Cohen, Berinson Volume, p. 131).

Oversight and Supervision of Judges – the Principle of Accountability

34.  “Our system relies on unreserved trust in judges, in their integrity, their morality, their humanity, and their values” (HCJ 188/96 Tzirinsky v. Vice President of Hadera Magistrates Court [1998] IsrSC52(3) 721 (hereinafter: Tzirinsky) , at p. 743; and see Barak, The Judge in a Democratic Society, at p. 50). At the same time, even given the judicial independence enjoyed by the judges and the courts system, they are not immune from supervision, nor are they exempt from it.

35.  Judges are not like the other functionaries in the public service. The nature of their task, its particular characteristics, as mentioned above, and inherent duties, as well as responsibility for the high standard of conduct to which the judge is held, both inside and outside the courtroom, are different from those pertaining to other public servants. The role of the judge is characterized by norms that he sets forth in his decisions, within the framework provided by the law, to which the influence and application are not limited to the litigants in the particular case before him, but rather, reach the entire public. All these create a substantive, significant difference between judges and other public servants (in this context, cf: Daphna Avnieli, “Who Will Judge the Judges and How?” Hapraklit 47 (5764-2004) 77, 95; Strasberg-Cohen, Mishpat Ve’asakim, at 337; Agmon-Gonen, at p. 230). However, precisely because of these characteristics of the judicial function, judges are subject to the duties that apply to other public functionaries as public trustees (see also the Preface to Code of Ethics for Judges; Tova Strasberg-Cohen and Moran Svorai, “Mechanisms for Supervision of the Judiciary” HaMishpat 24 (2007), 47 (hereinafter: Strasberg-Cohen and Svorai, HaMishpat)). The concept of trusteeship leads to a requirement of transparency that applies to all public authorities. Transparency, which I shall discuss presently, also involves supervision:

The indispensability of supervision is derived from the requirement of transparency that stems from a conception of the public authority and its workers as trustees on behalf of the public. About this is has been said: “The public authorities are trustees of the public. They have nothing on their own, and everything that they do have, they have for the public (HCJ 1635/90 Zarzewski v. Prime Minister [1991] IsrSC 45(1) 749, at p. 839). Even despite the fact that due to these special characteristics of the judicial task, judges should not be regarded as public servants in the narrow sense, the duties that apply to public servants as public trustees should be applied to them, mutatis mutandis (Strasberg-Cohen, Berinson Volume, at p. 132).

The Judge’s being subject to supervision stems, therefore, from the transparency that is necessitated by the activity of the courts as a public body, but it also expresses acknowledgment of the fact that the judge is a human being, and like every human being, “there may be failings and defects in his behavior and his conduct” (Strasberg-Cohen, Berinson Volume, ibid.). The fact that the judge is subject to supervision and oversight of his conduct and behavior in the framework of fulfillment of his judicial role—this is the “Principle of Accountability”.

Thus, “… supervision is desirable. Like every governmental authority, we too must be subject to supervision; just as there is no authority that is higher than the law, so too is there no authority which is beyond supervision” (Aharon Barak “Supervision of the Judiciary”, Mivhar Ketavim (2000) 961). The fact that judges are subject to supervision contributes to the public confidence in the courts, to the propriety of legal process, to the quality of the decisions that are made, and to the quality of the functioning of the legal system as a whole.

36.  What is the nature and the extent of the supervision of judges? How does it comport with judicial independence and the principle of accountability?

Normally, three fundamental approaches are cited for balancing the natural tension existing between the principle of judicial independence and the principle of accountability (Strasberg-Cohen, Berinson Volume, p. 134-135). The first approach holds that judicial independence must be absolute, with absolutely no interference from an outside body. The proponents of this approach believe that the legal system itself must handle claims about the conduct and the behavior of judges, including with regard to matters of the administration of justice, and that action by external review mechanisms should not be permitted. There are also those who claim that judes’ accountability to the public for their actions is only indirect and passive, and is exhausted by the publication of judicial decisions and the written reasons judges provide for these decisions (Haim H. Cohn, “Heretical Thoughts on Public Confidence”, Shamgar Volume 2 (5763-2003) 365, 381 (hereinafter: Cohn)). This approach is inconsistent with the predominant approach today whereby no public authority is above external supervision.

The second approach is that the judge, like every public servant, must be subject to supervision. This approach assigns no real weight to the substance and the goals of the principle of judicial independence or to the special nature of the role of the judge vis-à-vis public servants. This approach, too, expresses an extreme position and does not attribute proper weight to the interests that are relevant to the matter.

The third approach, accepted today both in Israel and the world over, is a combined approach, which grants weight to both principles and strikes a balance between them (Strasberg-Cohen and Svorai, HaMishpat, at pp. 47-48). This approach contends, inter alia, that the principle of judicial independence is a means for protecting democracy, the rule of law, and human rights, and insofar as it does not serve these purposes, it should be limited (Strasberg-Cohen, Mishpat Ve’Asakim, at pp. 339-340).

Existing Mechanisms for Supervision of Judges and Courts

37.  Supervision of judges in Israel occurs within formal, institutionalized frameworks, into which the preservation of judicial independence and the balance between that independence and the need for supervision are built. However, this supervision also occurs informally, sometimes raising questions as to the appropriate manner to enable supervision while still preserving the judicial system and its independence.  As will be explained, the existing mechanisms of supervision extend to all areas of activity of the courts.

a.    Supervision Mechanisms Built into the Judicial Process

38.  Review is the backbone of the judicial process. This process, and the rules by which it is conducted, are based on the conception that the conduct of a process and the rendering of a decision in that process are subject to review. The principal mechanism of review of a judge’s decision is the appeals process. The review that is embodied in the appeals process may also relate to: the conduct of the judge in the process; to his attitude to the litigants, their attorneys and the witnesses; to the manner in which he conducted the hearings; to the manner in which he expressed himself; to delays in issuing the judgment and more (Daphna Avnieli, “Who Will Control the Judges - and How?” Mishpat Umimshal 9 (5766-2006) 387, 391 (hereinafter: Avnieli, “Control of Judges”).

39.  Another means of review is the principle of transparency, which constitutes an integral part of the judicial process and of the activity of the court; its main manifestation is in the principle of publicity of proceedings. This principle is one of the foundations of the democratic regime, and has acquired constitutional status in our legal system (HCJ 5917/97 Association for Civil Rights in Israel v. Minister of Justice [Nevo –October 8, 2009] (hereinafter: Association for Civil Rights), para. 17). Its meaning is that as a rule, a trial will be held publicly, will be transparent, and will be open to the public (sec. 3 of Basic Law: The Judiciary. See also sec. 68(a) of the Courts Law [Consolidated Version] 5744-1984 (hereinafter: the Courts Law)). The limitations clause listing matters in which the legislator permitted the courts not to hear a case in open court was interpreted in the case law as exclusive and narrow, in order to ensure that the principle of publicity is strictly maintained  (CA 5185/93 Attorney-General v. Marom [1995] IsrSC 49(1) 318, at p. 341).

The publicity of court proceedings is intended to ensure that the activity of the courts will be transparent and open to the public, and that the public will be able to observe how the system works, and also to criticize the system (HCJ 258/07 MK Zahava Galon v. Government Commission of Investigation for Examining the Events of the 2006 War in Lebanon [2007] IsrSC 62(1) 648, at pp. 664-665, 676-677). Indeed, “proper government acts in daylight, in the open, and thus exposes itself to perpetual criticism …” ((then) Justice M. Cheshin, LCrimA 112/93 State of Israel v. Klein [1994] IsrSC 48(3) 485, at p. 516). The public nature of hearings is an essential condition for the proper functioning of the courts. It is “… one of the main guarantees of the regularity of the legal process, both in terms of doing justice and uncovering the truth, in practice, and in terms of the appearance of justice …” (CrimA 353/88 Vilner v. State of Israel [1991] IsrSC 45(2) 444, at p. 450).

40.  There are three main rationales for the principle of the publicity of proceedings (CrA 11793/05 The Israeli News Company v. State of Israel  [Nevo – April 5, 2006] (hereinafter: Israeli News Company), para. 13-15; LCA 3614/97 Avi-Isaac v. Israel News Corporation [1998] IsrSC 53(1) 26 (hereinafter: Avi-Isaac), at pp. 45-46).

The first rationale is that the public’s right to know about the activity of governmental authorities is part of freedom of expression and freedom of the press (LCA 3007/02 Yitzhak v. Moses [2002] IsrSC 56(6) 592, at p. 598). The guarantee that the publicity of the proceedings provides for the transparency of court proceedings, as well as to the supervision and oversight of the courts and their activities was discussed by (then) Justice M. Cheshin stating:

The overarching principle, whose wings span the whole issue of publicity, is the principle of publicity of the proceedings in court. In the days of old, the elders sat in judgment in the gates of the city. Similar to the ancient gates, are the courts in our times, whose doors are wide open to those who wish to enter therein. The conduct of a trial, of any trial—other than the exceptions—occurs in public, and the publication of what has been done and what has been heard in the courtroom is simply a by-product of that publicity. Subject to considerations of physical room capacity, everyone is entitled to be present at courtroom hearings, and publication of what occurred in the courtroom extends the courtroom, as it were, to those not physically present. The public nature of the legal proceeding—which itself provides publicity—fulfills an exalted need in the system of open government and law. Publicity means—in practice—the transparency of proceedings in the court, and transparency ensures ongoing review of what occurs in the courtrooms. Transparency and supervision—those are the essential terms (CrM 5759/04 Turjeman v. State of Israel [2004] IsrSC 58(6) 658, at p. 662).

A second rationale for the principle of the publicity of legal proceedings is its contribution to improving the quality of the judicial decision (Avi-Isaac, at p. 46). “The exposure of legal proceedings to the public eye serves as a guarantee for the existence of public oversight of the courts, and to ensure the conduct of a fair trial and absence of bias” (Report of the Committee for Examining the Opening of Courts in Israel to Electronic Media, p. 14 (2004)).

The third rationale relates to public confidence in the public authorities in general, and in the courts in particular. The public nature of proceedings prevents the impression that law is conducted secretly, and that extraneous considerations are exercised (CA 152/51 Trifous v. Attorney General [1952] IsrSC 6(1) 17, at p. 23): justice must not only be done but must also be seen.

If so, the fact that as a rule, legal proceedings are conducted publicly ensures that the provisions of the law are followed scrupulously with respect to the conduct of trials, contributing to their fairness and to their proper conduct. It makes the process of doing justice transparent and accessible to the public as a whole, fortifying public trust in the judicial system (and see: LCrimA 5877/99 Yanos v. State of Israel [2004] IsrSC 59(2) 97 (hereinafter: Yanos), at p. 111)). These functions, which are served by the public nature of proceedings, render it an instrument of oversight of the judges and of their conduct.

41.  Alongside the public nature of the proceedings, other characteristics of the legal process are directed at ensuring transparency, and in this they contribute to the oversight of judges. In this context I will mention that judicial proceedings are documented in the protocol, which is intended to express and reflect what happens in the courtroom (and see: Dafna Barak-Erez, Administrative Law (5770-2010), at p. 613), and that there is a duty to provide written reasons for judicial decisions. The protocols and the duty to provide reasons are significant, necessary components in enabling the parties to challenge the decision before an appeals court, and in order to allow that court to review the judicial decision and the discretion that was exercised in the conduct of the process (on the importance of the protocol for review on appeal, see: CA 579/90 Rosin v. Ben-Nun [1992] IsrSC 46(3) 738, at p. 747. On the importance, for that purpose, of providing reasons see: CrA 446/01 Rudman v. State of Israel [2002] IsrSC 56(5) 25, at p. 30; CA 84/80 Qassem v. Qassem [1983] IsrSC 37(3) 60, at p. 70; CrM 3196/00 Abergel v. State of Israel [2000] IsrSC 54(2) 236, at p. 239). In addition, as an element of the transparency of the courts system, there is a right to view court files, even for non-litigants, as regulated in the Courts and National Labor Courts (Examination of Files) Regulations, 5763-2003 (on this matter, see Association for Civil Rights).

42.  Mention has been made, both in legislation and in the legal literature, of other means that can serve the function of supervision of the judges, such as the process for judicial disqualification, due to concern about bias (see Yigal Mersel, Judicial Disqualification Law (2006) 37); filing a civil suit for a judicial tort; the possibility of suing the state instead of bringing a personal suit against a judge; a suit against the state as being responsible for the propriety of the judicial system; and embarking on legal proceedings against a judge in cases which are not protected by the immunity from criminal proceedings that is afforded to a judge by virtue of sec. 34T of the Penal Law, 5737-1977 (Avnieli, Control of Judges, at pp. 392-399).

b. Supervision Mechanisms in the Disciplinary and Ethical Realm

43.  The main mechanism of oversight of judicial conduct is the institution of the Ombudsman for Complaints Against Judges, who operates by virtue of the Ombudsman’s Law. The Ombudsman’s Office is a separate, neutral, and independent body, whose job is to investigate “complaints about the conduct of judges in carrying out their functions, including the manner in which they conduct a trial (end of sec. 2 of the Ombudsman’s Law), for the purpose of improving the service given to the public by judges, while preserving judicial independence (Strasberg-Cohen and Svorai, HaMishpat at p. 54). The oversight exercised by the Ombudsman’s Office does not deal with the substantive aspect of the judicial function, which clearly falls within the principle of judicial independence, and which is subject to review by the appeals process. The Ombudsman’s activity focuses on the conduct of the judges on the ethical-disciplinary plane (ibid.), which, as befitting the nature of the judicial position, is held to a high normative standard:

Indeed, even that which is permitted to all other people, and even to other public servants, may well be prohibited to a judge qua judge. This is so with respect to his manner of speaking and his conduct, and with respect to the need to be meticulous in guarding against harm to the appearance of justice, and this is so with respect to the care he takes in conducting a well-run trial and more. This extra vigilance stems from the special nature of the judicial endeavor, in which the judge deals with fateful decisions in criminal and civil law, in preserving the rule of law, human rights and the values of society, while doing justice through the law. This vigilance also stems from the need to preserve public confidence in the judicial system— meaning the public’s sense that the judicial act is executed with fairness, neutrality, objectivity, without bias or prejudice, while maintaining the high moral level of the judges (Tova Strasberg-Cohen and Moran Svorai, “Oversight of Judges on the Ethical-Disciplinary Plane” Mishpat Umimshal 9 (2006) 371, 378).

The purpose of these norms, the observance of which is within the purview of the Ombudsman for Complaints Against Judges, is to preserve a high professional and moral standard in the judicial system, and to maintain and strengthen public confidence in that system.

Alongside oversight of the conduct of the judge in the courtroom and his maintenance of a judicial temperament that is in keeping with his judicial position, the Ombudsman also deals with aspects of the efficiency of the operation of the courts system, including the speed with which cases are handled.

44.  The oversight conducted by the Ombudsman is publicized in an annual report, which includes details of the complaints lodged each year against judges, without designating the names of the judges against whom the complaints are lodged. In addition, reasoned decisions regarding complaints that have been found to have merit are inserted into the personal files of the judge in question. The Ombudsman’s office is also authorized to recommend that disciplinary action be taken against a judge, or that his judicial appointment be terminated by the Committee for the Appointment of Judges (sec. 22 of the Ombudsman’s Law). At the same time, the Ombudsman’s office also looks to the system as a whole, by recommending steps to correct defects that emerge as general or broad phenomena and following through on their execution (Strasberg-Cohen, Berinson Volume, at p. 143).

The principles that have been laid down in the Ombudsman’s Law for the supervisory activity express a striving for effective oversight, together with caution, responsibility, and sensitivity to ensure that there is no violation of judicial independence (Strasberg-Cohen, Mishpat Ve’Asakim, at p. 342). The actions of the Ombudsman’s office express, therefore, a model of oversight of the activity of judges that involves public expression and reporting, which may have significant implications from the point of view of those over whom the oversight is exercised, but without exposure of the details of the judge in question.

45.  In addition to the activity of the Ombudsman’s office, aspects of supervision and oversight over the conduct of judges can be discerned in other frameworks as well: for example, the activity of the disciplinary court for judges (sec. 13 of Basic Law: The Judiciary and secs. 17 – 21 of the Courts Law); or the activity of the Ethics Committee under sec. 16B of the Courts Law (see also Strasberg-Cohen and Svorai, HaMishpat, at pp. 54-55).  These are joined by the fact that the courts are amongst the bodies subject to audit by the State Comptroller (State Comptroller Law 5718-1958, secs. 9 and 10(a)(2)). In addition, there is informal oversight of the courts system by the director of the courts and the presidents of the courts, which mainly consists of administrative oversight by means of tracking the number of cases and the pace of proceedings in each court (and see: Strasberg-Cohen and Svorai, Mishpat Umimshal, at p. 380).

Public Oversight

46.  To the mechanisms of oversight must be added the public criticism to which the courts and the judges are subject. Public oversight includes criticism of courts and of judges by jurists, academics, public representatives, the media, and of course—the general public. The possibility of criticizing judges as public functionaries is a component of freedom of expression. As stated, public confidence in the courts significantly depends on the ability of the public to publicly criticize them. Indeed, “justice is not a cloistered virtue, She must be allowed to suffer the scrutinty and respectful, even if outspoken, comments of ordinary men” (as cited (and translated) by Justice Etzioni, CrA 364/73 Seidman v. State of Israel [1974] IsrSC 28(2) 620, at p. 634). In this context, the fact that the deliberations of the courts are, as a rule, open to the public who may come, listen, see, and form a first-hand impression of the manner in which cases proceed is, obviously, of particular importance.

47.  The possibility of formulating criticism depends, as mentioned, on access to information. A major instrument of oversight for the public is the Freedom of Information Law. Various reports that the appellant publishes by virtue of the Freedom of Information Law allow the public to see the number of cases that are handled in the courts and the pace at which they are handled. Thus, the annual report of appellant no. 1 includes data concerning the number of cases that were filed and closed each year, the total number of cases pending, the distribution according to courts and according to areas of activity, and the average lifetime in years of a case. The bi-annual report published by appellant no. 1 includes data about the volume of cases, the number of cases that were filed and that were closed, segmented according to the courts, the types of proceedings and types of cases, and also data concerning the rate at which hearings take place, the distribution of the cases according to the number of years that they have been in the system, and the average lifetime of a case in the different courts. The judges’ dockets and the online management of cases make it possible to learn about the functioning of the system. Of course, this data does not refer to the volume of cases handled by a particular judge, or to the duration of proceedings in the cases he hears, which is the issue before us at present.

48.  I will add something that might be obvious: the importance of public scrutiny does not necessarily imply that the criticism requires or justifies internalization or correction. The criticism might reflect “passing whims, which are detrimental to fundamental principles,” in the words of President Barak (Aharon Barak, “Law and Judgment”, Selected Writings 1 (5760-2006) 961, 963), and it is clear that the judge should not wring his hands over them. The criticism is sometimes based on incomplete or wrong information. Sometimes it ignores relevant facts. In these cases, too, there is no justification for correction or change in the wake of the criticism (Barak, Farewell Address, at pp. 9-10).

Interim Summary

49.  I have discussed at length judicial independence on the one hand, and the fact of the court being subject to oversight and audit by means of various mechanisms on the other hand. It is precisely because of the elevated status of the judicial function that the mechanisms that ensure the transparency of the courts and their oversight are so important. They are able to increase and bolster public confidence in the courts in general and in the judges in particular. I will note at this point that given the publicity, transparency, oversight, audit, and supervision, one cannot but be surprised at the objection of the appellants to the request, which is something of an addendum, and not central, to the large, broad set-up of transparency in the courts, which only increases confidence in the judges and in the whole courts system.

At this stage let us turn to the Freedom of Information Law, and determine whether the appellants succeed in passing through the filters that it establishes. First I will look at whether the requested information is governed by the Freedom of Information Law. Then I will examine the reasons for the appellants’ refusal to hand over the information, and decide whether they can invoke an exception to disclosure by virtue of sec. 9(b)(1) of the Law, as they claim.

First Filter – Section 1 of the Freedom of Information Law

50.  As we have said, sec. 1 of the Freedom of Information Law states that every citizen or resident in Israel has the right to obtain information from a public authority. Section 2 of the Law defines a “public authority” for the purposes of the Law. Item (5) of the definition of “public authority” includes within this definition “Courts, tribunals, execution offices and other bodies with powers of adjudication under any law, except in respect of the content of a judicial proceeding.” The definition does not, it is true, specifically mention the courts administration as a public authority, but because it applies to “courts”, there is no doubt in my mind that appellant no. 1 comes within its purview. In addition, the requested information—data regarding the number of cases that are being heard by each judge and as to the date on which each case was opened—is information that is administrative in nature and does not involve the contents of a judicial proceeding, as required by the end part of the definition of a “public authority” (for the distinction between administrative information and information regarding the content of a judicial proceedings see Segal, at pp. 141-143).

I am aware of the appellants’ argument that in order to present a complete picture of the situation, they would have to add various explanations to the requested data. According to them, the required explanations would create “slippage” towards the innards of the judicial proceeding and the discretion exercised in its framework, which is not covered by the Law. I will discuss this issue below; at this stage, however, I am of the opinion that our matter passes through the first filter established by the Law.

The Second Filter – Exceptions to Delivering Information (Section 9 of the Law)

51.  The appellants contend that they may invoke the exception to the delivery of information prescribed in sec. 9(b)(1) of the Freedom of Information Law, whereby:

    (b)     A public authority is not obliged  to provide information in any of the following categories:

(1)        Information, disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.

I will mention, very briefly, that appellants’ main argument is that delivering the information with the names of the judges hearing the cases will bring harm to public confidence and to judicial independence, which are essential foundations of the functioning of the courts system; hence the concern about interfering with the orderly functioning of this system. As stated, the appellants are prepared to deliver the requested information, but without mentioning the names of the judges.

52.  The exception upon which the appellants wish to rely is included in the cases in which the authority is not obligated to give out information, as specified in sec. 9(b)(2) of the Law, and in relation to which the public authority has discretion whether to disclose the information, in order to protect other important interests. The scope of the discretion granted to the authority within the bounds of sec. 9(b) of the Law is broad (Council for Higher Education, at p. 238). The fact that administrative discretion lies at the core of this section makes it an extremely important and central arena in which the right to information acquires content (Hillel Sommer, “The Freedom of Information Law: Law and Reality”, HaMishpat 8 (5763-2003) 435; Segal, at p. 199). The main consideration that should guide the authority in its decision as to whether to refrain from providing information under sec. 9(b) of the Freedom of Information Law is public interest in the disclosure of the information (Segal, ibid.). At the same time, the authority will also take into account, inter alia, the public interest in transparency of the authority’s activities in order to enable informed discussion and to allow for effective, appropriate public oversight of the authority, the applicant’s interest in the information (sec. 10 of the Freedom of Information Law), and the right of the public to know.

I will begin with a discussion of the probability test that the appellants must pass in order to invoke the exception in sec. 9(b)(1) of the Law. I will then proceed to examine the arguments on their merits.

Probability Test

53.  The parties disagree on the question of whether, in the balancing that takes place pursuant to sec. 9(b)(1) of the Law, appellants must show that interference with the activity of the authority or with its ability to perform its tasks is a near certainty, as respondents claim, or whether it is sufficient for them to pass the more lenient standard of proving a reasonable possibility that the said result will occur, as appellants argue. According to the appellants, in achieving a balance between the principle of justice being done by the courts and other principles such as freedom of expression, the case law requires nothing beyond the criterion of reasonable possibility of interference with the administration of justice, and in this regard they refer to Dissenchik and Azulai, in which there was discussion of the balance between freedom of expression and preservation of the integrity of the judicial process; to CrimApp 1986/94 State of Israel v. Amar [1994] IsrSC 48(3) 133, in which there was discussion of the balance between the freedom of movement and the orderly function of the judicial process; and to LCrimA 4708/03 Hen v. State of Israel – Ministry of Health [2005] IsrSC 60(3) 274 (hereinafter: Hen), in which the balance between the principle of doing justice and the public interest in improving and advancing medicine was discussed.

Indeed, in these cases, the court employed the “reasonable possibility” standard, in examining whether competing rights or interests should be limited for the purpose of ensuring various aspects of the judicial proceeding. However, there is a significant difference between these matters and the one before us. To what am I referring?

54.  In order to strike the appropriate balance between various values and interests, there is an accepted distinction between “horizontal balancing” which exists between two interests or values that are of equal legal status, and in the framework of which a certain concession is required on the part of each in order to allow for the core of both to be upheld, and “vertical balancing” which seeks the balancing point between a “high” right or normative value that clashes with a right or normative value of inferior status. In the framework of vertical balancing, preference will be accorded to the value whose status is more elevated, if the balancing formula that can determine the severity of the violation of that value and the probability of its occurrence is satisfied. In this context, the common criteria are the “near certainty” of the occurrence of the violation, or the “reasonable possibility” of its occurrence (see in short in: Barak, The Judge in a Democratic Society, at pp. 272-272; Hen, at p. 296; HCJ 10271/02 Fried v. Israel Police—Jerusalem Region [2006] IsrSC 62(1) 106, at pp. 152-153; Barak, Freedom of Information, at p. 101-102).

In the present matter, the public’s right to information, which as stated is a right of a constitutional nature, in that it is derived from the right of freedom of expression, is in competition with the public interest in the efficient functioning of the judiciary, which also encapsulates the interests of protection of the rule of law and maintenance of public confidence in the courts. I would clarify that I do not believe that the opposing interest is the moral integrity of the judicial process, for even the pleadings of the appellants in no way intimate that they are concerned that publication will affect the exercise of judicial discretion. The balance in question is, therefore, one which is vertical in nature.

55.  In the past, this Court has considered the exception in sec. 9(b)(1) of the Law, and has determined that anyone seeking to invoke it must show that the disclosure of the information will lead, with a high degree of probability, to real harm to the public interest, which the authority seeks to protect in declining to disclose that information:

Section 9(b)(1) is formulated in broad and inclusive terms. The provision permits the public authority not to deliver “information, disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.

.” It has rightly been said of this provision that it “opens the door to a distortion of the very right to obtain information” (Segal, at p. 199). Interpretation of the section must, therefore, adapt itself to the criteria that guide the Law and to the general and constitutional principles that are accepted in our law. It is a well-known, established rule in our law that where there is a clash between a protected constitutional right and a public interest, the latter takes precedence over the former only where there is an appropriate standard of probability—normally, “near certainty”—of real harm to that public interest is met… This rule is particularly applicable in the case of a clash between freedom of expression and other public interests (see Kol Ha’am; HCJ 4804/94 Station Film Co. v. The Film Review Board  IsrSC 84 (5) 661). The formula that emerged from the abundant case law regarding freedom of expression and its constraints is applicable to our case as well.

…

Indeed, there is an important public interest in preserving the orderly functioning of a public authority, but only where there is near certainty of harm to that interest will there be sufficient cause for limiting the freedom of information. Let us be precise: where it is possible to reduce the harm to the orderly functioning of the authority without negating the freedom of information, it is right and proper to do so. The restriction of freedom of information is a last resort, and the public authority has a duty, before it decides not to hand over the information whose disclosure is being sought, to examine means that are less detrimental to the freedom of information ( Ministry of Transport, at p. 84-85 (emphasis added, E.A.). See also AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 23,2012] (hereinafter: Ministry of Education), para. 7 per Vice-President E. Rivlin).   

A similar view regarding the fact that the relevant probability criterion within the bounds of sec. 9(b)(1) of the Law is that of near certainty was also expressed by Segal (p. 199), and by President Barak who noted that “… within the bounds of the external balance and against the background of the purpose of the Law, only severe, serious  disruption whose occurrence is a near certainty allows for the non-disclosure of information” (Aharon Barak, “Freedom of Information and the Courts”, Kiryat Hamishpat 3 (5763-2003) 95, 102-103). I too accept that for the purpose of restricting the citizen’s access to information, the authority must meet a strict standard of near certainty of the occurrence of harm to a competing protected interest which is recognized by the law.

56.  The appellants sought to argue that the more lenient standard, i.e., that of “reasonable probability”, ought to be applied in our case, as was done in the cases cited above, in order to ensure protection of the legal process and its integrity. I beg to differ. First, in the cases of  Dissenchik and Azulai, there was concern for damage to the integrity of a judicial proceceding that was actually taking place, against the background of the contents that had been published. In the present case, the appellants plead concern about the general effect of publicizing the performance of the judges. This concern is based, even if only partially, on assumptions and speculation, and assumes that the publication per se will affect the general conduct of the judges. In my view, and I will elaborate below, this argument is difficult to accept, and in all events it does not justify invoking a more lenient standard. Another significant difference emerges from the decision of (then) Justice A. Barak in Azulai, who explained that in the context of a violation of sub judice (sec. 41 [then] of the Courts Law, 5717-1957), the criterion of reasonable probability is not only directed at harm done to a judge:

       Till now I discussed the possible effect on the professional judge. Needless to say, sec. 41 of the Law does not deal exclusively with a judge. It is concerned with publication that has the potential to affect the course of the trial or its outcome. It may be a litigant who is affected; or the witnesses. It would seem that it, in fact, the judge is the strongest link in this chain, whereas the witnesses are the weakest link. Frequently, there is a reasonable probability of the witnesses having been influenced, whether by way of dissuading a witness from testifying or by influencing—consciously or otherwise—the contents of his testimony. This is the reasonable probability that sec. 41 is intended to prevent (ibid., at p. 577; cf. also the words of Justice Berinson in Dissenchik, at p. 185).

To this must be added that sub judice involves the restriction of the freedom of expression regarding a particular matter for a limited period—as long as the trial is proceeding. In our case, the restriction sought by appellants is much wider. Moreover, I will point out that even though, in the cases on which the appellants sought to rely, the reasonable probability standard was selected for balancing between protection of the judicial process and other rights and interests, there are other cases in which, when the freedom of expression comes up against the interest of protection of the legal system, it was in fact the standard of near certainty that was selected (see, e.g., HCJ 506/89 Be’eri v. Head of Claims Department, Investigations Division, Israel Police National Headquarters [1990] IsrSC 44(1) 604 (hereinafter: Be’eri), a p. 607).

57.  The cases to which the appellants referred dealt with the balance between the freedom of expression and preservation of the integrity of the judicial process and due process. Apart from the fact that, as stated, I do not think that our case relates to the integrity of the judicial process, these cases did not deal with a balance that involved the right to information. It is important to emphasize that in the context of disclosure of information that is held by public authorities, there is a special legislative arrangement, viz., the Freedom of Information Law, and the balances it requires must be made in light of the purposes of the Law, and in particular, the purpose of the transparency of public authorities in order to allow for oversight of their activity. Moreover, as Segal explains in his book, the Law was applied to the administrative aspect of the activity of the courts, and the committee to examine the implications of the Freedom of Information Law for the courts system, headed by Judge J. Tsur, found that out of respect for the purposes of the Freedom of Information Law, the judiciary should not be granted protection or immunity in relation to the administrative aspect of its task (Segal, at p. 143). In light of this, the argument that in relation to courts, the more lenient probability standard should be adopted as a starting point, in order to protect the judicial process is troublesome: it seeks to create a different standard for the courts precisely where the legislator saw fit to subject them to the Freedom of Information Law, albeit regarding the administrative plane of their activity, with which we are dealing. I therefore see no justification for abandoning the framework that was established by the Law and the case law for considering petitions under the Freedom of Information Law by making do with a lenient probability standard, and therefore, I reject this argument.

From here we will proceed on a path that will lead us to a decision. Only if it is found with near certainty that publication of the requested information will interfere with the activity of the judiciary or with its ability to perform its task, in that it will detract from the confidence of the public in the judges and affect judicial independence, will the appellants have cause to refrain from delivering the information under sec. 9(b)(1) of the Law.

Disruption of Proper Functioning of the Authority or its Ability to Carry Out Its Duties

58.  The argument of the appellants that publication of the requested information will disrupt the proper function of the courts or their ability to carry out their duties, and that they may therefore avail themselves of the exception in sec. 9(b)(1) of the Law, is built on several levels. The first is their argument that the requested information does not create a reliable picture of the load on the system or on a particular judge in the system. At the second level it is argued that the distorted picture that will be painted by this information will harm the judges in various ways—it was explained that handing over the information while connecting it to the names of judges does not comport with the purpose of the Freedom of Information Law. It will cause the individual judges to be seen as being exclusively responsibile for these numbers, but to which, in fact, various systemic problems contributed; it will harm their reputations and cause them to feel that they have been wronged; it will be detrimental to their functioning, because they will be judged by the public exclusively on the basis of quantifiable parameters, which do not reflect the quality of their work and its nature; it will be burdensome to them, due to the need to deal with distorting criticism. It was also mentioned that releasing the data would make it difficult for the system to recruit suitable judicial candidates in the future, and that there was a concern about misuse of the information. All these, according to the appellants, will lead to a third layer—to the serious outcome of harm to public confidence in judges as a result of incomplete, distorted information, leading to disrespect for the judges and to harm to judicial independence, due to distorted personal information, which has the potential for embarrassment and intimidation and for upsetting the equanimity which is essential to the functioning of a judge. I will stress that from the appellants’ arguments it emerges that they are not arguing that the publication will affect the discretion that the judges exercise, but that it will affect the conditions necessary for them to perform optimally.

The Requested Information – An Incomplete Picture

59.  There is merit in the appellants’ argument that presentation of the requested information does not create a reliable picture—neither of the burden on the courts system, nor of the caseload of any particular judge. The reasons for this are many and varied, most of which were elaborated upon by the appellants in their appeal.

The requested information concerns only the district courts and the Supreme Court, and it does not, therefore, reflect the overload in the courts system in its entirety. Moreover, I accept that data as to the number of open cases and the date on which each case was opened, even when added to other data published by the courts system, present a limited, incomplete picture which does not shed light on the reasons for the duration of the handling of a case—short or long—nor on the reasons for the caseload of a particular judge. A long list of variables which will not find expression in the requested information can affect the data: thus, for example, the type of process can affect the duration of the judicial proceeding. A fast track process is not the same as a civil suit in the framework of which testimony is heard. An arraignment hearing is not the same as a criminal trial in which witnesses testify. In addition, different events in the lifetime of a case can significantly affect the length of time over which it is handled: an accused person who flees; a witness who dies and the party who summoned him to testify wishes to find another witness in his place; mediation proceedings, compromise agreements, or plea bargains that were achieved at early stages of a process; motions for stay of proceedings; the concurrent conduct of another process on a related matter; the case being returned to the trial court by the appeals court—these are only a few examples of what can influence the duration of a case. In the Supreme Court, and particularly in relation to petitions to the High Court of Justice and in appeals on administrative petitions, the duration of the lifetime of a case is often affected by the need to wait for the completion of legislative or other processes that might obviate the need to decide on the petition and prevent judicial intervention. Preliminary processes, such as questionnaires and discovery of documents in a civil process, or an appeal for discovery of confidential evidence and procedures relating to examination of the material from interrogations in a criminal process, can also affect the amount of time taken for a case. Of course, there are also urgent cases which require immediate attention and cause a delay in the handling of older cases. Above all, the requested data cannot reflect the degree of complexity of the case, from either a factual or a legal point of view. The more complicated and complex the case, the more time may reasonably be required to decide on it. The said data in no way expresses the number of parties in a case, the number of sessions that are required to resolve it, or the number of witnesses summoned to testify.

I will further mention that the requested information cannot shed light on additional aspects of the conduct of the parties that affect the duration of the proceedings in the case, whether these be agreements about submitting affidavits in a civil process or submitting agreed notifications in a criminal process which contribute to the efficiency of the proceedings, or whether this be conduct that contributes to the drawing out of the process, such as repeated requests to defer hearings, summoning witnesses whose testimony is of disputable value, the manner in which the questioning is conducted and more. The requested information also does not reflect situations in which a single judge began hearing the case and it was subsequently transferred to a bench of three judges, as happens, for example, with petitions to the High Court of Justice, or instances in which cases are passed over to a judge as an “inheritance” from a judge who retired, and they are therefore “more ancient” within the system.

I therefore accept the argument that the requested information will create an incomplete picture that cannot attest to what is actually sought—a picture of the burden on the courts system and its judges. I will elaborate on the ramifications of this matter presently.

Distinction between Institutional Information and Personal Information

60. A central argument raised by the appellants is that the purpose of the Freedom of Information Law is to ensure transparency of the public authority so that oversight will be possible, and not personal transparency of those working in the authority. According to the appellants, in order to achieve this purpose, no connection is required between the information and the identity of a particular functionary—something which could interfere with the functioning of the public authority. 

On the level of principle, I accept the distinction between institutional information and personal information. Examination of the Freedom of Information Law and of the literature on the subject leads to the conclusion that the Law is concerned with the public authority as a governmental factor, as a system, and not in attempting to zoom in in on individuals who are active in its ranks. This conclusion stems primarily from the provisions of the Law, which refer to “information from a public authority.” Some may argue that such information includes information about the functioning of the individual employee of the authority, but other provisions in the Law seem to indicate the opposite: thus, the duty of the authority to publish an annual report that contains information about its activity and areas of responsibility (sec. 5 of the Law) means that the Law envisages the possibility of oversight of the activity of the authority as a system; hence the fact that the reasons for rejecting requests for information all involve considerations of the authority as a system and not individual considerations (sec. 8 of the Law); hence the only concrete reference in the Law to an employee of the authority involves “information concerning the disciplinary affairs of a public authority employee, excepting information involving public processes stipulated by law” (sec. 9(b)(9) of the Law), in relation to which the authority is permitted to refrain from disclosing the information.

61.  The said conclusion is also dictated by logic: the public authority is responsible for certain domains in relation to which it has been granted various powers. The interest of the public that wishes to examine the activity of the authority and to oversee it lies in the activity of the latter as a body that provides the public with services and acts as its trustee. The purpose of public oversight is to examine whether the private citizen obtains from the authority the service to which he is entitled: whether the authority fulfilled its goals and aims, what was the extent and nature of its activity, how it exercised its powers. It does not examine the service given to a person by a particular employee of the authority. It is the system that is open for public scrutiny, and not its employees.

To clarify: this does not mean that the employees of the public authority are immune from oversight. As a rule, claims about the manner in which employees of the authority operate should be examined in the framework of the authority or in public frameworks that are suited to the examination of complaints and other such claims. One cannot accept that every complaint about a public servant, his output and his efficiency at work, or the nature of his work will be a matter for public oversight, without all the relevant information being considered and without all the circumstances being weighed in a balanced and cautious manner. As the appellants point out, correctly, it is the system that is held accountable for its functioning, and which will be required, on the systemic level, to learn the lessons, adjust itself, and fix malfunctions, insofar as they have been located, even at the level of the individual employee.

62.  This is the point: I am of the opinion that in these matters, the judiciary is different from other public authorities. As I pointed out in the discussion of the principle of the judge’s duty to report, the judge holds public office and is obligated by all the duties that obligate a public servant. At the same time, the status, the obligations, and the powers of the judge differ from those of all other public servants. The crux of the difference between a judge and other public servants lies in the judge’s judicial independence. In what way?

The judge enjoys personal independence that allows him to rule in accordance with the law and with the dictates of his conscience, irrespective of any other party, as is required by the very nature of the judicial process and of the objectivity that is essential to its conduct. I do not believe that there is any other public office bearer who enjoys such wide independence, for there is no public office bearer whose activity is not subject to audit, oversight and authorization by his superiors. As I have already mentioned, the fact that the decisions of the judge are subject to the appellate review does not negate the judge’s judicial independence at the time of making the decision. In addition, as is known, the appeals court tends not to interfere in every matter, and its interference with the decisions of the trial court is cautious, restrained, and subject to clear rules that have been established in the decisions of this Court.

63.  Personal judicial independence is also secured, as I explained above, by means of rules that were formulated in order to ensure the status of the judge and his office so that the work environment in which he operates will be free of pressure or concerns of personal ramifications for any particular decision, and will allow him to make quality decisions on the merits of the case.  Particular emphasis should be placed on statutory provisions that establish the manner in which a judge’s tenure ends: in accordance with sec. 7 of Basic Law: The Judiciary, a judge’s tenure ends when he retires –at the statutory age of 70 years—or if one of the events enumerated there occurs. The only cases in which the judge’s tenure may be ended against his will or when he has not been appointed to another position (sec. 7(3)) are if the Judges’ Election Committee , by a majority of at least seven members, decides on termination (sec. 7(4)) or upon a decision of the disciplinary court (sec. 7(5)). Clearly, then, the judge is securely placed on the bench, and the termination of his tenure when he has not reached retirement age or voluntarily on his part is possible only in very extreme and exceptional circumstances. This is not the case with general employees of the civil service. Their employment can end, and in all events if it transpires that an employee is not suited to the task that he is meant to be performing, he can be transferred from his position to another one suited to his skills.

64.  Another distinctive characteristic that derives from judicial independence is judicial independence internally vis-à-vis the courts system. The judge indeed belongs to the judicial branch, but is not subject to the oversight and audit to which civil servants in other frameworks are subject. It is the judge who sets his work schedule as well as the nature of the proceedings in his courtroom: he decides how many sessions there will be and their duration; he determines how much time the parties will have for questioning witnesses and raising various arguments through their respective lawyers. It is the judge who decides how to prioritize the handling of the cases: how his time as a judge will be divided between scheduling hearings for new cases and writing decisions, whether hearings will be held in new cases before old decisions have been written, and how much time will be devoted to each case. It is the judge who decides the tempo at which cases proceed, he sets the dates, but he also decides on the cancellation of hearings. He decides on the depth of the judicial reasoning and on how detailed it will be; when the  decision is written and when it will be heard. In other words, to a large extent the judge’s chambers are an independent, separate micro-system within the public system.

To clarify, the reality in which the judge operates is not without its limitations, which impact on the exercise of judicial discretion. Thus, for example, the law states that judgments will be rendered within thirty days from the end of the deliberations (sec. 190(d) of the Civil Procedure Regulations 5744-1984); various statutory provisions relate to fixing of dates of hearings, the extent and duration of hearings and the date on which judgment will be rendered, such as Title 16-1 of the Civil Procedure Regulations, which is concerned with hearing a case by way of fast track proceedings; and various directives are issued by the President of the Supreme Court and the Director of Courts. However, there is nothing in these to change the fact that a judge has no superior to whom he is answerable with respect to fulfilling his tasks or to whom he must explain administrative decisions that he has made. Neither is there anyone who will demand explanations about his decision to deviate from any particular administrative directive. Even given the said limitations—each of which has the potential for detracting from the judge’s independence—it may be said that the activity of the judge is independent and autonomous, and certainly so compared to other functionaries in the public service.

65.  This independence and autonomy that the judge enjoys in his position has no counterpart in the public service, for the good reasons that I discussed. Oversight and supervision of the judge and of his conduct in the various frameworks are restricted and limited to cases which, as a rule, may be deemed exceptional and unusual. This is true on the substantive level of the judges’ work, but it is also true in relation to its administrative aspects, such as the rate at which cases are heard. To a very large extent, the system depends, and justifiably so, on the judge’s suitability for his job as determined on the basis of the appointment process, and on the integrity, fairness, and sense of responsibility of the judges. The fact that the judge functions as a type of independent, separate system within the judiciary, sets judges apart from other public servants in a manner that, even if the distinction made by the appellants between institutional information and information of a personal nature within the bounds of the Freedom of Information Law is correct in general, its significance, logic, and validity are nevertheless reduced with respect to judges.

At this stage I will proceed to an examination of the second tier of the appellants’ arguments—the harm to judges and to the courts system as a result of disclosure of the requested information.

The Requested Data as an Index for Assessment of Judges

66.  The appellants are of the opinion that there is a significant difference between systemic data, which is statistical or quantitative, and publication of that data in reference to, and naming the person responsible for, the material to which they pertain. There is logic to this argument. Whereas statistical data relate to the public authority as a system and constitute an index of its activity as a whole, or at most, are perceived as an index for assessing the performance of those at its head, publication of data pertaining to the performance of individuals places that individual in the spotlight, linking the data to him individually, sometimes even more than to the system itself.

Against this background a concern arises that connecting the data with the name of a particular judge will put him in the position of being the principal bearer of responsibility for the “performance of the system”, i.e. for the data that is published, and expression will not be given to the additional considerations that make a significant contribution to the picture that emerges, beginning with the concrete circumstances of each case, as I have already discussed, and ending with the various systemic difficulties that the individual judge, no matter how dedicated and efficient he is, cannot solve and which ought not to be loaded onto his shoulders. The primary source of concern in this matter is the fact that in publishing the data with named segmentation, no expression is given to the heavy burden on the legal system overall, the reasons for which are extrinsic to the judges: ranging from structural reasons inherent in the system, to a lack of positions for personnel and to technological and social advances, which lead to the statutory regulation of various areas and, thereby, create additional legal processes, and ending in social-cultural reasons, such as the absence of a tradition of solving disputes outside the courtroom, which leads to a multiplicity of proceedings (on this see Raanan Sulitzeanu-Kenan, Amnon Reichman, Eran Vigoda-Gadot, “The Burden on the Judicial System – Comparative Caseload Analysis of 17 States” (2007) http://elyon1.court.gov.il/heb/haba/Courts_burden_Final_report_5.07.pdf.  See also per (then) Justice A. Grunis in CrA 4865/09 Adv. Feldman v. Tel Aviv District Court [Nevo – July 9, 2009] (hereinafter: Feldman). Focusing on the individual judge is liable to deflect attention from the system, its functioning and its problems, as well as from the potential solutions, such as adding judicial positions or adding another appeals instance (Eliahu Mazza, “The Burden on the Courts Harms the Public” (February 22, 2011) on the site of the Israel Democracy Institute, www.idi.org.il ).

67.  A concern that was raised, and which is not unfounded, is that publication of the requested data will bring about a situation in which the public’s evaluation of the functioning of the judge will be based primarily on quantitative data, so that the dominant consideration in evaluating performance will be perceived efficiency—for as we have said, this is an assessment that will be based on data that does not provide an accurate picture of the present position—whereas the quality of the work of the judge and of his judgments will be cast aside.

The concern about efficiency as a major parameter in the evaluation of judges is magnified given the  approach that seeks to view judges as people who provide a public service, like any other public authority. In the modern world, efficiency is a central component in evaluating the effectiveness of performance of bodies both public and private, as part of the concept of the efficient use of resources. In my view, an index of efficiency cannot, and should not, be the main index for evaluating the performance of the individual judge or of the system as a whole. An approach that claims otherwise misses, in my view, the essence of the judicial function in doing justice, in protecting human rights and the rule of law. Indeed:

Justice cannot be achieved by means of conveyor-belt processes, and the setting of norms of law requires processes of thought which are sometimes complex and the implementation of which takes time. The judicial process sometimes involves components of an art form, but also of lofty ideals, intuition, and inspiration. In his judicial capacity, the judge is responsible, not only for determining the facts in a particular case and the judicial norm; these determinations are perhaps simple relative to the function imposed upon him to tailor the norm to the particular case, and in some cases, to set normative justice up against the circumstances of the case. The banalization of values, which is the hallmark of the previous century, led to the definition of the judicial function as providing a service to the citizen, exactly akin to transportation, cleaning, and health services; however, providing a service does not exhaust the judicial process (Levin, at p. 6).

The main index for examining judicial performance is substantive-qualitative: the judge’s conduct in the courtroom, his scrupulousness in relation to the rights of the parties before him, the quality of his decisions, their substance, and their reasons. Placing considerations of efficiency at the core of the judicial endeavor is likely to detract from its quality. It will lead to an erosion of the right to due process, is liable to harm the process of establishing the truth, will be detrimental to the doing of justice, which is the beating heart of the judicial task, and will lead, ultimately, to the public perception of the courts as bodies which are not led by substance and the doing of justice, but by their volume of output. More than anything else, it will entail harm to public confidence in the legal system. We must be on high alert against all these.

68.  As mentioned, judgments are published and can be accessed by the public; however, it is clear that the public does not take the trouble to follow the whole body of a judge’s decisions in order to formulate a position with respect to his work and its nature. Even in cases in which a judicial decision receives wide media coverage, this does not guarantee that this coverage will properly and fully report the main reasons for the decision. As opposed to this, in my opinion, it may be assumed that, to the extent that the requested data is published, it will receive significant public exposure, and will be seen as a far more concise, clear, and simple summarizing picture. This is the backdrop to the concern that the data will become the primary index in the hands of the public for evaluating the performance of the system and its judges, sweeping aside meaningful indices for evaluating the work of the judges. As stated, this is particularly troubling in view of the fact that the requested data cannot reflect an accurate picture of the situation.

69.  A situation in which the judges are evaluated according to the number of cases closed or according to the number of cases remaining on their desks, therefore, involves significant interference not only with the work of the judges and their public image, but also in the manner in which the legal system as a whole is perceived by the public. However, I believe that this chilling picture, sketched out most skillfully by the appellants, is incomplete.

First, and insofar as we are dealing with a concern about creating an inaccurate picture of the judicial burden, the appellants are prepared to tolerate this outcome, with its harms, for they are prepared to publish the information, segmented according to judges, as long as the judges are not identified by name. In essence, the purpose of the legal system is to do justice. The doing of justice cannot be confined within a set time-frame. It requires a process of weighing, of analyzing, of cautiously examining in depth all the evidence and relevant material prior to a position being adopted by the judge. Arriving at the correct decision sometimes requires negotiation between the parties, or it involves waiting for external processes taking place concurrently. As mentioned above, judgments are not written on a conveyor belt. The judge cannot fulfill his function in a high-quality, full, and complete manner with a gavel in one hand and a stop-watch in the other. He cannot conduct hearings with the State seal above his head and an hourglass in front of him. Efficiency is not the be-all and end-all: achieving justice is. Without patience, without commitment to establishing the truth, the quality of judging will be harmed, and with it, the right to due process. The judiciary will be harmed, but above all, society and the state will be harmed (on this, see Agmon-Gonen, at p. 216).

Together with all the above, and at the same time, efficiency is not a pejorative word. Streamlining proceedings cannot justify harm to the doing of justice, but it can certainly justify the aspiration and endeavor to find the balance between doing justice and the length of time over which it is achieved (Levin, at p. 8). Public confidence in the judicial system does not rely only on the personal functioning of the judge and the number of cases that he has heard. Public confidence can also be influenced by administrative aspects of judicial performance. Drawn-out proceedings erode the foundations of public confidence in the judicial system, and it has already been said that “delays of justice are liable to lead to despair of the legal system” (Cohn, at p. 367). Drawn out proceedings may involve a breach of the right to due process (CrimA 1523/05 Anonymous. v. State of Israel [Nevo – March 2, 2006], para. 22 of my opinion). They are detrimental to the ability of the court to investigate the truth, whether due to the death of witnesses or dimming of witnesses’ memory, or evidence being lost, or whether because the memory of the judge, too, and his impression of the witnesses, cannot be sharp and vivid when the opinion is written long after testimony is heard (see Feldman, at para. 8 and the references there). Prolonged proceedings are an ailment that can cause a delay of justice, and there are cases in which it even entails perversion of justice (CrimA 188/77 Wertheim v. State of Israel [51], 231). Justice delayed is justice denied, or perhaps justice whose shine is lost and whose value has been eroded (and see the apt words of Justice Berinson in CA 520/71 Goldberg v. Belaga [52], 462). The litigants whose rights to due process we are seeking to ensure are those same litigants who are waiting for a decision in their case. In this sense, the commitment of the judge to the efficiency aspect of his performance, too, is an expression of doing justice.

If so, efficiency cannot constitute the main index for evaluating the performance of the judge; at the same time, efficiency is an aspect that must be taken into account, one which bears weight in ensuring public confidence in the courts.

Burdening the Judges – Coping with Publication of Inaccurate Data

70.  The appellants themselves believe, so it appears, that despite the fact that the requested data creates a partial picture only, it is possible to complete this partial picture with accompanying explanations and thereby prevent the damage of which they are warning. However, so they say, providing detailed explanations will impose a heavy burden on the judges and will arouse concern that the information that is provided is a matter of judicial discretion—information to which, as stated, the Law does not apply.

The starting point in this regard is that the requested data is included in the right to information according to the Law. As the trial court pointed out, the respondents are not asking for any additional explanations about the data. Insofar as the appellants believe that such explanations are necessary, it is a matter for their discretion. In their pleadings there is no real basis for any argument concerning the heavy burden that will be imposed on the system and on its judges should they be asked for such explanations, It appears also that any such explanations need not involve too heavy a burden: insofar as appellant no. 1 or a judge thinks that an explanation is required with respect to a particular case, it would be an explanation which any judge would be able to give in that the case is being heard by him and is well-known to him. In my view, in such a case a short, laconic explanation would suffice, such as: “scope of the case”, “absence of the judge due to a sabbatical/personal circumstances”, “motion for stay of proceedings pending”, “mediation proceedings”, “full diary” etc. Short, succinct explanations will not, in my view, cause concern about sliding into the area of judicial discretion in conducting the cases. In my view, there is no obligation to provide explanations for the requested information, but this is a matter for the discretion of appellant no. 1, and in any case, it must be done in coordination with the judge. 

Another possible conceivable solution is to develop software that allows for assessment of the cases being handled by each judge in all their aspects, producing as accurate a data interface as possible. I will mention in this context that from the Freedom of Information Report published by appellant no. 1 in 2012, it emerges that in that year, a comprehensive study on “case weighting” was completed, which “creates an index for assessing the judicial workload in cases of various types … Thus the legal system can obtain an accurate picture of dispersion of the load between the courts and between the different areas of law” (as stated by the President of the Supreme Court, Freedom of Information Report 5 (2012)). It is not unreasonable to assume, therefore, that it is possible to develop a data base that would produce a clearer picture. In this context, too, provision of more detailed information is a matter for the discretion of the appellants, to the extent that they should choose to provide more detailed information.

Publication of the Data – Harm to the Judges and their Independence

71.  The appellants argue that providing the personally identifying information—as opposed to systemic information—will lead to harm to the reputation of judges and to their persecution, when they are unable to respond to the publication; it will upset their peace of mind and subject them to fear in a manner which can affect judicial independence. This argument is connected to another argument that was raised in relation to concern about misuse of the requested information,

As already explained, when the information is personal, it indeed places the public servant, rather than the system to which he belongs, at the center of attention. This being the case, there may be some who attribute to him the entire responsibility for the data that is delivered insofar as it concerns him.

a.     Concern about Debasement, Shaming, and Harm to Reputation

72.  I was troubled by the serious concern that the requested information will be used to embarrass the judge and publicly shame him, on the basis of incomplete information—something which, according to the appellants, will be detrimental to his performance as a judge and which will in all events also interfere with the functioning of the judiciary and its ability to carry out its task. The concern about harming the judge’s reputation also arises here.

Indeed, it is clear that publication of the data, while connecting it to the names of the judges handling the cases, might be done in a manner that is liable “to disgrace a person in the eyes of others or to make him the object of hatred, scorn or mockery on their part” (sec. 1(1) of the Defamation (Prohibition) Law, 5725-1965), “to disgrace a person on account of acts, conduct or traits that are attributed to him” (sec. 1(2) of the Defamation (Prohibition) Law, or “to harm a person’s office, whether public office or otherwise, in his business, his occupation or his profession” (sec. 1(3) of the Defamation (Prohibition) Law). There would seem to be no need to elaborate on the fact that publication of the data may be done in a way that brings disgrace and that will be embarrassing to the judge, and that for the judge, like any person, his reputation is a source of recognition, pride, and personal dignity amongst people. “A person’s dignity and his good name are sometimes as important to him as life itself; they are usually more important to him than any other possession” (CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840, at p. 856).

73.  This is indeed a worrisome matter, and it weighed heavily on me at the decision-making stage. On another matter, the late Justice E.E. Levy wrote in relation to the judge: “What does he need in his chambers, what profit in his courtroom? He has nothing but his good name, his dignity and his reputation, the acquisition of which require the investment of years of toil but the destruction of which happens easily” (HCJ 2561/07 Justice Michal Sharir v. Courts Administration [Nevo – July 24, 2008], para. 8). The judge, like every person, has the right to a good name. This right is his, despite his office, which exposes him to the public eye. The good name of the judge, his dignity, the esteem that he has earned over the years of his employment, all these accompany him in the judicial seat and contribute to his status and to public confidence in him when he is hearing a case. Without this good name, public confidence in the judge and in his integrity will suffer, and the moral—as opposed to the legal—validity of his decisions will be negated.

74.  The need to ensure public confidence imposes a heavy burden upon the judge to take care in all that he does, when sitting in judgment as well as outside the courtroom, and to act in a manner that comports with his position and that will secure the respect given by the public to its judges and to the system as a whole:

       A precondition for the proper functioning of the judiciary is that the public trust it, that it recognize its authority to sit in judgment, and that it accepts the legal decisions that it hands down (Introduction to Code of Ethics for Judges  5767-2007 (published in KT 5767 no. 6591 on June 5, 2007 , p. 934). This trust depends, first and foremost, on the existence of a moral foundation for the activity of the judicial system, and on the scrupulous maintenance of this foundation on the part of every judge in the system (CrimA 9893/06 Elon-Lauffer v. State of Israel  [Nevo – December 31, 2007] (hereinafter: Elon-Lauffer), sec. 16 of the opinion of Justice A. Procaccia).

However, maintaining the proper functioning of the courts is not only a personal task for the judge. It is not even a systemic task of the judiciary alone. Insistence on the dignity of the courts and the judges, including preservation of their reputation, is first and foremost a public interest. This is based on an understanding of the complexity of the role that is fulfilled by the judge in a democratic society, which for the most part leaves one side unsatisfied, and recognizing the importance of preserving public confidence in the judiciary as a guarantee of a democratic society, in which the rights of the citizen and the resident are upheld (and cf. Be’eri, at p. 612). The concern for preservation of the reputation of judges does not stem from a quest for glory, but rather, from the obligation to ensure the status, the dignity. and the strength of the judiciary, which are essential for the performance of its duties.

75.  The concern raised by the appellants regarding this matter is not unfounded. Unfortunately, we not infrequently hear harsh, strident criticism, sometimes unrestrained, directed at the judges. This is unfortunate, especially in view of the fact that the judge is unable to respond to the allegations made against him. As we know, the channel through which the court expresses what it has to say is the judgment. The judicial decision is not an arena for a polemic between the judge and his critics and those who speak against him. In fact, there is no arena, apart from the judicial decision, in which he can explain his intention and his reasons and respond to allegations made against him. As a result, the judge’s critics will always have the “last word”. (Then) Judge Aharon Barak discussed this:

The judge is limited in his modes of response. He does not debate with his critics. It is not usual for him to defend himself in public. He does not act as his own defense attorney. His instrument of expression is the judgment. This is his primary defense . Hence the severity of bringing the judiciary as an institution into disrepute. One who does so cuts down the major branch on which our democracy sits (Be’eri, at p. 610).

Harming a judge’s good name not only harms the judge, but is harmful to the legal system in its entirety, and ultimately also, and primarily, to democracy.

76.  Thus, there is a concern for harming the reputations of judges and shaming them by means of the requested information. At the same time, the publication per se of the information is not initially loaded, either negatively or positively. There are judges who will be accorded praise and esteem on the basis of the information—whether justified or not, for this is not the index according to which the judge ought to be evaluated, and the information is not complete. There are judges who will not be harmed by the publication. Even with respect to those judges whose images will emerge in a less positive light, the publication will not necessarily be harmful and degrading in a manner that amounts to defamation (and cf.: HCJ 5133/06 Movement for Quality Government in Israel v. Director of Wages and Employment Agreements, Finance Ministry [Nevo – February 9, 2009]). Therefore, alongside the grave harm that will be caused, if indeed such publications should appear, it must be recalled, when examining the arguments of the parties, that, at this stage, what exists are only assumptions and concerns, and it is on this basis that the request to withhold information, to which the public is entitled under the law, rests. It may also be said that the very fact that the data is exposed and transparent to the public will lead to a strengthening of confidence in the judges and in the courts, and possibly even to a strengthening of the respect accorded to them by the public, as I will elucidate below.

B. Concern about Persecution and Intimidation of Judges

77.  The appellants are also concerned that the requested data will enable the presentation of a partial and distorted picture, causing judges to be persecuted and exposed to disturbing publications that are threatening to them and that will upset the peace of mind and the confidence that are essential for their proper functioning. In their pleadings, the appellants emphasized the harm that would be caused by such publications to the essential working environment of the judge, in view of the complexity of the task; but it appears that their main concern, is about a situation in which attempts will be made to intimidate judges, to shake their confidence and to influence their performance.

It hardly needs mentioning that the concern raised in the pleadings of the appellants is grave and serious. The basic assumption that a judge is exposed to public scrutiny does not imply that he is shielded in armor that protects him from all harm. Criticism, when it is sharp, inappropriate, or unfair, may harm the judge like any public servant, like any person, and in the words of Shylock:

I am a Jew! Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? (William Shakespeare, The Merchant of Venice, Act III Scene 1).

Indeed, the judge is of flesh and blood. Criticism is liable to hurt him. It may cause him to experience a feeling of injustice, precisely against the background of the reality in which judges toil day and night to fulfill their tasks. At the same time, the conclusion to which the appellants would lead us, and according to which criticism based on the requested information will end in harm to the performance of judges, does not take into account relevant counter-arguments, as will be discussed below.

78. The judge is a public figure. His role, as I have already said, is fulfilled in total transparency, as he is exposed to judicial, institutional, and public scrutiny. Nothing in the fulfillment of the judicial function is done in the dark. The power of the judicial decision is in its reasoning, which is accessible to anyone who wishes to see it. Indeed, the judicial endeavor is like art that is executed in a cell with glass walls (see Elon-Lauffer, per Justice Procaccia, para. 15), and it has been said that “a person who accepts public office exposes himself to a large extent to the watchful public eye (HCJ 2481/93 Dayan v. Yehuda Wilk, Jerusalem District Commissioner [1994] IsrSC 48(2) 456). See also Government Corporations, para. 26 of my opinion). The said transparency applies not only to the product of the judge’s work—his rulings and decisions—but to the entire gamut of aspects of the judicial role.

As described at length above, judicial independence allows the judge to act to the best of his professional knowledge and understanding and in accordance with his conscience. The judicial decision is the expression of his world view and his jurisprudential, moral and ethical conceptions, in the manner that he chooses to interpret and apply the law in the concrete case. The judge is identified with his decisions, and he validates them with his signature. This is the situation in relation to all of his decisions, including those dealing with difficult, troubling issues, with human and ethical dilemmas, and also with issues that are the focus of stormy, strident public debate. In all these cases, the judge is in the spotlight. His positions and his decisions are the subject of media coverage and criticism. As we have said, the criticism that is sometimes leveled at his decisions is not always based on the entirety of the facts or on knowledge of all the material and all the reasons. The judicial decision is not infrequently presented in an irrelevant manner and in a belligerent, aggressive tone. Sometimes the criticism is hurtful, sometimes even personal. And still, it is inconceivable that due to fear of such criticism or its potential effect on the judge, that judicial decisions would not be published or, alternatively, published without designating the names of the judges who wrote them. Even in matters that are difficult, that arouse strong feelings and raise weighty issues and interests, we do not assume that criticism will detract from the quality of the future decisions of the judge or from his professionalism.

79.  Publications of the type described are liable, at least in some cases, to place the judge in tension, or under pressure; they are liable to cause him great distress or a feeling that he has been unjustly treated. Sometimes, their contents can damage the judge’s reputation. At the same time, situations such as these are a “by-product” of the judicial function. In such situations, even if the published criticisms are very harsh, the assumption is that the professional judge will be able to dissociate himself, when judging a case, from the effects of criticism. The expectation is that a professional judge will be aware of the possibility that various publications might influence him, and will therefore summon up all his integrity, fairness and the sense of mission that guides him, and his professional skills, in order to dissociate influences of this type from the process of decision-making, continuing to do justice according to the law (cf. Azulai, at p. 576-577). When that is the expectation of the judge in relation to the effect of criticism that is directed at his judicial discretion and his rulings, can something different be expected of him in relation to publications that may deal with his efficiency? I would imagine that the answer is negative. The judge assumes a heavy responsibility by virtue of the very fact that his signature must appear on his decisions. The judge gains personal esteem for his rulings and legal analyses. It is therefore difficult to accept the argument that in the context of criticism, or of the publication of data concerning the cases that he is handling—a context that can engender positive, negative or neutral publications—precisely then his identity should be erased from the system. The assumption that a publication concerning his output will harm the judge, his confidence, or his peace of mind, more than would sharp criticism of his rulings, is to attribute excessive weight to this data, rather than to the qualitative aspects of the judge’s work.

Let there be no mistake: I do not deny that criticism might be delivered in a hurtful, insulting, and, sometimes, even, sinister manner, and when that is its nature, it does not contribute to the work of the judge. This matter should, and will, be given due weight. At the same time, I am of the opinion that the embarrassment and the discomfort that might be caused are such that the judge is anyway exposed to them at present, even if they are dressed up differently.

C.    Concern about Misuse of Personal Information

80.  The appellants further argued that delivery of personal data bears greater potential for misuse of the information than does delivery of systemic information. I do not disagree. One can imagine different ways of misusing the requested information when it is identified with a particular judge: some of these were mentioned in one way or another by the appellants. This could be by means of publications that are liable to hurt the judge and publicly shame him, whether the publications relate to a specific case, or whether they are part of an attempt to affect the judge’s position or his advancement; or the information could be used to request that a case be handled by a different judge in an attempt to bring the matter before a panel that seems more “comfortable” for the particular litigant. For example, it is possible to imagine a situation in which a request is made to transfer a case that was scheduled before a particular judge to another judge, on the grounds that a quick decision in this is a matter is important, when from the published information it emerges that the particular judge has an extremely heavy caseload.

81.  I will admit that the concern that was raised about manipulative or irresponsible use of the data troubled me. As I have said, the requested data cannot sufficiently convey the dedication, seriousness, and commitment that characterize the work of the judges, as many members of the public—some of them litigants and those who have had recourse to the courts—know. The data allows for the presentation of only an incomplete and inaccurate picture which can adversely affect the judge’s image, and as a result, the legitimacy of his decisions as well. In the final analysis, I concluded that the concern about shaming the judge and harming his dignity on the basis of the said data should bear weight at the end of the road, but at the same time, I wish to state several reasons which make it impossible for me to accept appellants’ arguments in this context in their entirety.

First, the concerns that were raised by the appellants in this context, even if they are not baseless, are to a great extent speculative. It is to be hoped that any publication that is based on the requested information would be executed with the care and the responsibility that are necessary when reviewing the affairs of the legal system (cf. Be’eri, at p. 610). It is to be hoped that care will be taken to obtain the response of appellant no. 1 prior to publication, and that an effort will be made to obtain data in a complete and fair manner. I hope that as part of “responsible journalism” (CA 751/10 Anonymous v. Dr. Ilana Dayan Orbach [Nevo – February 8, 2012]) all the media will fulfill their obligation to the public to provide fair and substantiated reviewing and reporting. Of course, it is possible that there will be publications in which such care will not be taken. However, I am not of the opinion that on the basis of this mere possibility, which I assume will be the exception to the rule, it is right and proper to limit the right of the public to information concerning the judiciary, which has such a profound impact on daily life.

In addition, regarding publications that seek to influence the judge with respect to his handling of a particular case—and no one disputes that such publications are illegitimate— it would appear that this is one of the “occupational hazards”. The judge fulfils a public office; in an open courtroom, he hears cases in which the public has an interest and which not infrequently receive media coverage. A partial answer to these concerns lies in sec. 71 of the Courts Law, which prohibits publications about a pending criminal process, i.e., the prohibition of sub judice. As is known, recourse to this instrument is rare, particularly subsequent to amendment of the Law in 2002. It became applicable only to criminal processes, with civil processes excluded from its purview, and an extremely restrained policy has been adopted by the prosecution in this context (see the Guidelines for Prosecutors Regarding Prosecuting the Sub Judice Clause, Attorney General Guidelines 4.1102, (August 25, 2005)). At the same time, this instrument does exist. In addition, I see a difficulty in an approach that sees a substantive difference between the harm to a judge that will be caused as a result of a publication concerning his “efficiency”, based on partial quantitative data, and the harm that will result from a non-complimentary, brash publication about him, about his judicial temperament, his judgments and his reasoning. I believe that of the two, the more damaging are publications that attack the judge’s professionalism, his personality, or his discretion, and which impinge upon the basic characteristics of his fitness for the position. To my understanding there is no intention to prevent such publications (recently, it is true, there was a report about the opening of an investigation for degrading publications against judges on the Internet, but these were extreme cases, that give rise to a suspicion of a criminal offense, bearing no similarity to the present case).

As for the argument concerning the possibility of using the requested data for the purpose of holding back the judge’s promotion, it is clear that there is no desire to encourage such use of the information. Nevertheless, here too I do not believe that the said concern can justify withholding the data from the outset. It should be clarified that the promotion of a judge is not subject to public trial—even if the public has the possibility of objecting to an appointment—rather it is a matter for the Judicial Selection Committee. All of the material relevant to the judge is laid out before the Committee, including material concerning the quality of the judge’s work, decisions and judgments he has issued, as well as additional information from which one can learn about his performance. Thus, the process of selection is based on as complete a picture of the data as possible, and therefore it is not the publication in the media based on incomplete information which determines his fate.

Finally, the concern that was expressed about manipulative use of the information for the purpose of forum shopping can indeed cause unnecessary embarrassment for the judge, as well as placing an unnecessary burden on the courts. At the same time, the decision in these matters, too, must be on the merits. The fact that the data presents an incomplete and inaccurate picture is sufficient reason, in my opinion, in order to reject, when required, arguments and motions such as these.

82.  Once again I will emphasize that I cannot rule out the possibility that the requested information will be used for purposes other than publications aimed at increasing the efficiency of the system or helping the litigating public. It is very possible that it will be used in an attempt to embarrass judges in general, or any one of them in particular. I turned this matter over and over again in my mind; ultimately I became convinced from my longstanding acquaintance—as a defense attorney, a prosecutor, and a judge—with the judges, with the system to which they belong with all its different courts, and with its ethos, that their inner strength, the way in which they conduct themselves, and their belief in the justice of their path will enable the judges to cope with the publications and to continue fulfilling their tasks faithfully. The said concern will not deter the judges and will not detract from the public nature of the system, its transparency, or from the recognition of the importance of public and media exposure to the activity of the courts and to the public presentation of the way things are. The test for the court is not only in that it does its work properly, but in that it is prepared to expose the ways in which it works as required under the law.

D.    Damage to the Ability of the System to Recruit the Best Candidates

83.  The appellants further argued that the delivery of incomplete, misleading information is liable to detract from the ability of the public system to attract to its ranks the best candidates. With all due respect, this is pure speculation. The need to ensure the system’s ability to recruit suitable candidates to the judiciary is not in any doubt. At the same time, a person who is appointed as a judge knows that the judge’s work is conducted in a glass house. To choose to become a judge is to choose a way of life of which transparency is a central characteristic. A person appointed to the judiciary is aware that he will be required to sign his decisions, no matter how controversial they are. Given that he takes this into account before he submits his candidacy to become a judge, it is difficult to accept that the publication of the requested data is what will deter potential candidates from submitting their candidacy.

84.  Turning to foreign legal systems on the present matter is of limited utility, for the issue of the transparency of the courts – the supervision and oversight of them - differs from system to system, and, to a large extent, involves additional questions, which are not part of our discussion, such as, the manner of appointment of judges, the conception of the role of the judge and his status, and the review mechanisms to which the courts are subject. In addition, it is significant that legal regulation of the right to information differs in nature from state to state, and since the Freedom of Information Law was enacted in Israel, the response to the appeal must be found within its parameters and not overseas. Nevertheless, I believe that in relation to the issue lying at the heart of the appeal—the ramifications of disclosing the information for judicial independence and public trust in the judges, and also, for the orderly functioning of the courts—a look at comparative law could provide additional confirmation of the fact that disclosure of the information will not lead to severe harm to the courts system.

85.  The laws in various states ensuring that citizens have access to information held by governmental authorities vary in their scope and in the approach that they reflect to realization of the right to information. Thus, there are laws which have adopted the “institutional” approach, i.e., they define which bodies will be considered “public authorities” to which the law applies, whereas other states have adopted a functional approach that defines the documents that will be disclosed, irrespective of the identity of the entity that is holding them. There are states whose laws refer explicitly to the right to information held by the judiciary, but there are also states whose laws contain no concrete reference to this subject (see: Open Justice Initiative, Report on Access to Judicial Information (Draft of March 2009), http://10.51.38.100:9091/servlet/com.trend.iwss.user.servlet.sendcase?downloadfile=IRES-1758480305-E3F20870-24338-24305-265); http://www.freedominfo.org). Many states have excluded the judiciary from the application of their freedom of information laws (such as Denmark, the United States, and Belize), but there are some states that have applied—either explicitly or implicitly—the right to information to the judiciary as well, at least insofar as the administrative aspect of its activity is concerned. Examples of such states are Belgium, the Dominican Republic, Jamaica, Pakistan, Slovakia, South Africa, Thailand, Trinidad and Tobago, and of course, Israel (David Banisar, “Freedom of Information Around the World” (2006) available at

http://www.freedominfo.org/documents/global_survey2006.pdf). 

It is also interesting to note in this context that the International Convention on Access to Official Documents 2009 recognizes a general right of access to official documents held by public authorities in various states. The definition of “public authority” under the Convention includes “Legislative bodies and judicial authorities insofar as they perform administrative functions according to national law” (Article 1(2)a(i)(2)). The Convention is not yet in force, for it has not yet been ratified by the minimum number of ratifying states.

86.   On the specific issue of publishing data about the activity of the courts, most of the information and the data that is published in the various states is related to cases that are already closed. In other words, as a general rule, information is not published about cases that are pending. Our examination revealed that indeed, as a rule, information is not published about open cases in the courts mentioning the identity of the presiding judge. This rule has two significant exceptions.

The first is the European Court of Justice of the European Union, which publishes statistics concerning the judicial activity of the Court. Inter alia, data is published about the activity of the President and Vice President of the Court, including in relation to cases that are still pending. At the same time, regarding the other judges, the number of open cases is published, with no segmentation according to judges (ECJ Annual Report, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-03/en_version_provisoire_web.pdf).

A second exception, which in my view is extremely significant, relates to the US federal courts. As was mentioned, the US federal Freedom of Information Act ((FOIA) 5 U.S.C. § 552) excluded the courts system from its application. The state courts in the US publish information about their activity in a general manner, without attribution to a particular judge. However, in accordance with the federal law enacted in 1990—the Civil Justice Reform Act (hereinafter: CJRA)—information is published about the caseload of the judges of the federal courts system. The Act was passed against the backdrop of an attempt to reduce the costs of conducting civil litigation and to reduce delays in these processes. It does so, inter alia, by publishing information about cases (for the backdrop to the passage of this Act, see Patrick Johnston, “Civil Justice Reform: Juggling Between Politics and Perfection”, 62 Fordham L. Rev. 833, 837 – 849 (1994); R. Lawrence Dessem, “Judicial Reporting Under the Civil Justice Reform Act: Look, Mom, No Cases!”, 54 U. Pitt. L. Rev. 687, 689 - 694 (1993) (hereinafter: Dessem). Inter alia, the Act mandates the publication of semiannual reports that include a list—in which the judges’ names appear—of motions pending more than six months, all bench trials submitted more than six months, and civil cases pending more than three years (see e.g., http://www.uscourts.gov/uscourts/statistics/cjra/2010-03/CJRAMar2010.pdf). Under this Act, a general outline of the number of cases that have been delayed is not sufficient; the cases must be specified together with the identifying details of each.

It is interesting to note that in the framework of the discussion of the Act in the United States, arguments and reasons were heard similar to those that were raised in the present case. Thus, for example, it was noted that good reasons contribute to the workload of the federal courts system, such as cases which drag on for reasons unconnected to the judge, or delays that are necessary or appropriate in view of the circumstances of the case; the excessive caseload in the federal system; insufficient numbers of sitting judges; structural inefficiency inherent in the structure of the court system; and the complexity of the cases. As opposed to these there are indefensible delays, that cannot justify the heavily overloaded situation of the courts, most of them relating to the presiding judge, such as nonstructural inefficiency; indecisiveness; disability; or sloth and neglect (Charles Gardner Geyh, Adverse Publicity as a Means of Reducing Judicial Decision-Making Delay: Periodic Disclosure of Pending Motions, Bench Trials and Cases Under the Civil Justice Reform Act, 41 Clev. St. L. Rev. 511 (1993) 513–519). In the framework of the processes that preceded the passage of the Act, Judge Robert Peckham claimed that publication of information concerning the number of cases in which there was a delay without appending suitable explanations for the delay, might mislead the public (Dissem, p. 692). Similarly, the Seventh Circuit Bar Association argued in the framework of its objection that publication of information about the status of motions and about closing cases was liable to lead to superficial conclusions, for factors such as the relative scope of the cases, the relative size of the docket in different districts, delays that have their source in the lack of judges in a particular district, or delays that stem from motions brought by the parties, would not be taken into account. In order to cope with this difficulty, the Act allows judges to append the reason for the delay, a possibility that I also raised above (ibid., 693-695). Geyh in his article points out that alternative mechanisms, both formal and informal, for dealing with the delay in handling pending cases have proven to be insufficiently effective, and thus, the value of publishing data about cases in which there has been a delay has risen as an important means of dealing with this problem (Geyh, at pp. 520-527. For a more critical presentation of the source of the demand in sec. 476 of the CJRA see: Johnston, pp. 858-859, who discusses the concern, which was also raised here, that judges will be evaluated mainly according to a measurable standard that cannot give full expression to their actual performance).

It will be mentioned that in his article, which was published three years after the enactment of CJRA, Dessem argued that as a rule, journalists who published articles on the subject took care to include the reasons for the delays, insofar as the judges reported them (p. 701).  It should also be mentioned that even though the article was published only three years after the enactment of the CJRA, it indicated a trend of improvement in the extent of the delays that were reported. The article does not look at the effect of the publication on public confidence in the legal system, but it pointed out that there had not been many reports written on the subject, and the matter was mainly taken up by newspapers intended for the legal community (ibid., at pp. 699, 706-707). A later article also indicated a trend of reduction of the delays in handling cases (Jeffrey J. Connaughton, “Judicial Accountability and the CJRA”, 49 Ala. L. Rev. 251, 253 (1997)). At the same time, it was mentioned there that the data from the “pilot” that was carried out on the subject indicated that the vast majority (85%) of district court judges who participated in the program did not change the way in which they conducted the cases before them in the wake of the Act.

87.   The few articles that we were able to find relating to the effect of the reporting requirement in the CJRA on the legal system are not up to date, and therefore their ability to assess the long-term effect of the Act on the system and on public confidence in this system is limited. According to these articles, at their time of publication, there were indications that the CJRA was achieving its goal and reducing the time for handling cases (Geyh, at pp. 532-534).  At the same time, even today, more than twenty years after the passage of the Act, the obligation to publicize pending cases according to the judges hearing the case still exists, and this is an indication of sorts that the Act did not harm the system and its functionality. Certain support for this can be found in the fact that in 2009, the Judicial Conference, which is comprised of judges in the federal judiciary, expressed its support of the Act when it voted to increase public accessibility to this information by making all the reports issued according to the requirements of the CJRA available, free of charge, on the courts’ website (New release, Judiciary Approves Free Access to Judges' Workload Reports: Courtroom Sharing for Magistrate Judges (15.9.09), available at: http://www.uscourts.gov/News/NewsView/09-09-15/Judiciary_Approves_Free_Access_to_Judges%E2%80%99_Workload_Reports_Courtroom_Sharing_for_Magistrate_Judges.asp).

Of course, it is possible to argue that the fact that the Act apparently contributed to a reduction in the delays in handling cases does not prove that no harm was done to the manner in which judges handled cases, to their patience in hearing cases, to the profundity of the reasoning in the judgments, and so forth. Nevertheless it stands to reason that with the passage of so much time since the Act came into force, that, had there been such a claim, it would have found expression either in academic writings or in the discussions about extending the access to reports in 2009.

To sum up: in the United States data similar to that requested in the present matter is published by the federal courts. True, we cannot draw conclusive conclusions about the effect of the publication on the quality of judging and on the performance of the judges in its wake, but from the fact that the Act has already existed for many years, and that it was recently decided to increase public accessibility to the information—even if it is not clear whether this decision will be implemented—we understand that, apparently, there are no substantial claims about damage caused by the Act to the functioning of the courts in general, and to the performance of the judges in particular.

Activity of the Ombudsman for Complaints Against Judges and Public Oversight

88.   The final matter that I wish to discuss is the appellants’ argument that the proper balance between the interest of maintaining judicial independence and the judges’ duty to report was prescribed by the legislator in the framework of the Ombudsman’s Law. Indeed, in establishing the office of the Ombudsman for Complaints Against Judges, a framework was devised which would allow for external oversight of judges and a true and substantive examination of the complaints brought against them, while preserving the dignity of the judiciary and its prestige (Strasberg-Cohen and Svorai, Mishpat Umimshal, at p. 373). In this spirit it may also have been thought that the fact that there exists a body that oversees the courts on an ongoing basis is sufficient in order to ensure oversight of a public authority, and that therefore there is less need for public oversight (and cf. Keshet Broadcasting, para. 81).

I do not accept this approach. First, in my view, the fact that a body exists for the purpose of oversight does not obviate the need for oversight by the public, and it certainly cannot deny the public, in the absence of sound justification for doing so, its right to oversee and criticize the governmental authorities (and cf. my position in Government Corporations, para. 33). “Public criticism is appropriate and desirable. It should not be suppressed. It should be encouraged. In a democratic state it is sometimes more important than review by the courts (Ministry of Education,, per Deputy President E. Rivlin, para. 11). This is particularly true in relation to the operation of the Ombudsman’s office, which as a rule is set in motion with the lodging of a complaint, so that there is therefore no guarantee that it will cover the entire range of activity of the courts system.  This is especially the case considering that, presumably, there are cases in which no complaints are lodged by the parties to a legal action. Precisely for this reason, there is room for the additional system of oversight provided by the public. In other words, the oversight exercised by the Ombudsman and public oversight operate on different planes and complement one another. It is difficult to accept, even given the special status of the judges, that they will be granted immunity from the Freedom of Information Law, unlike all other systems, and particularly where the legislator determined otherwise.

Summary and Conclusions

89.   As discussed at the beginning of this deliberation, the Freedom of Information Law establishes a broad norm of the right of the public to view information that is in the hands of the public authority. In other words, the rule is that of handing over information, and where the authority wishes to refrain from disclosure, it can do so if one of the statutory limitations applies. The interest of the public in disclosure of the information must be considered, as well as an assessment as to whether the public authority correctly balanced all the relevant considerations. The following should be taken into account, inter alia: the public interest in the information, as opposed to the anticipated harm to the interest of the public authority as a result of disclosure of the information; the possibility of reducing the harm to this interest, while upholding the right to information by partial publication of the information or by erasing certain particulars which it is thought will cause the main harm to the interest of the authority. All the considerations that the authority should have taken into account for the purpose of its decision whether to refrain from disclosing the information must be examined, as well as the balance between them and its reasonableness.

The conclusion at which I have ultimately arrived is that the respondents have the right to receive the requested information, since I am unpersuaded that there is near certainty of the occurrence of the harm to the courts system that the appellants claim will be caused as a result of handing over the information. My reasoning is based on the purposes of the Freedom of Information Law, the characteristics of the courts system, the transparency and public nature of its activity, the need to maintain public trust in the system, the nature of the performance of the judges, and their status and that of the courts.

90.   The parties to the petition. As stated, particular importance must be attached to the nature and the essence of the public authority in relation to which the information is requested, “It may be assumed that there is a direct correlation between the importance and degree of influence of the public authority on public affairs and the strength of the public interest in the disclosure of the information concerning its actions and decisions: ” (Council for Higher Education, at p. 251). The requested information concerns the judiciary, whose elevated status and the fact that it is amongst the most influential authorities are hardly a matter of dispute. The courts make a significant contribution to the fashioning of norms and standards; their activity touches upon all aspects of state activity and all areas of the lives of the individual and society. The public interest in knowing about the activity of the legal system, in its various aspects, is therefore clear.

On the other hand, the characterization of those requesting the information, who say that they want it for the sake of fulfilling their journalistic function, is also important in the present matter. The Law did not make the right to obtain information conditional upon the applicant providing a reason for his request (sec. 7(a) of the Law). At the same time, it is clear that the fact that the applicant’s interest in the information serves a concrete, important purpose from his point of view is likely to be a consideration in favor of providing the information  (see: Government Corporations, para. 10; Keshet Broadcasting, per Justice Y. Danziger, para. 10). The activity of journalists and the media is a guarantee for the existence of a free, civilized society:

They are a vital means for the realization of freedom of expression and actualization of the possibility for the public to oversee the activities of the government and to contribute to the establishment of a fitting culture of government. The contribution of bodies and parties of this sort to shaping the the face of society depends largely on their ability to realize their right to information (Government Corporations, para. 36).

 In the modern world, with the array of media and all the possibilities for disseminating information by means of existing technology, the media is the central means through which the individual realizes his right to information, to the exchange of views and to their crystallization (see also In re HaAretz, at pp. 479-480). The media is the central conduit through which the public can enjoy the publicity of proceedings in the courts and to learn from the journalists who frequent the courtrooms about hearings in the court and the judgments that are rendered.

In view of the public importance of the activity of the courts, and of the interest that the public has in knowing about this activity; in view of the fact that the requested information is administrative information held by appellant no. 1 and that it therefore comes under the right to information according to the Law; and having regard to the fact that the information has been requested by the respondents for the purpose of fulfilling their journalistic function, and that they therefore play an important role in realization of the right of the public to information, my opinion is that the respondents have a public interest in disclosure of the information.

91.   Ensuring public confidence in public authorities is one of the central purposes of the Freedom of Information Law. The Law reflects an approach whereby transparency of the activities of the public authorities, and the possibility of criticizing them on the basis of information provided, will lead to greater public confidence in the authorities and to their improved performance. Public confidence is a necessary condition for the judge’s ability to fulfill his task. Public confidence in the judiciary is a fundamental, basic condition for the its effective activity, and thereby of the existence of democracy. Life in a civilized society is not possible if the individual does not put his trust in the judicial authority as the mechanism for resolving conflicts and for clarifying and protecting his rights (see also Barak, The Judge in a Democratic Society, at p. 49). Indeed:

Public confidence in the judiciary is most precious asset that this branch of government has. It is also one of the most precious assets of the nation. As De Balzac noted, lack of confidence in the judiciary is the beginning of the end of society … And make no mistake: the need for public confidence does not mean the need for popularity. The need to ensure public confidence means the need to maintain a feeling amongst the public that the judicial decision is made in a way that is decent, objective, neutral and non-biased. It is not the identity of the claimants, but the weight of the claims that determine the law. This means recognizing that the judge is not a party to the legal dispute, and that he is not fighting for his power, but for the rule of law (Tzaban, at p. 148, and see Judge Cohen, at p. 461.)

As I explained above, in recognition of the fact that securing public confidence in the judicial system is not a temporary need but rather, an “ongoing need” (Tzaban, ibid.), the activity of the courts system is characterized by transparency and exposure to the public. This finds expression in the public nature of proceedings, in the publication of judicial decisions, and in the reports published by appellant no. 1, which provide a picture rich in detail about the activity of the courts. It is not for naught that I described the characteristics of the activity of the judges and the range of mechanisms which provide oversight and supervision of their activity. These demonstrate that, in fact, all aspects of the activities of the system and its judges are transparent and open to the public, or are subject to oversight. In particular, it should be stressed that the transparency of the courts’ activity is not merely systemic transparency. In this most important, most sensitive, and most complex of all tasks—the task of judging— the transparency is personal. The names of the judges appear on every decision that they hand down, without exception, even in cases in which the outcome is hard on one of the parties and the judge is liable to come under fire from the parties or from the public, as well as in cases—even if they are the exception—in which the possibility of the judge’s decision exposing him to some kind of threat cannot be discounted (and this has happened. Of course, in such a case, the judge is not expected to deal with the danger that has been created alone; the solution relates to security measures, but even then, the judge’s name is not withheld).

Against this background, since judges act with transparency, and they are constantly open to criticism which at times may be irrelevant, coarse, and aggressive, relating to their discretion and their professional conduct, it is difficult to accept the appellants’ argument that it is the publication of the quantitative data concerning each judge’s caseload that will engender serious harm to judges, culminating in harm to judicial independence and to public confidence in judges. It is difficult to accept that it is in fact criticism of the output or the speed with which cases are dealt that will be accorded, even by the judges themselves, greater weight and more significance than is accorded to criticism concerning their professional discretion. This position is contrary to the transparency and the mode of conduct that characterizes the system in its regular functioning, in the courtroom and in its function of deciding the law.

92.   The appellants sought to bring up a list of consequences of the publication of the data, at the center of which lies the harm to the judges, to their safety and to their peace of mind, leading to harm to judicial independence and to public confidence in the judges. According to them, it is a near certainty that these consequences will ensue, and therefore the disruption to the orderly functioning of the system is a near certainty. In my view, judicial independence, transparency and public confidence ought to be guarded assiduously in order to ensure the proper functioning of the courts. However, in my view, near certainty of harm to the functioning of the courts has not been proven. I say this, even whilst assuming that the picture presented to the public will apparently be based on the requested information and, therefore, will create only an incomplete picture.

In the framework of the deliberation, I have pointed out that, even if one cannot discount absolutely the possibility of the occurrence of the consequences that the appellants fear, such as harm to reputation, the concern that judges will be evaluated purely on this quantitative data, or that they will be embarrassed, the picture is far more complex and does not permit the acceptance of these arguments as stated. Thus, many of the arguments that were raised sought to point out that the erroneous information will engender a reality in which the judge finds himself persecuted and pressured in a manner that is harmful to his judicial independence, and as a result, to the functioning of the system as well, due to his exposure to inaccurate, embarrassing publications, or because of attempts to use the information against him. And indeed, I cannot discount the possibility that there may be those who seek to use the information in a negative manner, not directed purely at improving the system (in this context I will mention that the fact that the respondents are interested only in information about the judges of the higher courts—the Supreme Court and the district courts—may indeed make one wonder how necessary the information is in order to present the overload of the courts, for it is clear, even to them, that they lack the requisite information for this purpose, and it is known that the heaviest workload falls on the magistrates courts. At the same time, I do not think that too much weight should be given to this consideration, in that the reasons for the request are unknown to us).  As much as I cannot discount such a possibility, neither can I say that it will eventuate. Indeed, as I mentioned, most of the appellants’ arguments contain a speculative dimension. Many of them relate to the fear of negative publicity, but they do not give weight to the possibility of positive or neutral publicity. It must further be assumed that not every unfavorable publication can cause the severe damage as argued.

93.   Given that our concern here is with limiting the right to information, i.e., with the exception and not with the rule, I am of the opinion that the appellants’ arguments do not assign appropriate weight to the high personal, professional, and principled standard that the judge must meet, or to the extremely high level of responsibility that is expected of him (Tzaban, at pp. 148-149; DC 2/88 Minister of Justice v. Judge Asher ben Itzhak Arbel [1988] IsrSC 42(3) 63, 66-67).  This high level of responsibility also involves the ability of the judge to recognize error and to accept criticism. Indeed, exposure to criticism is part of the judicial task, and as I already mentioned in another context, “ … one who applies for a role such as this is also required to be prepared to meet the standard that is necessary by virtue of the nature of the task and the status of the person fulfilling it” (HCJ 2778/11 Kosanovic v. Judicial Selection Committee [Nevo – December 1, 2011]. The fact that the criticism may be harsh, and occasionally hurtful, does not in itself justify a violation of public’s right to information. This is explained well by President Barak in Be’eri:

        Public criticism is important for the judiciary. It ensures, ultimately, the public trust in the judiciary (see S. Shetreet, Judges on Trial         (1976), at p. 185). Judges accept this criticism with love. They understand that in a case that takes place before them, everything is on trial: the litigants, the law, and the judge himself. They know that criticism of them, even if harsh, is part of the “balances” that are required in a democratic society. Criticism, by its nature, is not flattering. It is properly leveled when it is civilized and relevant, and when it is anchored in the facts. But the boundary between what is permitted and what is forbidden is sometimes blurred. The need to preserve freedom of expression on the lawful side of this boundary is likely to justify refraining from bringing an action for expressions that overstep this boundary. The concern about prohibited expressions may well inhibit permitted expressions. The way to fight unfair criticism is by means of fair criticism of that criticism. The way to fight a lie is to expose the truth (ibid., at p. 612).

I will add that I accept, and it is well known, that the judge operates in a difficult, complex arena: the number of cases and their scope is constantly increasing, the fact that parallel to the legal process the parties not infrequently act in the media, and the involvement of various elements who try to influence the legal process—lobbyists, media advisers, public relations agents and others, all place the judge in the center of the stormy, emotional arena, in which the interests and the interested parties are numerous. They place the judge at the front line as the decision-maker. The judicial function involves, by its very nature, confrontations with a complex reality, with pressures of work, both in terms of quantity and substance, and with the gap between the litigation inside the courtroom and the way in which matters are presented outside to the public. In this situation, too, where one cannot discount various kinds of attempts to influence the judge, he is expected to adhere to his commitment to the rule of law, to decide on the merits in a professional manner, and to try to do justice in accordance with the law. Even in an arena that is susceptible to various influences, “…independence, autonomy, loyalty to the law and to one’s conscience are embedded first and foremost in the heart and the mind of the judge; the spiritual resources must ensure that every obstacle is overcome” (Shamgar, at p. 257). In other words, the judicial function requires judges to have strength—a strength that emanates from a commitment to truth, to the law, and to the dictates of conscience. Even if it is not deliberate, it seems to me that the appellants’ arguments assume that judges are liable to be swayed by uncomplimentary publications, even in situations that are not the most extreme. I believe that judges are deserving of trust in their honesty and integrity, and in their faithful and scrupulous fulfilling of their mission. As such, I also believe that their inner strength, and the strength of the entire system, will allow them to cope, even with negative publications, should there be any.

I stress that I do not think that one should bury one’s head in the sand when confronted with the extreme pressures that are not infrequently placed on judges, whether in the pleadings of the litigants in court, whether by the enormous workload, or whether by what appears in the media. It is not correct to belittle the concern about the creation of conditions under which it will be very difficult for the judge to fulfill his task. At the same time, as was explained, I do not think that the publication of the said data is what will confront the judge with such a reality, for even now, he is exposed to publications that can put pressure on him and even intimidate him. There is no option but for the judge to learn to stand up to the pressures, to dissociate himself from external influences, and to decide on the basis of the law and the dictates of conscience.

94.   All of this would not be complete were I not to relate to the flip side of the coin. As is known, “Public confidence is not a given. Its existence must not be taken for granted. Public confidence is fluid. It must be nurtured. It is easier to harm it than to preserve it” (Aharon Barak, Judicial Discretion (5744-1984) 261). Judges are not the only ones with responsibility for public confidence in the courts. The public too, and particularly the media, which wields a great deal of power, has a contribution and heavy responsibility in this context. Criticism of public servants in general, and of the courts in particular, when it is not on the merits and when it is intended to hurt more than it is intended to correct matters, can produce devastating results for society as a whole. Instead of bringing about the correction of defects, for the sake of improvements and increased efficiency, it is liable to erode the foundations on which our system rests. Indeed: “The rule of law involves constant maintenance of the confidence in legal institutions” (HCJ 433/87 Rechtman v. Israel Bar Association [1987] IsrSC 41(4) 606, at p. 610). Therefore, responsibility, sensitivity, and caution are required on the part of those who seek to criticize the courts, their decisions, and their performance. It should be recalled that public servants, too, deserve having their dignity and their reputation preserved in public, and care must be taken to express a fair position that is based in fact, for otherwise, the criticism lacks value.

95.   Finally: the information requested is information to which the public has a right of access under the Freedom of Information Law. It is administrative information held by the courts, in relation to which the legislator’s position that it is subject to the Freedom of Information Law was explicit. The position taken by the appellants, according to which provision of information mentioning the names of the judges will interfere with the activity of the courts, due to its adverse effect on judicial independence and public confidence in the courts, is contrary to the general operation of the courts system, which is characterized by maximum transparency and openness. Given the regular transparency of the system, as well as the pressures and the public criticism to which the judges are accustomed today in relation to the contents of their decisions, I do not find that the harm claimed by the appellants will occur with the degree of near certainty that they were required to prove. Today, too, judges are susceptible to harm to their reputations, their public images, and their peace of mind, and they must confront this risk as part of their job description. When public interest in the details of the activity of the courts is high, and when the activity of judges is characterized by their personal identification with the product of their work—judgments, decisions, and the way in which proceedings are conducted in public—I am not convinced that the appellants’ proposal to expose the data without the names of the judges is satisfactory, and in my opinion, the petition should be granted.

As I have expressed in the framework of this discussion, making a decision on the appeal was difficult for me, mainly due to the concern that the outcome would entail harm to judges who are currently serving, and might embarrass them. I am aware that my judgment will be received by some of my fellow justices, and by the public, too, as a decision that will result in harm to judicial independence. For my part, I believe that the strength of the judges and of the system will stand them in good stead, and that provision of the requested information is likely, at the end of the day, to increase and fortify public confidence in the courts and in the judges—confidence which, as we have said, is essential for the functioning and the vitality of the legal system. At the end of the day, one cannot help but ask: is there a true justification for withholding from, or denying, the respondents, as well as the entire public, details about cases that are awaiting decision in the various courts? For the reasons elucidated at length above, I believe that there is no justification for so doing and that it ought not to be done.

96.   It is precisely out of recognition of the general burden on the legal system, and precisely in view of the transparency characterizing the activity of the courts, and precisely out of a duty to maintain public confidence in the courts system, that it appears that withholding the requested data, which the public has a right to obtain, sends out a hard message of an attempt to keep the details of the work of the courts in the dark. I believe that the system has nothing to hide. I believe that it is right that the public should be made aware of the Sisyphean task, and of the unimaginable pressure under which the judges operate. Precisely out of a conception whereby judges act openly in all aspects of their work, in bright sunlight, would it be incorrect to refrain from handing over the information for reasons that reflect, mainly, a lack of confidence in the strength of the judges and in their total commitment to their mission.

And finally, the words of (then) Justice M. Cheshin should be heard:

The courts, or should we say, the judges of the courts, know that they face judgment on a daily and hourly basis, and as is the way of humankind, one who is on trial acts as befits one standing trial in public. In performing his judicial function, the judge must always regard himself as sitting in a glass house or in a display window that looks out onto the street; every passer-by is entitled to look at him, to examine him and to criticize him - and to praise him and to boast about him. In translating these values into legal language, we speak about freedom of expression and also about freedom of the media as deriving from the public’s right to know. Indeed, the media in its various forms is merely the public’s agent. It constitutes a type of amplifier and magnifying glass for events that happen in a certain time and certain place.  See and compare: MApp 298/86 Citrin v. Tel Aviv Disciplinary Tribunal of Bar Association [1987] IsrSC 41(2) 337, at p. 358. And in this way, the entire public may know if legal processes are being conducted properly. This is the transparency and the review that must accompany all those who hold the reins of authority and powers of enforcement in the state, which is characterized as an open regime (Yanos, at p. 110).

If my opinion is accepted, the appeal will be denied. In order to enable the appellants to prepare themselves in appropriate fashion to implement the judgment, I propose that they be ordered to hand over the data concerning the Supreme Court and the district courts as requested in the petition, relating to the end of the 2015 legal year, no later than December 31, 2015. I also suggest that the appellants be ordered to pay the defendants’ legal fees in the amount of NIS 20,000.

Justice Y. Danziger

I concur in the comprehensive, important, and incisive judgment of my colleague Justice E. Arbel, subject to the following reservations.

My colleague ordered the appellants to deliver to the respondents the information that is the object of the petition, “relating to the end of the 2015 legal year.” I personally think that there is no justification for this “leniency”.

In their request of August 8, 2009 under the Freedom of Information Law, which was submitted to Judge A. Gillon, who served as the supervisor for the Freedom of Information Law in the courts administration, the respondents requested “the most current information you have on the matter, and the information concerning the previous three years.” In their petition, which was submitted on March 24, 2010, the respondents asked for “all the quantitative information concerning the number of open cases being heard by each of the district court judges in the state, and the justices of the Supreme Court, and all the information concerning the time that has elapsed since the opening of each of the open principal cases.” Hence, already in 2009, the respondents asked to receive the most current information that the appellants possessed, as well as the historical information. After their request was denied, the respondents submitted the petition that is the object of this appeal, in which they reiterated their request that they be given current information. As we know, on April 14, 2011 the petition of the respondents was granted, when the District Court ordered that the “requested information” be handed over to the respondents. The delivery of this information was postponed due to the decision of Justice H. Melcer of July 12, 2011 to stay execution of the judgment until the decision on the appeal.

I believe that today, five years after the respondents submitted their request under the Freedom of Information Law, and three years since the date on which the District Court, sitting as an Administrative Affairs Court, ordered the appellants to disclose the information, the respondents’ petition should be granted in full, and the judgment of the District Court should stand as given—including in the matter of the dates to which the information relates.

Underlying this conclusion is the fact that disclosure of updated information, and not “deferred” information, is the relief that was sought in the respondents’ petition and which was granted in the judgment. Similarly, the relief of postponing the time period to which the information relates was not requested by the appellants in their appeal. I am of the opinion that the case at hand does not belong in the category of exceptional cases in which it is justified for the appeals court to grant relief that was not sought in the statement of claim or in the statement of appeal (cf. CA 8854/06 Adv. Corfu v. Sorotzkin  [Nevo – March 20,2008], para. 22).

In my opinion, when the court concludes that an order should be given to disclose information, the default position is full disclosure of the requested information, and the exception is limitation or restriction of the disclosure (cf., e.g., the relief that was granted in AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 23, 2012], per Deputy President E. Rivlin, para. 22). As pointed out by my colleague Justice Arbel, information which it has been decided to disclose is information held by the authority in trust for the public and there is no justification, as a rule, for preventing the public from gaining access to its own property. True, in certain cases there may be a departure from this default position. However, that will happen only when weighty reasons for so doing exist: in most cases, these are primarily related to the legitimate reliance of the objects of the information on the situation that pertained prior to the decision concerning disclosure [see, e.g., AAA 9341/05 Movement for Freedom of Information v. Government Corporations Authority [Nevo – May 19, 2009], per Justice E. Arbel, para. 42 (Sept. 5, 2009); AAA 398/07 Movement for Freedom of Information v. State of Israel – Tax Authority [2008] IsrSC 63(1) 284, per Justice E. Arbel, para. 65, and per E. Rubinstein, para. 5 (Sept. 23, 2008)].

My view is, that in the present case, reasons which would justify limiting the disclosure do not exist. This is due, first and foremost, to the weighty reasons presented by my colleague, Justice Arbel, for denying the appeal. Similarly, from the moment that the respondents’ petition was accepted by the District Court, the appellants (or any of the objects of the information that was to be disclosed) were not at liberty to rely on the non-disclosure of the information, and they ought to have prepared themselves properly for the possibility that the judgment of the District Court will remain in force, including in relation to the operative relief. It is also clear that the stay of judgment that was issued cannot change this conclusion. The stay of judgment that was granted only “froze” the situation that pertained prior to the issuing of the judgment, but it could not create a legitimate expectation that the judgment will be cancelled or that it will, in itself, bring about a change in circumstances that would justify changing the relief that had been granted. This applies with even greater force, in view of the fact that the District Court determined as fact that the information that was requested is “information that exists in the hands [of the appellants] and its delivery to [the respondents] in its present state can be executed, with relative ease, by way of producing the appropriate computer report.” This finding is also consistent with the letter of Judge Gillon to the respondents, dated December 14, 2009, according to which, “after looking thoroughly into the subjects that you raised in your application, we have answers and data” concerning the information that was requested in the petition. In light of these words, which related to the situation that pertained at the time that the District Court issued its judgment, it would appear that no real hardship will be caused to the appellants as a result of disclosing the most updated information that they possess.

Accordingly, in my view, an order should be issued to disclose the most updated information that the appellants possess, i.e., information relating to the 5774 [2013-2014] legal year. In order to give the appellants time to prepare for the implementation of our judgment, I propose that they be required to deliver the information to the respondents no later than December 12, 2014.

Justice N. Hendel

Background

1.     This administrative appeal deals with a petition for the publication of information under the Freedom of Information Law. The information requested is the number of open cases that are being heard in the Supreme Court and the district courts, and the time that has elapsed since each case was opened, together with the name of the judge who is hearing each of the cases.

The Administrative Affairs Court in Jerusalem granted the respondents’ petition (AP 43366-03-10 [Nevo], President M. Arad). My colleague, Justice E. Arbel, in her comprehensive and thorough written opinion, proposed denying the appeal and affirming the decision of the Administrative Affairs Court. Let me state right away that my opinion is different: I think that the appeal should be allowed. My colleague described at length the sequence of events in the proceedings and the pleadings of the parties, and I will not repeat these here. I will focus only on the legal foundation and the reasons that have led me to the conclusion that the appeal should be allowed.

On the Freedom of Information Law, 5758-1998

2.     It is important, at the outset, to once again emphasize the importance of the Freedom of Information Law, and of the purposes underlying it. This Law is based on the understanding that the public information that is held by the public authority is not its private property. In this, the fundamental meaning of being a public servant is emphasized to all. The public servant’s work, and the information that is created in the course of that work, is neither private information nor the property of the state. The information is held in trust for the benefit of the public and as such it must be accessible to the public.

Moreover, the free flow of public information constitutes an important condition—and possibly even a necessary one—for the proper functioning of a democratic regime. The Freedom of Information Law opens the gates of information to every citizen or resident. The Law instills the values of transparency of government. Freedom of information is the basis of the “supreme right” of freedom of expression: without information there is no opinion, and without opinion there is no expression. Free information is also required for the existence of ongoing and relevant public criticism of the activities of the authorities. The general public is thereby given the opportunity to participate in governmental activity. Hence can be understood, the importance of freedom of information for the actualization of the democratic regime as well as for increasing individual confidence in the authority and its activities. It would seem that the information revolution is a major indicator of human development in the last 25 years. The Freedom of Information Law is what its name says it is. The rights of the individual go hand in hand with technological progress (see and compare: AAA 7744/10 National Insurance Institute v. Adv. Yafit Mangel [Nevo – 15.11.2012], para. 5 of my opinion; AAA786/12 Joulani v. State of Israel [Nevo – November 20, 2013], para. 3 of my opinion).

3.     The Freedom of Information Law is a masterpiece of balances. On the one hand, the Law explicitly anchors the right to obtain information (sec. 1 of the Law). On the other hand, together with the declaration of the right to obtain information, the Law recognizes that freedom of information is not the be-all and end-all. The disclosure of information may sometimes entail various negative consequences. It is not only the right to information that is relevant, but also additional rights and interests such as the right to privacy, public safety, and others. Freedom of information is a relative right. Hence the need arises to strike a delicate balance between values, rights, and interests.

The Freedom of Information Law was enacted in 1998. The experience of 16 years has taught, in my opinion, that, although we are at the beginning of the road, the public makes great use of the tools granted to it by the legislator. Many judgments have shaped the parameters of the right to obtain information. The Law supports the disclosure of information, but balance is required, and this finds expression in the provisions of the Law. These provisions specify, for example, when a public authority may not hand over the information that was requested, how information concerning a third party must be published, and so forth. Individual petitions to obtain information, and the fundamental questions that arise within their framework, must be examined through the prism of the provisions of the Law. The purposes underlying the Freedom of Information Law will be realized by means of implementation of the provisions of the Law, which reflect the decisions of the legislator.

We stress this again because the overall context of the case before us cannot be ignored. The Court is in fact being asked to decide, with no choice in the matter, on a petition to disclose information that concerns itself. This kind of complex situation is naturally liable to create problematic incentives: on the one hand, to needlessly bolster the natural tendency not to allow publication of the information, or precisely the opposite—to strengthen the tendency to publish the information only for fear of “what people will say.” The deciding party is likely to be influenced by the ramifications of publishing the material. For this reason, there is a risk of overcompensation  (or as the Americans say a tendency to “bend over backwards”) in precisely the opposite direction. Against the backdrop of the situation described, it should once again be stated that in this petition, as in every petition relating to freedom of information, the court is bound by the normative framework of the Freedom of Information Law and its provisions. If it should be found that the checks and balances established by the legislator do not justify handing over the information, this outcome must be respected, and the converse also applies. The Court is required to apply the Law and to decide on the matter of delivering information that concerns the courts system in the same manner as it treats matters relating to every other authority, examining the particular nature of the authority, as far as that is relevant to the decision. No more, and no less.

Summary of the Dispute

4.     In the framework of the Freedom of Information Law the legislator distinguished between three levels of delivery of information: information which must be provided, information that must not be provided, and information which there is no obligation to provide.

The default position, as stated in sec. 1, is that every citizen or resident has the right to obtain information from a public authority in accordance with the provisions of the Law. Together with this, the legislator listed types of information that must not be provided, such as information whose disclosure constitutes an invasion of privacy or may pose a threat to national security (sec. 9(a)). The third level—information that does not have to be provided—is what concerns us here, as will be explained. This is a category that is more difficult and more complex to apply and to determine. It includes various circumstances in the presence of which, the legislator has determined that the authority has discretion whether or not to respond to a request for information. Thus, for example, the authority is permitted to reject a request to obtain information if handling the request necessitates an unreasonable allocation of resources, or if the information was produced more than seven years prior to its filing and locating it involves substantial difficulty (sec. 8(1)-(2)).

5.     In the present case, the dispute between the parties to the appeal focuses primarily on sec. 9(b)(1) of the Law—information the disclosure of which is liable to disrupt the proper functioning of the public authority. Owing to the importance of the section, I will quote it in full:

        A public authority is not obliged to provide information … the disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.In this case, information has been sought about the number of open cases that are being heard in the Supreme Court and the district courts, and the amount of time that has elapsed since they were opened, together with the name of the judge in each case. The question, therefore, is whether disclosure of the requested information “is liable to disrupt the proper functioning of the public authority or its ability to carry out its duties.” According to Justice Arbel’s approach, the answer is negative. In other words: it is not permissible to refuse to provide the information on the basis of the defense established in sec. 9(b)(1).

Justice Arbel’s position rests on several main tiers:  first, according to her approach, near certainty that publication of the information will interfere with the performance of the authority is required.  Secondly, the main aspect that must be examined according to her approach is the concern for harm to public confidence in the legal system, and more precisely: the manner in which the legal system and the judges are perceived by the public. Thirdly, my colleague presented the arguments of the appellants and the concerns about interference with the work of the judges as a result of publication of the requested information. Her conclusion is that even though there is substance to these concerns, they do not reach the probability level of near certainty.

Let me state, already at this point, that I do not necessarily disagree with the first tier, which is the basic legal position concerning the required level of probability for the purpose of application of sec. 9(b)(1) of the Law. For the purpose of our discussion here, I will assume that indeed, near certainty is required, as my colleague holds. However, my opinion is that even according to that strict standard, near certainty exists that publication of the requested information will disrupt the work of the judge. For this reason I propose to my colleagues to allow the appeal, and to determine that the authority was permitted to refuse to provide the requested information.

The Standard of Probability in Section 9(b)(1)

6.     Section 9(b)(1) deals with information whose disclosure “is liable to disrupt” the functioning of the authority. The question is, what is the relevant level of probability for the concern about disruption? This can be presented as a choice between the standard of “near certainty” and that of “reasonable possibility”. The language of the section does not provide clear support for either alternative.

In this context it will be recalled that Deputy President E. Rivlin held that only where there is near certainty of disruption with the proper functioning of the authority will there be sufficient cause to limit the freedom of information (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60  para. 22; AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 23,2012], para. 7). On the other hand, Justice I. Amit remarked: “I am not convinced that secs. 8 and 9 of the Law stand at a lower level than that of the right to obtain information anchored in sec. 1 of the Law.” Justice Amit subsequently added that “I would be careful about determining a priori that the balance between the right to know and other opposing interests, such as the security of the state and its foreign relations or the efficient functioning of the public service is a vertical one” (AAA 3300/11 Ministry of Defense v. Gisha [Nevo – September 5, 2012], para. 9, and the dissenting comment of Justice E. Hayut in para. 5 of her opinion, ibid.; cf. Justice Arbel’s discussion of the limitation in sec. 9(b)(4) – AAA 7024/03 Geva v. German [Nevo – September 6, 2006], para. 15).

Personally, in the framework of this case I would leave pending the fundamental legal question concerning the required standard of probability for the purpose of sec. 9(b)(1)—near certainty or reasonable possibility. It appears that the case law leans more towards the first possibility. Of course, an intermediate level that is found at some point between the two extremes is also possible. One way or another, my opinion is that no hard and fast determination should be made at this point, so as not to create further disputes on an issue which in my opinion is not essential to deciding the case before us. For the purpose of the ensuing discussion, I will therefore assume that within the bounds of sec. 9(b)(1), there must be near certainty that publication of the information will disrupt the functioning of the authority or its ability to perform its duties. The question remains as to whether in the present case, the existence of near certainty such as this can be established.

Public Hearing: Substantive Aspect v. Administrative Aspect

7.     The principle of the public hearing is one of the mainstays of the judicial process. It is based on various justifications, including the public’s right to know, improving the quality of judgments, and increasing public confidence in the court (CrA 11793/05 The Israeli News Company v. State of Israel, per Justice E. Arbel (April 4, 2006), paras. 13-15). This important constitutional principle is also entrenched in sec. 3 of Basic Law: The Judiciary, and in sec. 68(a) of the Courts Law. The principle is that the deliberations of the court will be open to the public, and the doors will be closed in exceptional cases only.

The technological advances of recent decades have immeasurably increased the dimension of publicity of the court’s deliberations. Today, every decision—and particularly those of this Court—appears on the internet, almost instantaneously, and is universally accessible. The various data banks allow for rapid and convenient access to all decisions, and include advanced search functions according to key words, chronological segmentation, segmentation according to subject matter, and more. This is as opposed to the situation that prevailed 25 years ago, for example, when, naturally, judgments were almost never computerized, and most were inaccessible to the general public. I remember feeling, at the time that I was appointed as a judge, that in many respects, from a technological perspective, there was no significant difference between the work of the judge then and that of a judge in England 200 years ago—except for the electricity and the air-conditioner. The judge wrote his judgments himself, or was helped by a stenographer—the “typist” of those days. Paper and ink were essential working tools. Lawyers cited judgment that were published in the Supreme Court Reports [Piskei Din], or in which they themselves had appeared, or about which they had heard. It was difficult in the district courts, and certainly in the magistrates courts, to have the judgments printed. It seems that everything has changed since then. The English judge of the 18th century would have difficulty in understanding some of the technological activity that takes place today surrounding the judge. This development has allowed for easy and accessible documentation. We can simply conclude, therefore, that the extent of exposure and publicity of the work of the judge increases over the years. Today, every person can easily obtain judicial decisions; he can peruse them, and learn how each and every judge acts, thinks and rules. The principle of the public hearing is realized also through the presence of large numbers of citizens—who are not connected to the case—in the courtrooms, and broad coverage in a wide variety of media. This is the situation, and it is good that it is so.

8.     In the context of the principle of publicity, a clear distinction must be drawn between two aspects of the judicial task: the legal-substantive aspect as opposed to the administrative aspect. The legal-substantive aspect is concerned with the hearing, its contents, the manner in which it is conducted by the judge, and the decisions and judgments that the judge is required to issue and for which he must provide reasoning. The principle of public hearing, in all its glory, controls this aspect of the judicial function. Of course, the law lays down some exceptions. The courtroom is open, the hearing is public, and the decision is published. But this does not apply equally in relation to the administrative aspect. This aspect is concerned with the administrative wrapping of the judicial task, such as decisions concerning distribution of cases, setting dates for hearings, the rate at which cases are heard, and the date of publication of the judgment. In all that concerns the principle of publicity, no analogy can be drawn from the legal-substantive aspect of the work of the judge to the administrative aspect of his work. The reasons will be elucidated below.

The administrative aspect of the judicial function is extremely important. In truth, over the past twenty years it is possible to discern an
“administrative revolution” in the Israeli legal system. This “revolution” has been possible not only due to technological developments (particularly the dramatic developments in access to computers and the internet), but also in view of the growing awareness of those in the profession of the importance of the administrative aspect of the judicial tasks. In this context, let me mention, for example, the annual reports of the courts administration, published each year since 2006. These reports contain a wide range of data, including detailed lists of names of office bearers and contact information; data concerning the number of cases opened, closed and pending in each judicial instance according to various segmentations; comparative data between regions and courts and so on and so forth. The reports are open for perusal by the general public, and are available, free, on the internet. Another example is the Net Hamishpat [Law-net] system, which enables the submission of documents and perusal of decisions through remote access. I will also mention the growing responsibility of the courts administration, recourse to external consultants in order to streamline the system, the more professional-administrative definition of the role of the court president and his deputies, the convening of meetings of presidents, and further training sessions for judges. Mention will also be made of the directives and the regulations that are published by the President of the Supreme Court, the object of which is to improve and to regulate the administrative aspects of the proceedings in the various courts. These directives relate to administrative topics connected to the efficiency of the system, such as motions to postpone the dates of hearings and consecutive trial dates. This is in addition to frequent meetings between the President of the Supreme Court and the Director of the Courts and the presidents of district and magistrates courts, the compilation of monthly reports concerning the pace of the judicial work, the scheduling of discussions, as required, between the president of the court and its judges, distribution of cases, etc. The direct involvement of the President of the Supreme Court in the administrative aspects of the activity of the courts, unlike the situation that prevails in many other legal systems, is an expression of the importance of the administrative aspect and of the considerable investment in this matter.

9.     Insofar as the administrative aspect of the judicial task is concerned, three theoretical models come to mind. One model totally exempts the judge from managing the administrative aspects of his affairs. According to this model, the judge is assigned cases, and he is asked to hear them and to publish judgments one after another, in the order in which they were assigned.  A second model obligates the judge to deal with all the administrative aspects of the cases on his docket. A third, combined model is followed in this Court, as in judicial systems in other states.

In this combined model, on the one hand, external factors determine the panel on which each judge will sit and which cases he will hear. In the Israeli system, these aspects are within the purview of the presidents of the courts, of the judge that presides over the panel, and to a certain extent, of the court diary as well. These determine not only which cases will be heard by each judge, but also the dates of the hearings and their order, and sometimes even the identity of the judge who will write up the judgment. In a wider circle, some of the directives that are issued by the President of the Supreme Court—which were mentioned above— also shape the agenda of the judge at the administrative level. On the other hand, the judge bears responsibility for the administration of certain aspects of the schedule of each individual case, and at the same time of all the cases on his docket in its entirety. For example, in the case of an accused person who is in detention, or in a civil suit in a fast track procedure, the legislator prescribed that the judge must set a clear timetable for completing the case. Beyond that, the judge must deal with the internal management of his schedule, within the parameters that have been set for him: in cases in which he is sitting as a single judge, he must decide how many cases he will hear every day, at what times and for how long. He must decide how to prioritize the process of writing up judgments and decisions, for example, whether to first devote time to writing a long judgment with important ramifications (such as a case of murder which entails a life sentence for the accused or his acquittal), or instead, to write up a number of judgments each of which deals with a relatively minor financial dispute but which have been awaiting decision for a long time and are clearly important to the parties themselves.

10.   Every judge, every day, all day, is required to handle—and in fact does handle—administrative judicial decisions alongside the substantive judicial decisions. The judge must be aware of this dual responsibility. However, the differences between the two must be emphasized: substantive decisions in all areas of the law are written, reasoned and detailed. They are published. They are made after a public hearing has taken place, conducted by a judge, and after the written and oral pleadings of the parties have been weighed. They are the fruit of the exclusive discretion of the judge. It will be recalled that “a person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the law” (sec. 2, Basic Law: The Judiciary).

The situation is different in relation to the administrative aspects of the judicial task. Here, the judge does not act and decide alone. There are, as we have said, parties other than the judge himself who decide how many and which cases will be heard by each judge at every stage. In addition, it must be recalled that virtually all the daily administrative decisions are made, by their very nature, without hearing the pleadings of the parties, and without reasoned, detailed decisions being published. In fact, these decisions are not written up. To illustrate the special nature of decisions such as these, it will be stressed that we are not referring, for example, to a decision which was made in the framework of an ongoing case to postpone the date of the hearing or to excuse a witness. Decisions such as those are written and published, after the response of the opposing party is received. This is not what we are dealing with; rather, we are dealing with expressly administrative decisions.

Near Certainty of Disrupting the Judicial Task

11.   The respondents, correspondent Hila Raz and TheMarker newspaper, primarily asked for two items of information in relation to each judge of the district courts and of the Supreme Court: the number of open cases, and the amount of time that has elapsed since each case was opened, together with the name of the judge hearing each case.

Publication of the requested information is analogous to shining a powerful spotlight on the administrative aspect of the work of the individual judge. Shining the spotlight is liable, as I understand it, to lead to disruption of the work of many judges and of the judicial system overall, at the level of near certainty. I will discuss six reasons which have led me to this conclusion.

First I will comment that while the petition dealt with information concerning the district courts and the Supreme Court, and not with information about the magistrates courts.  I do not see any reason for creating a real distinction, from the point of view of the considerations for publishing the information, between the courts. I also do not think that such a distinction can be justified. Clearly, denial of the appeal and publication of the information will give rise to additional requests, also in relation to the magistrates courts, the traffic courts, the family courts, the youth courts and the religious courts. In my view, therefore, a uniform outcome is inevitable. It is not superfluous to note that the scope of the cases in the magistrates courts is larger by many degrees: thus, for example, in 2013, more than 600,000 cases were opened in the magistrates courts (including the family and traffic courts), compared to some 60,000 cases in the district courts (see: The Judiciary in the State of Israel, Report for the Year 2013 Pursuant to the Freedom of Information Law 5758-1998 (2013): hereinafter: Report of the Judiciary (2013)).

a.     Publication of the material will harm efficiency

12.   First, it is hard to believe that publication of the requested information per se will put an end to interest in the subject. On the contrary, experience shows the opposite to be true: publication together with names is expected to increase and strengthen the preoccupation with the administrative aspect of the task of judging, but in a particular way which is not beneficial. Therefore, I am not dismissing the fundamental intention of the respondents: to create public awareness and public involvement in the subject of judicial overload. My reservation relates to preoccupation with the administrative aspect through the requested prism. This way will create a certain dynamic.

As a result of the publication, interest will grow like a snowball, because these are not dry figures, but names and faces. Upon publication of the information, many questions can be expected, with near certainty, to arise: why is a particular judge given too many or not enough cases, and why does another judge take so long to publish decisions in so many cases? The questions can also be expected to arouse a desire to provide answers. Assume that a particular judge finds himself at the bottom of the chart, for example, because the number of open cases on his desk is the highest. This judge can be expected to want to explain matters. Pressure will be created to justify the existing situation, or alternatively, to change it at all costs. One way or another, it is clear that publication of the information requested by the respondents will lead to increased preoccupation of each judge with justifying and defending himself in relation to the administrative aspect of the judicial task, at the expense of the substantive aspect. More precisely, there is no need to relate to the harm to each and every judge in the system. It is sufficient that near certainty exists of harm to a particular judge or to certain judges. This harm will have an impact on the functioning of the whole system, in view of the fact that every judge in his courtroom deals with the entire world of a specific case between individual litigants.

This Court “dwells among its people.” It seems that anyone familiar with Israeli reality cannot avoid the conclusion that publication of the information will invite pressures, and these will lead to unnecessary activity that will, with near certainty, be detrimental to the entire legal system. The difficulty arises in particular because this is an administrative matter, rather than a substantive matter, connected to the task of judging. It is presumed that the court, when it is about to convict a person of a criminal offense or to find him liable in tort, will not be affected by various media publications concerning substantive matters. This is irrespective of the wider issue of sub judice. However, the publication that we are dealing with relates to administrative aspects—how many cases remain open on the desk of each judge and so forth. As was explained, these are aspects for which there is no clear legal answer, and they are not necessarily decided according to the dictates of a judge’s conscience. If in relation to every administrative aspect it would be necessary to conduct a hearing, to hear pleadings, to formulate a reasoned decision, to expose the decision to review on appeal, and subsequently, to also deal with publication of the information, with all the implications therefrom—efficiency will not benefit thereby. The opposite is true. Many resources, which as it is are insufficient, will be diverted to unnecessary channels. The individual judge will be forced to devote more time to clearly administrative decisions and to defending his decisions—precious judicial time which is not to be found in abundance. With all the understanding for the desire of the respondents to contribute to efficiency—publication of the requested information will bring about precisely the opposite result. With the present load, the addition of this component is liable to disrupt the proper functioning of the activity of the system or its ability to perform its tasks.

My colleague, Justice Arbel, discussed the fact that publication of the data is also liable to have the effect of causing embarrassment. It must be stressed: it is not the emotional aspect that is of interest, but rather, the legal consideration of interfering with the judicial performance. This interference will occur, with near certainty, as a result of the fact that the judge and the legal system as a whole will be required to allocate resources to over-occupation with administration and with justifying administrative decisions at the expense of dealing with the substance. Another task will be created, keeping many parties busy for long periods of time. This task will create a certain blurring of the boundaries between the substantive and the administrative. These latter decisions are not public, the reasoning behind them is not elaborated upon; in fact they are not written at all. It is good that it is so. The reason for this, inter alia, is that these are not individual decisions of the judge, but systemic decisions that are made in a complex procedure in which many elements are involved. The individual judge is not the dominant element in this process, and certainly not the factor which makes the decisions.

b.     Frustration of Respondents’ Declared Purpose

13.   Section 10 of the Freedom of Information Law states:

        In considering a refusal to provide information under this law, based on the provisions of Section 8 and 9, the public authority will take into account, among other things, the interest of the applicant in the information, if cited in the request…

We see that according to the legislative requirement, the interest of the person requesting the information must sometimes also be considered. This is so when secs. 8 and 9 apply to the case, i.e., when it is a matter of information that the authority may refuse to provide. In such a case, refusal to provide the information rests, as stated, on the reasons specified in sec. 9(b)(1) of the Law. Hence, the interest of the respondents in the requested information, according to the position they presented in their request, must also be taken into account.

In the present case, the respondents explained at the beginning of their application that they are submitting it “in view of the supreme public importance in relation to the workload … that is imposed on the courts system.” Thus, the declared interest of the respondents in publishing the information is the workload of the courts system and its public importance. An investigation into this subject has two parts: one is establishing the existence of overload and its extent. The second is recognition of the fact that this is an undesirable phenomenon from the point of view of the functioning of the system, which certainly ought not to be exacerbated. As for the first part, the focus of the investigation is “the courts system”. What the respondents want is to expose the problem of overload. Insofar as this is a systemic matter, the courts administration agreed to deliver the details. As for the second part, as I explained, publication of the information pertaining to the personal performace will, in my view, achieve the opposite of easing the problem of overload. Not only will the load not lighten, but resources that are dedicated today to time management and to the writing of judgments and decisions. and in general to lightening the load, will be diverted to dealing with these publications and with the shockwaves that are created.

Indeed, the declared interest is the overload of the system. Systemic data was and will be supplied by the appellants. However, the petition deals with an additional dimension that is not systemic, i.e., that of the individual judge. In this context there are three reservations: first, this dimension is not consistent with the declared interest. Second, the name requirement is liable to affect the functioning of the authority. I have dealt with these reservations elsewhere. Third, the requested information on the individual level does not contribute to an understanding of the issue of overload, and is even liable to mislead. I will now elaborate on this reservation.

The publication of data in relation to each judge concerning the number of open cases, and the amount of time over which they have been open, is a double-edged sword: on one end —this is a simple, absorbable item that can be easily understood and internalized. On the other end —this item does not correctly reflect the complex reality. By way of illustration, it will be recalled that recently, the Israeli Courts Research Division published the case index for the assessment of judicial workloads (available at http://elyon1.court.gov.il/heb/Research%20Division/Research.htm ).  The purpose of this index is to try to correctly assess the workload on the various judicial instances, in order to develop effective tools for the allocation of resources, the regulation of caseloads, and improved management of the courts. The index that was developed relates to some one hundred types of procedures that come before the magistrates courts, the district courts, and the regional labor courts. For each type of procedure, the average time invested in the case is measured.  These units of time are translated into weighted units. For example, the minimum weight—1—is accorded to orders of search and entry in detention proceedings in the magistrates courts. The maximum weight—1826—is given to cases of serious felonies that are heard before a bench of three judges in the district court. The weight of each case is determined according to two main parameters: the number of events that comprise the judicial work in a particular case, and the complexity of the events (from the point of view of the time required). The data concerning the number and complexity of the events was obtained, inter alia, through a qualitative methodology, by a group of judges, and a quantitative analysis of the computer data and of representative samples of cases.

I have discussed this somewhat in detail in order to explain one very important point: the information requested by the respondents in the present case, which they are presumably interested in publishing, is liable to be misleading; in fact, it cannot be anything but misleading. Due to the huge variety of judicial procedures, extremely complex statistical work is required in order to compare workloads. There are cases which can be wrapped up in one short session. There are cases which require dozens of sessions in order to hear all the testimony—for example, a complicated criminal case with many witnesses, or a case in torts on grounds of medical negligence, with many expert witnesses.

Indeed, as the famous American author Mark Twain remarked (in the name of the British Prime Minister, Benjamin Disraeli) with a humor that contains some truth: “There are three kinds of lies: lies, damned lies, and statistics.” Statistics are liable to mislead even in the context of the information with which we are concerned here. The summarized figures—the number of cases and the time that has elapsed—do not reflect the complex, complicated reality. As a result, superficial publication of the data as requested by the respondents will not properly fulfill the declared purpose of exposing the problem of overload, but rather the opposite: it will engender a superficial focus on numbers that do not accurately reflect what is happening. Instead of allocating time and resources to an accurate and precise foundational treatment of judicial overload, an unnecessary pursuit after the “magic numbers” that are to be published will be initiated, and what was supposed to be a blessing will become a curse.

Of course, statistics can be taken in various directions. But what is special here is that the Freedom of Information Law specifies the interest of the person requesting the information as a consideration. The respondents mentioned in their application the burden on the courts. This is an important, legitimate interest. But to the same extent, it is legitimate to ask whether the requested information indeed serves that interest. Had the Law made publication of the information obligatory, this consideration would not be relevant. But, as stated, that is not the situation.

c.     The Position of the Appellants in the Present Proceeding: Anonymous Information as Opposed to Name-Bearing Information

14.   In the course of the peregrinations of this case, the appellants agreed to publish the requested information without mentioning the names of the judges. It should be clarified that the intention was to publish all the information—the number of open cases and the amount of time for which each case has been open—segmented according to judges, but without identifying them. The respondents, on the other hand, insist on publishing the names of the judges. The dispute, therefore, boils down to the question of whether to publish the names of the judges.

This definition of the dispute highlights, in my opinion, another genuine difficulty in accepting the respondents’ position. As stated above, the information is sought against the background of the issue of the burden on the courts system. It seems to me that this goal could be realized in a satisfactory manner by publishing the information anonymously, as the appellants suggest. This suggestion allows for a comparison not only between courts but also between judges. It is difficult to see the marginal benefit—from the point of view of the judicial workload, which is the main thing—in publishing the information with names, as requested by the respondents. At the same time, the marginal cost as a result of publishing the named information is high, for the reasons specified above: publication of the names of the judges together with the statistics relating to open cases will lead, with near certainty, to a situation in which many judges will not be content with their place on the list. In the nature of lists, there are those who are at the top and those who are pushed to the bottom. If the name-bearing publication would bring about greater efficiency—so be it. But I think that the opposite is true. There would be increased, superfluous preoccupation of the whole system with the personal side of these administrative aspects, in a manner that will be detrimental to efficiency and will only increase the burden.

d. Delays, Workload, and Dealing with them: the Individual Level vs. the Systemic Level

15.   A fourth, no less important, aspect is that of the distinction between two levels of the problem of judicial overload or delays: the particular work of each and every judge, as opposed to the functioning of the system as a whole. Each level requires handling on a different level.

Let me put it as follows: to the extent that a problem of overload focused on a specific judge occurs, alternative mechanisms designed to resolve the difficulties already exist. As compared to these mechanisms, the marginal benefit that will ensue from publication of the requested information is not high. On the contrary: in certain senses, the publication will even undermine these existing mechanisms. Alternatively, to the extent that there is a systemic problem of judicial overload, publication of the requested information will only increase the bewilderment and confusion. The publication will direct the spotlight on the performance of the particular judge, identifying him by name, and thus it will divert the public and professional conversation from the main subject to the marginal one. Instead of the cooperation that exists between the parties administering the legal system—chief among them the presidents of the courts and the courts administration—with a view to improving the performance of each judge, tension will be created between the individual judge and his superiors and other elements in the system. Every decision that is made under these circumstances, e.g., changes in assignment of cases, will be susceptible to public criticism, and so it continues. Decisions such as these are also liable to affect other judges, and a chain will develop of unnecessary reactions, both in terms of time and in terms of human resources.

16.   I will discuss, very briefly, the main alternative mechanisms for dealing with individual problems of judicial conduct.

In one circle, the president and deputy president in every court devote much time and resources to dealing with the administrative aspects of the work of the judges who are serving in that court. In another circle, the courts administration and the President of the Supreme Court issue various directives which are designed to improve efficiency and the administrative aspects of the work of the courts. These circles are also involved in the handling of problematic cases.  I have discussed all of these above.

Another important mechanism is the Ombudsman for Complaints against Judges. My colleague, Justice Arbel, reviewed at length the modus operandi of the Ombudsman (paras. 43-44), and I will not repeat what she said. I will point out only that an individual who thinks he has been waiting too long for a judgment to be handed down in his case, or alternatively, who thinks that he has been waiting a long time for a date to be set to hear his case—is at liberty to approach the Ombudsman and to report this to him. The Ombudsman examines every complaint on an individual basis, and if necessary, even solicits the reaction of the judge about whom the complaint has been made—all by virtue of the mechanisms provided in the Ombudsman’s Law.

e.     Paving a Detour Route

17.   Section 14(a)(12) of the Freedom of Information Law states:

The stipulations of this law shall not apply to the following agencies, or to information created, accumulated, or collected by them: … (12) the Ombudsman for Complaints against Judges—under the Ombudsman for Complaints against Judges Law, 5762 -2002.

Accordingly, the information concerning complaints that are investigated by the Ombudsman remains confidential with respect to names. That is the point: acceptance of the respondents’ position and publication of the requested information are liable to provide a “detour route” that will erode the provisions of sec. 14(a)(12). Individual complaints that were lodged with the Ombudsman will indeed not be published together with the name of the judge, but other sensitive information about the judge—such as the number of open cases he is dealing with and the time they have taken—will certainly be published. Clearly it is possible that there will be overlap between the information that is published and the information that was supposed to be confidential by virtue of the provisions of sec. 14(a)(12).

It is true that this reason alone would not constitute cause for allowing the appeal before us. However, it is important to understand that sec. 14(a)(12) reflects a principled determination of the legislator concerning treatment of the individual matter of a judge who has mishandled, or at least allegedly mishandled, his cases. The legislator prescribed that, despite the basic principle of freedom of information, in such a case, disclosure of the information to the public should be restricted. This is mainly for reasons to do with the delicate balance between oversight, which also relates to the administrative handling of a particular case—for example, why has judgment not been handed down—and the major public interest in maintaining judicial autonomy. This balance was intended to achieve efficiency. It is the proper balance, as determined by the legislator. This determination must be respected.

This matter is not only formal but also purposive. The legislator determined that all information produced in the framework of the Ombudsman’s investigation of a complaint about a judge does not come under the purview of the Freedom of Information Law. This determination represents a position that may have ramifications for the present appeal. In all that concerns substantive judicial decisions, the court, including the individual judge, is exposed to public oversight. A judgment allowing an appeal is an open indication of mistakes that occurred in the decision of the lower court, and includes of course, the name of the judge whose decision is the subject of criticism. The substantive aspect of the judicial task must be public, as a component of the power of the principle of public trials.

The situation is different with respect to expressly administrative decisions. Experience teaches us that publication in the town square is not the best and most efficient way to solve a problem of this sort. Patently administrative problems of the individual judge should be solved by other means. This is a constructive approach that is applied in practice. Publication in such cases will not contribute to, and is even liable to hinder, the finding of an effective solution. Take the example of a judge who invests many hours in his work, but has difficulty in keeping up with the pace. Another judge does not manage to complete the hearings during regular hours. As stated, the president of the court is supposed to be aware of the situation. It may emerge that the judge is slow in a particular kind of case as opposed to other cases, and thought should possibly be given to changing the kind of cases that are assigned to him in the future. Alternatively, it may be that easing the case-load of the individual judge for a short period is warranted, in order to allow him to close the gap.

This point is emphasized for two reasons. First, the administrative aspect of the judicial task at the level of the individual judge is indeed subject to oversight. Secondly, the legislator determined that information must not be disclosed concerning a complaint that is under investigation by the Ombudsman. This determination reflects the proper balance between the different rights and values that are involved, insofar as the individual treatment of problems that are encountered by an individual judge is concerned. This balance, in my opinion, also requires that name-bearing data indicating a particular inability of the individual judge to cope with his caseload should not be published. In the framework of the balance, the principle of judicial independence is also taken into account. It is extremely important to preserve this principle in order to allow the system to function properly. Preservation of this principle should be combined with the aspiration to improve the administrative aspect.

f.      Comparative law

18.   Justice Arbel discussed at length the situation in other countries, particularly in the United States, where partial information about judicial caseload is published, particularly in the federal courts system. I will make two comments.

First, it is important to emphasize the major finding that emerges from the review: in most Western states, data about pending cases is not published, a fortiori data about open cases including the identity of the judge hearing the case (see para. 86). Of course, an automatic analogy cannot be drawn. Every legal system stands on its own. However, one cannot ignore the fact that insofar as publication is concerned, the “nays” outweigh the “yeas”. In other words: the most common approach is not to publish information of the type requested here by the respondents. In the United States, too, it would appear that the reference is to federal judges only, or at least to only a few additional individual states.

Second, Justice Arbel pointed out that in the United States, information pertaining to the caseload of the judges of the federal system is published frequently, pursuant to the Civil Justice Reform Act 1990. Pursuant to this Law, semiannual reports are issued, which include various lists of cases in which no decisions have been rendered, according to the names of the judges. The comparison with the United States is tempting at first glance. In actual fact, however, the comparison is misleading, mainly due to the significant differences between the structure of the federal courts and the structure of the courts system in Israel.

There is an enomrous gap between the American legal system and the Israeli legal system regarding judicial caseload. For example, the United States Supreme Court—on which nine justices serve—hears oral arguments in approx. 100 cases annually. Incidentally, there are high courts in other countries (such as New Zealand) that hear less than half that number. For the sake of comparison, in 2013 in the Israeli Supreme Court, over 3,500 major cases were opened, i.e., cases that are heard before a bench of three of more justices: petitions to the High Court of Justice and civil, criminal or administrative appeals (Report of the Judiciary (2013), p. 18).

The gap is even greater in relation to the lower instances of the federal courts (district judges and magistrate judges). Thus, for example, the latest report—published in 2013—shows that in the United States District Court for the District of Columbia ., the number of cases stood at 344, and 24 judges served the district, i.e., approx. 14 cases per judge. In districts comprising the First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico), the number of cases was 1,210, with 60 judges serving—approx. 20 cases per judge. In Israel, as opposed to this, the figures are completely different. To illustrate, below is a table of the number of cases per judge in the Israeli district courts, correct for 2011 (based on the Freedom of Information Law report for that year):

A quick glance at the table is sufficient to reveal the large gap—of almost incomprehensible dimensions—between the situation in Israel and the situation in the United States. Of course, as explained above, the numbers themselves may be misleading. A careful examination of the matter requires that distinctions be drawn between different types of proceedings, and that they be accurately weighted. Incidentally, statistical work such as this is liable to emphasize with even greater force the magnitude of the burden imposed on the district courts in Israel as opposed to the federal courts in the United States, mentioned in the report. For example, in Israel the district courts have exclusive jurisdiction to sit as a court of first instance in cases with multiple witnesses, such as the felonies of murder and organized crime. One way or another, the numerical gap is so wide and significant that it is difficult to ignore. It is certainly not obvious that it is possible to rely on a comparison with the situation in the federal courts as in indication for the question that arises in this case.

It should be added that in the federal courts mentioned above, it is common for the judge to sit in the courtroom relatively infrequently, e.g., once a week for several hours. The rest of the time is devoted to studying the case and writing decisions and judgments. In Israel, as opposed to this, it is not uncommon for the judge to sit in the courtroom every day of the week for many hours. In fact, in the last twenty years, judges have tended to spend even more hours in the courtroom than in the past, and hearings are scheduled for later hours as well. This is not surprising. The number of cases has grown. The difference between the judge who hears 20 cases and the one who hears 200 cases is clear. For the numbers mentioned with respect to the US federal judge, as presented in the Report, the demands  of administrative work are not great. In fact, the judge can almost be exempt from dealing with the subject. An outcome whereby a judgment is delayed for a long time is liable to demand an explanation. In Israel the situation is different. Here, as described above, the judge must devote considerable resources to managing his own schedule. As a result, if every judge were also to be required to devote resources to justifying his administrative conduct, even more time would be taken up, causing disruption with near certainty. In my opinion, therefore, not only is this comparison out of place, but it only serves to highlight the difference with respect to the administrative load the judge bears.

Conclusion

19.   This case deals with the publication of information about the legal system. The decision in this petition must be made in accordance with the provisions of the Law and the balances it embodies. In particular, the legislative determination whereby the authority is permitted not to publish information that is liable to disrupt its proper functioning must be implemented.

The courts system is special in the extent of the publicity that characterizes its work. In all that is connected thereto, the developments of recent years are to be welcomed. However, in the present case we are dealing with the publication of information connected to another type of judicial endeavor, specifically the administrative aspect of the judicial task, and more accurately: a personal focus, done by naming each judge, on the management aspects of each and every judge’s work. This aspect is administered as a team by the judge and other elements in the system. It is fed by factors not within the judge’s control, such as the number of cases and the number of judges in the court. The individual judge does not select which cases he will hear, their degree of difficulty or their variety. The great number of proceedings in the Israel legal system requires the judge to make daily administrative decisions, e.g., which judgment to write up first, and even which case to schedule for a hearing at 8:30 a.m. and which at 11. These decisions, as opposed to the ordinary work of the judge, are by their nature not the outcome of a hearing, they are not reasoned in writing, and they are not published. It is clear that no public dialogue can take place with the parties on these subjects.

The legal system invests much effort in improvement. Placing the spotlight on the individual judge, as if he were the sole or dominant cause of the overload of the courts system, will only motivate him to respond, to explain, to justify, and to defend himself. Named publication of the list of open cases, a type of judicial “hit parade”, will only increase the tension and the pressure not to fall to the bottom of the chart. Nothing good will come of this. This is an important point, in view of the declared interest of the respondents in the publication of the information—the overload in the courts system, and the fact that this is a matter within the discretion of the authority. An honest analysis of the situation leads, in my opinion, to the conclusion that there is near certainty of the fact that publication of the information will disrupt the proper functioning of the courts system or with its ability to perform its tasks. Therefore, and considering the absence of a contribution made by publication of the information, the decision of the authority was within its competence and it meets the criterion of reasonableness. I will add that alternative solutions are applied in practice, involving the investment of vast resources and with a view to dealing with the exceptional caseloads in the various courts. At the same time, the appellants have agreed to publish the requested information anonymously, i.e., without appending the name of the judge. This is an appropriate outcome that achieves a balance between the different interests that rest on the scales.

The result is that from a legal point of view, there is no justification for overturning the decision of the appellants not to hand over the requested information. This is because there is near certainty of the fact that publication of the information will detract from efficiency and will even frustrate the respondents’ purpose; there is insufficient justification for the respondents’ insistence on publishing the information together with the names, as opposed to anonymously; the concentration on the individual judge misses the point—the systemic aspects of judicial overload; publication of the information will harm the alternative mechanisms prescribed by the Law and by custom; there is no relevant basis in comparative law for the publication of information of the type that was requested—possibly even the opposite. I will once against stress that it was the legislator who determined that where there is a concern about disruption with performance, there is no obligation to hand over the material. This is an appropriate consideration, prescribed by the legislator. And just as this consideration is relevant to other authorities in the State, it is also relevant to the Court.

Finally, my view is that the appeal should be allowed, and that the judgment of the Administrative Affairs Court should be overturned. Instead, it should be ruled that the petition is denied. This is subject to the declaration of the appellants concerning the delivery of information without mentioning the names of the judges, as specified above.

Justice E. Rubinstein

1.     My colleagues, Justice Arbel and Justice Hendel, disagree fundamentally about the decision in the appeal before us. This disagreement is now confined, according to the positions of the parties in the case, to the question of whether, in addition to the information that the appellant is prepared to hand over, concerning the number of open cases before each judge in the Supreme Court and in the district courts, and the time that has elapsed since each case was opened, the names of the judges will also be specified. Let us recall: the respondents’ request for information that would include all the above was made “in view of the supreme public importance of the burden imposed on the courts system,” and the District Court accepted their position.

2.         My colleague Justice Arbel’s discussion was wide-ranging and comprehensive, with an analysis of the Freedom of Information Law and the case law that followed in its wake; she described the special nature of the judicial enterprise, the foundations of judicial independence and the various institutional review mechanisms as well as those of the public. Subsequently, my colleague considered the exception in sec. 9(b)(1) of the Freedom of Information Law, whereby “A public authority is not obliged to provide information in any of the following categories: 1. Information, the disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.” The implementation of this section lies at the heart of the dispute. Justice Arbel found that the criterion for applying the reservation is “near certainty that publication of the requested information will interfere with the activity of the judiciary” (para. 57). She also discussed difficulties—the fact that indeed, delivery of the requested information would create an incomplete picture concerning the overload; nevertheless, in her opinion, the autonomy of the judges reduces the force of the appellants’ argument as to the distinction between handing over institutional information and personal information (para. 65). It was further stated that efficiency cannot be a major index for assessing a judge’s performance, although it must be taken into account (sec. 69), and in any case, data that is made available for publication can be accompanied by explanations, at the discretion of the system (para. 70). Justice Arbel discussed the concern about harming the judges by embarrassing and denigrating them and damaging their reputations, and she believes that this concern is not baseless (para. 75), but in her opinion, at this stage they remain concerns only, and that the conflict will not necessarily be harmful to the extent of constituting libel—the publication may even strengthen public trust in judges (para. 76). My colleague does not think that criticism, even if it is liable to be harmful, could impact the decisions of the judge on their merits (para. 78); in her opinion, “their inner strength, the way in which they conduct themselves, and their belief in the justice of their path will enable the judge to cope with the publications and to continue fulfilling their tasks faithfully” despite concerns about misuse of the information (para. 82). Justice Arbel does not accept the appellants’ claim that the existence of the institution of the Ombudsman for Complaints against Judges—under the Ombudsman for Complaints against Judges Law, 5762-2002— detracts from the need for public oversight (para. 88). Finally, she believes that for the sake of ensuring public confidence, and despite the concerns, the information ought to be handed over (paras. 92-95) and the appeal denied.

3.     My colleague Justice Hendel, in his interesting opinion, leaves pending the question of the standard required for the application of sec 9(b)(1), and he is prepared to assume, for the purposes of this case, that we are dealing with near certainty (para. 6). According to his approach, the administrative (as opposed to the substantive) aspect of the work of the judge and the publication about it, which is the object of this case, is liable, with near certainty, to disrupt the judicial task, by detracting from efficiency, due to the pressures created and the embarrassment caused (para. 12); the declared purpose of the request relating to the overload will be frustrated, for the statistics are liable to be misleading (para. 13); the existence of alternative mechanisms, including oversight of judges on the part of the presidents and deputy presidents of the court and by the Ombudsman for Complaints of Against Judges (para. 17) lessen the need for publicity. According to Justice Hendel, there already is a great deal of publicity in the legal system, whereas the requested publication will, with near certainty, disrupt the functioning of the system (para. 19). Therefore, in his opinion, the appeal should be allowed.

4.     In this case I found myself in a dilemma, caught “between a rock and a hard place”. My dilemma was this: on the one hand, we live in an age of transparency. The Freedom of Information Law has been with us for sixteen years; these years parallel, more or less, the virtual revolution, which brought the internet into our world, and the world no longer operates as it used to. The freedom of information revolution accompanied the information revolution—they arrived hand in hand. Enormous amounts of information are to be found in the virtual network, and if we are to be absolutely honest, the data that the appellants have agreed to hand over in this case open a door —so it seems to me—which affords quite easy access to the names of the litigating parties themselves, even if they are not published; this was also argued by counsel for the respondents in the hearing before us, and he mentioned online anonymous comments (talkbacks).  Furthermore, the judiciary, owing to the sensitivity of its task and what is required for public confidence, ought to be as open as possible to criticism. As opposed to this, the legislature’s position in the Ombudsman for Complaints against Judges Law, was that there must be a certain measure of caution in the publications: the law as a rule came down against publishing the names of the objects of the complaints, except for a narrow window that was opened in sec. 13(d), by a joint decision of the President of the Supreme Court and the Minister of Justice. Primarily, I believe that there are quite a few judges—of course, not all—whose work is nearly certain to be disrupted by the disclosure, in accordance with the present criterion. Moreover, the subject on which the request of the respondents focused is overload. Apparently, for the purpose of examining overload, the names of the judges are not necessary; the information that the appellants are prepared to deliver would suffice. Indeed, the Freedom of Information Law does not require a “motive” behind the request for information; sec. 1 states that “Every Israeli citizen and resident has the right to obtain information from a public authority, according to the stipulations of this law.” But again—the declared purpose of the respondents can be satisfied in its entirety by the data whose delivery is not in dispute. The question is whether “the trouble is … worthy that the king be disturbed” (Esther 7:4).

5.     For the purpose of this case, I too am prepared to adopt the standard of near certainty, as proposed by President Aharon Barak in his lecture, “Freedom of Information and the Court” (with the publication of Professor Z. Segal’s book The Right to Know in the Light of the Freedom of Information Law (2000); and see also his article of that name, Kiryat Hamishpat 3 (5763-2003) 95, 103). He described the requirement as including a “severe, serious, and grave disruption …”. Given such a criterion, which path should a person choose? I would add here that in relation to the present matter, Prof. Segal also writes (p. 199) that near certainty is required, and personally he is in favor (pp. 143-144) of publishing the names, but he also sees value and importance in publishing without names.

6.     For love of Jewish law, I will begin with several Jewish law sources relating to the judge, as cited in my lecture, “An Understanding Heart—On the Judicial Enterprise” (medical conference in Haifa, chaired by Prof. Moshe Feinsod, January 3, 2012). The Bible describes the qualities required of judges: “… you shall provide out of all the people able men, such as fear God, men of truth, hating unjust gain … . And let them judge the people at all seasons” (Exodus 18:21-22). The Medieval commentator Rabbi Abraham ibn Ezra explains in his short commentary, “Able men – who have the strength to suffer … fear God—that they will not acquire a bad reputation, men of truth—that they are not false, hating unjust gain—money.” Rabbi Shlomo Itzhaki (Rashi)  explains: Able men—rich men who will not need to flatter or to show favor; men of truth—these are people commanding confidence, who are deserving that one should rely on their words; hating unjust gain—men who hate (pay no regard to) their property when it is to be made the matter of a law-suit, in accordance with what we say (Babylonian Talmud, Tractate Bava Batra 58b): “Any judge from whom one has to wring the money [he owes only] by means of a law-suit is no [fitting] judge .”  Scripture also said of judges, through the words of Moses: “Hear the causes between your brothers, and judge righteously between every man and his brother and the stranger that is with him. You shall not respect persons in judgment, but you shall hear the small and the great alike; you shall not be afraid of the face of man; for the judgment is God’s” (Deuteronomy 1:16-17). The closing words of these verses is saying that it is the Lord who gave the law, and there must therefore be no deviation from it; however it may also be interpreted as meaning that the Lord is, as it were, present in the courtroom: “God standeth in the congregation of God …” (Psalms 82:1; see the commentary of Aharon Mirsky, Da’at Mikra, Devarim [Deuteronomy] on this verse).

The sages dealt extensively with the judicial task and they said (Babylonian Talmud, Tractate Shabbat 10a): “Any judge who renders a judgment that is absolutely true, even [if he sits in judgment for only] one hour [i.e, a short while] is considered by scripture as if he became a partner with the Holy One, blessed is He, in the act of creation.” To judge absolutely truly is a great virtue, as Justice Menachem Elon said (see “These are Obiter Dicta … They are Fundamentally Flawed and Should Not be Followed”, in M. Mautner, A. Sagi & R. Shamir (eds.), Multiculturalism in a Democratic and Jewish State (1998), 361, 361; cited also in Neshama Yetera Bamishpat , a collage of Elon’s writings by Dr. (now Professor) Aviad Hacohen (2004), pp. 25-26).

The sages also said, “Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan, A judge should always view himself as though a sword is resting between his thighs and Gehinnom is open beneath him” (Babylonian Talmud, Tractate Sanhedrin 7a). Maimonides (Sanhedrin 23:8-9) formulates this as follows:

A judge should always view himself as though a sword is resting at his neck and Gehinnom is open beneath him: He should know whom he is judging, before Whom he is judging, and Who will ultimately exact retribution from him if he deviates from the path of truth … Whenever a judge does not render a genuinely true judgment, he causes the Divine Presence to depart from Israel….

Incidentally, there were sages of the Mussar Movement who viewed each person as his own judge: “Judges and officers shalt thou make thee in all thy gates” (Deuteronomy 16:18) means the gates of a person’s body—his eyes, ears and mouth. This applies a fortiori to a judge, who under Jewish law, as well as in our times, is subject to strict laws of professional ethics.

The sages also said: “Do not judge your fellow until you have stood in his place” (the words of Hillel the Elder, Ethics of the Fathers 2:4, and see the article of Dr. Aviad Hacohen, “Do Not Judge your Fellow Until You Have Stood in his Place”, Parshat Hashavua 351 (5769)); true, there is a dispute as to whether this mishnah is addressed to judges, but one could certainly invoke it in the context of “First correct (lit., adorn) yourself and then correct (lit., adorn) others” (Babylonian Talmud, Tractate Bava Metzia 107b), and as cited by Hacohen from the commentary of Rabbi Ephraim of Luntschitz, “Kli Yakar” on the verse, “Judges and offices shalt thou make thee” (Deuteronomy 16:18), “Correct (lit., adorn) yourself first”, and only then, “and judge the nation”—“correct (lit., adorn) others”.  All this is from the abovementioned lecture, the name of which is taken from the prayer of King Solomon (I Kings 3:9).

See also the article of Rabbi Yair Kahan, “Zion will be Redeemed with Justice” (website of the Har Etzion Yeshiva, Shoftim, 5774), which deals with the obligation to appoint judges in our land and in diaspora communities, and ends with the verse that was often quoted in 1948, with the Establishment of the State of Israel: “Zion shall be redeemed with justice, And her penitents with righteousness” (Isaiah 1:27); on the establishment of the legal system in the State of Israel, see my book, Judges of the Land (5741-1980), p. 35 ff.  We see the great importance that the Jewish national ethos attaches to the law, to the judge, and to the responsibility he bears.

7.     What supports Justice Arbel’s opinion?  As she pointed out, it is difficult to overstate the importance of the purposes underlying the Freedom of Information Law. The public cannot obtain effective oversight of the activity of the authority without being given the information relating to such activity, within the bounds of transparency; it is not possible to demonstrate involvement in the governmental enterprise without such information; and it is difficult to see how the public and individuals within the public can realize their basic liberty and their rights, without having access to the information that has amassed in the various governmental bodies (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60 (hereinafter: Ministry of Transport),, at p. 73; HCJ 7805/00 Jerusalem City Councilor Roni Aloni v. Jerusalem Municipality Commissioner [2003] IsrSC 57(4) 577, at p. 605). The Freedom of Information Law anchors the conception that had crystallized even earlier in the case law, whereby the authority has no proprietary right in the information that it possesses, and it is a trustee for the public and acts on its behalf (HCJ 2594/96 College of Management Academic Studies (School of Law) v. Israel Bar Association [1997] IsrSC 50(5) 166, 173; see also AAA 8282/02; HaAretz Newspaper Ltd. v. State of Israel, Office of the State Comptroller [2003] IsrSC 58(1) 465, at pp. 470-471). Hence the broad language—which we mentioned, of sec. 1 of the Freedom of Information Law, and on the other hand, the restrictive interpretation of the reservations to delivering information, including sec. 9(b)(1) which is the object of our interest; therefore, the judiciary should in general be subject to criteria that are similar to other authorities, even given the special nature of the judicial function. See on this matter also the words of President A. Barak, as quoted by Prof. Segal in his book: “It is only natural that the courts administration which deals with the administrative aspects of the courts system will be subject to the obligation to provide information, like any other authority” (from a letter sent by President A. Barak on March 17, 1998 to MK D. Zucker concerning an examination of the ramifications of the Freedom of Information Bill on the courts system: Segal, p. 143, n. 395; emphasis added – E.R.).

8.     However, there is a strong, significant opposing side, which operates in the direction of the position taken by my colleague Justice Hendel: the appellants are prepared to take a sizeable step towards the respondents, and to disclose the requested details, but without mentioning the names of the particular judges. This gives rise to the real dilemma in this case, for the information that is normally sought by virtue of the Freedom of Information Law is institutional information, rather than individualized, named information, which is born of an understanding that, as a rule, the person performing the activity is a public servant, who in what he does represents the system itself, in accordance with his function, and he operates on the basis of policy set by the system. Therefore, disclosure of the name of the person executing the action is often of no real importance, certainly not to an extent that would justify harming his ability to perform his task as required or in a manner that would harm his reputation unnecessarily; and as was determined in a similar context: “It is as clear as daylight that the discussion of the reasonableness of the regulation will focus on the considerations that led to its enactment, and not on the identities of the people who were proposing it or objecting to it” (CC (Tel Aviv) 2060/99 Israel Bar Association v. Minister of Justice [Nevo – December 5, 1999], per (then) Judge O. Mudrik). Thus, for example, if information is requested concerning the extent of payment of municipal taxes in a particular municipality, and no one is claiming negligence on the part of any particular clerk, it is doubtful whether publishing their names is worth anything, when all they did was to collect the payments in accordance with municipal procedures. Moreover, as my colleague Justice Hendel pointed out very correctly, exposure of the names of employees is liable to interfere with their ability to perform their tasks properly, for they will devote a significant amount of their time and their energy to justifying their actions and defending their reputations; and to this must be added, as stated, the concern about embarrassing the employee—to which we will return; this is so with respect to every employee, and also with respect to judges.

9.     As Justice Arbel pointed out, the judicial function is different in its essence from other functions in the public service. As an aspect of this, judicial independence, which is vital for the fulfillment of the judicial function, is much greater than the independence of other functionaries in the public service; and as stated in sec. 2 of Basic Law: The Judiciary as a constitutional norm: “A person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law.” What is the meaning of judicial independence with respect to the publication of name-bearing information? On the one hand, since the judge determines the fate of persons, of finances, of the public administration, the names too are important. At the same time, there is close oversight of the activities of the judge, both substantively, via the appeals court (with the exception of the Supreme Court, whose judgments are not appealable) and administratively, as in this case, by the presidents of the courts and their deputies and the Ombudsman; there is also an ethics committee whose decisions (non-name-bearing) are published. On the other hand, is it likely that named publication, which is liable to distort the truth, as my colleagues pointed out, will have a severe impact on the work of the judges?

10.   Unlike Justice Arbel, who, despite her uncertainty and her appreciation of the difficulties, believes that these cannot tip the scales. Justice Hendel is of the opinion—as we have said—that publication of the requested information, together with the names of the judges, is liable to cause damage to the judiciary at a level of near certainty. The reasons given in support of this determination are not trivial, particularly the concern that the attempt of the judges to deal with the publication of information about their pace of work—information that is indisputably incomplete and not exhaustive—will detract from the efficiency of their work and its quality, and thus, the purpose for which the information was requested will be frustrated; this is so particularly, according to Justice Hendel, when the appellants are prepared to disclose the statistical information without disclosing the names of the judges, and thus a picture of the workload borne by the judicial system will be reflected, with only minor damage being caused.  

11.   Can these reasons cited by Justice Hendel tip the scales towards refraining from publishing the data? In another context, this Court said, some time ago:

One should ask, wherein lies the statutory authority for depriving a citizen of the right to view material, knowledge of which he has a legitimate interest? All this “secrecy”, which erects a partition and a screen between the government and the citizen, should not have a place in the orderly administration of a democratic regime … I believe, therefore, that the petitioner was justified in his demand, not only because his right to view the documents stems from the provisions of the law, but—and mainly—because basic good sense and logic in public relations between the government and the citizen necessitate this conclusion …  only for weighty reasons can the authority claim confidentiality of a particular document, and whoever claims confidentiality—bears the burden of proof (HCJ 337/66 Estate of Kalman Fital v. Assessment Committee, Holon Municipality [1967] IsrSC 21(1) 69, 72, per Justice A. Witkon [my emphasis – E.R.]).

This consideration supports the delivery of the requested information, in accordance with the position of Justice Arbel. However, we still have not answered the question of possible disruption of the work of the judge.

12.   I will mention here the possibility that the information that is to be delivered will be exploited for the purpose of embarrassing the judges. I do not belittle this consideration, and as Justice Arbel pointed out, it can make the decision in this case a very difficult one.  As I mentioned in a previous case, “sometimes the public servant has nothing but his good name, and if that is besmirched, what is left?” (LCrimA 7383/08 Ungerfeld v. State of Israel [Nevo – July 11, 2011], para. 9) (hereinafter: Ungerfeld); in this, judges are no different from anyone else (and see on this matter HCJ 2561/07 Michal Sharir v. Courts Administration [Nevo – July 24, 2008], per Justice E.E. Levy, para. 8). It is true, as I pointed out in Ungerfeld, that when we are dealing with more highly-placed public officials, who by virtue of their function are exposed to public criticism, it can be expected that their ability to withstand the criticism, and even real insult, will be greater than that of a minor official in the system. Judges occupy a high rank, and by the nature of their profession they are exposed to public criticism on a daily basis, but they are supposed to have a relatively high level of tolerance for criticism, and even for real insults and vilification, which are, unfortunately, not infrequently published against judges.  See on this the words of the late Judge A. Azar, in a judgment stating that the State must release the names of district psychiatrists in a particular context:

        In every choice of profession there are advantages and disadvantages. From this point of view the psychiatrist is similar to the policeman, the prison warden, and the judge. Together with authority comes criticism and the willingness to bear it … as pointed out by Justice Netanyahu: “The greater the power and authority … the greater the importance of the limitations and the means of oversight (CA 558/84, ibid. [Carmeli v. State of Israel [1987] IsrSC 41(3) 757 – E. R.] , at p. 767)” (OM (Tel Aviv)  200871/98 Israeli Association Against Psychiatric Assault v. Ministry of Health [Nevo – 2000] (Emphasis in the original – E. R.)).

13.   My position is as follows: in my opinion the solution to this complex situation is itself complex and not binary, but rather, a cautious middle path; we must confront the matter at “eye level”.  There are judges with respect to whom the possible harm stemming from publication of the data is something that can be dealt with and which will not interfere with their work; there will, however, be judges with respect to whom there is near certainty of disruption with their work, in that their resources in terms of time will be devoted to the publications and to refuting the claims in them, for both subjective and objective reasons: subjective—because they will feel hurt to the depths of their souls in their belief that they have suffered an injustice, and they will lose sleep and their work will suffer, due to the thought that they cannot, due to their place and position, respond appropriately; and objective—for overload is in no way reflected only in the dates on which cases are opened: it is dependent on the case and the circumstances. Moreover, in my view it is significant that a sizeable portion of the complaints lodged pursuant to the Ombudsman for Complaints Against Judges Law involve delays in rendering judgment, but as we have said, the judges’ names are not, as a rule, published, by virtue of the Law. We are dealing with similar material here, and even if the Freedom of Information Law does not contain a specific legislative provision concerning judges, the possibility of an analogy cannot be overlooked. All of these involve shaming, and the sages stated, “He who publically shames his neighbour is as though he shed blood”” (Babylonian Talmud, Tractate Bava Metzia 58b)—no less! And see further in my opinion in CFH 2121/12 Major R. v. Dr. Ilana Dayan [Nevo –September 18, 2014 para. 8]. And of course, when I say “shaming”, I would be equally cautious in relation to those who are not judges. The correct thing in my view is to find a middle road.

14.   Therefore, if my view is accepted, we would act in the following manner: first, insofar as this court—the Supreme Court—is concerned, in view of its primacy of place in the system and in order not to create even the slightest impression that it is trying to prevent the presentation of data, including personal data, in relation to its activities, I would suggest adopting the path of my colleague Justice Arbel, namely, that the information should be published in its entirety with all its components, after the completion of the 5775-2015 legal year, towards the end of 2015. In this I do not see eye-to-eye with our colleague Justice Danziger, who is of the opinion that the information should be published here and now; I think that there is room for a gradual process, as proposed by Justice Arbel, due to the exceptional nature of the name-bearing information.

15.   Regarding the district courts, in my opinion we must proceed with tiny steps. If my opinion is accepted, there should be an additional waiting period, during which the outcome of publication of the names in this Court will be examined, so that lessons can be learned—whether no great harms have ensued and the concerns have proven unfounded, or the opposite; and in order to determine in a sound manner whether we ought to have a part in what may emerge to be nothing other than embarrassment. A decision on this matter will be made by the appellants, after they have learned these lessons, by the end of the 5776 (2016) legal year; this decision will of course be subject to judicial review, and everyone’s rights will be reserved.

16.   This, of course, is additional to the agreement of the appellants to publish the relevant information without mentioning the names of the judges. I propose that we order that this information be published within 45 days of the handing down of this judgment. With respect to this Court, the information containing the judges’ names will be published as emerges in the opinion of Justice Arbel; regarding the district courts, the decision will be made before the end of the 5776-2016 legal year. I also propose, once more in keeping with the spirit of Justice Arbel’s opinion, that each judge be given the opportunity to respond to the data that concerns him alongside the name-bearing publication. In my view, therefore, the appeal should be partially allowed as stated.

Justice S. Joubran

1.     Should information concerning the number of open cases being deliberated in the court before each judge, the time taken to deal with them, and the name of the judge hearing each case be disclosed? My colleague Justice Arbel, in her thorough written opinion, answered this question in the affirmative. She explained that the rule expressed in the Freedom of Information Law is that of disclosure of information, and that the exception for disrupting the proper functioning of the judges, which allows the authority to refrain from handing over the requested information, does not apply here. In the balance between the concern about interference with the functioning of the judges and the public interest in publication of the information, my colleague found that the public interest in publication prevails. Underpinning her position is the principle of freedom of information, which is based on public confidence in the system of justice as well as the rights to know and to exercise effective oversight of its activity.

2.     My colleague Justice Hendel, as opposed to this, believes that the names of the judges should not be published. According to him, the publication of anonymous information regarding the state of handling of each and every case suffices. He believes that turning the spotlight on each individual judge, as opposed to a study of the systemic aspect of the requested information, misses the main point, which is the overload in the courts. Personalized presentation of the information focuses the problems of the judiciary as a system, on the judges, without justification. Justice Hendel bases his concerns on a distinction that he draws between the administrative aspect of the judicial task and the legal-substantive aspect. According to him, the principle of freedom of information applies to the legal-substantive aspect through the principle of the public nature of trials; but from here one cannot draw an analogy to the administrative aspect. The number of open cases and the time over which they are heard are part of the administrative work of the judge; and in any case, they stem from factors that are not in the judge’s full control. Personalized disclosure of the requested information will affect the judge’s system of considerations and lead to preoccupation with his apparent efficiency, which will harm his legal-substantive work.

Justice Arbel was not unaware of these concerns laid out by Justice Hendel; in the final analysis, however, she believes that for the most part they are speculative, and that their professional fortitude will enable judges to cope with the unflattering publications. My colleague Justice Rubinstein, unlike Justice Arbel, believes that the expression that should be accorded to these concerns is by means of incremental relief, as stated in para. 13 of his opinion.

3. I will confess that I vacillated a great deal regarding the decision in this appeal and also with respect to the appropriate relief. Let me begin by saying that with respect to the decision, I ultimately decided to concur in the opinion of my colleague Justice Arbel, according to which the appeal should be denied.

As for the relief, I believe that there should be incremental, future-oriented implementation of the judgment, similar to the opinion of my colleague Justice Rubinstein. Like him, I too believe that a distinction should be drawn between the Supreme Court and the district courts; and between publication of the information without the names of the judges and publication of their names.

4.     If my opinion is accepted, publication of the information relating to the Supreme Court, without the names of the judges, in accordance with the appellants’ agreement, will be effected immediately, upon the rendering of this judgment, in accordance with the most current information in the hands of the appellants, and subject to there being no possibility of making a connection, by means of the information, between the judge hearing the case and the case itself. As for the names of the judges, they will be published at the end of the 5775 (2014-2015) legal year.

Regarding the district courts, if my opinion is accepted, publication of the information without the names of the judges will be effected at the end of the 5775 (2014-2015) legal year. Publication of the names of the judges will be effected at the end of the coming calendar year, i.e., the end of 2015.

This delay will allow the courts administration and the judges to prepare themselves for the said change, minimizing concerns about interference with their work, and thus, minimizing concerns about a miscarriage of justice and about adversely impacting the doing of justice.

5.     Below are the reasons for my position, which is based primarily on the various concerns about disruption of the work of the judges and how to minimize them despite the publication.

One cannot make light of the concerns expressed by my colleagues in relation to the potential harm to the work of the judge. True, the starting point is that the judicial task requires of the judge personal strength and a certain resilience in the face of  criticism. But the accepted view is that this strength and resilience are directed at what my colleague Justice Hendel calls the “legal-substantive aspect”, as distinct from the “administrative aspect”. According to this view, public criticism should be directed towards the wisdom of the work of the judge, and not towards its efficiency. The traditional objective of the judicial task is the constant search for the truth. This is the very heart of the role of the judge. The assumption is that in his search for the truth, the judge does all he can to achieve the correct legal result, according to the best of his personal understanding. In order to do so, he requires personal and administrative freedom and autonomy (Daphna Avnieli, “Who Will Control the Judges - and How?” Mishpat Umimshal 9 (5766-2006) 387, at p. 389). Regarding this, Judge Berinson said that “the judges of Israel are famous for performing their judicial task faithfully. It is well known that they are usually subject to the pressure of difficult, voluminous, strenuous and nerve-wracking work. Time is short and the work is always great. And nevertheless … in no way should the noble values of doing justice be sacrificed on the altar of speed and efficiency”  (CA 33/75  Air Thermo Ltd. v. Atarim. [1975] IsrSC 30(1) 547, at p. 554).  Moreover, according to this outlook, the judge acquires public confidence through the contents of his decisions and their justness; these are also the legitimate basis for public criticism leveled at him. It would appear that in view of this outlook, the rules of public trial apply to the substance of the legal process and not to the manner in which it was administered (see: para. 8 of the opinion of my colleague Justice Hendel),

6.     Publication of the names of the judges who are hearing each and every case is not consistent with the said outlook, and it also gives rise to a non-trivial concern that the criticism of the judicial task will be diverted from its natural destination. From a situation in which the work of the judge is evaluated in terms of legal validity, justice, and procedural fairness, the weight will be shifted to an examination that focuses on indices of efficiency and speed. The concern is that administrative criteria will replace legal criteria as the basis for criticism of judicial performance. On the importance of efficiency in the performance of the judge it has been said: “Important as it may be—[it] is not the most important value … first and foremost, one must ensure that the judicial system enables a fair trial so that quick and efficient justice does not become quick injustice” (Shimon Shetreet “The Fundamental Values of the Judicial System in Israel”,Or Book for Supreme Court Judge Theodor Or (2013) 617, at p. 635 (hereinafter: Shetreet, “Fundamental Values”). Public confidence, needless to say, is the “purse and the sword” of the court and the judge; and there are grounds for saying that, due to the desire to win this confidence, the judge’s attention will unconsciously be drawn, to one extent or another, by those efficiency indices.

7.     Efficiency per se is not necessarily negative, and the opposite may even be true. It can speed up the operation of the legal system, thus reducing the duration of legal proceedings and preventing a miscarriage of justice for the litigants. It happens not infrequently—although this is not the rule—that legal proceedings take too long. And it happens that the reasons for the delays are not sufficiently justified. In those cases, the harm to the litigants is not justified, and would be better avoided. In cases in which the drawn-out proceedings are not justified, the rising importance of the efficiency index is consistent with the demand to publish information, including the names of the judges.

8.     And yet, despite the importance of the efficiency of the legal system, the work of the court, unlike that of the litigants, is, as a rule, not limited in time, and there is a reason for this. The pace at which each matter is dealt with and how long it takes are likely to change from case to case: it is a matter for the discretion of the judge. Beyond the considerations of urgency and importance of every matter, which every judge weighs (see: para. 19 of Justice Hendel’s opinion), the pace at which a case is handled and how long it takes are often the result of the case’s factual or legal complexity. Decision-making in fact-filled cases requires intimate familiarity with the factual basis which, not infrequently—as any experienced jurist will attest—extends to a great many pages and takes shape during long hours of deliberations. In addition, decision-making in cases which are legally complex—sometimes in new branches of the law, and sometimes in complicated branches of the law—requires comprehensive, exhaustive research in order to construct the normative framework. An incomplete picture of the factual mosaic and insufficient familiarity with the legal materials in each and every case is liable to affect the quality of the judicial performance.  Exhaustive research and familiarization with the facts are the mainstays of the work of the judge, and we know that “he that repeated his chapter a hundred times is not to be compared with him who repeated it a hundred and one times”  (Babylonian Talmud, Tractate Hagiga 9b). These, by their very nature, involve an investment of a considerable amount of time. Assigning too great a weight to the index of efficiency is liable to bring about a reduction in the amount of time invested in the work of the judge. Such a process involves, as we have said, harm to the quality of the judicial performance. Certain defects in the work of the judge, needless to say, are liable to lead to a miscarriage of justice and to undermine the doing of justice.

9.     Harm to the quality of judicial performance is also liable to find expression in a reduction in the scope of legal reasoning in judgments. Providing the reasons for a judgment is the “mouthpiece of the judge”, by means of which the decision in the judgment is explained to its various addressees—the parties, the legal community, and the general public (Barak, The Judge in a Democratic Society, at p. 295). In the present case, the information that is requested relates to the Supreme Court and the district courts.  In relation to each of these two judicial levels, the role of legal reasoning is slightly different, but each role is very crucial.

The reasoning in the district court provides the basis for the decision on appeal in the Supreme Court. Exhaustive reasoning allows the appeal instance to focus upon, and to reduce, the scope of disputes, and occasionally even to end them without the need for a written judgment. The disadvantages of insufficient reasoning, on the other hand, are many, so much so that it seems unnecessary to explain. Amongst the other disadvantages, non-exhaustive reasoning is liable to make the task of the panel hearing the appeal more difficult, to make the legal process cumbersome, and to harm the continued orderly and fair conduct of the case.  Inhibiting the reasoning of the trial court is likely, therefore, to be a two-edged sword, and instead of promoting efficiency it is liable to detract from it.

The reasoning of the Supreme Court is also essential. True, it does not serve as the basis for an appeal, but it establishes case-law, directs behavior and instills values, and serves as a fruitful basis for essential academic and public discourse. The reasoning of the Supreme Court is also the major ethical basis that often nourishes the public confidence in the legal system in general, and in the Supreme Court in particular.

10.   The concern that judicial decisions will be affected, either consciously or unconsciously, by these or other influences was not unknown to the legislator, and it found expression in various pieces of legislation, including the norm concerning autonomy established in Basic Law: The Judiciary and in reg. 5 of the Code of Ethics for Judges, 5767-2007, which provides that the judge is not dependent on any person, not only in judicial matters but also “in any other field in which he acts” (ss. (b)). The regulation further provides that the judge shall fear no one, and shall not be influenced in fulfilling his role by public opinion, concern about criticism or a desire to please (ss. (3)). The work of the judge is also protected by means of the norm of sub judice that appears in sec. 71 of the Courts Law; by the rules of immunity in tort; by the rules governing testimony from a judge; and by the rules concerning his appointment and the terms of his employment (see: paras. 30-33 in the opinion of Justice Arbel).

11.   It is against this backdrop that the difference between publishing data about the number of open cases and how long have they been in the process of being handled, without attaching the names of the judges, and the request of the respondents that the names be published, must be understood. When the non-named data is presented, the spotlight will be turned on the legal system as a system and not on the judges as individuals. It seems to me, that in most cases, this is what ought to be. It is the courts system, as a system and as an administrative authority, that has the resources, and the ability, to deal with the criticism, to internalize it, to refute it, and, if necessary, to provide explanations that will shed some light and dispel it. Because the reasons for the judicial overload are mainly a systemic matter, the system as such is also the correct address to which criticism should be directed. According to the existing distribution of the work, administrative information concerning statistical data about the number of open cases and the time taken to deal with them is in the hands of the courts administration. As such, that is also the body that bears responsibility for the what the data reflects , as well as being the relevant object of criticism. As opposed to this, the judgments themselves, which are the product of the judge’s work, are published by the judge himself. Criticism of the contents of the judge’s work is naturally directed at the judge, and not at the system. The concern is that publication of the names of the judges will divert criticism from the system, at which it ought to be directed, towards the judge instead.

Is this concern sufficient reason to refrain from publishing the information, including the names of the judges?

12.   The Freedom of Information Law does not contain a purposes section specifying the main purpose that guided the legislator. My colleague Justice Arbel, enumerated several purposes, without determining their hierarchy (for a further review of the purposes, see: Jonathan Arbel and Tehilla Shwartz Altshuler, Information Wants to be Free: Implementing the Freedom of Information Act in Israel (Israel Democracy Institute, 2008) (hereinafter: Arbel and Shwartz). It would seem to be important to identify the relevant purpose in accordance with each case, as an interpretative aid, in order to balance the need to publish information with the need to refrain from exposing it. I believe that of the purposes in the Law discussed by my colleague, the principal purpose in the present case is to afford the public an opportunity to criticize governmental acts and omissions, or in other words, to expose the modes of operation of the public authorities (this is also the main purpose according to the late Ze’ev Segal, see: The Right to Know in Light of the Freedom of Information Law  (2000), 101-103; it is also the main purpose mentioned by the Minister of Justice during the debate on the Freedom of Information Law Bill —protocol of the deliberations of July 1, 1997 and May 19, 1998). The demand to expose the acts of government to the public is identified with the saying that “sunlight is the best disinfectant” (attributed to U.S. Supreme Court Justice Louis D. Brandeis, Other People’s Money and How the Bankers Use It (1914) 43). Underlying this saying is the assumption that the authority will conduct itself in the best way possible, even if only due to the fact that its activity is exposed to public scrutiny. Exposure of the activity to public scrutiny is intended to prevent modes of conduct and methods of decision making that the public wishes to reject. In our case, the assumption is that exposure of the administrative data concerning the handling of cases, together with the names of the judges, will increase the efficiency of the legal system.

13.   Against this background, a balance must be struck between freedom of information and the need to refrain from handing over the information. In the present context, this balance is struck, as Justice Arbel explicated, in the framework of an examination of the exception due to interference with “the proper functioning of the public authority” in sec. 9(b)(1) of the Law. The central consideration in this balancing, as she explained, is “the public interest in the publication of the information.” In the framework of considering the public interest in the publication of the information, regard must also be given to the public interest in refraining from such publication. In other words, the question is whether the public will benefit more from the information’s being published or from its remaining confidential. In our case, as stated, the requested “information” includes two tiers: The first is the anonymous statistical data concerning the number of open cases and the time over which they are handled; the second is the names of the judges who are handling each case.

14.   With respect to the question of the publication of the anonymous statistical data, the interest of the public would seem to be clear. Publicizing this data will expose the public to the judicial overload and to its ramifications for the duration of legal proceedings.  This information will provide an opening for public discourse on the merits, which constitutes the very core of a democratic regime (cf: Aharon Barak, “Freedom of Information and the Court”, Kiryat Hamishpat 3 (5763-2003) 95, at p. 97), and it will allow the public to formulate a position on the conduct of the system, including its efficiency. This discourse is the basis for bringing about structural changes and changes in the allocation of resources, in legislation, or in the actions of the executive branch of government, the goal of which is to increase the efficiency of the system. The existence of this discourse is dependent on the publication of the information. Hence, public interest in the information’s being published is clear.

15.   Unlike publication of anonymous statistical data, the question of the public interest in publication of the names of the judges does not necessarily have an unequivocal answer. Such publication is likely to engender benefit to the public interest, but it arouses a non-negligible concern. In broad terms, the concern is that the “efficiency index” will partially replace the “quality index”. Publication of names—and Justice Arbel discussed this at length—is likely to motivate judges to make an effort to climb to the top of the chart, or at very least, not to be at the bottom. When this process of increasing efficiency does not come at the expense of other essential aspects of the work of the judge, but only speeds it up, there is a public interest in the publication. But when vital aspects of the work of the judge are harmed, the interest of the public is liable to lie in refraining from publication of the information.

16.   With respect to balance: in Justice Arbel’s opinion, the probability standard by means of which the balance should be sought within the parameters of sec. 9(b)(1) is that of “near certainty” of interference with the functioning of the authority.  Recourse to a uniform standard for the entire range of cases in which information is requested is not a given, but I am prepared to start out from the assumption that in the present case, that is the appropriate standard of probability (this is also the position of my colleagues, Justices Hendel and Rubinstein). The public has an interest in knowing how its judges manage their dockets; the rate of progress on cases; and the connection between the progress on each case and the judge who is dealing with it. To the extent that it will lead to increased efficiency in the judge’s performance without detracting from its quality, an order should be issued to hand over the information. As opposed to this, if increased efficiency will lead, with near certainty, to interference with the judge’s work, the information should not be handed over.

17.   With respect to the Supreme Court, I accept the position of my colleague Justice Arbel, whereby harm to the work of the judges is not a near certainty. The Supreme Court is the highest court in the courts system, and naturally, concern that publication of the names of the judges will affect those judges’ promotion is not actual. A justice of the Supreme Court has more auxiliary staff available to him than the judges of other courts, and the main thrust of the process of streamlining can be channeled to this staff, without harming the “inner core” of the judicial task. Moreover, it would seem that public interest in publishing the names of the justices of the Supreme Court is greater than in the district courts, inter alia because the Supreme Court is quite frequently called upon to decide on issues that are of social importance, in which the public has a great interest. In addition, as my colleague Justice Rubinstein points out (para. 14 of his opinion), due to the seniority of this highest instance, and in order not to create the impression that this Court is taking the law into its own hands, the public interest in publication of the names is greater.

18.   Against this background, the assumption underlying the position of my colleague Justice Arbel, whereby the judge will be able to dissociate himself from the criticism, is reasonable with respect to justices of the Supreme Court. The obvious conclusion is that in the Supreme Court, interference with the functioning of the justices is not a near certainty, and therefore publication of the names of the justices who are handling the cases should not be prevented.

19.   If my opinion is accepted, publication of the information relating to the Supreme Court, without the names of the judges, as agreed by the appellants, will be effected immediately upon the rendering of this judgment, in accordance with the most current information held by the appellants, and subject to there being no possibility of connecting, by means of this information, the judges hearing the cases with the cases themselves. As for the names of the judges, in order to allow sufficient preparation time for the aforementioned change: they will be published at the end of the 5775 (2014-2015) legal year.

20.   As for the district courts, a categorical assumption that all the judges will be able to dissociate themselves from the criticism and avoid disruption to their work is not free of doubt. Criticism of the judges of the district courts is likely to have a greater effect than criticism of justices of the Supreme Court, inter alia due to the concern of the former that such criticism may impede their promotion. In addition, less auxiliary staff is available to the judges of the district courts than to the Supreme Court, and the concern that the harm will affect the “inner core” of the work of the judge is therefore greater. It is also true that reducing the time taken to hear evidence or the time spent on legal research is liable to affect the legal decision already at the level of the trial court. To the extent that an error is a non-legal one, i.e., it relates to factual findings and the conclusions therefrom, there is a concern that the error will be perpetuated, thus causing harm to due process and to justice. In view of what has been said, owing to the greater concern about interference with the functioning of the judges in the district courts, it appears to me that a different balance is required to that relating to the Supreme Court.

I believe that this balance must be found, not at the level of the decision, but at the level of relief. At the level of decision, even though the concerns described above are not light, they do not amount to categorical “near certainty” of interference with the orderly functioning of the judges. However, in order to alleviate the concern about harming the work of the judges, it appears that on the level of relief, there are good reasons for applying the judgment in an incremental, forward looking manner. Publication of the names of the judges is a substantive change from the present practice in the courts. Even those who support publication would surely agree with that. The purpose of the publication is to expose to public scrutiny another aspect of the judicial task which until now has been overseen from within the system (see Shetreet, “Fundamental Values”, at p. 635, near the text “The President or the Deputy President are responsible from the administrative perspective for the judges …”). As a result of the act of exposing the names of judges, certain birth pangs can be expected. Presentation of the raw data will create an inaccurate picture. In order to present the data in a manner that is not misleading, a certain amount of preparatory work is needed, such as providing explanations for the state of some drawn-out cases (see: para. 59 of the opinion of Justice Arbel and para. 12 of the opinion of Justice Hendel). Beyond this, placing the names of the judges in the public spotlight can be expected to bring about a change in the maner that they conduct the administrative aspects of their work. Also, the system, as a system, is likely to slighty alter the manner in which cases are assigned (Shetreet, “Fundamental Values”, at p. 635: “Today, the courts administration dictates to the judges the required pace of work …”). The district courts, unlike the Supreme Court, are not a single body, and their preparation for changes, and their adjustment, will naturally require more time. These changes require preparation and thought, both on the level of the individual judge and at the systemic level. In general, it may be said that these changes are primarily a matter of justice seen.  But in order that these changes not harm justice itself, incremental implementation of publication is required. Therefore I am of the opinion that in the district courts, there should be incremental, forward looking implementation of the judgment: At the first stage, the data should be published without the names of the judges. This intermediate situation will allow the system, as a system—including the courts administration and the presidents of the district courts and their deputies—as well as each judge, to internalize the change and to plan the administrative aspect accordingly. At the second stage, after a pause that will allow for the situation to be studied and for preparation, the names of the judges in the district courts, too, will be published.

Therefore, with respect to the district courts, if my opinion is accepted, publication of the information without the names of the judges will be effected at the end of the 5775 (2014-2015) legal year. Publication of the names of the judges will be effected at the end of the coming calendar year, i.e., the end of 2015.

21.   After having completed my writing of this opinion, I read the opinions of my colleagues Justice Hayut and Justice Vogelman, who concurred in the relief proposed by my colleague Justice Arbel in para. 96 of her opinion. The date of implementation proposed by Justice Arbel is, in the final analysis, deferred, i.e., it is set for the end of the 2015 legal year and no later than December 31, 2015. Ultimately, the distance between our positions regarding the date of implementation of the names of the judges—which is the focus of the dispute—is not great. In these circumstances, I concur in the relief that was proposed in para. 96 of the opinion of Justice Arbel.

Justice E. Hayut

I concur in the comprehensive opinion of my colleague, Justice E. Arbel, and in her conclusion whereby the appeal should be denied and an order issued for the material to be delivered in a manner and at times as specified in para. 96 of  her opinion.

1.     A public authority in a democratic state—such as the judicial branch in Israel—possesses powers granted to it by law which it is obligated to apply for the sake of the public and for its benefit. It is considered a trustee of the public, and from this two important conclusions follow:

First, the information connected with the activity of such an authority is not its own property, and it, too, is held by it in trust for the public. In the words Justice H. Cohn, which are like fine, vintage wine:

        ‘… the private domain is not like the public domain, for the one acts with regard to its own property; if it wishes, it may give, and if it wishes, it may refuse. The other was entirely created merely to serve the common good, and it has nothing of its own: everything that it has is deposited with it as a trustee, and as for itself, it has no rights or duties that are in addition to, or different and distinct from, those that derive from this trust or that were conferred on it or imposed on it by virtue of statutory provisions HCJ 142/70 Shapira v. Jerusalem District Committee of the Israel Bar Association [1971] IsrSC 28(1)  325, at p. 331).

Secondly, the authority as a public trustee is accountable to the public which it serves. An as stated by (then) Justice M. Cheshin in a similar context:

‘When we realize that the civil servant acts as a trustee and as an agent of the public, he is therefore bound by the duties of an agent, including the duty to account for his actions, i.e., to disclose to his principals — the entire public — what he has done and what he has not done, why he has done one thing and not another, and when he takes no action, why he took no action. He is obliged to disclose all his acts and omissions, together with the reasons for them. Only in this way can the public know whether the civil servant has acted faithfully; only in this way will the public have confidence in the administration and its employees (HCJ 3751/03 Ilan v. Tel-Aviv-Jaffa Municipality [Nevo – 2004], para. 15).

These and other important rationales are what provide the foundation of the principle of freedom of information, which has been a recognized, entrenched principle in the Israeli legal system for many years, and since 1998 has also been anchored in primary legislation of the Knesset, i.e., in the Freedom of Information Law (see AAA 9135/03 Council for Higher Education v. HaAretz Newspaper [2006] IsrSC60(4) 217, at pp. 230-232 [hereinafter: Council for Higher Education], and see Justice Arbel’s broad survey in paras. 20-25 of her opinion).

2.     The point of departure for the principle of freedom of information is that every citizen or resident of Israel has the right to obtain information from the public authority. This right—the right to know—is included in the list of human rights, and as such, it stands on the highest rung in the hierarchy of rights (see: AAA 3300/11 Ministry of Defense v. Gisha [Nevo – September 5, 2012], para. 5 of my opinion). But like every other human right, it is not absolute, and the provisions of the Freedom of Information Law define and delimit it when the conditions it specifies are present (sec. 1 of the Freedom of Information Law). Thus, for example, sec. 9(a) of the Law enumerates the type of information which the public authority is not permitted to deliver, and sec. 9(b) enumerates the information that the public authority is not obligated to deliver. The crux of the dispute between the appellants and the respondents at the stage of the appeal before us is the question of whether, as the appellants claim, the respondents should be satisfied with the information regarding the cases that are pending in the district courts and in the Supreme Court without designation of the names of the judges or whether, in accordance with the position of the respondents and of the trial court, the appellants must also supply details of the identities of the judges who are handling the cases. The appellants base their position—according to which information specifying the names of the judges should not be delivered in this context—on the limitation established in sec. 9(b)(1) of the Law, whereby:

“A public authority is not obliged to provide … information, the disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties”.”

This limitation seeks a balance between the right to know and the important public interest in preserving the proper functioning of the public authority. As my colleague Justice Arbel pointed out (see paras. 53-57 of her opinion), the law is that when there is a clash between a constitutional right to obtain information from a public authority and between the said interest in sec. 9(b)(1) of the Law, the balance is a “vertical” one and therefore, as a rule, the public interest will prevail only where there is near certainty of the harm involved (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60, pp. 82-84; AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 28, 2012], [hereinafter: Ministry of Education] per Deputy President E. Rivlin, paras. 7-8). Here it is important to distinguish between the possibility of the occurrence of the harm to the public interest, which the limitation seeks to protect—with respect to which near certainty must be demonstrated—and between the magnitude of the harm to the interest, if it eventuates, which also carries weight in the framework of the balancing act, but with respect to which the authority is not obliged to demonstrate “special harm”, and it should retain flexible criteria that can be applied having regard to the data and the circumstances of each and every case (Council for Higher Education, para. 21; AAA 1825/02 State of Israel, Ministry of Health v. Retirement Homes Association [2005] IsrSC 59(2) 726; Ministry of Education, para. 8).

3.     The concerns about interference with the proper functioning of the judiciary that were raised by Justice Arbel in her written opinion and by Justices Hendel and Rubinstein in their written opinions are definitely worrying and they warrant attention. Particularly worrying in my view is the concern that the special emphasis on the efficiency of the judiciary and publishing the open cases together with the name of each judge individually, are liable to “breathe down the necks” of the judges and cause them to speed up the hearings and the rendering of judgment excessively, at the expense of quality. After all, the judges are not a “production line” for judgments. Judge Arbel discussed this, saying incisively: “The judge cannot fulfill his mission in a high-quality, full, and complete manner with a gavel in one hand and a stop-watch in the other …” (sec. 69 of her opinion). Indeed, it is important to bear in mind that efficiency is not everything, and therefore, evaluation of the activity of the judiciary according to “production units and output” is liable to distance the legal discourse from the substance which lies at the very heart of this activity—doing justice. On this matter, Professor S. Shetreet’s words from over thirty years ago are on point, and still apply today:

Because the goal of the legal process and the system of justice is to do justice, one must be wary of the tendency to examine them according to criteria of production units and units of output, and of the tendency to apply to them, without special adjustment, concepts of efficiency from other areas of organization and administration (Shimon Shetreet, “Practical and Value Problems in the Administration of Justice,” in S. Shetreet (ed.), Recent Developments in Israeli Case Law and Legislation, Collection of lectures delivered at the Seminar of Judges 80-98, [81]).

Moreover, as my colleagues elucidated at length, without individual consideration of the scope of each case and its weighting from the point of view of the judicial time that it requires, the picture created is liable to be superficial and absolutely inaccurate. At the same time, and like my colleague Justice Arbel, I too believe that these concerns do not meet the standard of near certainty that harm will be done to the proper functioning of the judicial authority if the requested information is delivered, and therefore, my opinion, like hers, is that the right to know prevails in the present case. This conclusion is further validated in view of the fact that we are dealing with the judicial authority, which not infrequently orders the enforcement and implementation of this right with respect to other authorities, and it is therefore important that on this matter, we act in accordance with what the sages say, and that we “preach well and act well”

4.     For these reasons I concur, as stated, in the opinion of my colleague, Justice Arbel, including in relation to the schedule laid out in para. 96 of the opinion, in order to allow time for each of the judges involved to append an explanatory comment to the information regarding the open cases on his desk, as he sees fit.

Justice Vogelman

My colleague Justice E. Arbel discussed, at length and comprehensively, the normative basis that was required for the decision—beginning with the Freedom of Information Law, moving on to the special nature of the profession of the judge that constitutes a way of life, and ending with a comparative survey. I agree with my colleague that the judicial function requires—in its very essence—maximum transparency, which is a sine qua non for public confidence in the legal system; a fundamental conception that is expressed, inter alia, in the principle of the public trial; and the obligation to provide reasons. In my opinion, transparency indeed is characteristic of the conduct of the judicial system, on various planes.

At the same time, there is no denying that a hard look at reality makes it difficult not to agree with the conclusion of my colleague Justice N. Hendel, that compared to the existing systemic mechanisms for dealing with specific problems of overload in relation to particular judges, the benefit that will accrue from publication of named information is not great, whereas the publication is liable to cause a considerable degree of personal and systemic harm. It is not for nothing that the comparative survey presented by my colleagues reveals that, with the exception of the United States, there are no countries in which information is published in the format requested in the present case. In the United States too, to which my colleagues refer, such publication is not pursuant to regular legislation dealing with freedom of information, but rather, to special legislation which focuses on the judiciary, and subject to conditions that map out more particular, specific disclosure than what was requested here.

That is the point: the question that required our decision in the present proceeding is not whether the delivery of information that includes the names of the judges serves the public interest. We must decide whether the interpretation of the arrangement found in the Freedom of Information Law, with its limitation, leads to the conclusion that the requested data is not of the type that the authority is obliged by law to deliver, bearing in mind that the primary legislator did not see fit to exclude the judicial system from the application of the Freedom of Information Law insofar as administrative information is concerned. Like my colleague, Justice (ret.) Arbel, I too see no reason to determine that in the affairs of the judiciary, of all places, there should be a deviation from the balancing formula that we have fixed in our case law, whereby the public interest outweighs the right to obtain information if there is near certainty that disclosure of the information will cause real harm to the orderly functioning of the authority (see e.g. AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo –August 23, 2012, para. 7). Even if I assume that disclosure of the names will indeed lead to real harm to the functioning of the judicial authority as my colleague Justice Hendel believes, I cannot say that there is near certainty that such harm will be caused on the systemic level.

My colleague Justice Rubinstein does not disagree with the normative framework and what that involves, but he points out that publication of the information together with names will affect different judges differently, hence the different relief that he suggests. In view of my conclusion regarding the absence of near certainty of harm at the systemic level, and since I found that the relief suggested by Justice Arbel allows for a suitable period of organization, I do not see any reason to limit this relief.

Therefore I concur in the conclusion of my colleague Justice (ret.) E. Arbel and the relief that she suggests.

Decided by the majority opinion of Justice (ret.) E. Arbel and Justices S. Joubran, E. Hayut, Y. Danziger and U. Vogelman to deny the appeal. In order to allow the appellants to make the appropriate preparations for implementing the judgment, it was decided that they will be required to deliver data regarding the Supreme Court and the district courts as requested in the petition, in relation to the end of the 2015 legal year, and no later than December 31, 2015. Regarding the manner of disclosure of the information, the dissenting view of Justice Y. Danziger is that the appellants should be ordered to disclose the most recent information they possess, namely, information relating to the 5774 (2013-2014) legal year, no later than December 31, 2014.  It was also decided that the appellants will pay the respondents’ legal fees in the amount of NIS 20,000.

The above is contrary to the dissenting opinion of Justice E. Rubinstein, in whose opinion the appeal should be partially allowed but only in relation to the district courts, to be reconsidered periodically (whereas the material relating to the Supreme Court should be delivered as determined in the majority opinion), and the opinion of Justice N. Hendel, whereby the appeal should be allowed in its entirety.

27 Elul 5774

September 22, 2014

IN THE

SUPREME COURT OF THE STATE OF ISRAEL SITTING AS THE

HIGH COURT OF JUSTICE

HCJ 355/79 HCJ 370/79 HCJ 373/79 HCJ 391/79

Before: Hon. President M. Landau

Hon. Vice President H. Cohen Hon. Justice A. Barak

Petitioners:   1. Aryeh Ben Binyamin Katlan,

2.            Shimon Tzion Dovivechi,

3.            Meir Ben Aharon Marciano v.

Respondents: 1. Prison service

2. Ramla Detention Center Administration

Argued:         8 Av 5739 (August 1, 1979)

9 Kislev 5740 (November 29, 1979)

Decided:        24 Nissan 5740 (April 10, 1980)

The Supreme Court sitting as the High Court of Justice

[April 10, 1980]

Before President M. Landau, Vice President H. Cohen and Justice A. Barak

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

Facts: The Prison Service was struggling with the phenomena of drugs smuggling into the Ramla Detention Centre by inmates who swallowed drugs packages while outside the Centre. Prison authorities decided to deal with the matter by performing enemas on detainees. On July 31, 1979 the Prison Authority issued a directive regulating a policy of administering enema’s to detainees, where the warden of the Detention Centre established probable cause to suspect that the detainee was smuggling drugs inside his body. The procedure was to be performed discreetly in a manner consistent with all hygiene rules and medical guidelines. The directive allowed carrying out an enema against the will of the detainee if a doctor provided assurances that it would not be detrimental to his health. If the inmate resisted and the medical staff believed his resistance made it is impossible to conduct the procedure, the detainee would be put into solitary confinement for no longer than 48 hours, in order to supervise the discharge of the drugs. Each of the Petitioners had been administered an enema, but no drugs were found. The main question arising from the petitions was whether the Respondents were authorized to perform enemas on the detainees without their consent.

Held: Every person in Israel, including inmates and detainees, has a fundamental right to physical wellbeing and human dignity. The performance of enemas on detainees without their consent and without medical justifications, infringes these rights. Therefore, the Court held that for the Prison Service to be able to administer such procedure there must be a statute allowing them. It was determined that although Section 5 of the 1971 Prisons Ordinance permitted the searching for and confiscation of prohibited items, it did not allow for the search to be invasive. The Court ruled that the term "search" used in the Ordinance refers only to search of [over] the inmate's body and not to an invasion of his body. It reflected that a search inside the body of the person may lead to consequences that are inconsistent with human rights in Israel. The court determined that the authority to maintain order and discipline within the prison does not include the power to conduct invasive searches. Thus, the Court adjudicated that the directive that allowed for the performance of enemas on detainees, without their consent, and the procedures that were carried out in accordance with it, were illegal. It further determined that the best way to deal with the matter concerned was through primary legislation. President Landau preferred not to provide the Knesset with guidance on how to resolve the issue and determine when it is justified to conduct an invasive search against the detainee's will. He noted that the prevention of drug crimes in detention facilities and prisons is necessary, not only in order prevent lawlessness, but also for the protection of weaker prisoners from stronger ones.

On behalf of the Petitioners: Adv. S. Ziv (Aryeh Ben Binyamin Katlan)

Pro Se (Meir Ben Aharon Marciano, Shimon Dovivechi) On behalf of the Respondents: Adv. M. Naor

JUDGMENT

Justice A. Barak

1.            A significant amount of dangerous drugs have been smuggled into the Ramla Detention Center.

[Over time], the ability to smuggle drugs into the detention center has improved and the main importers [of the drugs] are the detainees themselves. Every evening, approximately one hundred detainees are returned to the detention center after being questioned at the police station or after appearing in court. Apparently, they obtain the dangerous drugs in the hallways of the court or at the police station when they have the opportunity to meet with friends or suppliers. Although the detainee is accompanied by a police officer, all that is needed is a momentary distraction for the detainee to obtain the drugs and either hide them under his tongue or swallow them. The drugs are packaged so that they will not break up when swallowed and remain intact inside the body. Once back in the detention center, the detainee discharges the drugs upon defecating. The drugs are then available to the detainee either for personal use or as a way of gaining power and standing in the detention center. According to the Prison Service, in exchange for the drugs, the detainee may obtain servants and partners for homosexual intercourse. Drug smuggling has created an environment of interdependence, and violence may be expected to break out any time a detainee breaks the “rules.”

2.            The prison authorities must face this serious phenomenon. They have tested various alternatives [in order to try to solve the problem]. External body checks have proven fruitless because the drugs are inside the detainee's body. According to the Prison service, isolating the detainee until he defecates is ineffective because reality has proven that the detainees do not recoil from re-swallowing the drugs after passing them. After trial and error, the Prison service

concluded that the only way [of dealing with the phenomenon] was by administering an enema to the [suspected] detainee. On July 31, 1979, the prison’s administration approved the following procedure. The terms of the directive state that the warden of the detention center may order the administration of an enema only when there is probable cause, based on reliable evidence, to suspect that the detainee has drugs inside of him. The enema can only be administered by a medic under the professional auspices of the medical department. The enema is administered privately, discreetly and in a manner consistent with all hygiene rules and medical guidelines. The detainee is offered the opportunity to sign a consent form stating that he is willing to undergo the procedure. If he refuses, the warden of the detention center may order the procedure against the will of the detainee provided there is a signed statement from a doctor to the effect that the procedure will not harm the health of [the detainee]. If the detainee forcefully resists the procedure and the head of the medical clinic determines that it would be impossible to administer the procedure due to the detainee’s resistance, the detainee is placed in solitary confinement for no longer than 48 hours, in order to supervise and monitor the discharge of the drugs. Isolation for longer than 48 hours requires the approval of the Commissioner of the Prison service.

3.            Enemas that were conducted in the Prison Service in the spirit of the [aforementioned] procedure, even before it was formulated in writing, [produced impressive results]. Since the opening of the Ramla Detention Center, prison officials have intercepted a significant amount of dangerous drugs (44 hashish joints, 200 grams of opium, 17 grams of heroin, 7 grams of cocaine, hundreds of methadone tablets and hundreds of other pills). The vast majority of these drugs were discovered by means of the administration of an enema. A study conducted at the end of 1978 revealed that approximately 70% of the detention center’s population use dangerous drugs. Another study conducted in April 1979 revealed that drug use fell to 2%. Prison officials credit

the use of the enema procedure as the reason for this decline. Furthermore, the significant decline in the amount of dangerous drugs successfully smuggled into the detention center has positive residual effects, as there are no longer stabbings, instances of homosexual intercourse or other violent phenomena, [associated] side effects of the use of drugs.

According to intelligence gathered by relevant authorities, the fear of being caught with drugs during the administration of an enema prevents detainees from using this method [of drug smuggling].

4.            The administration of the detention center had intelligence that [established] reasonable grounds to assume that each one of the Petitioners in these four petitions carried dangerous drugs inside his body. In light of this information, each one of them was administered an enema, but drugs were not found. The Respondents claim that the Petitioners consented to have the enema administered, but the Petitioners deny that this is so. Even though there is ample reason to believe the detainees did consent in writing to the procedure, counsel for the Respondent has agreed that we adjudicate this case on the assumption that the Petitioners were administered an enema without consent and despite their resistance (they ceased to resist before the enema was administered). The Petitioners claim, each one in his own words, that the administration of an enema is humiliating, degrading and violates their privacy and dignity. The question before us is whether the Respondent is authorized to order the procedure without the consent of the detainee.

5.            Every person in Israel is entitled to the fundamental right of physical wellbeing and to the protection of their right to human dignity. These rights are included in the “scroll of judicial rights”, as President Landau put it in HCJ 112/77 Fogel v. Israel Broadcast Authority, IsrSC 31(3) 657. Even detainees and inmates are entitled to these rights. Prison walls do not sever a detainee’s right to human dignity. While the nature of life in prison does infringe upon many of

the rights of a free individual (see HCJ 269/69 New Communist Party v. Police Minister, IsrSC 23(2) 233; HCJ 881/78 Mutzlah v. Warden of Deman Prison, IsrSC 33(1) 139), prison life does not require the deprivation of a detainee’s right to physical wellbeing and protection from infringement of his human dignity. His freedom is taken away, not his rights as a human being. The administration of an enema to a detainee without his consent, without any medical reason, violates his physical well being and infringes upon his privacy and his human dignity. Referring to such an intrusion into one’s body, Justice Frankfurter said, “This is conduct that shocks the conscience.” (Rochin v. People of California, 342 U.S 165, 72 S. Ct 205, 209).

Therefore, for the Prison service to be able to administer an enema without the consent of the detainee, and thereby justify a potential criminal offence and a civil act of battery, there must be a statute allowing them to do so. Ms. Naor, who, on behalf of the Respondents made an exhaustive effort to present a comprehensive and balanced picture of the problem, pointed to two legal sources which may authorize the Prison service to administer an enema to detainees and inmates. The first is a law which allows the Prison service to search detainees and inmates, and the second is a law which authorizes the Prison service to maintain order in prisons. Do these statutes serve as a statutory basis for the administration of an enema?

6.            Section 5 of the Prisons Ordinance (new version) states, “During the intake of an inmate, he shall be searched and any prohibited items are to be confiscated.” The term “inmate,” as used in this ordinance, includes detainees. Section 40(a) of the ordinance says, “Inmates are to be searched from time to time as established, and prohibited items are to be confiscated.” The original version of the ordinance stated in Section 54(1) that, “Every prisoner shall be searched on admission and at such times subsequently as may be prescribed, and all prohibited articles shall be taken from him” [English original]. It seems to us that the [Hebrew] terms [for] “shall be

searched” or “every inmate shall be searched,” alike the English term “searched,” allow for a search of [over] the inmate's body. However, the plain language of these terms does not seem to allow for an invasion of [inside] the inmate's body. The distinction between the outside of the inmate’s body and the inside of his body is not always easy and no scientific method of distinguishing has been suggested to us. In our opinion this distinction is grounded in common sense, and according to this, the administration of an enema, needle or a scalpel is not in the category of a “search.”

7.            The State’s approach that a “search” includes a search inside the body of the person subject to the search may lead to harsh consequences to human freedom in Israel. The authority of the Prison service to conduct searches is not limited to detainees, but applies to those visiting the prisons as well (Section 40(b) of the Prisons Ordinance). Furthermore, this authority is not unique to the Prison services, as other authorities are authorized [to conduct searches] as well, according to various legislation (See, e.g., Section 184 of the Tax Ordinance (new version); see also, LIBAI, RULES OF ARREST AND RELEASE 65 on). Above all, an arresting police officer may search the body and the belongings of an arrestee (Section 22(a) of the 5729/1969 Criminal Procedure Ordinance (arrest and search) (new version)), and the officer is permitted to check the belongings and the body of a person in the course of a house search (Section 29). If we are to allow searches to extend into the bodies of detainees via the authorization to search, we would be unable to prevent it in any other situation where searches are permitted. What would stop an officer who has reasonable suspicion that a suspect swallowed dangerous drugs from asking a doctor to obtain a blood sample, pump the person’s stomach, administer an enema or even perform surgery? In In re Guzzardi, 84 F. Supp. 294, 295 (1949), Justice Atwell stated:

If a stomach pump may be used, then the surgeon’s knife may be used. If the stomach pump can be justified, then the opening of one's person by the surgeon's knife can be justified [.] We would then have returned to trial by ordeal which has long since been abolished by right thinking, liberty-loving people.

Citing the above case, Justice Weinberger said with regards to the use of a stomach pump via the authorization to search:

We may venture a little further into the realm of conjecture than did the judge in the case just read from to consider whether if a search such as was made in the instant case may be approved would it not likewise follow that if the narcotics after being swallowed has passed from the stomach to the blood stream some officers might feel it incumbent upon them to drain the defendant of part of his life-blood in an effort to discover the hidden evidence?

(U.S v. Willis, 85 F. Supp 745, 748).

Indeed, this prediction became a reality in the United States in Rochin, where, after a violent exchange between police and a suspect and an unauthorized search of the suspect’s home, an emetic was forced into the suspect through his nostrils, making him throw up the drugs he had swallowed. [ In a decision written] by Justice Frankfurter, the Supreme Court invalidated that search, and added that it shocks the conscious and that such methods “are methods too close to the rack and screw to permit of constitutional differentiation.”

Over the years this rule has been narrowed despite the vigorous opposition of a growing minority of U.S. Supreme Court justices such as Justices Warren, Black, Douglas, and Fortas. It was determined that it is not the mere invasion into the suspect's body that shocks the conscious,

, rather it is the totality of the circumstances of the case. Therefore, the U.S. Supreme Court has held that drawing blood from a suspect -whether conscious or not - is not forbidden per se, because the act itself does not shock the conscious (See Breithaupt v. Abrams, 352 U.S. 408; Schmerber v. California, 348 U.S 757). Lower courts have extended these rules and have held

that a similar approach applies to various methods of stomach pumping used to uncover dangerous drugs (See, Barbour, Constitutionality of Stomach Searches, 10 U.S.F. L. REV.93 (1975), which discusses the extensive ruling in this matter). Recently, [a U.S. Court] has gone so far as to issue a search warrant allowing [authorities] to surgically remove a bullet from the body of a suspect (See Crowder v. U.S., 543 F. 2d 312).

However, it is questionable whether these decisions are consistent with the few U.S. Supreme Court decisions addressing this matter, and, most recently. Indeed, the emerging trend is to limit the authority to conduct invasive body searches (See Adams v. State of Indiana, 299

N.E. 2d 834; People v. Bracamote, 540 P. 2d 624). Nevertheless, the authority of the government to administer an enema or pump someone’s stomach has yet to be decided by the U.S. Supreme Court. The only time the U.S. Supreme Court has directly addressed this matter was in Rochin and the act was deemed illegal. I am in doubt as to whether the development of the rule in the lower courts which relied upon Breithaupt and Schmerber (which dealt with drawing blood and not the administration of an enema or stomach pumping), are consistent with the principles established by the U.S. Supreme Court in the aforementioned cases. Justice Brennan’s comments at the end of his decision in Schmerber should be noted (at 772):

The integrity of an individual's person is a cherished value of our society. That we today hold that the State’s minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions or intrusions under other conditions.

8.            We should be careful when looking towards U.S. law. Just as we are not as strict as them, as we do not exclude evidence that was obtained illegally on the basis of the illegality of its obtainment, we are also not as lenient as they are [in other respects]. Absent a statute permitting it,  we  cannot  allow  a  search  inside  someone’s  body  without  his  consent  or  a  medical

justification, whatever the circumstances are. Our guiding principle is the one stated by U.S. Supreme Court President Warren who wrote the dissenting opinion in Breithaupt v. Abrams, 352

U.S 408, 414 (with Justices Black and Douglas joining):

Law enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids whether they contemplate doing it by force or by stealth.

Taking blood from an adult without his consent is illegal in England. The question arose in S.v.S;

W.v. Official Solicitor (1972) A.C 24, 43, where Lord Reid stated the following, which is also appropriate for the case before us:

There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not to be required to furnish evidence which may tell against him. The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups détat but by gradual erosion; and often it is the first step that counts. So it would be unwise to make even minor concessions.

We will follow this path as well. We have already held that blood samples cannot be drawn from a suspect without his consent (See CrimA 184/62 Peretz v. Attorney General, [1963] IsrSC 17, 2104). In that spirit, we hold today that search authorization does not allow for an invasive search inside a person’s body, whether a detainee, an inmate or a suspect. It may be true that the days in which a person’s home is his castle have passed, but we have not reached the point where the inside of someone’s body is open to all. In the Canadian case, Le Lapurte and the Queen (1972) 29 D.L.R 3d 652, the court determined that a justice is not authorized to issue a search warrant pursuant to which a suspect will be cut open in order to have a bullet removed from his shoulder which was necessary for his pending trial. Justice Hugessen wrote:

If the police are today to be authorized to probe into a man's shoulder for evidence against him, what is to prevent them tomorrow from opening his brain or other vital

organs for the same purpose. The investigation of crime would no doubt be thereby rendered easier, but I do not think that we can, in the name of efficiency, justify the wholesale mutilation of suspected persons. The criminal law has always had to -strike the precarious balance between the protection of society on the one hand and the protection of the rights of the individual members of such society on the other. Both rights are equally important, but any conflict between them must wherever possible be resolved in a manner most compatible with individual human dignity. Even if the operation proposed were minor, and the evidence is that it is not, I would not be prepared to sanction it and I do not do so. The Crowder case may or may not be the law in the United States; it is not the law in Canada.

This applies to our case as well.

9.            The Prison service has been given extensive authority to maintain order and discipline within the prison (See Sections 76, 87 of the Prisons Ordinance). It is within this framework that the 5738/1978 Prison Regulations state:

“A prison guard is permitted to use all reasonable means, including force, to maintain order, to protect a guard or an inmate, or to prevent an inmate’s escape.”

According to Ms. Naor, this regulation authorizes a prison guard to use force to find dangerous drugs that the detainee has swallowed. We do not accept this approach. This regulation was not enacted for this purpose, and even if it [the regulation] would purport to permit penetration into the inmate's body in order to find dangerous drugs, I would say that it is outside the bounds of the authority granted to the Interior Minister [who enacted  this regulation] by the Prisons Ordinance. “Maintaining order” is not an authorization to administer an enema without consent.

10.          Our conclusion is that the current policy, which allows the administration of an enema without consent, and the procedures performed in accordance with it it, are illegal. It is true that Respondent has a just and right motivation, but the means he used are not grounded in law. Our decision is not an easy one because it involves two important, but conflicting, interests in which a compromise is impossible. The first interest is that of every person, including detainees and

inmates, to physical well being and dignity, and the other is the interest of both inmates and the State to maintain order in the prisons and keep them free of the harm caused by dangerous drugs. These two interests are important to us. If it were possible, we would try to find the proper balance between them. However, the facts upon which we base our decision, as presented, do not allow for a balance of the interests. Therefore, there is no way for us to escape the fact that we must make a clear and definitive ruling, as our reasoning must be based upon the present legal framework.

We have concluded that the authorization to conduct searches on one hand and the authorization to maintain order on the other are not an appropriate legal instrument to settle the difficult issue presented by this petition (Cf. Bachelder, Use of Stomach Pump as Unreasonable Search and Seizure, 41 J. CRIM. L. CRIMINOLOGY AND POLICE 41 (1950)). Not only does the term “search” as it is normally used not allow for the intrusion into another’s body, but also appropriate legal policy, which is aware of the severe consequences of accepting the Respondent’s approach does not allow for it either. If, despite [our reasoning], the government believes that our decision is unsatisfactory regarding the situation in the prisons, it has the power to turn to the Knesset to solve the problem, and might even request urgent legislation addressing the matter. We believe that the best way to deal with this matter is through primary legislation which may authorize the [relevant] regulator to act (See LEIGN, POLICE POWERS ENGLAND AND WALES 193 (1975)). The legislative process, by its very nature, allows the legislature to thoroughly analyze the situation and examine all possible alternatives [and address questions such as:] is there choice other than performing an enema? Are there no better alternatives? Would it not be preferable to wait until [the inmate] defecates on his own (See U.S v. Cameron, 538 F.2d 254)? Are there no medical dangers in administering an enema especially in cases in

which the drugs are contained in an oversized container which may tear the inmate’s bowels (as was the case in Blefare v. U.S., 362 F.2d 870)? Are there no medical dangers in leaving the drugs inside the detainee’s body as sometimes the wrapping tears open, causing the drugs to penetrate the [detainee’s] circulatory system? What sort of suspicion justifies the use of an enema? These questions, along with others, should be analyzed in depth. If after doing so, the Knesset reaches the conclusion that there is no choice other than to continue using enemas as those administered by the procedures forming the basis for this petition, this will be  the conscious determination of the elected representatives. This determination, by its nature, will be limited to its specific circumstances , without bearing directly upon other issues discussed in this decision.

If my opinion is followed, the temporary order will be made permanent and the Respondents will be required to refrain from administering enemas to the Petitioners without their consent.

No order is given for costs.

Vice President H. Cohen

I agree.

Sections 22 and 29 of the 5729/1969 Criminal Procedure Ordinance (new  version) (arrests and searches) allows for the search of a person’s body or property. Ms. Naor, who commendably argued for the Respondent, argued that these clauses allow for the invasive search of one’s body in addition to external searches. The new version of the law says that “[searches may be conducted] in the body…” and not “on the body”. Although all other versions of the law are no longer valid, it cannot be claimed that the new version changes anything that was written

on this matter in the original version (Section 16(g) of the 5724/1964 Government and Legal Procedure Ordinance); and the original version of the law (Sections 11 and 22 of the Criminal Procedure Ordinance, chapter 33 of the Law of the Land of Israel) permitted the search of the person […]. The new version of the law does not change anything written in the old law when it states “in the property or the body” instead of “the person.” The intent of the law is, just as it was before, [to allow] for the search of a person including his clothing and the property that is with him. Nobody imagined that [such a search] would include an examination of his internal organs.

Even if we are to say that the text can tolerate such a broad (and deep) interpretation, it would be inconsistent with the intent of the legislature. Even if there is a court that dares to apply an interpretation which is inconsistent with the legislature's presumed intent, if the text justifies or requires such an interpretation, it would only be to increase the remedy, ensure justice and protect human rights. This would not be the case where such an interpretation would broaden the authority of the government and reduce human rights. In such circumstances, the court will [use] the legislature's intent as a fortified wall and barricade itself in order to protect human rights.

However, the Criminal Procedure Ordinance (arrests and searches) is not relevant to this case. The prison administration had no aspiration and no intent to search for illegal drugs outside of its powers emanating from the Prisons Ordinance and the relevant regulations enacted based upon it. Neither Section 5 nor Section 40 of the Prisons Ordinance (as cited by my colleague, Justice Barak in his opinion) use the term “in his body.” Section 5 describes the search “of an inmate” [literally in Hebrew: "in an inmate"] and Section 40 describes the search “of every inmate.” Therefore, there is no valid claim that [those terms also include invasive searches]. Furthermore, we obviously cannot use the [old] Criminal Procedure Ordinance (arrest and

searches) to understand the new version of the Prisons Ordinance although the English original uses the same idioms.

Nevertheless, the official translation of regulation 167 of the 1925 Prisons Regulations into Hebrew, which requires a thorough search of inmates when they are admitted to prison, states that “every inmate’s body must be thoroughly searched before being admitted to prison.” But, regulation 169, which also requires every inmate to be searched when returning from work outside of the prison, was not officially translated as requiring that inmates be searched “in their bodies” but rather that a search must be conducted “in them.” This tells us that the official translator did not see any distinction between “in him” and “in his body” as both are phrases which mean search the inmate. These regulations, which date back to the period of the British Mandate of Palestine, have since been superseded (see 5727/1967 Prisons Regulations), but neither the superseding regulations, nor the 5738/1978 Regulations, explain how the search is to be conducted (truth be told, did the 1925 Regulations did not add much to [explain] the Ordinance's provisions). Also, Section 113 of the Prisons Ordinance permits the [Interior] Minister to enact regulations on different issues including the medical examination and treatment of inmates and the preventative treatment of inmates, but not regarding invasive searches of inmates’ bodies, that is if you do not derive such power from the general and residual provision granting the minister the power to regulate anything “necessary for the efficient implementation of this Ordinance, the safety of guards, discipline and wellbeing of the inmates or the proper maintenance of the prison.” In my opinion, like that of my colleague, Justice Barak, and for the same reasons, even if we could find a power that allows the minister the authority to regulate this matter, it is preferable that it would be done through legislation. I would also overturn the

administrative rules of July 31 1979, according to which the prison authorities may conduct their searches, even if they were regulations, because they are unreasonable.

The reasonableness of regulations and, even more so, of administrative rules, is measured according to the measure that is acceptable to most people in a democratic society and in a State governed by the rule of law. There is no better measure than the principle of human dignity. A free and enlightened society differs from a wild and deprived society in the amount of dignity recognized for each and every person. This is reflected in a classic and sublime manner by the Mishna which states, “Therefore, but a single person was created, to teach that anyone who destroys a single life is considered by scripture as having destroyed an entire world; and anyone who saves a single life is considered by scripture to have saved an entire world. Also, for the sake of peace among humankind, so that no person should be able to say to his fellow, ‘My father is greater than your father…’ Therefore, each and every person is obligated to say, ‘For my sake was the world created.’” Babylonian Talmud, Sanhedrin, Chapter 4, Mishna 5. Just as everyone is obligated (not merely permitted) to say “for my sake was the world created,” everyone is also obligated to say, “The world was created for him no less than it was for me.” It was Hillel the Elder who said that the entire Torah can be summarized by one great rule of thumb: everyone is entitled to be treated with the same dignity that you would want to be treated with (Babylonian Talmud, Shabbat 31a). Treating others with dignity is not only a significant part of Jewish heritage, it is also a precondition for the guarantee of other rights and liberties, and it is the appropriate measure for reasonableness, as mentioned above.

My knowledgeable colleague, Justice Barak, cited very instructive examples from American and English jurisprudence to demonstrate that great justices and scholars in other countries also found that human dignity outweighs the legitimate needs of maintaining order. I

told myself, we need not [base our conclusion] only on these sources, as we may find a basis for this ruling in the teachings of our own Sages.

The obligation to follow not only the laws of the written Torah, but also the Rabbinical laws stems from the verse which states, “According to the laws that they teach you and the judgments that they tell you to do, you shall do; do not veer from what they tell you to the right or to the left.” (Deuteronomy 17:11). This is the basis for the law that anyone who disobeys the words of the Sages is in violation of a negative commandment [a term referring to commands that are worded in a negative imperative], as the verse says “do not veer.” (Maimonides, Laws of Rebelliousness 1:2). Our Sages have said that “[the importance of] human dignity is so great, it can set aside a negative commandment of the Torah.” (Babylonian Talmud Birakhot 19b, and other sources). Rabbi Bar Sheva interpreted this rule in front of Rabbi Kahana as referring specifically to the negative commandment of “do not veer,” meaning that human dignity trumps all Rabbinical commandments, which is to be distinguished from Biblical commandments, which are not set aside for the sake of human dignity.

However, this rule seems to contradict that which is stated in Proverbs 21:30, “There is no wisdom, understanding or counsel against God.” If God commands us to fulfill the directives of the Sages, how can the Sages exempt us from this command whether for human dignity reasons or any other reason? The answer is, as the Babylonian Talmud states, “Anything the Rabbis command us to do is pursuant to their authority which stems from the verse which states: ‘do not veer,’ but when human dignity is at stake, the Rabbis added a dispensation to their enactment.” The Rabbis who have the power to forbid something may also permit that which they have forbidden; and that which they have seen fit to forbid they decided to permit when human dignity is at issue.

The distinction between Biblical commandments, which are not superseded for human dignity, and Rabbinical commandments, which are, directly applies to this case as well. If we view a statute as a Biblical command and regulations as Rabbinical commands [when considering matters of human dignity], we may hold that concerns for human dignity may not override a statute, but may override a regulation. As we said, when we consider [the possibility of a forced invasion of a person's body, which involves infringement of human dignity], it is clear that only the legislature can regulate such an act. So long as [the legislature] has not permitted that, or as long as infringement of human dignity [it is not necessary in order to apply the law in good faith], human dignity is immune to all harms.

If this metaphor is not exact it is only because the written Torah is eternal and cannot be changed, while legislation is man-made and can be changed or annulled and is thus more like the oral law which was developed by the Sages. This can be a lesson for our legislature. Just as the Sages allowed for their prohibitions to be set aside when human dignity was at stake, the legislature should take care not to sacrifice human dignity on the altar of other needs.

The term “human dignity” has not been explicitly defined. However, wherever it is referenced [in Jewish sources], it suggests that harming one’s dignity refers to anytime a person is humiliated, shamed or shown contempt. This is how the [Talmud] views removing one’s clothes in public (Babylonian Talmud, Menahot 37b) or preventing one from reliving himself (Babylonian Talmud, Eruvin 41b). Likewise, a foul smelling body may be removed from a house on the Sabbath because of human dignity, as it is offensive to people and is dishonorable to the body (Maimonides, Laws of the Sabbath 26:23 (citing Babylonian Talmud, Shabbat 94b)). Similarly, while it is generally forbidden to move  heavy stones on the Sabbath, and  it is prohibited to move them from one domain to another, the Sages permitted moving sharp stones

to the roof, which were used to cleanse one’s self after defecating, because of human dignity (Babylonian Talmud, Shabbat 81a-b). (Do not be surprised that these stones were used for this purpose. Their size was only about that of a nut according to Rabbi Meir, or an egg according to Rabbi Yehuda; Rabbi Yohanan forbade using a stylus for this purpose on the Sabbath because, as Rashi interprets, it removes hair due to its sharpness; but some say it is forbidden to use pottery shards for this purpose even on a weekday because it is too dangerous; one who cleanses himself with lime or clay is prone to a disease which hurts the eyes and can be agonizing (Babylonian Talmud, Nedarim 22a), but will be protected from intestinal diseases. I have only added this because it is related to our topic on enemas).

On the other hand, we are required to act in order to prevent others from sinning, even if it harms their dignity. For example, one who sees his friend wearing [clothing containing a prohibited mixture of wool and linen], which is a Biblical prohibition (Deuteronomy 22:11), must tear off the clothing even in public, “and even if it is his teacher who has taught him wisdom, because human dignity does not override an explicit prohibition in the Torah” (Maimonides, Laws of Forbidden Mixtures 10:29). However, this only applies when the sin is clear to all and there is no doubt as to the sin being committed and the identity of the sinner. This is not the case if we are in doubt whether an article of clothing contains a forbidden mixture, in which case it is forbidden to touch the suspect in any harmful manner (Babylonian Talmud, Menahot 37b). The same applies here. If it is acceptable to enforce a prohibition by removing drugs from inside a person, this can only be when we know for certain that they are hiding drugs inside their body. However, it is not permitted merely to conduct an invasive search on someone for the purpose of determining whether a crime has been committed. In other words, these measures taken to “prevent sin” are only permitted when used to put a stop to a crime that has

already commenced; they were not meant to prevent an anticipated crime from being committed [in the future].

In conclusion, maintaining human  dignity  is so important, that it  trumps the [prohibition]of bringing drugs into prison, if the only way to prevent it is by infringement of human dignity and wellbeing of the inmate.

President Landau

I agree with everything my distinguished colleague, Justice Barak, wrote, and I also agree with the comments of my honorable friend, the Vice President, except for the advice he gives to the legislature when he says, “Just as the Sages allowed for their prohibitions to be set aside when human dignity is at stake, the legislature should take care not to sacrifice human dignity on the altar of other needs.” Later, my honorable colleague provides the legislature guidance of sorts when he says:

If it is acceptable to enforce a prohibition by removing drugs from inside a person, this can only be when we know for certain that they are hiding drugs inside their body. However, it is not permitted merely to conduct an invasive search on someone for the purpose of determining whether a crime has been committed.

In my opinion, it would be preferable for us not to provide the Knesset with guidance on how it should resolve this important issue and leave it with the difficult task of thoroughly researching the issue and determining when it is justified to conduct an invasive search inside a person’s body against his will, which is something this Court cannot do in the framework of such a petition. The presumption is that the members of the legislature will make human dignity a priority and legislate in a way that will not harm human dignity unless absolutely necessary and only in the most specific circumstances as defined by the legislature.

A blind eye cannot be turned to the serious situation existing in State prisons,  as described by the warden of the Ramla Detention Center in his affidavit, details of which were already cited by Justice Barak at the beginning of his opinion. We have a vital interest in preventing drug crimes in our detention facilities and prisons, not only to prevent lawlessness, but no less importantly to protect weaker prisoners from becoming the pawns of the stronger ones who may order them around and force them to unwillingly smuggle drugs into detention facilities or into prisons. The knowledge that an invasive bodily search may be conducted on any detainee or inmate returning to prison from a furlough or from court, based solely on a suspicion and not only when there is a clear proof that the individual is smuggling drugs, is likely to deter the stronger inmates from “enslaving” weaker ones and coercing them to carry the drugs in their bodies. This actually may protect their [the weaker prisoners'] dignity from being violated by their oppressors. As was stated in the affidavit, administering an enema, towards which we all feel understandable repugnance, has proven its effectiveness by the drastic reduction of drug consumption in detention facilities and prisons. It is therefore possible that we face vital interets that outweigh the importance of preserving one’s privacy in one’s own body. Finally, regarding the words of our Sages of blessed memory, they never closed their ears to a pressing need and always knew how to enact proper laws on a temporary basis as a preventative measure when they saw that the circumstances required such action in order to prevent bad things from happening (See ELON, MISHPAT IVRI VOL. 2, 413 on).

To summarize, it seems to me that this issue cannot be solved at either the administrative level, or at the regulatory level, due to the privacy right at stake. Only primary legislation which either speaks directly to the matter or explicitly authorizes another body to act can adequately address this matter. As to the content of such legislation, I would not pre-comit myself to a one

solution or another , nor would I make suggestions to the legislature as to how it should proceed on the matter.

The opinion of Justice Barak is accepted.

Decided Today, 24 Nissan 5740 (April 10, 1980).

IN THE

SUPREME COURT OF THE STATE OF ISRAEL

MP 298/86

MP 368/86

Before: The Hon. President M. Shamgar Appellants:        1. Ben Zion Citrin

2. Yifat Nevo v.

Appellees:     1. Disciplinary Court of the Bar Association in the District of Tel Aviv

2. Tel Aviv District Committee of the Bar Association

The Supreme Court of Israel [April 7, 1987]

The Hon. President M. Shamgar

Facts: The two consolidated appeals requested the cancellation of fines imposed upon reporters who refused to reveal their sources of information upon being subpoenaed to testify before the District Disciplinary Court of the Israeli Bar Association. The main issue was whether the two reporters had an obligation to answer questions regarding their sources, or whether they enjoyed a privilege allowing them to refuse.

Held: The Court noted that there is no Israeli statute explicitly granting immunity to reporters and that such an immunity is not included in the 5731/1971 Evidence Ordinance, which does acknowledge other privileges. After considering the development of the issue through English and US case law, the Court has determined that reporters enjoy partial immunity from being forced to reveal their sources. It noted that the interest of protecting reporters' sources stems from freedom of the press and from freedom of expression, which is a prerequisite for the guarantee of most of the other fundamental rights of citizens. The Court ruled that the right to protect reporter's sources of information is a public interest and weighed it  against  the  public  interests  of  doing  justice,  preventing  crime  and  acts  against  public  order.  It

determined that the reporters' immunity is partial and not absolute. The Court may instruct the witness- reporter to answer a question. President Shamgar ruled that the reporter should not be forced to reveal its sources unless it is relevant to the legal procedures and the Court thinks it is necessary and important in order to do justice in an essential matter. The Court clarified that this refers to severe offences that have significant results or implications, or to serious wrongdoing that requires the revelation of the source in order to do justice. In the case in question, the Court decided that, while the reporters’ sources were relevant to the disciplinary trial, it was not a matter that justified curbing the freedom of the press and dismissing the reporters' immunity. Therefore, the appeal was accepted. It was held that the two Appellants were permitted to refuse to answer questions regarding their sources of information and the fine was overturned.

Attorneys for the Appellants: M. Mozer (M.R. 368/86); H. Shtenger and A. Horowitz (M.R. 298/86)

Attorneys for the Appellees: S. Ben-Yaakov and A. Ben-Yaakov

JUDGMENT

1.            We have consolidated two appeals into one case regarding a fine imposed upon two reporters who were subpoenaed to testify before the District Disciplinary Court of the Israeli Bar Association, which operates under the 5721/1961 Bar Association Act. They were asked to testify about their sources of information for articles they wrote for the newspapers they work for. In one case, the article covered an alimony claim filed by an artist against the father of her daughters in which the names and photographs of the litigating attorneys were publicized. In the other case, a woman was forcibly institutionalized under the 5715/1955 Treatment for the Mentally Ill Act, and the question for the disciplinary hearing was whether the attorney who represented the patient was the source for the article. In other words, in both cases, the reporters were asked to reveal their sources of information regarding issues which the Bar Association considers to be ethics violations committed by the attorneys standing trial.

2.            As I have mentioned, the reporters refused to turn over their sources and as a result the Disciplinary Court of the Bar Association imposed a fine upon them pursuant to their authority under Section 66 of the Bar Association Act, which states that Sections 9 – 11 and 27(b) of the 5729/1968 Investigative Commissions Act apply to a Disciplinary Court as if it were an investigative commission, with the necessary adjustments. The relevant provisions of the Investigative Commissions Act as referred to by the Bar Association Act are those found in Section 11(a)(4) of the Investigative Commissions Act. This provision states that one who is lawfully subpoenaed to answer questions and does not do so or answers evasively may be fined, even in absentia, pursuant to Section 40(2) of the 5737/1977 Penal Code, by the Chairman of the Committee and with the approval of the Committee (which, in this case, is the District Disciplinary Court). The Bar Association Act limits the fine to a maximum of 300 old shekels.

Section 11(b) of the Investigative Commissions Act states that the Chairman of the Committee, with the approval of the Committee, may grant a request for a hearing by someone who is fined in absentia under Section 11(a) to lower or cancel the fine. The fine may be canceled if the Chairman is convinced that the potential witness did not testify because of circumstances beyond his control. In this case, the chief judge of the disciplinary Court makes such a decision with the approval of the other judges, in place of the Chairman and the other members of the Committee.

Section 11(c) of the Investigative Commissions Act states that if a fine is imposed pursuant to subSection (a), the President of the Supreme Court must be notified in writing, and he, or another Supreme Court Justice, may, either upon request or even without it, reduce or cancel the fine.

As I have mentioned, the two reporters were fined for refusing to reveal their sources of information for their newspaper articles; the two appeals before me ask that the  fines  be canceled.

3.            I have no intention of deciding the two appeals before me according to the question of whether the proper procedures were followed under Section 11(b), which is an issue that was brought up, among others, by one of the reporters; or according to the question of whether the Disciplinary Court stayed within the bounds of the maximum fine it is authorized to impose, because, as we shall see, these are not the main issues of this case.

However, I add that the issue of the maximum fine that may be imposed pursuant to Section 66 of the Bar Association Act requires some adjustments that should be tended to by those authorized to do so. The first problem stems from the relatively low fine set by the law. Section 66(a)(2) of the Bar Association Act, which incorporates Section 11 of the Investigative

Commissions Act into the procedures of the Bar Association’s Disciplinary Court, states that, “The fines imposed by the Disciplinary Court under the aforementioned Section 11 cannot be more than 300 (old – M.S.) shekels…” In this law, the legislature wished to impose a fine above that set forth by the Investigative Commissions Act which carried a fine of up to only 200 Israeli Liras (see the 5740/1980 Bar Association Act (amendment 13 ) (April 13, 1980)).

Over the years, inflation levels grew and the Justice Minister increased the maximum fine available under Section 11 of the Investigative Commissions Act to 10,000 old shekels (5744/1984 Penal Order (adjusting fine amounts); the order was published on February 12, 1984 and went into effect 30 days later), pursuant to his authority under Section 64 of the Penal Code. The problem is that the Justice Minister did not enact a similar amendment to the Bar Association Act, which created an unreasonable situation in which the maximum fine under Section 66 remained a relatively low 300 old shekels (Section 61 of the Penal Code cannot apply here because of a limitation in subSection (4)).

Another problem stems from Section 21 of the 5744/1984 Judiciary Act (amendment 19) which references the fine set in Section 11 of the Investigative Commissions Act to the fine set in Section 40(2) of the Penal Code. It would seem that from this date on there would be no need to update the set fine stated in Section 11, and it would suffice to merely update the fine set by Section 40 of the Penal Code. Despite this, the Justice Minister updated the fine set forth by Section 11 of the Investigative Commissions Act even though it should no longer be in effect. See 5745/1985 Penal Order (adjusting fine amounts); 5746/1985 Penal Order (adjusting fine amounts).

4.            The main issue before us in this case is whether the two reporters have an obligation to answer questions in a Disciplinary Court, or whether they enjoy, as they claim, a privilege

allowing them to refuse to answer questions regarding their sources. To answer this question, we need to first examine the 5731/1971 Evidence Ordinance (new version).

Section 1 of the Evidence Ordinance states that a Court has the authority to subpoena anyone who is relevant and admissible and who is not barred by another rule of evidence to testify; therefore we see that there are two conditions necessary for a subpoena: the witnesses must be relevant and admissible.

Section 66 of the Bar Association Act authorizes a Disciplinary Court adjudicating a disciplinary action to subpoena anyone in Israel to testify or provide documentation other than who is exempted by law. The Disciplinary Court may also obtain any testimony, both written and oral, and question witnesses. The authority to subpoena witnesses and obtain testimony stems from its auxiliary authority under Section 66(a) which, as previously noted, incorporates Sections 9 – 11 and 27(b) of the Investigative Commissions Act. Under Section 9 of the Investigative Commissions Act, the Chairman of the Investigative Commission, with the approval of the Commission, can subpoena a witness to testify or produce documents or other forms of evidence. Section 10 states that one who is subpoenaed to testify or produce documents or other forms of evidence before the Investigative Commission, has the same obligations as someone investigated under Section 2 of the Criminal Procedure Ordinance (testimony). Section 2(b) of the Criminal Procedure Ordinance states that someone being interrogated must honestly answer all questions asked [of him] by police or another authorized official, except for questions whose answer places him in criminal jeopardy. Section 47 of the Evidence Ordinance, which applies to testimony presented to a Disciplinary Court, also states that a person is not obligated to provide evidence if it will implicate him in a crime he has either been indicted for or stands to be indicted for.

The Disciplinary Court certainly has the authority to subpoena the two reporters and question them as they would any other witness. The question now is, first, was the question [asked] of them relevant under Section 1(a) of the Evidence Ordinance (new version)? And, do these two reporters enjoy reporter’s privilege, which would allow them to refuse to answer any question asking them to reveal their source? As regards the relevance of the questions, we can deduce from the facts of the case that the issue of the reporters’ sources are relevant to the issue adjudicated in the Disciplinary Court, which is whether the attorneys in question are the cause for the publication [of their names]. This brings us to the second issue of immunity.

5.            There is no Israeli statute explicitly granting immunity to reporters, nor is there any legislation which addresses the matter. Chapter 3 of the Evidence Ordinance (new version) lists who is legally immune from testifying. Section 44 of the Ordinance speaks about immunity for the good of the country, Section 45 speaks about about immunity for the welfare of the public and, as we have already said, Section 47 deals with immunity for incriminating evidence. As Regards the status of certain occupations, Section 48 recognizes immunity for attorneys under certain circumstances, Section 49 for doctors, Section 50 for psychologists and Section 51 for clergy. Section 52 qualifies the immunity in question by stating that the immunity discussed in Chapter 3 applies to evidence both before a court or tribunal and before a government authority, body or an individual authorized by law to collect evidence. Any reference in the Chapter to a “Court” includes also "tribunal", "body" or "individual" authorities authorized to collect evidence. Therefore, there is no doubt that Chapter 3 of the Evidence Ordinance (new version) also applies to evidence presented to the Disciplinary Court of the Bar Association. However, the problem is that Chapter 3 does not say anything about any such privilege for reporters.

I should point out that the attorney/client and doctor/patient immunity is a privilege granted to the client and to the patient, not to the attorney or the doctor. See Prof. A. Harnon, Protecting Relationships of Trust: Should we Recognize Reporter’s Privilege? 3 Iyunei Mishpat 542, 552 (5733 – 34). This is significant because if the client or the patient waives this privilege, the attorney or the doctor can no longer claim it. Furthermore, when dealing with privileges associated with medicine, psychology or religion, we must take into account the fact that the privilege [between a doctor and a patient] of a doctor, for example, is not absolute, as it is not the doctor’s privilege. If the Court decides that the need to reveal the privileged information, for the sake of administering justice, outweighs any interest there may be in allowing the information to remain privileged, it may do so. A similar provision exists in Section 50 regarding a psychologist’s privilege.

6.            No one argues that the Evidence Ordinance (new version) does not explicitly address the issue of reporter’s privilege. However, the attorneys [for the reporters] argue that such a privilege has developed and has been recognized by caselaw, despite the fact that it is not included in any statute.

Because this Court has not yet addressed this issue, for comparison purposes, I will briefly refer to the development of this idea in other countries which have a similar legal system.

7.            The issue of immunity has been adjudicated in English caselaw during the National Investigation Committee’s investigation into the Vassall espionage case. See Attorney General v. Mulholland, (1963) 1 All ER 767 (Q.B.); Attorney General v. Clough, (1963) 1 All ER 420 (A.C.). The courts in those cases addressed the claims of reporters who refused to reveal their sources relating to their reporting of the Vassall case, and claimed they had legal privilege. They argued that the existence of such a privilege is a means which allows them to investigate the

truth. The public has an interest in reporters having access to such information. However, they can only  succeed  in  accomplishing their  goal so  long  as  their sources  of information can maintain their trust that their identity will not be revealed, thereby allowing the public to gain access to information to which they are entitled. In this way, reporters can reveal criminal activities, injustices and [acts of] negligence in the course of their job, [whereas without such a privilege] such [information] would remain unexposed. Unless they are able to keep their sources a secret, reporters will simply be unable to provide such information. Whistleblowers will remain silent if they know that their identity will be revealed. The claims in those cases were similar to the issue raised in this case, which is essentially that reporters are entitled to refuse to answer questions asking for the identity of their sources.

In Clough, Chief Judge Lord Parker rejected the claim that English law recognized absolute immunity for reporters, drawing upon, among others, the Australian decision of Justice Dixon in McGuinness v Attorney-General (1940) 63 CLR 73. For the purposes of his case, he distinguished between the nature of obligations during the discovery phase of the case and actual testimony. Lord Parker states (at 427 – 28):

In those circumstances, I have without the slightest hesitation come to the conclusion that in regard to the press, the law has not developed and crystallised the confidential relationship in which they stand to an informant into one of the classes of privilege known to the law. As I have said, it would still, as I conceive it, remain open to this court to say in the special circumstances of any particular case that public policy did demand that the journalist should be immune, and I, therefore ask myself whether, in the circumstances of the present case, it is necessary from the point of view of public policy that I should recognise the claim of immunity which is raised.

This means that the Court does not recognize absolute immunity, but will exercise discretion in considering each claim on its own merits and decide whether to recognize reporter’s immunity on the basis of public policy considerations.

Likewise, in Mulholland, Lord Denning rejected a claim for reporter’s privilege, because under English law (unlike ours, as stated above) only attorneys have such privileges regarding information exchanged within the context of a relationship with a client. With regards to reporters, he added (at 771):

The judge will respect the confidences which each member of these honorable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered. A judge is the person entrusted, on behalf of the community, to weigh these conflicting interests – to weigh on the one hand the respect due to confidence in the profession and on the other hand the ultimate interest of the community in justice being done… (emphasis added – M.S.)

The judge must weigh the conflicting interests and decide whether the circumstances tilt the scale towards granting immunity in order to protect the relationship of trust between the reporter and the source, or whether the public interest requires the identity of the source to be revealed.

Lord Denning clarifies that if a judge decides that the reporter must answer the questions, claiming immunity will not help him. He notes that in some slander cases, the courts did not require reporters to testify, but that this was not because reporters enjoy absolute immunity, but rather because the proper balance of interests tilted in their favor. As he states, “On weighing the considerations involved, the balance is in favour of exempting the newspaper from disclosure” (emphasis added – M.S.). As he explains, in a slander trial, the claim is against the newspaper and there is no need to sue the source. In such a case, it is in the public’s best interest that the journalist not divulge his source, as L.J. Buckley stated in Adam v. Fisher, (1914) 288 T.L.R 30 (U.K.); however, Lord Denning qualifies the application of the privilege by stating, “Unless, I would add, the interests of justice so demand.”

Justice Donovan, who also sat in the Mulholland case, based the guiding principal of judicial discretion upon a limited form of reporter’s privilege. He states (at 772), “While the journalist had no privilege entitling him as of right to refuse to disclose the source, so, I think the interrogator has no absolute right to require such disclosure.”

Therefore, reporters do not have the absolute right to refuse to disclose their source, and, at the same time, courts cannot view the obligation to answer as absolute. Instead, courts can determine whether an obligation to answer exists in light of the circumstances of the case based upon the significance of the answer to the administration of justice. The decision is left to the discretion of the judge, similar to other circumstances where a judge may warrant a decision to disallow a particular question because the answer may do more harm than good. The judge concludes his position by stating (at 773), “For this reason, I think that it would be wrong to hold that a judge is tied hand and foot in such a case as the present and must always order an answer or punish a refusal to give the answer once it is shown that the question is technically admissible.”

In sum, in the aforementioned cases [reporters] enjoy partial immunity which is determined by balancing the public welfare with the demands of justice.

In the cases regarding the Vassall case, the Court found that the journalists had to divulge their sources because of the severity of the case as an espionage case endangering national security and its level of importance to the public. Without the information being turned over to the Investigative Commission, the Commission would have never been able to know whether what was published in the newspaper was fiction, mere gossip or reliable.

In 1980, the issue reemerged in the U.K. in the case of B.S.C. v. Granada Television, (1981) 1 All E.R. 417, 435, 453 (Ch., A.C., H.L.), when the Court dealt with the question of

what is the proper balance between maintaining the anonymity of a reporter’s source and the trust between an employer and employee. The case arose as a result of a TV program prepared by the respondent, a TV network, about a general strike in 1980 at the factories of the British Steel Corporation, a government owned company established after the nationalization of the steel industry. An employee, who objected to and criticized the management of the company’s affairs in general and particularly the strike, handed over documents to the TV station which he obtained through his position at the company, upon receiving a guarantee that the station would not reveal his identity. The steel company, during the course of legal proceedings, asked that the name of the particular employee be revealed. The case made its way up the judicial ladder (Chancery Division, Court of Appeal Civil Division and the House of Lords) and all the courts – with the exception of a dissenting opinion by Lord Salmon in the House of Lords – reached the same conclusion that the TV station must divulge the source.

As the Court there held, courts generally wish to respect the confidentiality between a journalist and his source of information. However, reporters do not enjoy, under the Evidence Ordinance, any privilege based on public interest allowing them to refuse to divulge their sources if the Court believes that doing so is in the best interests of justice. Lord Denning, sitting in the Court of Appeal, said the following (at 441):

The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information. Neither by means of discovery before trial. Nor by questions or cross-examination at the trial. Nor by subpoena. The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up…

Nevertheless, this principle is not absolute. The journalist has no privilege by which he can claim — as of right — to refuse to disclose the name. There may be exceptional cases

in which, on balancing the various interests, the court decides that the name should be disclosed… Have we any [scales] by which to determine which cases are exceptional? It seems to me that the rule (by which a newspaper should not be compelled to disclose its source of information) is granted to a newspaper on condition that it acts with a due sense of responsibility. In order to be deserving of freedom, the press must show itself worthy of it. A free press must be a responsible press. The power of the press is great. It must not abuse its power. If a newspaper should act irresponsibly, then it forfeits its claim to protect its sources of information.

To show what I mean by irresponsibility, let me give some examples. If a newspaper gets hold of an untrustworthy informant and uses his information unfairly to the detriment of innocent people, then it should not be at liberty to conceal his identity. If it pays money to an informant so as to buy scandal, and publishes it, then again it abuses its freedom. It should not be at liberty to conceal the source.

In this case, the courts held that Granada acted irresponsibly towards the steel industry and the government, and thus, played a part in the injustice. In doing so, the TV station lost its ability to claim reporter’s privilege as Lord Denning states (at 442), “This protection is given only on condition that they do not abuse their power. Here Granada have abused it.”

In the House of Lords, Lord Wilberforce clarified that the words of Lord Denning are a restatement of what was decided in Mulholland, and did not in any way broaden the existing law. He states (at 457):

I do not think that Lord Denning M.R. should be understood as departing from his judgment in Mulholland and from every reported case. Such a reversal would place journalists (how defined?) in a favoured and unique position as compared with priest- confessors, doctors, bankers and other recipients of confidential information and would assimilate them to the police in relation to informers. I can find nothing to encourage such a departure even with the qualifications sought to be introduced to the general principle asserted.

Lord Denning MR’s judgment in Mulholland makes two further points. First, that it is not for the media alone to be the judges of the public interest. That is the task of the courts. Second, the qualification is made, and strongly stated by Lord Denning M.R.,  that disclosure must be necessary to enable justice to be done. The same point is made by Dixon J. in 63 C.L.R. 73, 102 – 03.

A short time after the B.S.C. case, England passed the 1981 Contempt of Court Act, which at Section 10 states:

Sources of information

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

Regarding the application of this provision, see Secretary of State v. Guardian Newspapers Ltd., (1984) 3 All E.R. 601 (H.L.). This Section codifies the rule set forth by the aforementioned cases, granting a limited privilege [to reporters] which is conditioned upon the demands of justice, discovering criminal activity, preventing torts and maintaining public order.

8.            There is no federal legislation on this issue in the United States. However, similar to what we said earlier, the approach that has evolved in the U.S. places the privilege of protecting the trust [of reporters] as a public interest, so long as certain conditions are met:

(1)          The communications must originate in a confidence that they will not be disclosed.

(2)          The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3)          The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4)          The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

J.H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW vol. 8, 527 (J.T. McNaughton ed., 1961);

see also, C.T. MCCORMICK, ON EVIDENCE 171 (E.W. Cleary ed., 3d ed., 1984).

The purpose of the privilege is to protect a relationship which society is interested in protecting, and [the Court] must take this into consideration by weighing the potential damage to the relationship against the benefit to justice should the information be divulged.

The main United States Supreme Court decision on this topic is Branzburg v. Hayes, 408

U.S. 665 (1972), where the Court determined the limits of reporter’s privilege by applying a balancing test according to which the Court has the discretion to balance the need to reveal the evidence in question in order to obtain justice and the need to protect the identity of the source. See also, Garland v. Torre, 259 F.2d 545 (1958).

Branzburg dealt with a reporter from Kentucky who refused to disclose information regarding two people he covered in an article who had made hashish from marijuana. He also refused to disclose names of people interviewed for a piece he wrote on the world of those who consume drugs. Another reporter, Pappas, was also joined into the proceedings after sitting in on a Black Panthers event at its main branch and refusing to divulge to a grand jury what he saw and heard regarding alleged crimes against public order. A similar case regarding information held by a reporter named Caldwell about the Black Panthers was also adjudicated at the same time as Branzburg.

All three of these reporters based their claim of privilege on the first amendment to the

U.S. Constitution. The case states that the issue is (at 679 n. 16):

Whether a newspaper reporter who has published articles about an organization can, under the First Amendment, properly refuse to appear before a grand jury investigating possible crimes by members of that organization who have been quoted in the published articles.

Justice White, who wrote the majority opinion, noted that there is no doubt as to the importance of freedom of speech and freedom of the press, and that collecting information in

order to exercise these freedoms is included in the first amendment because without such protection, freedom of the press cannot exist. However, according to Justice [White],  the question is not whether it is permitted to use unrevealed sources or whether journalists must reveal their sources, but rather, whether a journalist has the right to refuse to comply with a subpoena to appear before a grand jury to answer questions about a criminal investigation.

The journalists claimed that if they were to reveal their sources, the sources will refrain from providing information in the future. To this claim, Justice White responded (at 682 – 85):

It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that "[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." Associated Press v. NLRB, 301 U. S. 103, 132 - 33 (1937)…

The prevailing view is that the press is not free to publish with impunity everything and anything it desires to publish. Although it may deter or regulate what is said or published, the press may not circulate knowing or reckless falsehoods damaging to private reputation without subjecting itself to liability for damages, including punitive damages, or even criminal prosecution. See New York Times Co. v. Sullivan, 376 U. S. 254, 279 – 80 (1964)… A newspaper or a journalist may also be punished for contempt of court, in appropriate circumstances. Craig v. Harney, 331 U. S. 367, 331 U. S. 377-378 (1947)…

It is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. At common law, courts consistently refused to recognize the existence of any privilege authorizing a newsman to refuse to reveal confidential information to a grand jury.

Justice White held that a privilege whose purpose is solely to evade criminal accountability cannot be recognized; however, the obligation to disclose sources of information about  criminal  activity  is  not  absolute  either.  The  government’s  interest  in  having  the

information disclosed must be paramount or compelling in order to require compliance. The state must demonstrate a clear connection between the information requested and some paramount and compelling state interest (like revealing drug trafficking or preparations for violence) as was the case in Branzburg. As the decision states (at 709 – 10):

[T]he Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith, he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

In [Branzburg], journalists were subpoenaed to testify before a grand jury regarding their sources of information. Justices Douglas, Stewart, Brennan and Marshall wrote dissenting opinions, expressing their concern that forcing journalists to testify will harm their constitutional right to freedom of the press. Justice Douglas held that the first amendment of the constitution grants journalists absolute immunity. The other judges voting with the minority held that while the first amendment does extend a measure of immunity it is not absolute.

To summarize, in the U.S., the first amendment does not grant reporters immunity, but, according to the majority opinion, courts may not subpoena them in large numbers, but must rather carefully consider the circumstances of each case in order to strike a proper balance between freedom of the press and the need to compel the testimony because criminal activity is suspected and justice demands the testimony. Even the majority opinion advocated a certain

amount of immunity, while the dissent lends more weight to freedom of the press and holds that only in the rarest of circumstances may reporters be compelled to testify. Practically speaking, no absolute criteria were established, and the decision was largely ad-hoc.

9.            In Israel there is no statute addressing the issue of reporter’s privilege. Theoretically, we can look at the third Chapter of the Evidence Ordinance as denying such a privilege because it does not include it among those listed as entitled to a privilege. I see no reason to reach such a conclusion on the basis of statutory law. In our legal system, where the rules of evidence are largely a result of a collection of judicial decisions and we do not have an exhaustive and comprehensive codification of Evidence Law, there is no reason why we cannot recognize the existence of a rule of evidence, even though it does not appear in legislation, but whose development is similar to the method by which many other rules of evidence developed, especially since it draws upon our basic constitutional principles. In other words, recognizing a rule pertaining to evidence which grants partial privilege to reporters is a natural result of the matter before us. We are not dealing with a steadfast rule pertaining to evidence, but rather we must look at the broader legal implications which must reflect our recognition of basic liberties, especially freedom of speech and freedom of the press.

10.          We now must analyze the issue according to the following guidelines: (1) the significance of the fact that there is no statute granting such a privilege to reporters; (2) the connection between our understanding of constitutional rights and the recognition of such a privilege; (3) the importance of the obligation to provide testimony; (4) legal standards; and (5) the application of such standards to the circumstances of the case.

11.          The lack of legislation addressing the issue: The legislature’s silence on the issue and the legislative  history  tells  us  that  the  legislature  debated  the  issue,  but  declined  to  legislate.

However, if we are to conclude that the lack of a statute amounts to the negation of such a privilege, we may come to a skewed understanding of our constitutional principles and may even violate a right, which carries much weight from the public’s perspective. In such a case, it is preferable to allow for judicial discretion than to come to the absolute conclusion that no such privilege exists.

In a similar vein, Professor L.H. Tribe, on how to approach an issue which the legislature has remained silent, writes that:

In such a grammar, I believe that silences can properly have only two sorts of significance: (a) a significance as operative legal facts that is derived not from the internal states of mind that various silences may be thought to manifest, but from external constitutional norms; and (b) a significance as parts of the historical context of actual enactments

As for the constitutional problems he adds:

I would agree with the view I take to be at least implicit in Justice Douglas’ opinion – namely, that the guide to the meaning of certain congressional silences is the constitution itself.

L.H. TRIBE, CONSTITUTIONAL CHOICES 36 – 37 (Cambridge and London, 1985) (emphasis added).

I would say that this means that the interpretation of the legislature’s silence on a particular issue can be found within constitutional concepts and legal principles.

When addressing the issue of silence, Justice Jackson called it “the great silence of the constitution,” and wrote:

Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the constitution.

Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657 (1949).

When we examine the absence of a rule in the Evidence Ordinance regarding immunity for reporters, while it may seem that statutorily they are not entitled to any such privilege, we need to take into consideration the ramifications this may have on fundamental freedoms and its place in our constitutional system.

12.          The connection between our understanding of constitutional principles and the recognition of immunity [for reporters]: In HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture, IsrSC 38(3) 233, 238 – 39, we stated that freedom of speech is a prerequisite for a properly run democracy. The unrestrained free exchange of ideas between people is an absolute precondition for a political and social regime in which a citizen can fearlessly analyze the different sides of an issue and make up his own mind about what is best for society and for himself as an individual and how to ensure the continued existence of the democratic regime and of the state. As I stated in CA 723/74 Haaretz Newspaper Ltd. v. Israel Electric Company Ltd., IsrSC 31(2) 281, freedom of expression is a prerequisite for the guarantee of most of the other fundamental rights of citizens and, without it, other rights are in danger of falling away.

As mentioned in HCJ 372/84 Klopfer-Naveh, the democratic process is conditioned upon the ability to conduct open dialogue regarding the problems facing the state on a day to day basis and the ability to freely exchange opinions. HCJ 73/53 Kol Ha’Am Co. and Al Etihad Newspaper

v. Interior Minister, IsrSC 7 871, 876; E. BARKER, REFLECTIONS ON GOVERNMENT 36 (London, 1942). The media fills a very important role in this dialogue. It allows for the dissemination of information on all areas of life, which makes it accessible to all. It is the main medium for explaining various perspectives in public dispute.

The interest of reporters in protecting their sources of information stems from their desire to safeguard freedom of the press, which includes the right to gather information. About this

James Madison said, “A popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both.” WRITINGS OF JAMES MADISON vol. 6, 398 (Hunt ed., 1906).

J.B. Kuhns lists four assumptions regarding the protection of reporter’s sources of information:

The right to confidential informer-reporter relationship follows logically from the right to gather news when four factual assumptions are accepted: (1) newsmen require informants to gather news; (2) confidentiality (the promise that names and certain aspects of communications will be kept off the record) is essential to the establishment of a relationship with many informers; (3) the use of an unbridled subpoena power will deter potential sources from divulging information; and (4) the use of an unbridled subpoena power will deter reporters from gathering or publishing information which might lead to a demand for complete compulsory disclosure. If these factual assumptions are correct, the press will be less effective in uncovering criminal activity, corruption, government mismanagement, and other matters of public interest, unless the right to protect the confidentiality of news sources is created. Much discussion will be stifled concerning socially controversial activities, such as illegal abortion and drug usage, for individuals will avoid the possibility of public identification with illegal conduct. Some persons will be reluctant to voice their opinions without assurances of anonymity for fear of harassment and reprisal.

J.S. KUHNS, REPORTERS AND THEIR SOURCES: THE CONSTITUTIONAL RIGHT TO A CONFIDENTIAL RELATIONSHIP, 80 YALE L.J. 317, 329 (1970 – 71) (emphasis added).

A free and democratic political system cannot be without the means to gather and disperse information. The right to gather information includes the need to protect the source of information. This stems from reporters’ reliance upon their sources, the trust relationship necessary in order to gather information and the deterrent effect that might result from an unlimited obligation to reveal sources. This suggests that the journalist's right to privilege against the obligation to reveal his sources stems from freedom of expression and therefore constitutes an important aspect of the rights and liberties upon which our society is based.

13.          The obligation to testify: against that, it is only natural that every so often a reporter is a valuable source of information to investigative authorities and the judiciary, in light of the facts gathered by the reporter during the course of his investigation. This includes information not made public by the journalist or information he casually came across (T.B. CARTER, N.A. FRANKLIN, J.B. WRIGHT, THE FIRST AMENDMENT AND THE FIFTH ESTATE 561 (New York, 1985)). As Lord Parker stated in Clough at 424, “Any privilege which exists constitutes a shackle on the discovery of the truth and an impediment on the true administration of the law.”

Furthermore, we must not forget that the obligation to testify is one of the touchstones of the judicial process. Without it, the process goes from being one which aims to discover all relevant information, to one which only uncovers random information from those willing to volunteer it. The interest of litigants wanting to uncover the truth is generally that anyone able to testify to the facts of the case must do so. Moreover, the right to call relevant witnesses to testify is not only that of the litigants, but that of the public as well. Social order is conditioned upon, among other things, the existence of proper judicial procedure which attains its goals. Providing testimony is an integral part of this process, without which, the process would be ineffective. Therefore, we should view the obligation to provide testimony as a public interest rather than the narrow interest of the litigants involved. This is what Wigmore meant when he quoted Lord Hardwicke, “The public has a claim to every man’s evidence.” Wigmore, supra at 71; see also, U.S. v. Bryan, 339 U.S. 323, 70 S.Ct. 2961 (1977) (Vinson, J.).

14.          We see that two distinct public interests are at issue here. The public has an interest in obtaining all types of information in order to properly conduct judicial proceedings; however, the media is also part of the public which acts to gather information whose publication benefits the public by maintaining a society with free expression and a transparent government. As stated in

HCJ 372/84 Klopfer-Naveh, the media is the medium which assists the average citizen in shaping his views and allows him free consideration and choice, while knowing what is occurring, and an ability to evaluate every event, suggestion and criticism.

It is in the public's interest, and not a particular matter for the newspaper or reporter, to protect sources of information, which is necessary to perform the journalistic role, including the protection of the trust and promise that the source will not be revealed, upon which the information is handed over. Because of the nature of this interest, it is also natural and logical to view it within the complex and combined system of all other public interests. In other words, because this is something that the public has an interest in safeguarding, it should be left to the public to decide how much protection such an interest is entitled to; where the interest stands relative to other matters which also have national-social meaning, and to the extent that this interest or other interests should retract from one another, [such a retraction] is in order to achieve a proper balance and co-existence, to the extent desired for a free public anxious to preserve its freedom and the tools meant for its preservation. Other interests which must be balanced against the interest of protecting sources of information are doing justice, preventing criminal activity and protecting people from torts and from severe acts against public order. These are also essential interests, without which a civilized society which protects human rights and dignity cannot exist. It is therefore legitimate for society to find the proper balance between these interests, which will establish which of these interests take precedence over the other when they conflict.

When analyzing the nature and the boundaries of reporter’s privilege, the Court must take into account the fact that there is another important interest which, unfortunately, conflicts with this privilege from time to time. Lord Parker, whose words were quoted above, said that any

privilege granted to a potential witness handcuffs those trying to do justice and restrains the ability to uncover the truth and is a barrier to fully doing justice. Opposite this consideration stands the important interest of having information flow freely, which is a precondition for freedom of expression in general and specifically for freedom of the press. In other words, on one hand we have the public interest in doing justice to a party involved in a dispute with another or with the government, and on the other hand, we have the fundamental constitutional right to a freedom of the most central type.

As I have said, the necessary conclusion to this conflict is clear and simple. The privilege cannot be absolute, but rather must be limited to constraints whose general aim is as I wrote above. Conversely, the ability to compel a reporter to reveal his sources of information cannot be absolute and must be limited to certain constraints as I will explain and whose aim I have explained earlier.

The proper balance between the different interests as it was implemented in England before the amendment to the 1981 statute, was described, among other [descriptions], by Lord Diplock in D. v. N.S.P.C.C., (1977) 1 All E.R. 589, 594 (H.L.):

The private promise… must yield to the general public interest that in the administration of justice truth will come out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law.

According to Lord Diplock, our goal should be to reveal the truth by obtaining testimony, unless there is an overriding public interest which demands that the source of information be protected. See Guardian Newspapers Ltd.

to the discretion of the Court. If, [however], the Court orders the witness to answer the question presented to him, he must do so.

So what is the test that must be applied by the Court? Does every crime or tort justify the exercise of the Court’s authority to order a reporter to reveal his source?

The answer is no. Compelling the testimony of reporters to reveal their source in every case, regardless of the circumstances, would contradict the realization of freedom of expression, which can only be done through freedom of the press. Freedom of speech and its derivative rights have an important status in our legal system as was stated in CA 723/74 at 295:

Freedom of expression and a statute limiting free speech are not equal. We will always prefer an interpretation of a statute in a way which preserves freedom [of speech] over one which limits it. In sum, the standard by which freedom of speech must be safeguarded is that it should be the first consideration taken into account when it conflicts with another right. It is fitting that it not only be at the forefront when the legislature legislates, but also when statutes are interpreted and applied to circumstances when its applicability is put to the test.

As we have repeatedly held, freedom of speech carries with it the promise that the status and the rights of an individual will be safeguarded and honored and that he will not be discriminated against and that the truth will be sought and revealed. As we said in HCJ 372/84 Klopfer-Naveh, this is a precondition for a properly functioning democracy, which plants the seeds of advancement and human development both intellectually and socially.

one where a felony is alleged, or a significant misdemeanor or a severe tort action which requires the identification of the source in question or justice cannot be done. In such a situation the Court may decline to allow the reporter to claim the privilege.

The absence of a statute addressing the matter does not take away from the Court’s authority. The Court may recognize reporter’s privilege with the aforementioned limitations because of the general rules that stem from freedom of expression and the rights associated with it. See HCJ 337/81 Mitrani v. Transportation Minister, IsrSC 37(3) 337, 355 n.7.

To illustrate, a reporter can be compelled to disclose information regarding a drug dealer or burglars; however, even in such a case, the Court must use its discretion by considering the facts and the nature of the case to determine how relevant the information in question is to the case and how essential the information is to doing justice. After taking all this into consideration, the Court may compel the testimony and the reporter will not be able to claim reporter’s privilege.

This example demonstrates how the right to preserve the identity of the source is to be taken seriously and only denied when necessary because of the nature of the case and the weight of the need for the testimony. As I have explained in detail, the test is a relative one and the considerations must justify overriding the privilege. The test has three prongs:

(a)          First, the relevance of the information in question must be tested;

(b)          Second, we must test whether the issue is significant enough [to compel such testimony];

(c)           Third, we must test whether the information is absolutely necessary to adjudicate the issue, namely whether there is no way to rely upon other evidence without compelling the revelation of sources.

16.          We will now turn to the case before us. What is the status of a disciplinary law being applied against an attorney who allegedly made a self advertisement? The relevant Sections of the Bar Association Act are the following:

Safeguarding the Integrity of the Profession

53. An attorney must safeguard the integrity of the profession and refrain from any act that harms its integrity.

Prohibition against Advertising

55. An attorney may not advertise his services as an attorney. The cases and methods in which an attorney may or is required to identify himself and his profession will be explained in the rules.

Disciplinary Infractions

61.          The following are disciplinary infractions:

(1)          Violating any one of the instructions in Sections 53 – 60 or another rule obligating or prohibiting an attorney with regards to his profession;

(2)          Violating a rule of professional ethics established in Section 109;

(3)          Any act or omission that is not befitting the legal profession.

Rule 15 of the 5726/1966 Rules of the Bar Association (Professional Ethics) which was in effect during the time of the two disciplinary hearings at issue state:

Prohibited Actions

15.          An attorney may not initiate, willingly participate or consent to any of the following actions:

(1)          Those whose goal is to advertise one’s services as an attorney;

(2)          Those which cause unfair competition with colleagues or obtaining clients in a way which is not befitting the profession.

Rule 16 adds other activities which are considered prohibited advertising. I will not go into detail explaining the nature and purpose of Rule 15, which has since been abolished

(however, Section 55 is still valid and has not been amended). For the purposes of background information regarding professional ethics, I quote the following:

The argument… amounts to basically this: advertising is undignified and ‘commercial;’ it is also unworthy in that it suggests that one professional man is better than another which, though true, is insulting to one’s learned and honourable friends; moreover, the claim to specialist abilities may be either wholly false, or else misleading in that there may be others even more expert; self-advertisement provides no safe basis upon which a client may choose his  professional  adviser. The  best  and  only desirable  basis  is  personal recommendation or at least knowledge that the adviser is properly qualified.

M. ZANDER, LAWYERS AND THE PUBLIC INTEREST: A STUDY IN RESTRICTIVE PRACTICES 209 (London, 1968).

In England, two Commissions were established in recent years to research the issue of advertising: The 1976 Monopolies and Mergers Commission and the 1978 Royal Commission on Legal Services (the Benson Commission). The first Commission concluded that the rule against advertising has caused some harm as it prevents the public from obtaining information and minimizes competition, efficiency and the incentive to produce good work. It determined that because of the rule, there were fewer opportunities for attorneys to obtain work and it was harder for people to find an attorney when the only method of doing so was word of mouth. It therefore recommended that advertising be permitted so long as it is not misleading, does not make comparisons to other attorneys and does not give the profession a bad name.

Additionally, the Benson Commission recommended that advertising be permitted and noted that advertising “is inherent in any free or mixed economy and helps the consumer to exercise choice in such economies.” The recommendations of the Commissions caused the rule against advertising to be somewhat lifted. J.A. Attanasio, Lawyer Advertising in England and the United States, 32 AM. J. COMP. L. 493, 495 – 502 (1984).

In the United States, the question of advertising was analyzed under the first amendment. Justice Blackmun of the U.S. Supreme Court determined that attorneys acting together in order to provide services at lower prices may advertise such services because such advertisements serve the public’s interest of arriving at a well informed decision. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2961 (1977). He even quoted the decision of the English Monopolies and Mergers Commission which also supported attorney advertisements.

17.          For obvious reasons, I am not going to adjudicate the substance of the two  cases involving the alleged advertising by the attorneys standing trial. The first question in this case is, whether the reporters’ sources are relevant to the disciplinary trial of the attorneys. The answer to this question is yes, because we cannot deny the logical connection between the question of whether there was a prohibited advertisement and determining whether the attorneys in question provided the information for the article.

The second and more [important] question is whether the circumstances of the case are such that freedom of the press must be curbed because of the need to do justice in a significant matter. With all due respect to the legitimate efforts of the Bar Association to take disciplinary action, I am not convinced that this is an issue which can override reporter’s privilege. This case does not allege a felony or even a serious misdemeanor carrying significant consequences, nor does it involve an infringement of public order. The procedure in this case cannot tip the scales against reporter’s privilege which is essential for maintaining freedom of the press and is derived from the principle of free speech. There is, therefore, no need to analyze the third prong which is whether the information is essential to the case.

As Justice Musmanno wrote in In re Mack, 386 Pa. 251, 126 A.2d 679 (1956), I would like to again state that denying reporter’s privilege causes people to refrain from providing

information, which in turn prevents information from being made public. Journalism without sources is like a dried up river and freedom of the press becomes pointless.

18.          Thus, I have decided to accept the position of the Appellants and overturn the fine. Given the circumstances of the case, it is appropriate that the Disciplinary Court recognize reporter’s privilege and that the two Appellants be permitted to refuse to answer questions regarding their sources of information.

Decided today, 8 Nissan 5747 (April 7, 1987).

The Supreme Court sitting as the High Court of Justice

HCJ 2442-11

CrimApp 4002/11

Before:                                                His Honor President A. Grunis                                                                                   His Honor Justice E. Rubinstein                                                                                 His Honor Justice H. Melcer

The Petitioner in HCJ 2442/11:           Haim Shtanger, Adv.

The Applicant in CrimApp 4002/11:  The State of Israel

V.

The Respondents in HCJ 2442/11:         1.     The Speaker of the Knesset

                                                                2.     The Government of Israel

The Respondents in CrimApp 4002/11: 1.     Hagai Zaguri

                                                                2.     Ramy Azran

                                                                3.     Yossi Mirilashvili

                                                                        Petition to Grant an Order Nisi and an Interim Order

                                                                        and a Request to Extend a Detention

Date of Session:                                           12^th of Tamuz, 5771 (July 14, 2011)

On behalf of the Petitioner

in HCJ 2442/11:                            Himself; Adv. Guy Halevy

On behalf of the Applicant

in CrimApp 4002/11:                    Adv. Shaul Cohen

On behalf of Respondent 1

in HCJ 2442/11:                            Adv. Dr. Gur Bligh

On behalf of Respondent 2

in HCJ 2442/11:                            Adv. Aner Helman

On behalf of Respondent 1

in CrimApp 4002/11:                    Adv. Avigdor Feldman

On behalf of Respondent 2

in CrimApp 4002/11:                    Adv. Moshe Sherman

J U D G M E N T

President A. Grunis:

1.The question of the legality of two arrangements in the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (hereinafter: the "Detention Law") stands at the center of the petition before us. These arrangements were added to the Detention Law as part of the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 8) Law, 5771-2011 (hereinafter: the "Amendment to the Detention Law" or the "Law") which was legislated by the Knesset on March 14, 2011. The first arrangement amends Section 53 of the Detention Law. This arrangement provides that from now on, appeals to the Supreme Court on District Court decisions in appeals on Magistrate Court decisions regarding matters of detention, release, violation of bail or motions for reconsideration, will be appealed by permission and not as of right. The first arrangement therefore provides that, from now on, the option of a second appeal will be by permission only. The second arrangement amends Section 62 of the Detention Law and provides that a Supreme Court judge will be permitted to extend the period of detention of a defendant who is detained until the end of proceedings, beyond nine months, for a period of up to 150 days (and to re-order this from time to time). This, in cases in which it appears that it will not be possible to conclude the trial proceedings within a period of 90 days, due to the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges.

Background

2.The Criminal Procedure (Enforcement Powers – Detention) (Various Amendments) Legislative Memorandum, 5770-2010, upon which the Amendment to the Detention Law was enacted, detailed the reasoning for the new arrangements, which were incorporated into the Detention Law. It emerges from the legislative memorandum that the purpose of the first arrangement, which, as stated, addresses the revocation of the right to a second appeal and its transformation into an appeal by permission, was to reduce the number of detention hearings being held at the Supreme Court (hereinafter: the "First Arrangement"), and this is what was written in the memorandum:

"In light of the heavy workload imposed on the Supreme Court and the scope of appeal hearings, including "third instance" appeals, it is recommended to amend the law such that it will grant only one right of appeal on decisions regarding detention, release, violation of terms of bail, decisions on motions for reconsideration, while allowing the option of a second appeal by permission only. Additionally, in order to prevent courtroom hearings regarding the motion for permission to appeal, and in order to streamline the process, it is recommended that the Supreme Court hearing the second appeal (on a District Court's decision in an appeal) be authorized to dismiss an application in limine, based on the reasons detailed in the motion for permission to appeal, if it did not find there to be a cause justifying granting the application."

The purpose of the Second Arrangement, which addresses the extension of the period of detention until the end of proceedings to a period of up to 150 days, was to enable flexibility in extending detentions beyond the nine months prescribed in the Law, in unusual cases in which it is clear in advance that the maximum time period for extending the detention – 90 days – is not sufficient to exhaust the legal proceedings, even given efficient and practical management of the trial. The section specified the circumstances in which, in general, an extended detention extension will be necessary. For example, in cases of complex serious crimes or in cases in which there are a large number of defendants or witnesses (hereinafter: the "Second Arrangement").

3.A bill in the spirit of the said legislative memorandum (The Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010) was presented to the Knesset on July 13, 2010, as a government bill. On July 21, 2010, the Knesset plenum passed the bill in the first reading, and it was sent to the Constitution, Law and Justice Committee, to be deliberated and prepared for the second and third readings. The committee held two meetings regarding the bill. On March 14, 2011, the bill was debated in the Knesset plenum, in accordance with the updated draft that was prepared by the committee. The Knesset passed the entire bill in the second and third readings on that same day.

It will be noted that the First Arrangement, which addresses the right of a "third instance" appeal, underwent a number of changes over the years. At first, in Amendment no. 10 of the Detention Law of 1998 (S.H. 5748 no. 1261) the legislator distinguished between the right of a detainee to a second appeal (meaning, an appeal before the filing of an indictment) and the right of a defendant to a second appeal (meaning, an appeal after an indictment has been filed). Hence, it was prescribed that a detainee, a person released on bail, and a prosecutor may, as of right, appeal for the second time a decision regarding detainment, release, or a motion for reconsideration. In contrast, a defendant may only appeal "in a third instance" if given permission to do so by a Supreme Court judge. This provision was amended in 1995 (S.H. 5755 no. 1514), and the distinction between a "third instance" appeal prior to the filing of an indictment or thereafter was revoked, and a right to a second appeal was granted in both cases. In 1997 this section was revoked in its entirety, and was replaced by the arrangement, the change of which is deliberated in the petition before us (and which, as mentioned, allowed a second appeal as of right).

4.Here is the wording of the arrangement, as currently prescribed in the Detention Law. For the sake of convenience, the relevant statutory clauses are presented in their entirety and the additions to the Detention Law, which are the subject of our discussion, appear in bold:

The Parties' Arguments

5.The Petitioner in HCJ 2442/11, an attorney by profession, filed his petition as a public petitioner. He requests that the Court declares the Amendment to the Detention Law void, based on two arguments. The first and main argument is a procedural argument and it relates to the legislative process of the Amendment to the Detention Law. According to this argument, during the legislative process, the Knesset deviated from the specific provisions prescribed in Sections 126 and 128 of the Knesset by-laws (hereinafter: the "By-Laws"), which delineate the manner of debating government bills. The Petitioner points to two central flaws in the process: First, after a reservation to a certain section was rejected, a separate vote was not conducted on the wording of the section as proposed by the Constitution, Law and Justice Committee (hereinafter: the "Constitution Committee"), but rather a vote was held on the wording of the section as proposed by the Constitution Committee together with the subsequent section, with respect to which no reservation had been submitted. This vote was conducted contrary to what is prescribed in Section 126 of the By-Laws, according to which it is necessary to vote separately on each section of the law with respect to which reservations were submitted. The second flaw relates to the fact that the chairperson of the Constitution Committee did not respond to the reservations that were submitted to some of the sections of the law, despite the fact that Section 126(f) of the By-Laws explicitly provides that "The chairperson of the committee or whomever is appointed thereby or by the committee, shall respond to those who submitted reservations." In light of these flaws, the Petitioner claims, the Knesset could not vote on the Law at the third reading, and therefore it is void ab initio.

6.The second argument raised by the Petitioner is an argument of substance. According to the Petitioner, the arrangements that were prescribed in the Amendment to the Detention Law are contrary to the Basic Law: Human Dignity and Liberty. The crux of the Petitioner's arguments was directed at the revocation of the right to a second appeal as of right and its transformation into an appeal by permission only. According to the Petitioner, one cannot compare between the scope of the right to appeal granted to a defendant in a primary proceeding and the scope of the right to appeal of a detainee, since the former is not necessarily being detained while his trial is being held. Furthermore, according to the Petitioner, the amendment to the Law is wrong in not distinguishing between an appeal filed by the detainee and an appeal filed by the State. According to this argument, one cannot compare between the right of the detainee to a second appeal on a decision to re-detain him (after the Magistrate Court ordered his release from detainment), and the right of the State to appeal a decision to release a defendant. According to the Petitioner, where the State appeals the Magistrate Court's decision, and the District Court accepts the appeal and orders detention, the detainee is not entitled even to one appeal as of right. Therefore, his rights are infringed. As for the second arrangement, about the possibility of extending a defendant's detention period until the end of proceedings for a period of up to 150 days, the Petitioner argued that the Law denies the detainee's right to have his matter examined and reviewed by a Supreme Court judge knowingly and in advance. Therefore, it is argued, this arrangement is not proportionate, does not befit the values of the State of Israel, was not meant for a proper purpose and infringes on a detainee's right of freedom in a scope which is greater than necessary. It will be noted that in the petition, the Petitioner also argued against the legality of an additional arrangement in the Amendment to the Detention Law, which allows the Court to order a maximum 72 hour detention given a prosecutor's declaration regarding an intention to motion the Supreme Court to extend the detention. In the hearing we held in the petition, the Petitioner stated that he withdraws his arguments against the legality of this arrangement.

7.It will be noted that CrimApp 4002/11 was joined to the hearing in the petition before us. In this case, a detention extension of 150 additional days beyond the nine months was requested. Incidentally to the hearing regarding the application to extend the detention, the defendants raised arguments regarding the legality of the Second Arrangement. In the decision dated June 14, 2011, it was ruled that the constitutional arguments that were voiced in the hearing before us and that primarily relate to the Second Arrangement, will be examined in the framework of the petition before us (Justice H. Melcer).

The Respondents' Response

8.The Knesset and the State (hereinafter together: the "Respondents"), filed separate responses to the petition, but their arguments were similar. Therefore, we shall present the essence of their arguments together. Both the Knesset and the State rejected both parts of the Petitioner's arguments. The Knesset's response specified the proceedings that preceded the vote on the Law. The Knesset confirmed in its response that Member of Knesset Ofir Akunis, who chaired the session, added the vote on Section 2 – to which reservations had not been submitted, to the vote on Section 1 of the bill, to which a reservation had been submitted and was rejected. However, according to the Knesset, the process was not flawed, and certainly not by a "flaw that goes to the root of the process", which would justify this Court's intervention in the legislative process. While the Respondents did not deny that according to the provisions of the By-Laws, the Knesset should have put each section for which reservations had been submitted to a separate vote, they argue that the fact that the vote was held for a section for which a reservation had been submitted along with a section for which a reservation had not been submitted, does not constitute a flaw that goes to the root of the matter. The Respondents argue that, as is apparent from the minutes of the Knesset plenum session, during the course of the second reading, the plenum de facto voted separately on each of the reservations that were submitted to the bill, and rejected them all. It further emerges from the minutes that in the votes in the second and third readings the Knesset plenum also positively confirmed the wording of all of the sections of the Law, in accordance with the proposal of the Constitution Committee. In the Knesset's response it was further argued that the technical flaw did not lead to any substantive impairment of the legislative process or to its fundamental objective, i.e., the realization of the right of participation by the Members of Knesset. This, so it was argued, is because Members of Knesset were given two opportunities to consider their position regarding the bill. It is argued that in fact, this practice of voting in an aggregated manner on a section of law for which reservations were submitted, together with an adjacent section for which no reservations were submitted, is customary at the Knesset in many cases. Therefore, the Knesset argued it should be deemed a kind of custom that projects onto the proper interpretation of Section 126 of the By-Laws. The Knesset further argued that pursuant to Section 126(c) of the By-Laws, the chairperson of the session may vote on consecutive sections in an aggregated manner, unless a Member of Knesset demanded to vote separately on each or any of them. In this case, it is argued, Member of Knesset Dov Khenin – who presented the reservations – did not request such a vote. According to the Knesset, this indicates that the Members of Knesset were not of the opinion that the voting process was significantly flawed or that their right to participate in the voting process was infringed.

9.The Respondents also rejected the argument that the chairperson of the Constitution Committee did not respond to the reservations to the bill. They argue that a review of the minutes of the Knesset session indicates that during the presentation of the bill the chairperson of the Constitution Committee explicitly related to the reservations and explained why they should be rejected. Therefore, the Respondents were of the opinion that the flaws in the legislative process against which the Petitioner is arguing, are simply technical flaws that at most constitute a slight deviation from the provisions of the By-Laws, and have no real impact on the legislative process.

10.The Respondents also requested to reject the substantive constitutional arguments that the Petitioner raised. In the Knesset's response it was even argued that these arguments should be dismissed in limine, since they were raised in a general manner without specifying the substance of the constitutional infringement or the reason why the infringement does not allegedly comply with the terms of the limitation clause. To the point, the Respondents argued that an examination of the substance of the Amendment to the Detention Law does not reveal an infringement of the detainees' basic rights, since the amendment does not relate to the original decision regarding the detention and does not deny the detainee's right to appeal the detention decision. The revocation of the right to a "third instance" appeal (i.e., a second appeal), as argued in the State's response, does not lead to an infringement of the constitutional right of freedom, since the freedom of the detainee or of the defendant was already denied by a previous judicial instance. It was further argued that the basic rights to freedom and dignity do not include the right that the matter of a concrete detention be heard by a third judicial instance – neither as of right nor by permission, as is indicated in the provisions of Section 17 of the Basic Law: The Judiciary, which deals with the right to appeal in Israeli law.

11.The Respondents also disagreed with the Petitioner's argument that there is an infringement of constitutional rights in light of the lack of distinction between an appeal submitted by the detainee and an appeal submitted by the State. They argue that it is not unusual because when a State’s appeal on the acquittal of the defendant as part of the primary trial is granted, the defendant also does not have a right to appeal such a judgment. In any event, it was argued, the detainee will have the option of presenting its arguments before an additional instance as part of the appeal procedures, regardless of the identity of the party appealing. This last matter, as it emerges from the Knesset's response, was also discussed at the Constitution Committee, where it was argued that it should be assumed that upon examining motions for permission to appeal, the Court will examine, among its considerations, whether the decision to detain was given following an appeal of the State and whether this prejudices the detainee in such a manner that justifies granting permission to appeal.

12.The Respondents also requested to reject the Petitioner's arguments regarding the constitutionality of the Second Arrangement, which allows a Supreme Court judge to extend a detention until the end of proceedings, for a period of up to 150 days. The State argued that since this amendment constitutes a new arrangement, which authorizes ordering the detention of a person, it infringes on the constitutional right of freedom. However, it was argued, the infringement of the right is limited and proportionate, since it is limited to unusual cases and reflects the balance underlying the bill between the principle of the finality of the process and the types of matters which should be examined in the Supreme Court, and the realization of the substantive rights of detainees and defendants.

13.It will be further noted that in its response, the State elaborated on the customary practice at the Ministry of Justice pursuant to which Ministry initiatives of legislation amendments in significant matters and matters of principle in the field of criminal procedure and evidence laws are presented for examination to the Minister of Justice's Criminal Procedure and Evidence Laws Advisory Committee (hereinafter: the "Committee"). The Committee is appointed by the Minister of Justice and is headed by a Supreme Court judge. The Committee is comprised of three additional judges (two District Court judges and one Magistrate Court judge), the Deputy Attorney General (Criminal), representatives of the State's Attorney, representatives of the Public Defender, representatives of the Israel Bar Association, a lawyer from the private sector, representatives of the Israel Police and representatives from academia. The State noted in its response that both of the arrangements being examined in this petition were presented to the Committee and that after the Committee examined them it recommended that the Minister of Justice act to amend the Detention Law so that the said arrangements would be prescribed.

Discussion

The Arguments regarding the Legislative Process of the Amendment to the Detention Law

14.The Petitioner's arguments regarding flaws in the legislative process of the Amendment to the Detention Law focus on the proceedings in the Knesset plenum during the second reading. According to the Petitioner, the legislative process did not comply with the provisions of Sections 126 and 128(a) of the Knesset By-Laws. Section 126 of the Knesset By-Laws, entitled "Proceedings for Second Reading" and Section 128(a) entitled "Voting at Second Reading", prescribe as follows:

126. (a) The discussion in the second reading shall begin with a speech on behalf of the committee, by the chairperson of the committee or a committee member appointed thereby for such purpose, or, in the chairperson's absence, by a committee member appointed thereby for that purpose by the committee, and the speech on behalf of the committee shall be deemed as a proposal to adopt the bill in the second reading.

(b) The chairperson shall put each of the sections of the bill to a separate vote.

(c) The chairperson may put consecutive sections for which no reservations were submitted to a vote together, unless a Member of Knesset demanded to vote separately on each or any of them or on one of them.

(d) If a reservation was recorded for a specific section, the person submitting the reservation shall be given the right to speak for five minutes to explain the reservation.

(e) The chairperson may, with the consent of the person submitting the reservation and of the chairperson of the committee, combine the explanations for the reservations of a number of sections at once.

(f) The chairperson of the committee, or whomever appointed thereby or by the committee for such purpose, shall respond to the reservations.

(g) The right granted to each member of government to speak on behalf of the government at any stage of the discussion is also granted, at the second reading, to the deputy minister whose ministry is in charge of implementing the proposed law.

…

128 (a) The chairperson shall first vote on the proposal of the party making the reservation; if the proposal by the party making the reservation is not adopted, the section, as drafted by the committee, shall be voted upon; if the proposal of the party making the reservation is adopted, he shall vote on the section as drafted in line with the reservation.

15.There is no dispute that Section 126 of the By-Laws explicitly provides that the chairperson of the session must put the sections of the bill to a vote one at a time, unless there are consecutive sections for which reservations were not registered – in which case the chairperson may put them to a collective vote (assuming he was not requested to act otherwise by one of the Members of Knesset). There is also no dispute that in accordance with that stated in Section 126 of the By-Laws, the chairperson of the Constitution Committee (or another committee member appointed thereby) should have presented the bill to the plenum and responded to reservations to the bill.

In the case at hand, the legislative process indeed did not precisely correspond with the provisions of Sections 126 and 128 of the Knesset By-Laws. The chairperson of the session did not act in accordance with Section 126(c) in all that relates to voting on Section 1 of the bill (relating to the revocation of the right to appeal and its transformation into an appeal by permission), when it put Section 1 of the bill, with respect to which a reservation had been registered, to a vote along with Section 2 of the bill, with respect to which a reservation had not been registered. Additionally, the chairperson of the Constitution Committee did not respond to the reservations after these were presented by Member of Knesset Dov Khenin, but rather, as argued in the Knesset's response, the reservations should be deemed as having been given at the outset of his statement, when he presented the bill to the plenum. The question that arises is whether these deviations from the provisions of the By-Laws should lead to the conclusion that the Law is void or voidable, as the Petitioner claims.

The Court's Intervention in the Legislative Process

16.The legislative processes in Israel are prescribed, pursuant to Section 19 of the Basic Law: The Knesset, in the Knesset By-Laws. The Knesset By-Laws "prescribe provisions, pursuant to which the Knesset's authorities must act, in the house's 'internal' procedures" (HCJ 652/81 Sarid v. The Speaker of the Knesset, PD 36(2) 197, 202 (1982); hereinafter: the "Sarid Case"; see also Tzvi Inbar "The Legislative Processes in the Knesset" Hamishpat A 91 (5753)). Thus, in order for a "law" to pass, a series of provisions prescribed in the By-Laws, must be satisfied (see, HCJ 975/89 Nimrodi Land Development Ltd. v. The Speaker of the Knesset, PD 45(3), 154, 157 (1991); hereinafter: the "Nimrodi Case"). At the basis of the legislative process is the obligation to conduct three hearings in the Knesset plenum and to enable a discussion in the Knesset committee relevant to the bill, in order to prepare the bill for the second and third readings (ibid, ibid). The Knesset By-Laws distinguish between a private bill, which is presented by one or more Members of Knesset and a bill presented on behalf of the government. The Seventh Chapter of the Knesset By-Laws, which includes Sections 126 and 128, which are relevant to the case at hand, addresses discussions regarding bills on behalf of the government. This chapter outlines the legislative process from the submission of the bill to the Knesset, through the first reading and the discussions at the relevant Knesset committee and ending with tabling the bill for the second and third reading. Sections 126 and 128 focus specifically, on the particular procedures of voting on the bill at the second and third reading.

17.A series of rulings by this Court prescribes the conditions upon which the Court will intervene in internal parliamentary proceedings, and specifically, the circumstances in which a statue would be declared void on the grounds of flaws in the legislative process (see, inter alia, HCJ 4885/03 Israel Poultry Farmers Association Agricultural Cooperative Society Ltd v. The State of Israel, PD 59(2) 14 (2004) (hereinafter: the Poultry Farmers Case); HCJ 5131/03 Member of Knesset Litzman v. The Speaker of the Knesset, PD 59(1) 577 (2004)). In the first cases in which the scope of this Court's intervention in internal parliamentary proceedings was examined, the Court ruled that even though it is authorized to examine the Knesset's internal decisions, it will tend to intervene in internal parliamentary proceedings in a limited way, taking into consideration the extent of the alleged infringement of the fabric of the parliamentary relations (see, HCJ 761/86 Miari v. The Speaker of the Knesset, PD 42(4) 868 (1989) (hereinafter: the "Miari Case"); the Sarid Case; the Nimrodi Case). In accordance with this criterion, it was prescribed that when the alleged infringement is slight and "does not impact the structural foundations of our parliamentary system" (the "Sarid Case", page 204), the Court will tend to avoid intervening in the Knesset's internal working procedures (see also, the Miari Case, page 873; Suzie Navot "Twenty Years After the "Sarid Test": Revisiting Judicial Review of Parliamentary Decisions" Mechkarei Mishpat 19 721 (5762-5763)).

18.This case law, which allows limited review of the internal work of the Knesset, was interpreted even more narrowly in matters related to judicial review of the legislative process. Justice Barak elaborated on this in the Miari Case, on page 873, when ruling that:

"The High Court of Justice is not required to exercise every power with which it is vested. The Court has discretion in exercising the power. Exercising this discretion is of particular importance in matters related to the judicial review of the activity of entities of the legislative authority. Therefore, we will intervene in internal parliamentary proceedings only when there is a allegedly significant infringement which prejudices substantive values of our constitutional system… This self-restraint must be, first and foremost, exercised when the process in which the intervention is requested is the legislative process itself."

The constitutionality of the Arrangements Law was discussed during this Court's intervention in the legislative process in the Poultry Farmers Case. In this case Case it was held that the criteria for the Court's intervention in the legislative process, and for the declaration of a law as void due to flaws in the process of its legislation. Therefore, it was held that "the Court must examine, in each and every case, whether it was tainted by a flaw that "goes to the root of the process" which would justify judicial intervention, and that only a flaw that severely and significantly infringes on the fundamental principles of the legislative process in our parliamentary and constitutional system will justify judicial intervention in the legislative process (the Poultry Farmers Case, page 42, original emphases). The fundamental principles of the legislative process, so it was held in the Poultry Farmers Case, include, inter alia, the principle of the majority rule, the principle of formal equality – pursuant to which each of the Members of Knesset has one vote, the principle of publicity and the principle of participation – which guarantees the right of each Member of Knesset to participate in the legislative process (ibid, page 43).

19.Does the case before us indeed involve such a flaw that “goes to the root of the process" and severely and significantly infringes on the fundamental principles of the legislative process? The answer is no. The underlying purpose of the process prescribed in the Seventh Chapter of the Knesset By-Laws, and particularly in Sections 126 and 128 which are relevant to the case at hand, is to ensure that the reservations to the sections of the bill being voted on are heard. An additional purpose underlying the legislative process is to ensure that the Members of Knesset choose, in accordance with their vote, one of the drafts for each of the sections of the bill – either the draft that was proposed by the Constitution Committee or the draft that was proposed by the Members of Knesset who raised reservations. In order to realize these purposes, Section 126 prescribes a detailed procedure, in the framework of which the Members of Knesset are presented with drafts of the sections proposed in the bill, and those raising reservations are given an opportunity to express their position. Section 126 further prescribes that the chairperson of the relevant committee (or someone on his behalf) respond to the reservations and present the committee's position regarding the arguments that were raised by those with reservations. After the various positions are presented to the Members of Knesset they are requested to vote in the second reading. The chairperson of the session is required to put each section and reservation to a vote one at a time to ensure that the Members of Knesset are aware that these sections were subject to some kind of dispute, and that by their vote they are supporting one of the proposed drafts.

20.In the case before us the chairperson of the session acted properly with respect to most of the sections in the bill, but did not do so when putting section 1 of the bill to a vote. A review of the minutes of the session reveals that the Members of Knesset first voted on the reservation regarding section 1, and only after it was rejected did they move on to vote on section 1, but along with section 2 of the Law. Indeed, according to the provisions of the By-Laws, the Members of Knesset should have voted on section 1 separately from the vote on section 2. However, this deviation does not constitute "a substantial flaw that goes to the root of the process". Due to the separate vote on the reservation, which preceded the vote on the section, it appears that a distinction was made between the draft proposed by those who raised the reservation and the draft that was proposed by the committee. As such, the primary purpose of the legislative process was realized, and therefore no room for the argument that the root of the process was flawed in a manner justifying declaring the Law void.

21.The argument that the legislative process was substantively flawed because the chairperson of the Constitution Committee did not respond to the reservations that were raised by Member of Knesset Dov Khenin, is also to be rejected. As mentioned, the position of the Knesset was that the chairperson of the Constitution Committee responded to the reservations when presenting the Law for the second and third reading. Personally, I doubt if the intention of the section was an advance response to reservations that are yet to be presented during the discussion. As stated above, Section 126 prescribes a certain chronological sequence in order to allow the committee that examined the bill to convince the Members of Knesset to support the bill in accordance with the draft proposed. Reversing the order – so that the response to a potential reservation is made before the reservation is presented –misses to some extent the point underlying the section. Therefore, it would be better had they avoided that and acted in accordance with the sequence prescribed in Section 126. However, in the case at hand the minutes of the session indicate that this deviation did not lead to a significant flaw at the root of the process. It seems that Member of Knesset David Rotem, the chairperson of the Constitution Committee, knew of the reservation that Member of Knesset Dov Khenin would present after him, and therefore explicitly stated:

"The Hadash group proposed a few reservations which request not to cancel the right to a second appeal in decisions regarding detention and to allow the extension of detention beyond the nine months by 100 days instead of by the 150 days proposed by the committee, and to enable a "bridging" detention of 36 hours instead of 72. We request to reject the reservations, which upset the balance between making the court procedures more efficient and the detainee's rights" (Divrei Haknesset 36 42 (2011)).

After Member of Knesset Dov Khenin finished presenting the reservations, the chairperson of the session turned to Member of Knesset Rotem and asked him if he wishes to respond. Once he received a negative answer (from Member of Knesset Ze’ev Bielski) the chairperson said: "He doesn't want to, we shall proceed immediately to voting" (Minutes of the Knesset plenum dated March 14, 2011, page 47. The Minutes were attached to the petition and marked Annex C). It merges from here that the option of relating to the reservations was examined but rejected, probably because of the things voiced by Member of Knesset Rotem when presenting the bill to the Members of Knesset. As mentioned, it would have been better had the committee's response to the reservations been presented after they had been presented to the Members of Knesset, but in the case at hand, it appears that Member of Knesset Rotem's reference satisfies the principle need for a reference to the merits of the reservations, even if the sequence in which it was presented constituted a procedural violation of the provisions of the By-Laws. It will be parenthetically noted that in any event those who could have been prejudiced by the fact that the reference to the reservations was given in advance and not after they were presented to the committee, are those supporting the bill and not those objecting to it; since the response to the reservation is intended to convince the Members of the Knesset to vote for the draft proposed by the committee and not by those raising reservations.

Inconclusion,  although the Members of Knesset deviated from the provisions of the By-Laws in the legislative process, this deviation was not a flaw at the root of the process, which infringes on the fundamental principles of the legislative process in Israel, in a manner that would lead to declaring the Law void.

The Arguments regarding the Arrangements in the Law Infringing on the Right of Freedom

22.The Petitioner's second argument was directed to the merits of the arrangements. As mentioned, according to the Petitioner, these arrangements result in disproportionate infringement of the right of freedom. It will be noted at the beginning that the Petitioner's arguments in this matter were general and unclear. The Petitioner did not specify the nature of the infringement of the right of freedom, and did not clarify why the infringement does not satisfy the terms of the limitation clause. On these grounds alone the Petitioner's arguments could have been rejected (on burdens of proof in constitutional petitions see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village, PD 49(4) 221, 428-429 (1995) (hereinafter: the "Mizrachi Bank Case"); HCJ 366/03 The Association for Commitment to Peace and Social Justice v. The Minister of Finance, 2nd paragraph of Justice D. Beinisch's judgment (December 12, 2005)). Nevertheless, and in light of the importance of the main constitutional right discussed in the petition, we shall discuss the merits of this argument (see in this context, HCJ 6055/95 Tzemach v. The Minister of Defense, PD 53(5) 241, 268 (1999); hereinafter: the "Tzemach Case").

The Stages of Judicial Review

23.As is known, the constitutional review customary in our legal system is divided into three main stages. At the first stage (the "Infringement Stage"), the Court examines whether the law infringes on a constitutional right. If it is found that the law does not infringe on a right, the constitutional examination ends. If it is found that the law infringes on a constitutional right, the examination proceeds to the second stage, in which the Court examines whether the law satisfies the conditions prescribed in the limitation clause. The limitation clause conditions the validity of an infringement on the satisfaction of cumulative conditions: the infringement is prescribed by a statute or pursuant to a statute by virtue of explicit authorization therein; the infringing statute befits the values of the State of Israel; the infringing law is intended for a proper purpose, and the last condition, the proportionality condition, requires that the infringement is no greater than necessary. If the law satisfies the four conditions of the limitation clause, the infringement is constitutional, if it doesn't - the constitutional examination reaches the third and final stage, the consequence stage. At this stage, the Court is required to rule as to the consequences of the constitutional infringement (for the stages of the constitutional examination, see, among many others, the Mizrachi Bank Case, page 428; HCJ 1715/97 The Israel Investment Managers Association v. The Minister of Finance PD 51(4) 367, 383-389 (1997); HCJ 1661/05 Hof Azza Regional Council v. The Israel Knesset, PD 59(2) 481, 544-548 (2005)).

24.Each of the constitutional examination stages has an important purpose in the entire constitutional analysis. The first stage of the constitutional examination (the "Infringement Stage") is meant to determine the conceptual scope of the constitutional right. The boundaries of the constitutional right are outlined at this stage, by interpreting the relevant right and balancing it with other rights. The second stage of the constitutional examination (the "Limitation Clause") is meant to determine the degree of protection of the right, and the "boundaries" of the legislator and the restrictions imposed on it when infringing on constitutional rights (see, HCJ 10662/04 Hasan v. The National Insurance Institute, paragraph 24 of President D. Beinisch's judgement (February 28, 2012)). Obviously, there is a reciprocal relation between the two stages. The limits of the constitutional right are not only determined by outlining the conceptual scope of the right but also by outlining the degree of protection they shall be given. However, the distinction between the stages should not be blurred. Each of the stages has its own balances and independent objectives. Therefore, in my opinion, it is better not to skip the first stage of the constitutional examination, even if ruling at this stage is not simple, unless circumstances justify skipping this stage. This is the case, even if the discussion at the second stage will lead to the conclusion that the law satisfies the proportionality criteria (see CrimA 4424/98 Silgado v. The State of Israel, PD 56(5) 529 (2002)). Interpreting the right at the first stage, in order to determine its extent, and ruling whether there is an infringement of the constitutional right, will assist clarifying the scope of the constitutional rights. It will ensure that the Court will not be swamped with motions to examine the constitutionality of each and every law (see the Mizrachi Bank Case, Justice Y. Zamir's position, on pages 470-471; see also my position in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, PD 61(2) 202, 513-514 (2006); hereinafter: the "Adalah Case"). It will prevent debasing and diluting the constitutional rights and weakening the protection they are granted against infringement (regarding the matter of the two stages of the constitutional examination, see HCJ 10203/03 "The National Census" Ltd. v. The Attorney General, PD 62(4) 715 (2008)). Indeed, once two central stages of the constitutional discussion have formed in our system, each of them must be granted its proper place. We will turn then to examining the first stage in the case at hand.

Do the Arrangements of the Law Infringe the Right of Freedom?

25.With respect to the question whether there is an infringement of the right of freedom, the Respondents distinguished between the two arrangements discussed in this petition. As for the First Arrangement, which cancels the right to a second appeal and transforms it into an appeal by permission only, the Respondents were of the opinion that this arrangement does not infringe on constitutional rights at all, since the First Arrangement does not address the original decision regarding the detention and does not deny the right to appeal the detention decision, but rather only determines that the second appeal will be by permission and not as of right. As for the Second Arrangement, the State agreed that since it constitutes a new statutory provision that authorizes the Court to extend the detention of a person who has been detained until the end of proceedings by 150 additional days, it should be deemed an arrangement that infringes on the right of freedom. The dispute between the parties, thus, relates to the question whether the First Arrangement infringes on the right of freedom.

26.As we elaborated above, the first stage in the constitutional examination requires the interpretation of the constitutional right. This interpretation, as President A. Barak said (in a minority opinion), "Does not restrict nor expand. This is an interpretation that reflects the Israeli society's understanding of the substance of human rights, based on their constitutional structure and in accordance with the constitutional measurements that were prescribed in the basic laws, all while considering that which is of value and fundamental and rejecting that which is temporary and passing (the Adalah Case, page 356). Does a constitutional interpretation of the right of freedom lead to the conclusion that the right incorporates the option of filing a second appeal as of right on decisions regarding matters of detention, release, violating terms of bail or a motion for reconsideration (and on decisions of the District Court regrading matters of bail)?

27.I believe that there is no dispute that the right of freedom, in general, and the right of freedom from detention, in particular, is a fundamental right in Israel. It is anchored in Section 5 of the Basic Law: Human Dignity and Liberty, which prescribes that: "There shall be no deprivation or restriction of the freedom of a person by imprisonment, detention, extradition or otherwise" "Personal freedom" as Justice Y. Zamir says, "is a constitutional right of first degree, and practically speaking it is also a prerequisite for exercising other basic rights… personal freedom, more than any other right, it is what makes a person free. Therefore, denying personal freedom is an especially severe infringement" (the Tzemach Case, page 261). Detention infringes on a person's freedom in the most basic way. Detention denies the freedom from a person who has not yet been convicted by law and is still presumed innocent. At times, detention denies the freedom of a person who is only suspected of committing an offense, and his detention is necessary solely for interrogation purposes. Therefore, the infringement of freedom, which is the direct consequence of the detention, requires taking cautionary measures prior to instructing that a person be detained (see CrimApp 537/95 Ganimat v. The State of Israel PD 49(3) 355, 405 (Deputy President A. Barak) (1995); hereinafter: the "Ganimat Case").

28.The Respondents' position, as mentioned, was that there is no infringement of the right of freedom since the First Arrangement does not address the actual detention decision itself, but rather the possibility of appealing such decision as of right. Indeed, there is no dispute that the detention itself infringes on the right of freedom in the most substantive manner. However, does it follow that only the original decision regarding the detention infringes on the right of freedom? Does an infringement of the procedural frameworks that are meant to realize the right of freedom and protect it, not amount, at least in some cases, to an infringement of the right of freedom itself? In other words, does the right of freedom also encompass the procedural process that accompanies the detention decision? In my opinion, interpreting the right of freedom as applying only to the detention decision is an excessively limiting interpretation of the scope of the right. The importance and centrality of the right of freedom – in and of itself and as a means to promote and realize other rights – requires a broader interpretation of the right, so that it will also apply to procedural protections and procedural arrangements that are directly related to the right and its realization. Interpretation of this spirit was adopted in previous rulings of this Court. For example, it was held that the legitimacy of denying freedom depends of the identity of the entity authorized to deny the freedom and the manner in which freedom is actually denied (see, HCJ 2605/05 The Academic Center for Law and Business (Registered Amuta) v. The Minister of Finance, paragraphs 29-30 of President D. Beinisch’s judgment (November 19, 2009)). It was further held that maintaining a fair detention process is a constitutional principle that derives from the protection of the rights to freedom and dignity (CrimApp 8823/07 Anonymous v. The State of Israel, paragraph 19 of Deputy President E. Rivlin's judgment (February 11, 2010); hereinafter: the "Anonymous Case"). Indeed, this interpretation of the right of freedom, as a right that also applies to procedural protections directly and tightly related to the protection of the right, also coincides with the customary principle in our system that constitutional rights are to be interpreted from a "broad perspective" (see the words of Deputy President S. Agranat in FH 13/60 The Attorney General v. Matana, PD 16 430, 442 (1962); HCJ 428/86 Barzilay v. The Government of Israel, PD 40(3) 505, 595 (1986); see also President A. Barak's words that the "Constitutional interpretation is not pedantic, not legalistic… indeed, constitutional interpretation is from a 'broad perspective'… but the constitutional interpretation is a legal interpretation; it is part of our interpretation theory" HCJ 4128/02 Adam, Teva V’din - Israel Union for Environmental Defense v. The Prime Minister of Israel, PD 58(3) 503, 518 (2004)).

29.In the matter at hand, the question is whether the option to file a second appeal as of right and not by permission is one of those procedural protections directly and tightly related to the right of freedom, such that denying it constitutes an infringement of the right itself (although it is important to note that the right to appeal, in and of itself, is considered a provision of substantive law as opposed to procedural law (see HCJ 87/85 Arjub v. IDF Forces Command, PD 42(1) 353, 361 (1988); hereinafter: the "Arjub Case")). In my opinion the answer is no. Without setting hard rules regarding the procedural protections that will fall under the rubric of the right of freedom – a matter which should be examined on the merits of each case – it cannot be said that the scope of the constitutional right of freedom expands as far as granting the option of a second appeal on detention decisions as of right. This conclusion can be inferred, inter alia, from a review of the scope of the right to appeal in our legal system.

30.Section 17 of the Basic Law: The Judiciary provides the fundamental rule that "A judgement of a court of first instance, other than a Supreme Court judgment, can be appealed as of right". In a series of judgments this Court has discussed the nature of the right to appeal (see the Arjub Case, on pages 360-363; CrimA 111/99 Schwartz v. The State of Israel, PD 54(2) 241, 271-272 (2000) and the references appearing therein; LCrimA 3268/02 Kozali v. The State of Israel, paragraph 6 of the decision (March 5, 2003)). Although the importance of the right to appeal has been recognized in case law, the question of its constitutional status in not sufficiently clear (see, for example, Shlomo Levin, "Basic Law: Human Dignity and Liberty and Civil Procedure" Hapraklit 42 451, 462-463 (5755-5756); but see the positions of Registrar Y. Mersel in LCivA 9041/05 "Imrei Chaim" Registered Amuta v. Aharon Wisel (January 30, 2006) that since the right of appeal was anchored in the Basic Law: The Judiciary, it is customary to view it as a right that has a constitutional status. See also: Asher Grunis, Tel Sela "The Courts and Procedural Arrangements" The Shlomo Levin Book 59, 64-67 (2013). In any event, it has been held that even if the right to appeal is deemed a constitutional right, then as all the other rights, it also is a restricted and not absolute right, and it is weighed against organizational principles of stability and finality (See CApp 3931/97 Efraim v. Migdal Insurance Company Ltd. (August 5, 1997)).

31.The central rule in our system, pursuant to Section 17 of the Basic Law: The Judiciary, grants a litigating party the right that its matter be heard in only two instances. A hearing in a third instance will only be held, as a rule, by permission. The said Section 17 applies regardless of whether it is a criminal, civil or administrative matter, but it does not relate to interim decisions – with respect to which there is a distinction between the criminal, civil and administrative fields. In the criminal field, other than special cases, there is no right to question interim decisions. In the civil field, there is no right to appeal interim decisions, but it is possible to request permission from the appellant instance to appeal (Sections 41(b) and 52(b) of the Courts [Consolidated Version] Law, 5744-1984; see also the Courts (Types of Decisions for which Permission to Appeal will not be Granted) Order, 5769-2009; LCivA 3783/13 I.D.B. Development Company Ltd. v. Shamia (June 5, 2013)). In the administrative field, permission to appeal may only be requested with respect to certain interim decisions (see, Section 12 of the Administrative Courts Law, 5760-2000). In addition, Section 41(b) of the Courts Law provides that a District Court judgment in an appeal can be appealed to the Supreme Court if permission was granted by the Supreme Court or by the District Court in its appeal judgment (for a review of the appeal arrangements customary in our legal system, see CrimA 4793/05 Navon v. Atzmon (February 6, 2007); hereinafter: the "Navon Case").

32.It emerges from this review that a litigant has a vested right that its matter be heard only before two instances, the trial instance and the appellate instance. A hearing in a third instance is subject to receive permission from the authorized instance. This scope of the right to appeal is based on a number of foundations. First, it has been held in previous rulings of this court that the existence of a right to appeal strengthens the fairness and reasonableness elements of the judicial process and allows an additional opening to discovering errors. However, it was held that this reason alone should not enable multiple "appeals on appeals", and that "there must be a limited format that distinguishes between an appeal as of right and an appeal by permission" (the Arjub Case, on page 372). Secondly, it has been held that interpretation leads to the conclusion that a litigating party must request permission to appeal is not equivalent to denying the right to appeal (see CivApp 4936/06 Aroch v. Clal Finances Management Ltd. (September 25, 2006)). Thirdly, it has been found that "doing justice does not necessitate such a comprehensive examination of every matter" (ALA 103/82 Haifa Parking Ltd. v. Matzat Or Ltd., PD 36(3) 123, 125 (1982); original emphasis), and that limiting the right to appeal allows to define the discussion in a manner that promotes the principle of finality of the process. An additional reason that underlies this approach is the issue of the courts’ workload. It is clear that if every matter were to be brought before three instances, this would impose a heavy workload on the court system. The meaning of such overload is an infringement on the right of litigants that legal processes conclude within reasonable time. Therefore, the customary case law here is that a litigating party has one right to appeal, and that the authorized court will concede to the motion for permission to appeal in extraordinary cases only, in which there is legal or public importance that a certain matter be examined by a third instance (ibid, on pages 125-126).

33.It could be argued that in detention procedures it is necessary to deviate from the ordinary customary rules regarding the right to appeal. Thus, it would be argued that in detention procedures a different approach, which is more lenient with the detainee, is required, in light of the possible infringement of a person's freedom. Therefore, while the right to appeal, in general, includes only one appeal as of right, the right to appeal in detention matters, as a right that is protected in the framework of the right of freedom, also encompasses the option to file a second appeal as of right. I do not accept this argument. While I do not dispute the need – which is expressed in the legislation and in the rulings of this Court – to recognize the special status of detention procedures (see, for example, CrimApp 3357/03 Kaabiya v. The State of Israel (May 1, 2006); Anonymous Case, paragraphs 19-21 of Deputy President E. Rivlin's judgment; CrimApp 3899/95 The State of Israel v. Jamal PD 49(3) 164, 167 (1995)), this special status does not necessitate recognizing that the right of freedom includes a right that two different instances be required to examine a detention decision (for criticism on the right to a second appeal in detention decisions, see CrimApp 45/10 Masarwa v. The State of Israel (January 8, 2010)). In fact, accepting this position would lead to an anomaly not only between the detention laws and the other legal fields, but also within the detention laws themselves. Take for example a case in which a person was detained until the end of proceedings. Section 21 of the Detention Law grants the court to which an indictment was filed authority to order the detention of the defendant until the end of proceedings. Where an indictment was filed to the Magistrate Court, and the Court decided to detain the defendant until the end of proceedings, the detainee will be able to appeal the decision to the District Court as of right, and today, following the First Arrangement, it will be able to request permission from the Supreme Court to appeal. In comparison, a defendant against whom an indictment was filed to the District Court and the Court decided to detain him until the end of proceedings, will be able to appeal to the Supreme Court as of right, but he will not have the option to request permission from an additional instance to appeal. Will we say that the latter's right of freedom was infringed because he is not able to bring his matter before three instances? Can we not assume that the infringement of his freedom could be more severe, since in most cases detainment until the end of proceedings for an indictment filed to the District Court might continue for a more extended period of time than detainment until the end of proceedings for an indictment filed to the Magistrate Court?!

34.It follows that it cannot be said that in order to realize and protect the right of freedom, it is necessary that three instances review a detention decision. The meaning is that regardless of whether we classify the detention decision as a judgment or as an interim decision (see, for example, regarding the definition of a "judgment", CA 165/50 Epstein v. Zilberstein PD 6 1201, 1210 (1952); see also LCrimA 7487/07 Yakimov v. The State of Israel – The Head Military Prosecutor (April 16, 2008)), the fact that the detainee is not a-priori entitled as of right to have his matter heard by three instances, will not change. Furthermore, the fact that different decisions were adopted in each of the instances does not impact the scope of the right to appeal, and consequently, the right of freedom. Thus, there is no significance to the fact that a Magistrate Court chose to release a detainee while the District Court reversed that decision. The fact that conflicting decisions were given does not, in and of itself, lead to the conclusion that the detainee has a right that his matter be heard before a third instance (see the Navon Case, paragraph 7 of my judgment). The fact that different decisions were given in each of the instances is certainly a circumstance, among various circumstances, that the Supreme Court will consider when deciding if it is appropriate to concede to the motion for permission to appeal. This fact in and of itself does not create an automatic entitlement to an additional appeal as of right.

35.It is important to note that the injury that might be caused to the detainee, which is severe in and of itself, cannot justify a holding that he is entitled to be heard in three instances. There are many other situations in which a significant infringement of rights can occur, but this is not sufficient to impact the scope of the right to appeal. Suffice it to mention that there is no right of appeal at all on petitions to the High Court of Justice – the decisions of which could have a significant impact on the individual – (but rather only a petition for a further hearing, the causes for which are narrow and limited); and that there is only one right of appeal on criminal or civil judgments. Indeed, there is no dispute that the infringement of a person's freedom as a result of detention is severe, and therefore, it constitutes an important circumstance when examining the detainee's matter, including in the decision whether to grant permission to appeal to the Supreme Court. However, this is not an exclusive circumstance in the sense that that right to a second appeal is a part of the protections that fall under the rubric of the constitutional right of freedom, such that its denial is an infringement of the right itself. We will further note parenthetically that the First Arrangement, which was examined in the Petition, does not only address detention decisions, but also appeals on decisions relating to release, violation of terms of bail, motions for reconsideration and appeals on District Court decisions regarding bail. It is clear that the level of injury in the latter cases is not identical to that of detention and, therefore, the justification to deviate from the ordinary rule of a hearing before two instances, is even weaker in these cases.

An examination of the Supreme Court's decisions in motions for permission to appeal on decisions regarding detention, pursuant to the First Arrangement, reveals that the Court indeed takes the infringement of the right of freedom into consideration when ruling whether permission to appeal should be granted. Although the case law is that permission to appeal will be granted when the motion raises a legal question of importance as a principle, which exceeds the matter of the parties to the proceeding, the Court was willing to adopt a broader approach and to also grant motions for permission to appeal when there are special and extraordinary individual circumstances which justify a hearing before a third instance (see, for example, CrimApp 2786/11 Gerris v. The State of Israel, paragraph 7 of the decision (April 17, 2011); CrimApp 4900/12 The State of Israel v. Anonymous, paragraph 8 of the decision and the references there (June 25, 2012); CrimApp 4706/12 Anonymous v. The State of Israel, paragraph 8 of the decision (June 21, 2012); CrimApp 1200/13 Azulay v. The State of Israel, paragraph 9 of the decision (February 24, 2013)).

36.The conclusion is that the First Arrangement does not infringe on the right of freedom. It will be noted that the Petitioner did not raise arguments in his petition regarding the potential infringement of the First Arrangement of the right to due process or the right to access courts. Therefore, we did not see it necessary to address the infringement of these rights. As we have not found there to be an infringement of the right of freedom, this ends the constitutional examination of the First Arrangement.

Does the Second Arrangement Satisfy the Conditions of the Limitation Clause

37.As mentioned, there was no dispute between the parties that the Second Arrangement infringes on the right of freedom. We are therefore left to examine whether this arrangement satisfies the conditions of the limitation clause. For the sake of convenience, we will requote the language of the Second Arrangement:

(b) Notwithstanding that which is stated in sub-section (a), if a Supreme Court judge was of the opinion that it will not be possible to conclude the trial proceedings within the period of 90 days stated in sub-section (a), because of the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges, he may order the extension of the detention to a period which shall not exceed 150 days, and may re-order this from time to time, and may order the release of the defendant, with or without bail.

38.The first condition of the limitation clause requires that the infringement be by a law or pursuant to a law. There is no dispute that in the case at hand this condition is satisfied, since the Second Arrangement is prescribed in the law amending the Detention Law. The second and third conditions address the purposes of the infringing law. According to the second condition, the infringing law must befit the values of the State of Israel, and according to the third condition it should be demonstrated that the infringing law is intended for a proper purpose. We will now examine both of these conditions.

39.The purpose of the Second Arrangement, similar to the purpose of the entire amendment, as it emerges from the explanatory notes to the bill, was "to shift the balance between the principle of finality and the types of matters that should be examined by the Supreme Court and the realization of the substantive rights of detainees and defendants " (Explanatory notes to the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, Government Bills 533). Regarding the Second Arrangement, the legislative memorandum stated that: "Experience shows that in some cases it is clear in advance that the maximum time period for extending the detention prescribed in these sections is not sufficient to exhaust the legal proceedings. This is sometimes the case in cases of complex severe crimes in which the defendants are detained until the end of the proceedings against them, in which there are many witnesses. At times, numerous hearings are required, which significantly extends the duration of the trial, and consequently the period of the defendant's detention (the legislative memorandum was attached to the State's response dated July 7, 2011, and marked Res/1).

40.The underlying purpose of the Second Arrangement was to reduce the number of Supreme Court hearings on motions to extend detentions in particularly complex cases in which it is clear that the period of time the legislator allocated (90 days beyond the nine months of detention) will not be sufficient to conclude the trial. That, even when the trial is conducted efficiently and purposefully it cannot be said that this is not a proper purpose. In light of the heavy workload imposed on the Supreme Court and the entire justice system, reducing the number of detention extension hearings – in special circumstances and based on criteria prescribed in the law – is a proper and vital purpose. This purpose will allow the Court to dedicate time to other proceedings before it, including other criminal cases and detention procedures, and reduce the period of time required to rule thereon. In this context, we will mention Section 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides a series of conditions for a fair trial, including the need to conclude legal proceedings within a reasonable time. It cannot be said that this purpose does not befit the values of the State of Israel as a Jewish and democratic state. Reducing the time of handling cases and responding to the needs of those approaching the court system is a purpose that definitely befits the values of the State.

41.The main question to be decided with respect to the Second Arrangement is its compliance with the proportionality condition. As is known, it is customary to divide the condition that the infringement is no greater than necessary into three sub-tests. The first sub-test examines whether there is a rational connection between the means selected by the law and the purpose thereof. In the case at hand, it is clear that there is a rational connection between the means – extending detention by 150 days instead of by 90 days – and the purpose of reducing the number of hearings in the Supreme Court. The second sub-test examines whether the selected means is the less harmful means. As stated in the State's response, the means selected balances between the infringement of the detainee's freedom and the need to adjust the options to extend the detention in order to fit complex cases, cases of severe crimes and cases in which it is clear to the Court that a 90 day extension will not be sufficient. One of the main balances outlined in the Law is that the Law did not revoke the option of extending a detention by 90 days (pursuant to Section 62 of the Detention Law), but rather left that as is, and allowed the Court to choose, as a matter of discretion and as an exception to the "standard" detention extension, the option of extending the detention by 150 days. An additional balance is that the authority is vested with a judge of the highest instance. Furthermore, in order to exercise this authority, one of the special conditions listed in the section, which lead to the conclusion that it will not be possible to conclude the examination of the case in a shorter period of time,  must be satisfied, i.e., the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges. These balances indicate that the legislator selected the less harmful means in order to realize the purpose.

42.The third sub-test, the proportionality test "in the narrow sense", requires that there be a reasonable relation between the infringement of the constitutional right and the social advantage  derived from it. This test is also satisfied in the case at hand. Prior to the amendment of the Law, there was a problematic situation as motions to extend detentions beyond nine months would be filed to the Supreme Court, and the Court would grant the motions in cases in which it was clear that the trial was not foreseen to conclude within 90 days. And then, upon the lapse of the 90 days, a motion would again be filed to the Supreme Court, and so forth. In one of these decisions, Justice A. Procaccia elaborated on the need to adjust the Detention Law to the reality of "mega-cases" in which a large number of defendants are indicted together and many witnesses testify. In CrimApp 644/07 The State of Israel v. Natser (February 20, 2007), Justice Procaccia stated:

"Section 61 of the Detention Law limited the basic time period for detention until the end of proceedings to nine months, without making any distinction between types of criminal proceedings that are to be adjudicated based on the judicial time that is necessary for their examination. He did not draw a distinction between the types of charges with regard to the complexity of the issue to be decided. Similarly, the period of nine months of detention was applied equally to indictments relating to one or a small number of defendants, and to indictments that include a long list of defendants. Additionally, no distinction was made regarding the duration of the detention for trial purposes, between charges in which it is necessary to have a small number of prosecution witnesses testify and those in which it is necessary to have dozens of witnesses testify. Moreover, Section 61 of the Law did not reflect the judicial time actually required for conducting proceedings that involve large criminal organizations, which by their very nature require investment of extensive resources and judicial time. This provision of the Law does not reflect the deep changes that occurred in the nature of crime in the country as a result of the escalation of the development of criminal organizations and the complexity and severity of their activities, which have greatly increased over the last decade, and which clearly impact the judicial time required to rule in criminal proceedings related to them. The procedural needs in managing complex cases which involve multiple defendants, charges and witnesses, do not generally coincide with the Law's uniform and general determination regarding nine months of detention as a basic period in which the criminal proceeding should be concluded" (paragraph 17 of the decision). See also CrimApp 7738/06 The State of Israel v. Sharon Parinian, paragraph 10 of the decision (October 5, 2006).

The Second Arrangement attempts to solve this problem, by providing the Supreme Court judge deliberating the motion to extend the detention the option to choose between a "standard" detention extension, up to 90 days, and a "special" detention extension up to 150 days. The Second Arrangement only allows to do this in special cases in which the Court is convinced that the judicial time required to conclude the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses. The Court must be convinced that the proceeding is conducted by the trial court efficiently, and that the detention extension is not requested because of an inefficient conduct of the trial. In my opinion, the combination of these circumstances strikes the proper balance between the infringement of freedom – which no one disputes exists – and the purpose underlying the Second Arrangement.

43.The conclusion is that the Second Arrangement complies with the proportionality condition. It follows that the infringement of the right of freedom is proportionate, and the Petitioner's arguments regarding the illegality of the Second Arrangement should be dismissed. In this framework, the indirect attack regarding the legality of the amendment, the arguments for which were presented as part of the hearing regarding the detention extension in CrimApp 4002/11 is also dismissed.

Summary

44.It emerges from the stated above that both of the arguments presented by the Petitioner in HCJ 2442/11 are to be denied. Procedurally speaking, while we found that the legislative process of the amendments which are the subject of this petition deviated from the provisions of the Knesset By-Laws, the deviation did not constitute a "flaw that goes to the root of the process", which justifies this Court's intervention. On the merits of the amendment, we also rejected the Petitioner's substantive arguments (which are largely identical to the arguments raised in CrimApp 4002/11). We held that the revocation of the right to appeal "in a third instance" while only granting permission to appeal, does not infringe on the right of freedom, although we found that in certain circumstances, which will be determined in each case on its merits, the constitutional right of freedom also extends to the procedural proceedings bound with the exhaustion of the actual right. We further held that the amendment that allows to extend a detention by 150 days infringes on the right of freedom, but this infringement complies with the limitation clause, and is therefore constitutional. The result is that both parts of the petition are denied.

45.One methodological note before summation. In the case before us the legislator brought about a change in an existing law. This is not a new law that is meant to address a matter that was not regulated by law. There is no doubt that the amending law discussed in the petition adversely affects, to some degree, the state of suspects and defendants compared to the previous legal situation. However, the mere adverse change does not necessary lead to the conclusion that there is an infringement of a constitutional right or that the amendment does not satisfy the conditions of the limitation clause. We must distinguish between the constitutional threshold and the legal status preceding the amendment to the Law. Indeed, with regard to the two arrangements, the legal status that preceded the amendment set a higher threshold than the constitutional threshold, as suspects and defendants had the right to file a second ("third instance") appeal and the detention extension period was limited to 90 days. However, as emerges from the analyses we presented, the constitutional threshold is lower than the threshold the legislator had set under the arrangement preceding the amendment to the Law. Therefore, the fact that the Law was amended and lowered the legal threshold does not, in and of itself, lead to the conclusion that the constitutional threshold was infringed with the adoption of the amendment to the Law. Graphically speaking, it can be said that when amending the law, the legislator has leeway between the legal threshold prescribed before the amendment (which, as mentioned, was higher than the constitutional threshold) and the constitutional threshold. As long as the amendment to the law did not prescribe a threshold lower than the constitutional threshold, the new arrangement cannot be deemed unconstitutional. In this context we should mention the validity of law clause in the Basic Law: Human Dignity and Liberty (Section 10). This section sets a different threshold: even if the law preceding the Basic Law infringes a constitutional right and does not satisfy the limitation clause, it shall not be deemed invalid (subject to the interpretation of the law the validity of which is preserved under Section 10 of the Basic Law, see the Ganimat Case, pages 375-76, 389-401, 410-417), even if had such law been legislated today, we would have said that the constitutional threshold had been infringed.

46.Epilogue. The petition is denied. The constitutional arguments raised in CrimApp 4002/11 are also denied. In the circumstances of the matter – no order for expenses is issued.

The President

Justice E. Rubinstein

a.I agree with the result reached by my colleague the President and with the essence of his legal constitutional analyses, subject to a few remarks. Indeed, this amendment to the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (the Detention Law) is not suited for constitutional judicial review, but in my opinion there is a difference between its two parts. The arrangement amending Section 53 of the Detention Law is an amendment that revokes a most unusual situation compared to other countries and the past in our own country, a situation in which the Supreme Court is required, as of right, to consider a detention as a third instance, as we experienced until recently. In contrast, the arrangement amending Section 62 of the Detention Law is not a simple arrangement, since its implication is an extension of up to 150 days – five months of detention – instead of 90 days, without judicial review, this is not simple at all. Indeed, as my colleague explained (paragraph 42, and as emerges from the explanatory notes to the Criminal Procedure (Enforcement Powers – Detention), Amendment no. 9 (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, following the recommendation of the Criminal Procedure and Evidence Laws Advisory Committee, headed by this Court's Justice (currently Deputy President) Miriam Naor, Government Bills 5770, 1229-1330 and the words of Justice Procaccia in CrimApp 644/07 The State of Israel v. Natser (February 20, 2007)) – the 150 days arrangement does not exceed the constitutional proportionality test; as it was designated for special cases "in which the Court is convinced that the judicial time required to complete the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses.." Legally speaking, I agree with this. However, alongside this I would like to raise a small warning flag and say that I think that in practice, a 150 day extension should certainly be the exception.

b.Regarding the matter of extending detentions by a 150 days, I think that it is necessary to distinguish between the authority and its exercise. As mentioned, the authority, in and of itself, is within the boundaries of the constitutional proportionality. See for example Section 5(c) of the Imprisonment of Unlawful Combatants Law, 5762-2002, where judicial review once every six months was prescribed. However, I will admit that when the case at hands relates to the denial of freedom from a person who is presumed innocent, I would tend to allow relatively frequent judicial review, and five months is a long time. Therefore, one must be extremely diligent in complying with all of the conditions of the law as prescribed and the justification in the circumstances, including the conduct in the trial court, in order to grant 150 days. I will add that based on my impression of the decisions handed down by this Court, approximately a half of the motions for 150 days were not granted and 90 days were granted instead, and the vast majority of the remaining ones were by consent. I will not specify so as not to overburden.

c.As for the second appeal, that is deliberating the case in a third instance (the amendment of Section 53), it is obviously clear that the right to an appeal in and of itself has a distinguished status (see Section 17 of the Basic Law: The Judiciary, regarding an appeal on a judgment of court in the first instance, which was granted constitutional status; see also Y. Ben Nun and T. Havkin The Civil Appeal (3 ed., 2013) page 35; Y. Mersel "The Right to Appeal or an Appeal as of Right? Section 17 of the Basic Law: The Judiciary and the Essence of an Appeal" The Shlomo Levin Book (2013) 141; the references in my opinion in LCivA 5208/06 Davis v. Malca (June 29, 2006) and in LFamA 8194/08 Anonymous v. Anonymous (December 10, 2008)). However, in the matter of a third instance I will add a few short words from the “field”. The third instance appeal as of right in Section 53 was first legislated in the during the period in which the entire Detention Law was legislated, meaning, a short while after the Basic Law: Human Dignity and Liberty was legislated in 1992 and as part of the effort to give it substance; see the review of the legislative history in the explanatory notes to the bill at hand on pages 1328-1329; as it emerges therefrom, in the far past, even an appeal by permission was not an option; the option to request permission was granted in 1988, and in 1996 it became a right. Amendment no. 8 of the Detention Law transpired in light of the lessons learned by the Criminal Procedure and Evidence Law Advisory Committee, headed by Justice Naor, lessons which all of us at this Court have shared. I will quote from my words in CrimApp 6003/11 Taha v. The State of Israel (August 18, 2011):

"The legislator decided that this Court, given the workload it carries, cannot continue with what it has been doing for years, and which clearly has moral value, in light of the presumption of innocence and the essence of the detention – denying freedom, that is - allowing third instance appeals as of right. This, I believe, is unique to this Court compared to fellow courts in democratic states, many of which (see the United States, Britain and Canada) only address appeals by permission. When I have told a Supreme Court judge from these countries of the number of cases we have per year (currently approximately 10,000 cases and a few years ago up to approximately 12,000 cases per year) compared to theirs (80 per year), and that each detention has an appeal as of right to this Court – he became sympathetic or anxious. This does not mean that the door has been locked for cases that should be permitted to appeal to this Court as a third instance, and the legislator left this open to be developed by case law; for a review of current case law see the decision of Justice Amit in CrimApp 5702/11 Tzofi v. The State of Israel (August 8, 2011)."

d.It appears that there is no dispute, and it is common sense, with all due sensitivity to the denial of freedom which results from the detention of a person who is presumed innocent, and that it is not feasible in the long term to have the public resources to deliberate this as of right in three judicial levels. Until the amendment "Israel had something that did not exist in any nation, a right to a detention being heard in two appellate instances …" (CrimApp 3932/12 Elafifi v. The State of Israel (June 3, 2012)). Changing this does not contradict the approach that the right to appeal is a constitutional right of some degree or another. Indeed, in practicality, those night and Sabbath eve and afternoon hearings of appeals as of right regarding "detention days" (detention for interrogation purposes), of which we had our share over the years, hardly exist anymore. Permission to appeal in a third instance is granted scarcely. In this sense, the legislator reinstated "reasonable normalcy", taking into consideration that there already is one appeal as of right, as prescribed. Upon review of my colleague Justice Melcer's remarks, with which I agree, I also noticed that the "right of the option to request permission to appeal" which he addresses, can also be found in this Court's customary practice. In contrast, for example, to the United States, where the denial of a motion for permission to appeal, is summarized in the words "cert denied" – in Israel the denial of such a motion is well reasoned and in great detail.

e.As said, I concur with my colleague the President.

Justice

Justice H. Melcer

I agree with the comprehensive and meticulous judgment of my colleague, President A. Grunis, and with the emphases of my colleague, Justice E. Rubinstein.

In light of the importance of the distinctions that arose in this case, I allow myself to add two insights:

(a)Alongside the right to appeal – the option to request permission to appeal is also a right, however narrower than the former. It follows that the second alternative – requesting permission to appeal – can be seen as a means of review of the decision which is the subject of the request, and this is sufficient after the initial constitutional right to appeal has been exhausted. A similar approach and development can also be found in comparative law - see for example:

In the Unites States: Jonathan Sternberg, Deciding Not to Decide: The Judiciary Act of 1925 and the Discretionary Court, 33 J. SUP. CT. HIST 1 (2008).

In Canada: R v Gardiner [1982] 2 S.C.R. 368 ;

Bora Laskin, The Role and Functions of Final Appellant Courts: The Supreme Court of Canada, 53 CAN. BAR REV. 469, 471 (1975).

In Australia: Smith Kline & French Laboratories (Australia) Ltd. v Commonwealth (1991) 173 CLR 194;

David Solomon, Controlling the High Court’s Agenda, 23 U.W AUSTL. L. REV. 33 (1993);

Sir Anthony Mason, The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal, 15 U. TAS. L. REV. 1 (1996);

Marrie Kennedy, Applications for Special Leave to the High Court 1 High Ct. Q. Rev. 1 (2005);

See also: John Anthony Jolowicz, Appeal and Review in Comparative Law: Similarities Differences and Purposes 15 MELB. U. L. REV 618. (1986)

In this context,  remember that in contrast to the motion for permission to appeal, in our country's legal system there are certain situations in which even this limited right (to motion for permission to appeal) is denied (even if only during the trial) – see: Sections 41(c)(1) and 52(c)(1) of the Courts (Consolidated Version) Law, 5744-1984. The Courts (Types of Decisions for which Permission to Appeal shall not be Granted) Order, 5769-2009. This is the law with regard to most interim decisions in criminal proceedings. See: the President's decision in LCivA 3783/13 I.D.B Development Company Ltd. v. Shamia (June 5, 2013). The difference in the case at hand requires further consideration.

(b)The arrangement amending Section 62 of the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996, that allows a Supreme Court judge to extend detention up to 150 days, in certain given cases – is within the framework of the "statutory leeway" (also referred to as the "boundaries of proportionality"), albeit, in my opinion, it is situated at the "far end" of such boundaries. It follows that constitutional relief should not be granted, since intervention of such nature in such circumstances is reserved only to the most extraordinary cases, and this is not the case here. See: HCJ 1661/05 Hof Azza Regional Council v. The Prime Minister, PD 59(2) 481 (2005); my judgment in HCJ 6784/06 Major Shlitner v. The Director of Pension Payments (January 12, 2011).

The appropriate remedy in such cases is judicial restraint in exercising the authority, and this is indeed how we act.

                                                                                          Justice

It was decided as stated in President A. Grunis' Judgment

Given today, 18^th of Tamuz, 5773 (June 26, 2013).

The President                          Justice                                     Justice

Ruth Nahmani v

1.            Daniel Nahmani

2.            Attorney-General

3.            Assuta Ltd

CFH 2401/95

The Supreme Court sitting as the Court of Civil Appeals [12 September 1996]

Before President A. Barak and Justices G. Bach, E. Goldberg, T. Or,

E.            Mazza, Y. Kedmi, I. Zamir, T. Strasberg-Cohen, D. Dorner, Ts. E. Tal,

Y. Türkel

Further Hearing of Civil Appeal 5587/93 on the judgment of the Haifa District Court (Justice H. Ariel) on 2 September 1993 in OM 599/92.

Facts: Ruth and Daniel Nahmani, a married couple, were unable to have a child because of an operation that Ruth underwent. They therefore decided to try in-vitro fertilization of Ruth‟s ova with Daniel‟s sperm, with a view to implanting the fertilized ova in a surrogate mother. Under Israeli law, surrogacy was not permitted and in-vitro fertilization was only permitted for implantation in the woman from whom the ova were taken. Because of the great expense of the in-vitro fertilization procedure in the United States, the couple petitioned the Supreme Court, sitting as the High Court of Justice, to allow the in-vitro fertilization procedure to be conducted in Israel, for the purpose of surrogacy in the United States. In that proceeding (HCJ 1237/91), a consent judgment was given allowing the in-vitro fertilization procedure to be done in Israel. The procedure was carried out at Assuta Hospital.

Subsequently, Daniel left Ruth and went to live with another woman, who bore him a child. Ruth applied to Assuta Hospital to release the fertilized ova into her possession for the purpose of the surrogacy procedure in the United States, but Daniel opposed this. Assuta Hospital therefore refused to release the fertilized ova. Ruth applied to the Haifa District Court for an order against the hospital to release the fertilized ova, and in its judgment the District Court gave such an order.

Daniel appealed the judgment of the District Court to the Supreme Court. In the appeal (CA 5587/93), the Supreme Court, with a majority of four of the five justices

that heard the case, allowed the appeal of Daniel Nahmani and reversed the order of the District Court.

Ruth petitioned the Supreme Court to hold a further hearing of the appeal, and this further hearing was subsequently held before a panel of eleven justices.

Held: A majority of seven of the Supreme Court justices reversed the judgment in the appeal, with four justices dissenting.

(Majority opinion — Justice Ts. E. Tal) The husband was estopped from opposing the continuation of procedure by promissory estoppel, since he gave his consent, his wife reasonably relied on this consent, and she did so irreversibly, by fertilizing her ova with her husband‟s sperm. Furthermore, Jewish heritage, which is one of the fundamental principles of the Israeli legal system, considers having children an important value, whereas not having children is not considered a value at all.

(Majority opinion — Justice D. Dorner) The liberty of not having unwanted children is in essence secondary compared to the right to have children. Subject to this principle, the balancing between the rights of the parties is made by taking into account the current stage of the procedure, the representations made by the spouses, the expectations raised by the representations and any reliance on them, and the alternatives that exist for realizing the right of parenthood. In this case, the basic principles and considerations lead to a preference of the wife to be a parent over the right of the husband not to be a parent.

(Majority opinion — Justice E. Goldberg) In the absence of any normative arrangement, the case should be decided according to the basic value of justice. The just solution is the one that results in the lesser of evils. Justice demands that we do not, retroactively, undermine the position of someone who was entitled to rely on a representation of another, as the petitioner was entitled to do in this case.

(Majority opinion — Justice Y. Kedmi) Before fertilization, each spouse can change his decision to be a parent, and his basic right not to be a parent prevails over the contractual right of his partner to demand performance of the agreement between them. After fertilization, the right of the spouse wishing to complete the procedure of bringing the child into the world and to become a parent is strengthened by the fertilization of the ovum. From this point onward, the right of the spouse wishing to complete the process of bringing the child into the world overrides the right of the one wishing to destroy the fertilized ovum.

(Majority opinion — Justice Y. Türkel) The ethical weight of the right to be a parent is immeasurably greater than the weight of the right not to be a parent. Doing „ethical justice‟ compels us to prefer the former right to the latter.

(Majority opinion — Justice G. Bach) Where there is no express statute to guide us, we must avail ourselves of our sense of justice, and make our ruling according to what seems to us to be more just, in view of all the circumstances of the case before us. Even if the scales of justice were evenly balanced, then the fact that preferring

Ruth‟s position created the possibility of granting life and bringing a living person into our world, would tip the scales.

(Majority opinion — Justice E. Mazza) The restriction that Daniel wishes to impose on Ruth‟s right to be a mother, although it appears to be a specific restriction, is really a quasi-general one, since Ruth has no real alternative to becoming a mother other than by use of her ova that were fertilized with Daniel‟s sperm. The restriction that Ruth wishes to impose on Daniel‟s right not to be a father against his will is a specific restriction. Imposing a specific restriction on Daniel‟s right is preferable to imposing a quasi-general restriction on Ruth‟s right to be a mother. The violation caused by the specific  restriction to Daniel‟s  right is, necessarily, less than the violation caused by the quasi-general restriction to Ruth‟s right. Where all other factors are equal, justice requires us to prefer the lesser violation to the greater violation.

(Minority opinion — Justice T. Strasberg-Cohen) Consent is required for each stage of the in-vitro fertilization procedure up to the point of no-return, which is the implantation of the ova in the woman‟s body. In the absence of such consent, Daniel cannot be compelled to consent to Ruth‟s aspiration against his will by means of a judicial order, either in the name of the law, or in the name of justice or in the name of life.

(Minority opinion — Justice T. Or) The consent of the parties to cooperate towards realization of an in-vitro fertilization procedure is a framework consent. It is founded on the basic assumption that the marital relationship between the parties will continue. But it does not include consent, ab initio, to all the stages and aspects of the fertilization procedure. The consent is based on the understanding that at each stage of the procedure the joint consent of both spouses will be required.

(Minority opinion — Justice I. Zamir) If, before the procedure began, Daniel were asked whether, if he separated from Ruth, he would consent to implantation of the ovum, which would make him and Ruth joint parents of a child, his answer, as a reasonable person, would be no. His initial consent to the procedure should therefore not be regarded as consent even in the circumstances of a separation. For the same reason, Daniel is not estopped from opposing the continuation of the fertilization procedure, since he never represented that he consented to the continuation of the procedure even if he separated from Ruth.

(Minority opinion — President A. Barak) Continuing consent is required for every stage of the fertilization procedure. This cannot be waived ab initio for reasons of public policy. Justice requires equality between the spouses in decision making. Refusing to give consent to the continuation of the fertilization procedure because the relationship has ended does not constitute bad faith.

Basic Laws cited:

Basic Law: Administration of Justice, 5744-1984, ss. 6, 15(c).

Basic Law: Human Dignity and Liberty, 5752-1992, s. 1.

Statutes cited:

Administrative Courts Law, 5752-1992, s. 22.

Contracts (General part) Law, 5733-1973, ss Administrative Courts Law, 5752-1992, s. 22. 14(b), 25, 30, 31, 61(b).

Contracts (Remedies for Breach of Contract) Law, 5731-1970, s. 3(4). Criminal Procedure Law [Consolidated Version], 5742-1982, s. 3.

Foundations of Justice Law, 5740-1980, s. 1. Immovable Property Law, 5731-1971, s. 10.

Labour Court Law, 5729-1969, s. 33.

Land Law, 5729-1969, s. 10.

Penal Law, 5737-1977, ss. 314, 316, 316(a), Chapter 10, Article 2.

Surrogacy Agreements (Approval of Agreement and Status of the Child) Law, 5756- 1996, ss. 2, 2(1), 5, 5(c), 7.

Tenant‟s Protection Law [Consolidated Version], 5732-1972, s. 132(a). Torts Ordinance [New Version], s. 84.

Unjust Enrichment Law, 5739-1979, s. 2.

Regulations cited:

Civil Procedure Regulations, 5744-1984, r. 524.

Public  Health  (In-vitro  Fertilization)  Regulations,  5747-1987,  rr.  2,  2(a),  3,  8,

8(b)(1), 8(b)(2), 8(b)(3), 8(c)(3), 9, 11, 14, 14(c).

Israeli Supreme Court cases cited:

[1]          CrimA 95/51 Podamski v. Attorney-General [1952] IsrSC 6 341.

[2]          CA 451/88 A v. State of Israel [1990] IsrSC 44(1) 330.

[3]          CA 614/76 A v. B [1977] IsrSC 31(3) 85.

[4]          CA 5464/93 A v. B (a minor) [1994] IsrSC 48(3) 857.

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

[6]          BAA 663/90 A v. Bar Association Tel-Aviv District Committee [1993] IsrSC 47(3) 397.

[7]          HCJ 4267/93, Amitai — Citizens for Good Government v. Prime Minister

[1993] IsrSC 47(5) 441.

[8]          CA 488/77 A v. Attorney-General [1978] IsrSC 32(3) 421.

[9]          CA 413/80 A v. B [1981] IsrSC 35(3) 57.

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

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

[12]        FH 22/73 Ben-Shahar v. Mahlav [1974] IsrSC 28(2) 89.

[13]        CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [1963] IsrSC 17 1319; IsrSJ 5 120.

[14]        LCA 4298/92 Ezra v. Tel-Mond Local Council [1993] IsrSC 47(5) 94.

[15]        CA 518/82 Zaitsov v. Katz [1986] IsrSC 40(2) 85.

[16]        CA 398/65 Rimon v. Trustee in bankruptcy of Shepsals [1966] IsrSC 20(1) 401.

[17]        CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840.

[18]        FH 4/82 Kut v. Kut [1984] IsrSC 38(3) 197.

[19]        HCJ 200/83 Wathad v. Minister of Finance [1984] IsrSC 38(3) 113.

[20]        HCJ   4712/96   Meretz   Democratic   Israel   Party   v.   Jerusalem   District Commissioner of Police [1996] IsrSC 50(2) 822.

[21]        CA 499/81 Odeh v. Haduri [1984] IsrSC 38(4) 729.

[22]        CA 506/88 Shefer v. State of Israel [1994] IsrSC 48(1) 87; [1992-4] IsrLR

170.

[23]        HCJ 73/53 Kol HaAm Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1

90.

[24]        HCJ 153/83 Levy v. Southern District Commander [1984] IsrSC 38(3) 393;

IsrSJ 7 109.

[25]        HCJ 292/83 Temple Mount Faithful v. Jerusalem District Commissioner of Police [1984] IsrSC 38(2) 449.

[26]        MApp  298/86  Citrin  v.  Tel-Aviv  District  Disciplinary  Tribunal  of  Bar Association [1987] IsrSC 41(2) 337.

[27]        CA 496/88  Henfeld  v.  Ramat  Hasharon  Sports Association  [1988]  IsrSC 42(3) 717.

[28]        HCJ 1601/90 Shalit v. Peres [1991] IsrSC 45(3) 353; IsrSJ 10 204.

[29]        HCJ 4112/90 Association of Civil Rights in Israel v. Southern Commander

[1990] IsrSC 44(3) 353.

[30]        HCJ 3412/91 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 848.

[31]        CA 105/92 Re‟em Contracting Engineers Ltd v. Upper Nazareth Municipality

[1993] IsrSC 47(5) 189.

[32]        CA 2266/93 A v. B [1995] IsrSC 49(1) 221.

[33]        HCJ 753/87 Borstein v. Minister of Interior [1988] IsrSC 42(4) 462.

[34]        HCJ 721/94 El-Al Israel Airlines v. Danielowitz [1994] IsrSC 48(5) 749;

[1992-4] IsrLR 478.

[35]        CA 154/80 Borchard Lines Ltd, London v. Hydrobaton Ltd  [1984] IsrSC 38(2) 213.

[36]        CA 554/83 Atta Textile Company Ltd v. Estate of Zolotolov [1987] IsrSC 41(1) 282.

[37]        CA 275/83 Netanya Municipality v. Sahaf, Israeli Development Works Co. Ltd

[1986] IsrSC 40(3) 235.

[38]        HCJ 846/93 Barak v. National Labour Court, Dinim 37 823.

[39]        HCJ 932/91 Central Pension Fund of Federation Employees Ltd v. National Labour Court [1992] IsrSC 46(2) 430.

[40]        CA 4956/90 Paz-Gas Marketing Co. Ltd v. Gazit Hadarom Ltd [1992] IsrSC 46(4) 35.

[41]        CA 248/86 Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [1991] IsrSC 45(2) 529.

[42]        CA 840/75 Jewish National Fund v. Tevel [1976] IsrSC 30(3) 540.

[43]        CA 555/71 Amsterdramer v. Moskovitz [1972] IsrSC 26(1) 793. [44]            HCJ 5087/94 — unreported.

Israeli District Court cases cited:

[45]        CC (TA) 3021/84 Apple Computer Inc. v. New-Cube Technologies Ltd [1987] IsrDC 5747(1) 397.

Australian cases cited:

[46]        Mount Isa Mines Ltd v. Pusey (1970) 125 C.L.R. 383.

American cases cited:

[47]        Davis v. Davis 842 S.W. 2d 588 (1992).

[48]        Griswold v. Connecticut 381 U.S. 479 (1965).

[49]        Eisenstadt v. Baird 405 U.S. 438 (1972).

[50]        K.S. v. G.S. 440 A. 2d 64 (1981).

[51]        Kass v. Kass WL 110368 (1995).

[52]        Skinner v. Oklahoma 316 U.S. 535 (1942).

[53]        Roe v. Wade 410 U.S. 113 (1973).

[54]        Planned Parenthood of Missouri v. Danforth 428 U.S. 52 (1976).

[55]        Lochner v. New York 198 US 45, 25 S.Ct 539, 49 L.Ed 937 (1905).

[56]        In re Baby M 525 A. 2d 1128 (1987).

English cases cited:

[57]        Layton v. Martin [1986] 2 F.L.R. 227 (Ch.).

Jewish Law sources cited:

[58]        Rabbi  Moshe  ben  Maimon  (Maimonides),  Mishneh  Torah, Hilechot Ishut

(Laws of Marriage), 15, paras. 2, 5.

[59]        Rabbi Yaakov ben Asher, Arba‟ah Turim, Even HaEzer, 1. [60]     Rabbi Yosef Karo, Shulhan Aruch, Even HaEzer, 1, 1; 154, 4.

[61]        Mishnah, Tractate Yevamot 6, 6.

[62] Dr Avraham Steinberg ed., Encyclopaedia of Jewish Medical Ethics, vol. 2, the entry „In-vitro fertilization‟, at p. 115 et seq.; vol. 4, Responsum of Rabbi Shaul Yisraeli pp. 28, 41.

[63]        Responsum of Rabbi Shalom Shalush, „Fertilization in a Surrogate Womb‟, in

Orchot, the magazine of the Haifa Religious Council, no. 39, p. 31. [64]    Deuteronomy 4, 42; 16, 20; 19, 2-5.

[65]        Genesis 1, 28; 30, 1.

[66]        Bereishit Rabba 79, 9 on Genesis.

[67]        Jeremiah 22, 10.

[68]        Babylonian Talmud, Tractate Moed Katan, 27b. [69]         Mishnah, Tractate Gittin, 4, 5.

[70] Babylonian Talmud, Tractate Yevamot, 63b, 65b. [71] Babylonian Talmud, Tractate Berachot, 3b, 10a. [72]    II Kings 20, 1.

[73]        Rabbi Yaakov ben Asher, Arba‟ah Turim, Hoshen Mishpat, 1. [74]             Babylonian Talmud, Tractate Shabbat, 10a.

[75]        Rabbi Yehoshua ben Alexander HaCohen Falk, Drisha, on Rabbi Yaakov ben Asher, Arba‟ah Turim, Hoshen Mishpat, 1, 2.

[76]        Babylonian Talmud, Tractate Nedarim, 64b. [77]                Babylonian Talmud, Tractate Makkot, 10a.

[78]        Rabbi Moshe ben Maimon (Maimonides), Mishneh Torah, Hilechot Rotzeah uShemirat Nefesh (Laws of Homicide and Preservation of Life), 7, 1.

[79]        I Samuel 1, 27.

[80]        II Samuel 19, 1.

For the petitioner — Z. Gruber.

For the first respondent — D. Har-Even.

JUDGMENT

Justice T. Strasberg-Cohen

Introduction

1.            The Nahmani case, which was considered on appeal (CA 5587/93 Nahmani v. Nahmani IsrSC 49(1) 485), now comes before us for a further hearing. For the purposes of this hearing we shall briefly review the facts. After several years of marriage without children, and after Ruth Nahmani underwent surgery, as a result of which she lost the ability to conceive naturally, the Nahmani couple decided to have children by means of in-vitro fertilization. Ova taken from Ruth‟s body were fertilized with Daniel‟s sperm, frozen and stored at the hospital. The couple entered into a contract with an institute in the United States to find a surrogate who would bear their child. But before this stage of the procedure had been reached, Daniel Nahmani left home, established a new family and fathered a daughter, while he was still married to Ruth, who refused to be divorced. Ruth contacted the hospital and asked for the fertilized ova in order to continue the procedure, and when she was refused, she filed suit in the Haifa District Court, which ruled in her favour. This court allowed the appeal of Daniel Nahmani, by a majority decision with Justice Tal dissenting, and this led to the further hearing.

2.            The emotions, morals and norms associated with this issue naturally lead to a lack of consensus. Differences of opinion concerning a problematic issue such as this are to be expected and are legitimate, and are reflected in both the decision on appeal and this decision (see also Ch. Gans, „The Frozen Embryos of the Nahmani Couple‟, 18 Tel-Aviv Uni. L. Rev., 1994, at p. 83; Dr

A. Marmor, „The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟, 19 Tel-Aviv Uni. L. Rev., 1995, at p. 433; and Ch. Gans, „The Frozen Embryos of the Nahmani Couple: a Reply to Andrei Marmor‟, 19 Tel- Aviv Uni. L. Rev., 1995, at p. 453). The problem before us has two diametrically opposed solutions. We must choose a solution that is consistent with both the law and the fundamental principles of our legal system, and that is based upon the values and norms of our society.

I have re-examined the matter before us with an open heart and mind. I again reviewed the appeal judgment, the opinions of my colleagues in this proceeding and the erudite articles published after judgment was given. I have reconsidered and re-examined my earlier position and tested it against the opposing position, and in the final analysis, I do not see any reason to change it.

In the judgment on appeal, I discussed at length the nature, novelty and difficulty of the matter before us, and I shall not repeat myself. Nonetheless, it is appropriate that what was covered extensively in that decision should be referred to in this. Moreover, I shall make clarifications to my position, which will constitute an integral part of my remarks in the judgment on appeal. The two opinions should be regarded as one.

In the first opinion, the issue was examined and analyzed from every possible angle. In it I concluded, after having examined and analyzed the fundamental rights of the individual, that a spouse does not have an enforceable right, where that right would lead to imposing parental status on an „objecting‟ spouse. It was held that there is no basis in the various areas of private law, whether in law, statute or case-law, for granting shared genetic material to one of the spouses without the consent of the other. The opinion concluded that the fertilized ova — which are pre-embryonic — have no independent „right‟ to life, nor have they any kind of status that would give precedence to someone interested in the continuation of the procedure over someone who does not wish this. Comparative law was brought to show that the majority of countries in the enlightened western world — whether in statute or as a result of recommendations made by commissions that considered the issue — require both spouses to consent to each stage of the procedure, including the stage of implantation, and without consent from both spouses, the procedure cannot continue. This can also be seen in the Public Health (In-vitro Fertilization) Regulations, 5747-1987, and it was also the recommendation made by the Professional Public Commission for Examining the Issue of In-vitro Fertilization, 1994, whose members included renowned experts from several relevant fields. It can also be seen from the recently enacted Surrogacy Agreements (Approval of Agreement and Status of the Child) Law, 5756-1996.

Court intervention

3.            It has been argued that the appeal decision avoided intervention in the case or taking a stand, and that the outcome was a matter of chance resulting from the status of the litigants, with the stronger party having the advantage. These claims have no basis. I too am of the opinion that there should be legal intervention, even in cases involving normative value judgments, as well as in matters ruled by emotion; indeed, the appeal decision did just that. It did not refrain from taking a stand or from intervening, as suggested by Dr. D. Barak-Erez („On Symmetry and Neutrality:  Reflections on the Nahmani Case‟, 20 Tel-Aviv Uni. L. Rev. (1996) 197). The decision adopted a position

by refusing to force parenthood on a person. This constitutes ethical, normative and legal intervention. It is not avoiding making a decision. It is a decision made responsibly. The outcome was not a matter of chance resulting from the status of the litigant, as plaintiff or defendant (as claimed by Dr Barak-Erez, ibid.). The outcome would have been identical had a suit been filed by Daniel Nahmani for an injunction preventing the ova from being given to Ruth Nahmani, or had a suit been filed by the institution where the ova are stored because it had been given conflicting instructions. The decision does not give legitimacy to the maxim „might is right‟, but instead it applies the law in its wider sense. It does so in a way that reflects the legal policy outlined by the principles and norms that are fundamental to our legal system, a policy that recognizes the basic rights of the individual, his freedom of choice, and a refusal to force on him a status that he does not agree to take upon himself.

Indeed, 1e have not been called upon to interpret a particular statute, and we are not required to implement any such statute. In this case, as in others, we are called upon to decide issues that are not governed by any special statute. We must establish a legal norm that has ethical significance. In doing so, we are not operating in a vacuum. We have at our disposal the rich world of existing law with all its branches that affect the issue under discussion.

The case as an exception

4.            The matter before us is exceptional in that it is the first and only case being litigated. But it is not exceptional with regard to the situation that it presents to us. What do I mean by this? As science presents us with new, previously-unknown possibilities, and as more and more couples use in-vitro fertilization, the problem before us will take on an increasing general importance. Quarrels and  separations  between  spouses  are — unfortunately — a common phenomenon in our society. Whenever a couple quarrels about the use of fertilized ova, it occurs between spouses who have separated, and one of them does not agree to continue the procedure. The rule established by this court will have implications for all of these people, and the question of whether consent is required by each spouse to every stage in the in-vitro fertilization process prior to implantation in the womb must receive a clear, principled answer. The same is true of the question whether a spouse who refuses to continue the procedure that will lead to his becoming a parent against his will should be compelled to do so. Our determination in this case is likely to have implications that go beyond the specific circumstances in this instance, and affect every field where an individual has

rights that have no corresponding obligations, and where the consent of those involved is required to achieve a common goal.

As I said in the judgment on appeal, foremost in my mind has been Ruth Nahmani‟s longing for motherhood, her anguish and frustration at not being able to achieve it, and the improbability that she will become a biological mother. But we should not consider only the specific case before us, and sympathy and understanding for Ruth Nahmani‟s aspiration is insufficient for giving rise to a legal remedy to her problem. This issue cannot be decided on the basis of the wishes of one of the parties; it must be decided according to the rights and duties  of the parties  vis-à-vis  one  another, and these are enshrined in our legal system and provide the basis for an answer.

The right of parenthood

5.            It would appear that no one disputes the status and fundamental importance of parenthood in the life of the individual and in society. These have been basic  principles of  human  culture throughout  history. Human society exists by virtue of procreation. Realizing the natural instinct to be fruitful and multiply is a religious commandment of the Torah (see Rabbi Moshe ben Maimon (Maimonides), Mishneh Torah, Hilechot Ishut (Laws of Marriage), 15, 2 [58]; Rabbi Yaakov ben Asher, Arba‟ah Turim, Even HaEzer, 1, 1 [59]; Rabbi Yosef Karo, Shulhan Aruch, Even HaEzer, 1, 1 [60];

H. H. Cohn, HaMishpat (Bialik Institute, 1991) 579, 580). This is a basic need for ensuring the continuation of society and the self-realization of the individual. The importance of parenthood and its status as a basic constitutional right has found expression in American case-law, see: K. D. Alpern ed., The Ethics of Reproductive Technology, New York, Oxford, 1992,

p. 252, and the decisions cited there. With respect to the status of this right, the Court of Appeals of the State of Tennessee said in Davis v. Davis (1990) [47] at pp. 4-5:

„The United States Supreme Court in Skinner v. Oklahoma… recognized [that] the right to procreate is one of a citizen‟s “basic civil rights”. Conversely, the court has clearly held that an individual has a right to prevent procreation. “The decision whether to bear or beget a child is a constitutionally protected choice.” Cary v. Population Serv. Int‟l, … Eisenstadt v. Baird … see Griswold v. Connecticut … Matter of Romero…‟

The dispute is not about the importance of parenthood and the status of the right to be a parent. That is not the question at issue. In principle, the

relevant question is: is it possible, because of the great importance of parenthood, to force parenthood on someone who does not want it, and to use the machinery of the legal system to achieve such coercion? In order to answer this question, it is first necessary to make a correct classification of parenthood as a value, in the relationship between the potential parents.

Classification of rights

6.            The classification of norms that regulate activity in relationships between man and his fellow-man has not infrequently occupied legal scholars and academics in various fields. The scholar Dias deals extensively with what is sweepingly called „rights‟, and indicates the lack of clarity that prevails on this issue and on the distinctions gradually reached by scholars.

„Claims, Liberties, Powers and Immunities are subsumed under the term “rights” in ordinary speech, but for the sake of clarity and precision it is essential to appreciate that this word has undergone four shifts in meaning. They connote four different ideas concerning the activity, or potential activity, of one person with reference to another‟ (R. W. M. Dias, Jurisprudence, London, 5th ed., 1985, at p. 23).

Dias presents a list of thinkers and jurists (Sir Edward Coke, Hobbes, Bentham and others) who contributed to the conceptual classification of

„rights‟, and he mentions the American jurist Hofeld, who revised and completed a table made by the scholar Salmond, and prepared a table known as the Hofeld Table, which categorizes the claims, liberties, powers and immunities that are called „rights‟, according to their status, substance and implications (ibid., at p. 23).

In CrimA 99/51 Podamski v. Attorney-General [1], Justice Agranat — with regard to the classification of rights — gives a summary of several principles that he says are derived from the writings of recognized legal scholars, who classified rights into rights entailing legal obligations or legal liberties or legal privileges. Legal rights, in the narrowest sense, are interests that the law protects by imposing duties on others with regard to those interests. By contrast, legal rights in the widest sense also include interests that are recognized by the law but do not entail a legal duty. These are the liberties (see Salmond, On Jurisprudence, London, 11th ed., by G. Williams, 1957, at pp. 269, 273). Where a person has a right that is a liberty or a privilege, he is under no duty toward either the State or another to refrain from carrying out the act, just as he is under no duty to carry out an act that

he is free not to do. A right that is a freedom or a liberty cannot impose a duty on another and require him to perform an act that he is free not to do.

„Sometimes a right takes the form of a “liberty” or a “privilege”: in such a case, the duty that we are obliged to uphold is not to interfere with, or disturb, the exercise of the right…‟ (H. H. Cohn, HaMishpat, supra, at p. 512).

Moreover, at p. 513:

„“Basic rights”, or “human rights”, or “civil rights” are rights to which a person is entitled by law, as a human being. Some say that these rights were born with us, or are inherent in us; but whatever may be the case, we are concerned, as stated, not with “natural” rights but with legal rights.‟

Below the freedom to be a parent will be called a „right‟.

Classification of the right to parenthood

7.            The right to be a parent is, by its very nature, essence and characteristics, a natural, innate right, inherent in human beings. It is a liberty that does not entail a legal obligation, either in relations between the State and its citizens, or in relations between spouses. The right not to be a parent is also a liberty. It is the right of the individual to control and plan his life. Indeed, non-parenthood in itself is not the protected value. The protected value in non-parenthood is the liberty, privacy, freewill, self-realization and the right to make intimate decisions without interference. These are protected basic values of supreme importance, from which the liberty not to be coerced into parenthood is derived (see also: CA 451/88 A v. State of Israel [2], at

p. 337; H. Fenwick, Civil Liberties, London, 1993, at p. 295). Regarding freewill as a liberty leads to the conclusion that every person is free to choose and decide whether or not to be a parent, and a person wishing to be a parent cannot coerce another into becoming one in order to become a parent himself. This also means that the State may not impose parenthood on a person, either directly or through the courts. Consequently, I do not accept the position of those who consider the right not to be a parent as a right of less value than the right to be a parent.

The right to be a parent and the right not to be a parent are two rights which, although they are two sides of the same coin, have different characteristics. Each in itself can be found within the framework of civil liberties; the distinction between the two levels of rights does not lie in the one being a positive right and the other a negative right, but in the right to

parenthood belonging to the group of rights requiring cooperation of another individual in order to achieve it, whereas the right to non-parenthood does not extend beyond the particular individual (see Ch. Gans, „The Frozen Embryos of the Nahmani Couple‟, supra, and Ch. Gans, „The Frozen Embryos of the Nahmani Couple: a Reply to Andrei Marmor‟, supra). This distinction affects the question of the limits of proper legal intervention.

Had the right to be a parent been a right in the narrow sense, entailing an obligation, consent ab initio would not theoretically be needed, since when the obligation exists, all that remains is to examine what is the proper relief. Since the right is a liberty that does not entail an obligation but entails an opposing right, and since it requires two persons to achieve it, the person needing cooperation must obtain it from the other by receiving his consent throughout the procedure.

The right to be a parent — when the spouse refuses — requires a coercive, positive judicial act, whereas the right not to be a parent requires no intervention or interference in the freedom of the person who is unwilling to undertake parenthood. Since the „refusing‟ parent has a right not to be a parent, such a coercive order should not be made against him. Realizing the right of someone who wants parenthood by imposing an obligation on someone who does not want it conflicts with the essence of the freedom and deals it a mortal blow.

Non-coercion of parenthood

8.            In the sphere of liberties, the law refrains from forcing someone to do what he is not obliged to do, and this is also the case in other contexts within the sphere of inter-personal relationships. Every person has a right to marry. Nonetheless, no-one disputes that a person to whom a promise of marriage is made and breached will not receive from the court a relief of enforcing the promise. Every person has a right to establish a family and have children. Nonetheless, no-one disputes that the State — directly or  through  the court — may not coerce a person to have children if he does not want to, even if he promised his spouse to do so, and even if the spouse relied on this and maybe even entered into the marriage by relying on this and with an expectation that this is what will happen. Why do we not do this? Not merely because a mandatory injunction cannot compel performance (other than perhaps by way of contempt of court proceedings until the „refuser‟ wants to do it), but because of the fundamental and normative reason for this, namely the refusal of the law to employ coercive measures to realize the wishes of one  of  the  spouses  contrary  to  the  wishes  of  the  other  (Griswold  v.

Connecticut (1965) [48], at pp. 1688-1689; Eisenstadt v. Baird (1972) [49], at

p. 1038; P. Shifman, „Parent against one‟s will — false representation about use of contraception‟, 18 Mishpahah 1988, at p. 459).

9.            Refraining from forcing parenthood on someone who is not prepared to undertake it is especially important in view of the nature and significance of parenthood. Parenthood involves an inherent restriction on future freedom of choice, by imposing on the parent an obligation that encompasses most aspects of life. Entering into the status of parent involves a substantial change in a person‟s rights and obligations. When a person becomes a parent, the law imposes on him an obligation to care for his child. We are not talking of a mere concern, but of an obligation to place the best interests of the child as his foremost concern. A parent cannot deny the needs of his child merely because it is inconvenient for him to fulfil them. A parent‟s responsibility for his child‟s well-being also has a tortious and criminal aspect. This responsibility embodies the normative expectation that our social values and legal system have of the individual, with respect to his functioning as a parent. The very significant implications deriving from this status necessitate that the decision to be a parent is made only by the person concerned (see also P. Shifman, Family Law in Israel, vol. 2, The Harry Sacher Institute for Research of Legislation and Comparative Law (1989), 174; CA 614/76 A v. B [3], at p. 93; CA 5464/93 A v. B [4]).

There are some who consider the paternity of Daniel Nahmani —should the procedure continue and result in the birth of a child — as merely an economic burden of which he can rid himself. There are some who hold that when Daniel gave his consent to begin the procedure, he need not be consulted again and the procedure may be continued, irrespective of his wishes. This is the opinion of some of my colleagues, as well as Dr Marmor in „The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟, supra, with which Prof. Gans disagrees in „The Frozen Embryos of the Nahmani Couple: a Reply to Andrei Marmor‟, supra). Dr Marmor holds that the procedure can be divided into two: the technical stage — when the husband gives over his genetic material — and the „parental‟ stage — the continuation of the procedure to its end. In his view, when the husband gives over his genetic material, the husband‟s role is ended, and this should be sufficient for continuing the procedure without him. His cooperation is not needed for continuing the procedure. Since he is not liable to raise the child that will be born, his right to personal autonomy is not affected. In his opinion, the right of a woman to carry out an abortion derives from an

unwillingness to  impose on her options that will be very  limited if she becomes a mother in such a way that her right to an autonomous life is nullified. This is not the case — in his opinion — with respect to the husband.

10.          I find it difficult to agree with such theses. I do not accept that the consent of a married couple to the fertilization procedure with a view to parenthood is completed by giving over the genetic material which ends in fertilization. The two decisive stages in the fertilization treatment are: first, in-vitro fertilization of the woman‟s ova with the man‟s sperm; and second, the implanting of these in the body of a surrogate mother. The two stages are different in nature and they are carried out on different dates. The two spouses are partners in all the stages of the procedure, and they should not be regarded as having done their part when they have given over the genetic material. This material is part of its owners and continues to be so even after it has been separated from them. The interest of each of the spouses in the procedure is existential, and it has lifelong implications. I do not think that the husband can be considered merely a technical means for realizing the wife‟s motherhood. Bringing a child into the world without the father‟s consent should not be regarded solely as an economic burden from which he may exempt himself — moreover, under the law he cannot exempt himself from it. A decision to bring a child into the world is a joint decision of supreme importance in the lives of both parents. The great importance of parenthood as a value, the obligation it imposes on both parents, and the expectations that society has of the parents and of each one of them to their children are the factors that should give full weight to the husband‟s right — as well as the wife‟s — not to bring a child into the world against their will. The special status of parenthood in the field of the basic rights of the individual and the burden of obligations that it involves is the source for the principle that parenthood should not be forced upon someone who does not want it.

11.          Recognizing the need for ongoing consent in order to bring a child into the world creates equality, which is a fundamental value in our legal system. Giving the wife the possibility of terminating an unwanted pregnancy, and giving the husband — as well as the wife, if she wishes it — the possibility of stopping the in-vitro fertilization procedure is an expression of this value. The possibility of stopping the procedure is blocked only when a right that takes precedence comes into the picture; this, in the case of pregnancy, is the wife‟s right not to become a mother against her will and her

right over her body. These two rights give her the right to have an abortion without the husband‟s consent. The wife‟s right over her body derives from the same fundamental values of personal liberties and personal autonomy, which are the basis of a person‟s right not to be a parent against his will. Only when a third factor enters the picture, such as the right of the wife over her body, which takes precedence, does the right not to be a parent give way to it.

The nature of consent

12.          An examination of the issue before us from the perspective of basic rights is an examination of one of the many aspects of this issue, and as I said in the judgment on appeal*:

„… consideration of the question before us from the viewpoint of human rights is insufficient to decide it, for we are not concerned with a couple where one of the spouses wishes to bring children into the world and the other opposes this, and the law does not force itself on the “objector”; we are concerned rather with spouses who have gone a long way together and given their genetic material from which ova were fertilized and put in frozen storage, in order to bring a child into the world with the help of a surrogate mother. Should the husband be forced to continue the procedure even in this situation? I suspect that he should not. The reasoning for this position requires consideration of the nature of the consent of the spouses and the legal regime within which it operates.‟

13.          The fertilization procedure for joint parenthood embodies, by its very nature and as an essential condition, the consent of both spouses. What is the nature of the consent on a crucial, sensitive, and intimate subject such as having a child? Generally, consent is an accord of the wills of two or more persons, which makes their individual wills into a common will. Consents between married spouses can be distinguished into two categories: a general, main and central consent, which is a consent to live together as a couple, and goal-oriented consents for achieving a specific goal within the framework of married life, of which the most important is the consent to bring children into the world. The specific consent is reached within the framework of the main consent, and it is entitled to exist only within that framework and as long as it continues, unless the spouses have decided otherwise. When there is a main consent to a joint relationship, any decision that is of major significance to

*             Ibid., at p. 503 {20}.

both parties to the relationship and that derives from that relationship, cannot be made by one of the partners. A consent of a married couple to a procedure leading to parenthood, which is the most important of the goal-oriented consents, requires the procedure to be begun with consent and to be continued with consent. Both spouses will face the consequences of such a consent together. Therefore, someone who agrees to fertilization but does not agree to implantation cannot be bound by his consent to the first stage of the fertilization. Each spouse has the right to withdraw his consent when the marriage has been undermined and the main consent has collapsed. Consent to the in-vitro fertilization procedure — from a theoretical and conceptual perspective — is like consent to the natural procedure of fertilization. Just as someone who has agreed to bring children into the world naturally can withdraw his consent, so too someone who began the in-vitro fertilization process can refuse to agree to continue the procedure or withdraw his consent. I am aware that in the first case the „objector‟ who withdrew his consent cannot be „compelled‟, whereas in the second case there is no such problem, since the fertilized ova are situated outside the bodies of the two spouses; but the question and the answer thereto lie in the normative, theoretical, conceptual sphere and not in the practical sphere. The question is whether it should be done, and not whether it can be done. My answer is that it should not be done; rather, we need the consent of both spouses throughout the procedure.

14.          Admittedly, the right to withdraw the initial consent creates a degree of uncertainty, but this exists in many spheres of married life, and it does not deter people from entering into it. A decision to bring a child into the world by means of in-vitro fertilization is a serious and momentous one. The difficulties and risks involved in this procedure far from guarantee success. The refusal of a spouse to continue the procedure is merely one of the possible risks. A couple starts the procedure against a background of a working marriage, notwithstanding the risks and uncertainty as to the success of their marriage and the success of the procedure. It can be said that a situation in which, after the in-vitro fertilization, there is no right to withdraw on any condition or in any case, may deter spouses from entering into a procedure from which there is no way out, no less that the fear that that the procedure will be stopped as a result of the collapse of the marriage, something that is feared by my colleague Justice Tal.

The consent of the Nahmani couple

15.          ‟What is the status of the consent that was given; what is its scope, what is its nature? Is it subject to any legal framework, and if so, what is that framework? Was an agreement made between the parties, and if so what is its basis and what are its implications? What are the ramifications of the change of circumstances that occurred subsequently on this agreement? Is the person who gave his consent entitled to revoke it and what is the remedy that can be granted, if any?‟* I answered these questions extensively in the judgment on appeal, where I emphasized  the problematic status  of an undertaking to change personal status, where I said:

„In our case the agreement was made in special circumstances, on an intimate, personal and sensitive matter that lies within the sphere of the human psyche. Notwithstanding, I do not think that this case does not involve any agreement whatsoever. The Nahmani couple expressed consent, determination and resolve with regard to a very serious matter and they took steps to carry out their consent. When two persons continue to give their consent and do not revoke it, their wishes should be respected and the agreement should be acted upon in so far as it concerns matters that they have agreed (provided that they indeed agreed them). Such an agreement — as long as the parties still agree with regard to it — is valid vis-à-vis third parties such as the medical institution or other parties involved in the in-vitro fertilization procedure, and these should respect the joint wishes of the parties (within the framework of the law). Notwithstanding, we are not concerned with an ordinary contract but with an unique contract. It certainly does not fall into the category of “perfect” contracts. Since it has contractual elements, it can be classed among the “weak” contracts. Therefore the legal framework that applies to it will also not be the framework of the laws of contract in the strict and narrow sense.‟†

16.          My colleague Justice Tal holds that we are dealing with an unenforceable extra-contractual agreement, but in his opinion Ruth does not require anything of Daniel, and his consent is not needed for the implantation. Is it really the case that Ruth is making no demands of Daniel?

*             Ibid., at p. 507 {26}.

†             Ibid., at pp. 509-510 {29}.

I suspect that the opposite is true. She demands that his opinion should not be taken into account, that he should be removed from the picture and that his refusal should be ignored. She demands that she should be allowed use of the genetic material against his will in order to bring a child into the world. She demands that the court should give consent instead of Daniel and instruct the hospital to give her the ova so that she can continue a procedure that will lead to the birth of her and Daniel‟s joint child, without his consent. To this end she asks that his consent to fertilization should be interpreted as consent to bringing a child into the world against his will, even if he will not raise the child.

Against this background, what is the significance of my colleague‟s determination that Ruth does not require anything of Daniel and that his consent is unnecessary at the time of implantation? The significance is that Daniel‟s consent is frozen in time and place, and constitutes a firm resolve at a given moment — the moment of fertilization — exactly as in a regular contract. From this moment onwards — which in our case is the period from the time when the procedure was started until the implantation of the ova — the spouses are „bound‟ by their consent and each can do as he pleases with the other‟s genetic material without the other‟s consent and against his will. This is a rigid and narrow statement, even within the framework of the laws of contract themselves, and all the more so in the special and sensitive

„contract‟ before us, in which the laws of contract should not be applied strictly, but in keeping with the nature, background and circumstances of the relationship. The contractual aspect does not operate in a legal vacuum of its own. It constitutes part of the laws of contract in their wider sense, and it should not be severed from them absolutely. It follows that we must examine the consent of the couple and each one of them and their implications, by using the tools available to us, which we must borrow from the sphere of law that is closest to the matter, namely the contractual sphere in its wider sense, adapted to the sensitive material with which we are dealing. In this framework, the agreement between Ruth and Daniel is a special agreement built on the foundation of a functioning married life. It anticipates a joint future, and the birth of a child wanted by both into the family unit. It is unenforceable and ought not to be enforced in the absence of a joint will of both parties throughout the process.

Agreement, representation and estoppel

17.          In order that the consent should have legal effect, the law makes certain requirements, some formal and some substantive. These requirements

are not mere obstacles. Underlying them are normative, social and ethical ideals that require the existence of certain elements or a certain form of elements, in order to create a binding legal obligation. They are all needed to create reliability, stability, clarity and certainty and to ensure that the person making the commitment knows what he can expect, and understands the significance of expressing his will. This is the case with every consent, but all the more so with regard to „informed consent‟, which requires awareness of the circumstances in which the consent will operate. The consent required for bringing a child into the world in this way is „informed consent‟ at each stage of the procedure. Consent at the stage of fertilizing the ova cannot be used to infer „informed consent‟ to the continuation of the procedure in circumstances that are totally different to those that  prevailed when the procedure began.

18.          Was there any express or implied consent or promise on the part of Daniel to continue the procedure in any circumstances and under any conditions, and is he estopped or prevented from changing his mind? My answer to these questions is no. Within the framework of the main consent to a joint lifestyle, the Nahmani couple reached a joint decision to bring a child into the world. They began the procedure and carried out the first stage of fertilizing the ova and freezing them. Before the consent had matured and before the joint goal was achieved, the family unit fell apart and the main consent collapsed. From a factual perspective it is clear that, from this stage onwards, there no longer existed the main consent to a joint lifestyle, and there was no consent to bring a child into the world outside this framework. The court is asked to give the goal-oriented consent that never reached fruition an existence of its own, even though the main consent, within which framework it operated, has broken down and no longer exists. I suspect that this should not be done, and without consent to the continuation of the procedure, parenthood should not be forced on Daniel against his will.

19.          The law recognizes the right of a person who gave his consent to change his mind in circumstances that are different from those in which the consent is supposed to be realized. For example, consent to give a child up for adoption, which was given before the child was born, is a consent without awareness of the circumstances that will exist when the adoption will take place. It is specifically for this reason that the law allows the person who gave his consent to change his mind. „If consent was given before the birth of the adoptee, the court may invalidate it for this reason only, namely because of the date when it was given…‟ (CA 577/83 Attorney-General v. A [5], at p.

484). In this matter also consent may be withdrawn, until a third factor enters the picture — the best interests of the child — which is a higher value that overrides the right to withdraw the consent. In this way the principle that I wish to apply in our case is applied.

20.          Both from a factual and a legal perspective, there was no consent, and certainly no informed consent, on the part of Daniel to continue the procedure in the circumstances of a breakdown of the family unit. It is reasonable that when the couple began the procedure by consent, they assumed that their marriage would continue, and in this framework their joint child would be born. Reality has dealt them a hard blow. The circumstances have changed utterly, and although Daniel created the change —

„We are not sitting in judgment on the acts of Daniel Nahmani in the moral sphere and “punishing” him for his behaviour. These are not the criteria for deciding the question whether he has a right to object to the continuation of the procedure. The relationship between spouses is not static. It is by nature dynamic and subject to crises. The feelings of spouses are not always stable. They may change even without any connection to a complex procedure such as in-vitro fertilization. An initial consent to this procedure is not an informed one in the full sense of the word because of the inability to foresee — emotionally and psychologically — what will happen in the future. Spouses do not always deal successfully with the difficulties in their lives together, especially when they are faced with a procedure such as in this case, with its emotional, physical and economic difficulties and the subjective and objective problems that it involves.‟*

21.          Daniel did not promise Ruth that the procedure would continue whatever the conditions or circumstances, and such a promise cannot be inferred from his consent to begin the procedure when their family life was intact. The learned District Court judge did not reach any finding of fact that Daniel promised Ruth to continue the procedure even without the joint family unit and, indeed the evidence does not show that Daniel made such a promise or representation. The learned judge inferred from the initial consent a continuing and irrevocable consent. As I have explained both in the judgment on appeal and in this opinion, I do not accept this position. It is not required

*             Ibid., at p. 512 {33}.

by the facts of the case, it is inconsistent with our experience of life and it is incompatible with recognized and accepted principles of law. What can be seen from the evidence and is plausible from the circumstances is the absence of a promise to bring a child into the world even if the marriage collapsed and the family unit broke up. The absence of such a promise is inherent in the circumstances surrounding the goal-oriented consent to joint parenthood of the couple within the framework of the main consent to married life.

22.          Daniel did not make any representation upon which Ruth could rely, and in practice Ruth did not rely on any representation, and did not begin the procedure on the basis of such a reliance. She did not adversely change her position by relying on any representation. The only representation that can be inferred from the circumstances is a limited representation of consent within the framework of the existing family unit, assuming that it will continue to exist. The procedure began when their family life was functioning, with expectations that it would continue to be so, and that the child that would be born would become a part of it. The expectations proved vain and the main consent, and consequently the goal-oriented consent, no longer exist. An initial consent given to begin the in-vitro fertilization procedure is not a promise to bring a child into the world in any circumstances whatsoever. It is a promise that is limited to the conditions and circumstances in which it is given.

It follows that Ruth‟s expectation that she could bring Daniel‟s child into the world notwithstanding his opposition, against his will and not into a family unit jointly with him is a wish but not an enforceable right; but not every wish of one person imposes an enforceable legal obligation on another; not every desire of one person constitutes a basis for a judicial order against another. Not all walks of life should be controlled by court orders. There are spheres — and marriage and family planning are some of the most obvious — where judicial enforcement halts at the threshold of the litigants. When a couple enter into a marriage, each promises the other that they will live together forever. This promise, which no-one thinks is enforceable, exists on the level of good intentions, expectations, hopes and desires. There is no remedy in the law that can guarantee its existence, nor should there be. The same is true also of a promise for joint parenthood. Enforcing parenthood is not a legitimate option when we are speaking of actions that require the consent of both spouses. As I stated in the judgment on appeal:

„The relationship between spouses should be based on love, friendship,  understanding,  support,  trust  and  consideration.

Sometimes this relationship collapses, expectations fade, hopes vanish and  dreams are shattered.  Not in  every case can the victim find a remedy for his injuries in court orders, where enforcement is impossible, is improper in view of the circumstances and under the law, and is inconsistent with the basic rights of the individual in our society.‟*

23.          Consent loses its significance only when the fertilized ova have been implanted in the woman‟s body. Then the body of the surrogate mother enters into the picture — and no interference can be allowed to this without her consent. It may be that one day, when science allows even pregnancy to take place outside the woman‟s womb, we will be confronted with a new problem that must be faced. Who can foresee the future? At present, we reach the point of no return only when the ova are implanted in the body of the surrogate mother, when the value of the woman‟s right to protection of her body, control of her body and non-interference with her body takes precedence. The relevant considerations for fixing the point of no return at the latest time and place in the procedure derive from a balance between the conflicting rights and interests. Until the stage of implantation, the value of free choice takes precedence and consent is required. From that moment onwards, rights and interests that override the interests protected by the principle of consent enter the picture. In a natural pregnancy, the point of no return is reached when the pregnancy begins, because from which point onwards the woman does not need her  partner‟s consent to perform an abortion because of her control over her own body and her right that it should not be interfered with. With in-vitro fertilization, this point is reached upon implantation of the ova in the woman‟s body, since then the woman‟s right over her body enters the picture, and this overrides the need for consent to the continuation of the procedure.

The need for consent in different legal systems

24.          Most western countries, Europe, England, the United States, Canada and others, require continuing consent throughout the procedure, for each stage. I discussed this extensively in the judgment on appeal, so I will say nothing more. In all of those countries, each spouse may withdraw consent at any stage of the procedure. In some of the countries, there is legislation to this effect, such as, for example, in England: the Human Fertilization And Embryology Act, 1990 (Schedule 3, sect. 4). Pursuant to this law, effective

*             Ibid., at p. 522 {48}.

consent is required, and this incorporates the possibility of a change and withdrawal of consent at any time before use of the fertilized ova. The withdrawal of consent by one of the parties obliges the authority storing the fertilized ova to destroy them. This is also the case in Western Australia: the Human Reproductive Technology Act, 1991 (ss. 22(4) and 26(1)(a)(i)).

In the United States, Canada and other Western countries, the issue is not regulated by legislation, but rather by the recommendations of commissions that were appointed to investigate the issue. In some of these countries — because of the great importance attributed to consent in  such  a  fateful matter — it was recommend that the couple should agree between themselves in advance as to the fate of the ova in the event of a separation, and their agreement would then be honoured (there was no such agreement in our case). The vast majority of these countries give the couple the prerogative of making a joint decision whether to continue the procedure or terminate it, and they require the express consent of both to each stage of the procedure, which will be stopped if one of the parties expresses opposition to its continuation (for the position of legislation and the recommendations of the various commissions in the various countries, see the judgment on appeal).*

The American Medical Association submitted recommendations according to which continuing consent is required, and it did not accept the view according to which consent at the time of fertilization only is sufficient (see: American Medical Association, Board of Trustees Report, JAMA, vol. 263, no. 18, 1990, at p. 2486).

In the surrogacy agreements that are common in the United States, among bodies that deal with them, there is a section that requires the consent of both spouses to implantation in the womb of the surrogate, and the signature of both of them on a surrogacy agreement. This was also the case with the agreement which was supposed to be signed by the Nahmani couple but which was never signed. In a judgment of the United States Federal Court

K.S. v. G.S. (1981) [50], the court expressed the opinion that once consent is given, it is deemed to continue; but the court further held that as soon as the consent is expressly terminated, the procedure cannot continue. The petitioner refers to the judgment in Kass v. Kass (1995) [51], (See New York Law Journal, 23 January 1995), where the written agreement between the parties was interpreted as providing for the continuation of the procedure in the event that the couple separated, and the court honoured this agreement

*             Ibid., at p. 503 {20}.

and gave it validity. Here there is no such agreement. Consequently, this decision has no bearing on our case.

In Israel, the issue has not been regulated in direct legislation. The Public Health (In-vitro Fertilization) Regulations, which I considered extensively in the judgment on appeal, require consent of the husband at all stages of the in- vitro fertilization.

The public commission established in Israel to examine the issue of in- vitro fertilization and to submit its recommendations, unanimously recommended that:

„… in the absence of joint and continuing consent, no  use should be made of the fertilized ova that were frozen until the end of the freezing period agreed by the spouses but consent that was given at the beginning of the treatment shall be deemed to continue as long as neither of the spouses revokes it in writing‟ (emphases supplied).

„The Commission considered the possibility that the genetic mother or the genetic father would have no other way of realizing genetic parenthood. But giving permission to have a child in such a situation, without joint consent, means forcing fatherhood or motherhood, both from the legal viewpoint and from the emotional viewpoint, in that there will be a child who is born without their consent. The commission was of the opinion that a man or woman should not be forced to be a father or mother against their will, even if they initially consented to this‟ (see the Report of the Professional Public Commission for Examining the Issue of In-vitro Fertilization (1994), 36).

On 7 March 1996, the Knesset passed the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law. Section 2(1) of this law requires written consent between the surrogate mother and the parents availing themselves of her services. The conditions and the procedure for approving the agreement are set out in the law, which stipulates in section 5(c) that „the approvals committee may reconsider an approval that was given if the facts, circumstances or conditions that served as a basis for its decision have undergone a substantive change, as long as the fertilized ova have not been implanted in the surrogate mother in accordance with the surrogacy agreement‟ (emphasis supplied). The point of no return is the moment of implanting the ova. Until this point, the continuing consent of both partners to the procedure is required. This issue was expressly included on the agenda

of the Knesset Committee, when the first draft law contained the words „as long as the fertilization has not been carried out in accordance with the agreement, the committee may reconsider…‟ was changed in the law to „as long as the fertilized ova have not been implanted…‟ (see the discussions of the Knesset Labour and Social Affairs Committee on 9 Jan 1996, at p. 14, 17). The aforesaid approach derives from the basic ethical recognition that regards parenthood as a journey taken by two people together — a journey that can only begin by virtue of consent between them, and that can only continue by virtue of continuing consent between them.

25.          In all the countries that require the continuing consent of both spouses, the ova can be destroyed either by joint agreement of the couple or due to the passage of time. In Israel, too, the ova are destroyed after five years (regulation 9 of the Public Health (In-vitro Fertilization) Regulations), unless both spouses request an extension of the period. This is a result of the outlook that regards the consent of both spouses throughout as essential and imperative, and from the outlook that the ova are the „quasi-property‟ of the two owners of the genetic material and they do not have, in themselves, a

„status‟ worthy of protection (see also Gans, „The Frozen Embryos of the Nahmani Couple‟, supra, at p. 86). Their status is pre-embryonic.  With regard to the status of the ova, as regarded in the western world, in Israel and in Jewish law, I can only refer to what I wrote in the judgment on appeal, and I will not expand on it.*

26.          My colleague Justice Tal sees support for his approach in Jewish law; but it is very questionable whether my colleague‟s position reflects  the approach of all aspects of Jewish law. „Even Jewish law, which imposes a commandment to be fruitful and multiply on the man, but not on the woman (Mishnah, Tractate Yevamot 6, 6 [61]), does not see fit to compel him if he does not fulfil his obligation. The refusal gives the woman a ground for divorce but not a ground for enforcement and coercion (Maimonides, Mishneh Torah, Hilechot Ishut (Laws of Marriage), 15, 5, [58]; Rabbi Yosef Karo, Shulchan Aruch, Even HaEzer, 154, 4 [60]). See the responsum of Rabbi S. Yisraeli, „On Consent and Retraction in Pregnancy and Birth by In- vitro Fertilization‟ in Encyclopaedia of Jewish Medical Law, Dr A. Steinberg ed., vol. 4, p. 28, 41 [62]; ibid., vol. 2, under „In-vitro fertilization‟, p. 115 [62], the responsum of Rabbi Shalom Shalush, „Fertilization in a Surrogate

*             Ibid., at p. 519-520 {44-47}.

Womb‟, Orchot, the magazine of the Haifa Religious Council, no. 39, p. 31 [63] (see also the judgment on appeal).*

Before I end  this opinion,  I would like to associate myself with the remarks of my colleagues Justices Or, Zamir and President Barak. I would also like to add some remarks with regard to what is stated in the opinions of some of my colleagues whose positions are different from mine, and which came to my attention after writing this opinion.

The right to life

27.          My colleagues, Justices Goldberg and Kedmi discussed the biological aspect of parenthood and the transfer of the genetic material from generation to generation. My colleague Justice Türkel granted Ruth Nahmani‟s wish by emphasizing the „right to life‟ and the enormous value of „human life‟. The

„value of life‟ and the „right to life‟ cannot be belittled, for we hold them to be amongst the most exalted and sacred rights, if not the most sacred right of all. But the fertilized ovum is not a living creature. The fertilized ovum is genetic material of both spouses in a pre-embryonic state, frozen soon after fertilization. It is composed of several separate cells, without any distinction between what will become a foetus and what will become a placenta. We are not dealing with preservation of existing life, but with advancing the potential for life. We are not speaking of preserving life that has been created, but with the creation of life ex nihilo. A society in which the individual is entitled to  plan his family and have children, a society  which does not compel someone to create life, not even as a moral injunction (except as a religious injunction), cannot force someone to create life against his will, in the name of the right to life. The creation of life is a totally separate issue from the preservation of existing life. Every enlightened society struggles with the question whether to create life at any cost. Medicine and technology allow for the creation of life by means that are becoming more and more removed from the natural means of creation it. The day may not be far off when it will be possible to replace the mother‟s womb with an artificial one that will carry the foetus and the whole process of creating life can take place in laboratories. The moral questions will continue to reverberate in the air and will become even more acute. Most of the states of the United States and most European countries that venerate the sanctity of life prohibit the creation of life by means of a surrogate mother, for moral, ethical, ideological,   sociological,   medical   and   other   reasons.  Various   bodies,

*             Ibid., at pp. 500, 506 {15, 24}.

including the „Israel Women‟s Network‟, regard surrogacy as immoral and encouraging a type of female slavery, which offers the womb for hire. The topic of in-vitro fertilization involves existential questions concerning the nature of life. One cannot find in the sacred and supreme value of life a reason or justification for forcing either of the spouses to create life by means of an in-vitro fertilization procedure; the consent of each of the spouses to the implanting of the frozen ova in the surrogate cannot be waived. The procedure cannot be continued without the consent of the two spouses that donated their genetic material. The sanctity of life has nothing to do with considerations for continuing the fertilization procedure, by coercion, at this early stage prior to the creation of life.

„Justice‟

28.          It is only natural that in the case before us, which has existential, emotional and normative human aspects, opinions are divided and there is no single solution. But recruiting „justice‟ for one view, thereby negating it from the opposing view, is to do an injustice to the opposing view, and possibly even to justice itself.

Man is commanded to pursue justice: „Justice, justice you shall pursue‟ (Deuteronomy 16, 20 [64]); the law strives to do „justice‟; but the difficult and paramount question has always been, what is „justice‟, what is its meaning, what are its characteristics, how is it defined and how is it attained. These questions have occupied the greatest scholars of the Bible, the Talmud, philosophy, literature, law and religion in all generations and cultures. Justice has many aspects and many facets: social, personal, political, national, economic, legal, etc.. Some see in human justice an attempt to imitate divine justice (imitatio Dei); some regard equality as the embodiment of justice. Others regard the dispensing of just law as compliance with the rules that fall within the scope of the „rules of natural justice‟.

The difficulty in defining and discovering justice is discussed by Justice Cohn, HaMishpat, supra, at p. 84:

„… Justice is not a science that can be discovered or defined: it is an attribute of the soul; and the fact that it is beautiful and humane, does not make it easier to define. It can be compared to the beauty of a Beethoven symphony or of a Gothic cathedral that one cannot prove… It is usually the case, for example, that each of the litigants who stands before a judge genuinely feels and believes that justice is on his side; the sense of justice of the

successful litigant is satisfied, whereas the sense of justice of the losing litigant is severely injured, and he is convinced that an injustice has been done to him… So it can be seen that the human sense of justice cannot serve as a yardstick for an objective party, in addition to the fact that it cannot even be defined or measured. Moreover, one cannot know, and one certainly cannot determine, whether one person‟s sense of justice is more reliable or trustworthy than that of another: from its subjective perspective, each of them is right, but even from an objective point of view, each of them may be right, or partially right.‟

Concerning the many and vague connotations of the term „justice‟, the scholar C.K. Allen says:

„Ever since men have begun to reflect upon their relations with one another and upon the vicissitudes of the human lot, they have been preoccupied with the meaning of justice… I choose at random a miscellany of the adjectives which, in my reading, I have found attached to different kinds of justice — distributive, synallgamatic, natural,  positive,  universal,  particular, written, unwritten, political, social, economic, commutative, recognitive, juridical, sub-juridical, constitutional, administrative, tributary, providential, educative, corporative, national, international, parental.

A very little ingenuity would extend the vocabulary indefinitely. There seems to be no end to this classification and sub- classification and its instructiveness is not always proportionate to its subtlety. There is a danger of the cadaver being so minutely dissected that little of its anatomy is left visible to normal sight‟ (C. K. Allen, Aspects of Justice, London, 1958, at pp. 3-4).

In recent decades, we find scholars that have given up trying to find an exhaustive and uniform definition of the nature of „justice‟. In this regard Ronald Dworkin says:

„In the end, however, political theory can make no contribution to how we govern ourselves except by struggling against all the impulses that drag us back into our own culture, toward generality and some reflective basis for deciding which of our

traditional distinctions and discriminations are genuine and which spurious, which contribute to the flourishing of the ideals we want, after reflection, to embrace, and which serve only to protect us from the personal costs of that demanding process. We cannot leave justice to convention and anecdote‟ (Ronald Dworkin, A Matter of Principle, Cambridge, 1985, at p. 219) (emphases supplied).

29.          „Justice‟ for one person may be „injustice‟ to another, or an „injustice‟ to society; the exercising of a right by one person may involve a violation of the right of another, which will prevent him from exercising his own right; every litigant believes that justice is on his side, and that feeling stays with him even when he has lost the case, and then he feels that he has suffered an

„injustice‟. Socio-economic „justice‟ in a certain society may be perceived as

„injustice‟ in another society. Is not the repair of a wrong to one person at the expense of another, merely because the first person was harmed and even if he has no right against the other, an „injustice‟ to the other? Is the granting of compensation to a person who was injured, without him having a cause of action to receive relief, by making another  person liable, because he is injured and the other person can pay, doing „justice‟? The law does not require a person who has promised marriage to fulfil his promise, and it does not compel him to do so. The relief granted is compensation. The law does not require a person to have children with his spouse even if he promised to do so and changed his mind. A person who breaks a promise causes disappointment and frustration to the other. His behaviour is not „just‟, but the law will not require him to keep his promise in the name of „justice‟. The law does not intervene when a woman aborts a foetus against the father‟s will: is that „just‟ to him? According to his feeling of frustration, unfairness and loss, it is not just; notwithstanding, the law will prevent the man from interfering and will protect another interest which it regards as preferable; autonomy over the body.

30.          The scholar Hare said that not only do people disagree as to the just solution to a particular problem, but it is possible that there is no completely

„just‟ solution to a particular problem:

„By this I mean not merely that people can disagree about the just solution to a particular dilemma, but that there may be no completely just solution‟ (R. M. Hare, Moral thinking, Oxford, 1981, at p. 158).

Doing justice in a trial cannot be fully expressed in a formula. It is a complex process of finding a balance between various factors, including equality. The scholar Dias says:

„Justice is not some “thing”, which can be captured in a formula once and for all; it is a process, a complex and shifting balance between many factors including equality. As Freidrich observed “Justice is never given, it is always a task to be achieved”.‟ (Dias, Jurisprudence, supra, at p. 66).

31.          Notwithstanding the difficulty in discovering and defining justice, the desire to do justice is an inner imperative of every judge. The exercising of judicial discretion constitutes an effort to achieve justice. The judge‟s subjective sense of justice guides his judicial discretion to achieve legal justice, which is an integral part of the law. In his aforementioned book, Cohn says at pp. 93-94:

„… One must not distinguish between the nature and purpose of the law and the „legal justice‟ in its application. We have already seen that people are different from one other, also in that each of them has his own sense of justice, and an individual sense of justice is, to some degree or other, a function of individual interests. Should every person exercise his own sense of justice and act accordingly, then I fear that the world would revert to utter chaos. By upholding the law, man makes his contribution towards the existence of the world… This is what we have said: if statute and the law is upheld, social justice will be done, and the purpose of this is merely to foster peace between men.

… Legal justice is always manifested in acts and omissions that comply with the norms that bind everyone and apply equally to everyone…‟ (emphases supplied).

He also says:

„Of the many meanings of justice, which we have already discussed, we have chosen very specific meanings in which we see “justice” that constitutes an integral part of the “law” as we have defined it. This “justice” is consistent, to a large degree, with what Pound termed “the philosophical, political and moral ideas” that — as we have seen — also in his opinion constitute an integral part of the law.‟ (H. H. Cohn, HaMishpat, supra, at p. 83; emphasis supplied).

32.          Justice, as an abstract concept, is neutral in our case. A finding in favour of Daniel Nahmani is doing an „injustice‟ to Ruth Nahmani, and a finding in her favour is doing an „injustice‟ to him. We must seek „justice‟ that is consistent with the „philosophical, political and moral ideas‟ that are an integral part of the law.

My decision in the matter before us, that the implantation process should not proceed without Daniel‟s consent, is a decision of justice in law. It is not a random or partisan decision. It is not an intuitive decision based merely on subjective feelings and an inner voice. It is a decision based on the values of justice of the legal system, which are incorporated in it and are its very essence: the rights of the individual, personal autonomy, relationships between spouses in the field of fertility, the result of a joint decision which requires two people to carry it out, the establishment refraining from forcing parenthood on someone, the need for cooperation and consent between spouses on a subject hidden in the recesses of the human soul and inherent in the delicate fabric of intimacy and parenthood. The decision that I have reached is the result of a process of various balances between values, rights and desires that conflict with one other. It represents — to the best of my understanding and feeling — the dispensing of legal justice, in its complete and coherent sense. Loyalty to the basic norms, to the fundamental principles of the legal system, to basic human rights, to the liberties of the individual and equality in exercising and realizing these rights and applying the law in its wider sense, will ensure that a just trial that is normative, ethical, principled and worthwhile. „Gut feelings‟ or „subjective feelings‟ are likely to lead us on the path of granting a right to someone who does not have one and forcing the will of one person — by means of the law — on another, so that duties that he does not have will be imposed on him, and this coercion constitutes a violation of his basic rights, which we are mandated to safeguard. All of the aforesaid emphasizes the difficulty inherent in attaching the label of „justice‟ to one of the two possible solutions.

Conclusion

33.          I am aware of Ruth‟s distress and frustration, of which I have been mindful throughout. I am aware that Ruth‟s harm from the non-realization of her parenthood is greater than Daniel‟s harm if parenthood is imposed on him: Ruth‟s contribution to the fertilization involved suffering and effort beyond those involved in Daniel‟s contribution; Daniel left the home, established a new family, achieved parenthood, while for Ruth this is apparently the last chance to realize biological motherhood. Daniel should be

mindful of this balance and consider whether as a result he ought to consent to allow Ruth to try to realize her aspiration. No-one can, or should, consent in his stead, and he should not be forced to consent by means of a judicial order that will replace his consent. Such a balance does not replace the required consent, and it does not create a legal right capable of judicial enforcement. Such a balance cannot avail us when a right is a liberty without a corresponding duty and when there is no basis for establishing a right to force parenthood on someone against his will.

34.          In summary of my position I will say that, in my opinion, a person has the liberty to be a parent and thereby fulfil a basic human yearning, but he does not have a right that imposes on another a duty to make him a parent, and to make himself a parent. In the absence of mutual consent to bring a child into the world, the right to be a parent — as part of the right of self- realization — cannot limit the autonomy given to another person and the freedom of choice given to him to direct and plan his life. Two people are needed to bring a child into the world, and this implies a need for continuing consent of both of them to achieve this purpose. Without joint consent, a person should not be obliged to continue a procedure that is likely to result in an unwanted parenthood. Consent to begin a procedure of  in-vitro fertilization within the framework of a main agreement for a joint life and joint parenthood cannot be considered sufficient consent or continuing consent, and even if it can be considered as such, each party is entitled to retract it when there is such a drastic change of circumstances as in our case. Consent is required for each stage up to the point of no return, which is the implantation of the ova in the woman‟s body. In the absence of such consent, Daniel cannot be compelled to consent to Ruth‟s aspiration. Daniel did not agreed to bring a child into the world in all conditions, circumstances and frameworks. He made no such promise, made no such representation, and when the framework within which the original consent of the two spouses operated fell apart, the procedure cannot be continued without obtaining Daniel‟s consent or by ignoring his refusal to consent to the continuation of the procedure. Parenthood cannot be forced upon him against his will by means of a judicial order, neither in the name of the law, nor in the name of justice nor in the name of life.

Therefore my opinion remains as before, that the petition should be denied.

Justice Ts. E. Tal

The case of the Nahmani couple is again placed before this court for its decision, pursuant to the decision of President Shamgar, who ruled that a further hearing should be held on the judgment of the Supreme Court in CA 5587/93.*

Let us briefly review the main facts and proceedings of the Nahmani case. The couple married in 1984, and after three years the wife was compelled to undergo a hysterectomy. In 1988 the couple decided to try and have a child by means of in-vitro fertilization of the wife‟s ova with the husband‟s sperm, and implantation of the fertilized genetic material in the womb of a surrogate. Surrogacy was not permitted in Israel at that time, and so they decided to carry out the fertilization stage in Israel and implantation in the United States at a surrogacy centre there. After the fertilization took place, but before the implantation stage was carried out, disputes arose between the couple. The husband left home and went to live with another woman, who became pregnant and bore him a child.

The wife applied to Assuta Hospital, where the fertilized ova were deposited in cold storage, and she asked to receive it in order to carry out the implantation. The hospital refused, because of the husband‟s objection, both in a letter to the hospital and in a letter to the surrogacy centre in the United States. The wife applied to the Haifa District Court, where his honour Justice

H. Ariel ruled that she was entitled to receive the fertilized ova.† Among the

reasons given by the judge, a central role was given to the consent between the spouses, and to the fact that the husband could not withdraw his consent. The husband filed an appeal on the judgment, and the appeal was allowed by majority opinion.

I have once again studied the matter, as well as the remarks of my colleagues both in the appeal and in this proceeding, and I have not changed my opinion,  which was the minority opinion  in  the aforementioned  CA 5587/93.

My opinion was based on the principle that we do not listen to a man who wants to terminate a pregnancy, even when the pregnancy was obtained by deception and fraud, because we do not interfere with a woman‟s body

*             IsrSC 49(1) 485; [1995-6] IsrLR 1.

†             IsrDC 5754(1) 142.

against her will. Similarly, a man should not be heard with regard to termination of a fertilization procedure, when such a termination — retroactively — makes the interference in the woman‟s body futile, and her dignity and modesty are violated. Also, the man is estopped from withdrawing his consent, by virtue of the principle of reasonable reliance, when the woman has adversely and irrevocably changed her position. As explained there, estoppel by virtue of reliance is no longer merely a defence argument, but also constitutes a cause of action and a ground for enforcement.

I reaffirm what I wrote there, and I would like to add a few remarks. We do not have any provision in the law according to which we can solve the dispute before us. Even the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law, which recently came into force, contains no provision that regulates a situation like the one before us. The silence of the legislator can be interpreted in several ways. See BAA 663/90 A v. Bar Association Tel-Aviv District Committee [6], at p. 404; HCJ 4267/93, Amitai — Citizens for Good Government v. Prime Minister [7], at p. 457.

It cannot be said that the silence of legislation amounts to a negative arrangement. The issue is too important, problematic and complex for an arrangement to be derived from silence.

It would seem that the silence of statute derives from the disparity that always exists between the rate of development in the fields of science and technology, and the ability of the law to absorb these changes and embody them in legislation. The Supreme Court of Australia described this disparity in Mount Isa Mines Ltd v. Pusey (1970) [46]:

„Law, marching with medicine, but in the rear and limping a little.‟

The law is silent in our case because it is „limping behind medicine‟, and consequently we have before us a field of medical law that has not yet been regulated by the legislator.

Development of the law

A lacuna in the law imposes on the court the duty to develop the law in order to provide a response to cases brought before it. It may not sit idly, as if it were better not to take any positive action. See in this regard J.C. Gray, The Nature and Sources of the Law, New York, 2nd edition, 1948, at p. 302:

„When a case comes before a court for decision, it may be that nothing can be drawn from the sources heretofore mentioned; there may be no statute, no judicial precedent, no professional opinion, no custom, bearing on the question involved, and yet the court must decide the case somehow; the decision of cases is what courts are for… And I do not know of any system of Law where a judge is held to be justified in refusing to pass upon a controversy because there is no person or book or custom to tell him how to decide it. He must find out for himself; he must determine what the Law ought to be; he must have recourse to the principles of morality.‟

In what manner and with what tools should we develop the law? Prof. Barak distinguishes between different types of legal creation, and in our case, it is important to distinguish between the following two: filling a lacuna and developing the law. In his article, „Types of Legal Creation: Interpretation, Filling a Lacuna and Development of the Law‟, 39 Hapraklit, (1990) 267, 269-270, he said the following:

„The second way in which a judge determines the law is by filling a lacuna… a lacuna exists where a legal norm or legal arrangement is incomplete, and this incompleteness conflicts with the purpose of the norm or the purpose of the arrangement. Just as there exists a gap in a stone wall, where the builder forgot to put in one of the stones needed to complete the wall…

The third way in which a judge determines the law is by developing the law… central to this is the judge‟s activity as a creator of a new legal norm, which is required by the needs of life, other than by interpreting an existing normative text, or creating a new normative text in order to fill a lacuna in an existing normative text.‟

Prof. Barak repeated these remarks in his book Interpretation in Law, vol. 1, The General Theory of Interpretation, Nevo, 1992, at p. 609, where he says:

„Development of the law is a judicial activity, in which framework the judge creates a new norm or declares an existing norm to be invalid… this activity is based on the need to adapt the law to the reality of life. Legal institutions and arrangements,

which served society in the past, may no longer be consistent with the needs of the present and the future.‟

According to this distinction, the case before us belongs to the field of development of the law, and not the field of filling a lacuna, since there is no defective or inadequate norm before us. Because of the rate at which life has developed, the legislator has not yet addressed all of the questions in the field of fertilization and genetics, and therefore we must create a proper norm to apply to the case before us.

In doing so, we must: a) consider the conflicting interests; b) determine the legitimate expectations of both parties; c) weigh up the proper legal policy considerations.

The conflicting interests

There are two main rights competing with one another: the right to be a parent and the right not to be a parent. However, since there is no provision in the law that applies to the case, it would be more precise to say the interest in being a parent and the interest in not being a parent. What is the nature of these interests? The interest in being a parent is one of the most basic aspirations of man, and needs no explanation. In CA 488/77 A v. Attorney- General [8], at p. 441, it was said:

„In general, a person has no more precious possession than the emotional bond between parents and their natural child, in which they see the fruit of their love, their own flesh and bone, and the succeeding generation that bears their genes.‟

And in CA 451/88 A v. State of Israel [2], at p. 337, it was said:

„The right to parenthood is a basic human right to which everyone is entitled…‟

The Supreme Court of the United States, in Skinner v. Oklahoma (1942) [52], considered the question whether the right to parenthood is a protected constitutional right, and it concluded that the right to parenthood is „one of the basic civil rights of man‟ and that this right is „fundamental to the very existence and survival of the race‟ (ibid., at p. 541).

Against this existential interest lies the opposite interest, not to be a parent, or, to be more precise, not to be a parent against one‟s will. When we come to balance these conflicting interests, we should remember that despite the symmetrical forms of speech, „to be a parent‟ and „not to be a parent‟, these interests are not equal. The interest in parenthood constitutes a basic

and existential value both for the individual and for the whole of society. On the other hand, there is no inherent value in non-parenthood. The value that is protected in the interest of non-parenthood is the value of privacy, namely the freedom and right of the individual not to suffer interference in his intimate decisions. See in this regard the article of Dr Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra, at pp. 198-200:

„It is not at all clear whether the right to be a parent and the right not to be a parent should be discussed on the same level merely because they are prima facie symmetrical. In other words, we cannot assume the existence of symmetry between the two rights just because they hold two ends of the cord of parenthood.

As a rule, the right to “something” and the right to “nothing” are not always equal. Is the right to life entirely equivalent to the right to die? Indeed, a moral position whereby every person has a right to live and a right to die, and the two of these are rights of equal weight, is possible. Whoever accepts this outlook will support full recognition of realizing the right to die, even by means of active “euthanasia”. But another, asymmetrical, position is possible. Thus, for instance, the “equivalent” approach to life and death has been rejected in Jewish thought. From CA 506/88 Shefer v. State of Israel we can see the approach of the court that the right to life has a higher status, and therefore, at most, it is possible to recognize passive “euthanasia” (in certain circumstances). In other words, the something and the nothing are not always of equal weight.

…

… Even were we to regard the right to parenthood and the right not to be a parent merely as derivatives of the autonomy of the will, there would not necessarily be symmetry between them. We do not respect every desire, and not every desire should be respected to the same extent. Moreover, the main criticism is directed against the narrow view of the judgment regarding the right to  parenthood.  Is it correct to  see in it a right that is “derived from the right to self-realization, liberty and dignity”? Is that all that it involves? In my opinion, we can find many other facets to it. The right to be a parent is an independent right, and not just an expression of the autonomy of the private will. Realizing the option of parenthood is not merely a possible way

of life, but it is rooted in human existence. There are some who will regard it as cure for loneliness; others will use it to deal with the thought of death. Indeed, the choice of refraining from parenthood is a possible way of life, which society and the law must respect. However the choice of parenthood is not just a decision concerning a way of life; it has much greater significance for human existence. It expresses a basic existential need. Moreover, the decision to become a parent also has an element of self-realization, particularly in modern society, which emphasizes self-realization as a value. But the right to parenthood does not derive only from self-realization. The right to life is an independent basic right, and it is not a derivative of the autonomy of the will; the same is true of the right to parenthood. From this perspective, the symmetry created by the judgment between the right to parenthood and a decision (legitimate, in itself) not to be a parent (as an expression of personal freedom) is undermined, or at least requires further consideration.‟

Let us turn to our case. First, we are not speaking of forced parenthood. We are speaking of a person who gave his consent to parenthood, but who wants his consent to be required also during the continuation of the procedure. The interest of society in non-forced parenthood does not necessarily lead to the conclusion that his consent is required over an extended period. The interest in preventing parenthood against a person‟s will is satisfied by requiring a one-time irrevocable consent.

Secondly, for the woman, it can be assumed that that this is her only possibility of realizing her parenthood.

The cumulative weight of these two factors leads to a clear conclusion that the interest of being a parent takes precedence. We can reach the same conclusion by comparing the damage that is likely to be caused by denying the rights. If you take parenthood away from someone, it is as if you have taken away his life. In the Bible we find the desperate cry of our ancestress Rachel, „Give me children, else I die‟ (Genesis 30, 1 [65]). Similarly, from the teachings of the Rabbis we learn that „whoever has no children is considered as a dead person‟ (Bereishit Rabba 79, 9 on Genesis [66]). Similarly, they interpreted the verse in Jeremiah 22, 10 [68]: „“Do not weep for the dead, nor bemoan him; weep indeed for him who goes” — Rabbi Yehuda  said:  for  him  who  goes  without  children‟ (Babylonian  Talmud,

Tractate Moed Katan 27b [69]). By contrast, denying the interest of non- parenthood amounts to no more than imposing burdens that may not be desirable to that person. Without belittling the weight of these burdens, they are not equivalent to „taking the life‟ of the spouse.

Even in Davis v. Davis [47] the court decided in favour of the husband‟s position, only because at that stage the wife was not asking for the fertilized genetic material for herself, but for another woman. The court said there that had the wife wanted the fertilized material for herself, and had the situation been such that she had no alternative for realizing her right to motherhood, the court inclined to the opinion that the wife‟s right to motherhood should take precedence over the husband‟s right not to become a father.

In summary of this point, I will say that the woman‟s interest in motherhood is greater, and overrides the man‟s opposite interest.

The legitimate expectations of the parties

One of the tasks of a judge, when engaging in judicial legislation, is to realize the legitimate expectations of the parties. When we say „legitimate‟, we do not mean expectations embodied in the law, for if there were a statute or precedent in our case, we would not need to resort to judicial legislation;

„legitimate‟, in the sense of expectations that merit protection according to the system of values accepted by society.

The importance of this task was discussed by Prof. Barak in his article

„Judicial Legislation‟, 13 Mishpatim, 1983, 25, at p. 71:

„…We should refrain… from choosing that option that harms reasonable expectations. The reasons for this are many. Harm to a reasonable expectation harms the sense of justice, disrupts proper social life, harms the public‟s faith in the law, and denies any possibility of planning behaviour.‟

Realization of the parties‟ expectations is important in every sphere of judicial legislation, but it has special importance in our case. The development of fertilization and reproduction techniques requires the law to recognize the importance of the emotional aspect of the persons involved in these techniques. See in this respect A. E. Stumpf, „Redefining Mother: A Legal Matrix For New Reproductive Technologies‟, 96 Yale L. J. (1986-7), 187.

The case before us concerns two spouses who travelled a long distance in each other‟s company. It is true that one cannot know with certainty what the

spouses originally thought about a situation in which they might separate. But this uncertainty is not characteristic merely of  family  law. The law reconstructs a person‟s intentions in two ways; presumed intention and imputed intention: presumed intention, according to experience of life and common sense, and according to the special circumstances of each case; imputed intention, when there is no way of assessing the presumed intention of the parties, and the law — for its own purposes — attributes to someone an intention without his knowledge, and maybe even against his will.

Our case involves a woman who underwent gynaecological surgery and was forced to undergo complex, invasive and painful procedures in order to extract the ova, in the knowledge that this was almost certainly her last opportunity to bring a child of her own into the world. It is difficult to assume that she would have agreed to undergo these treatments in the knowledge that her husband could change his mind at any time that he wished. It is inconceivable that someone should agree that her last and only glimmer of hope should be dependent on the whim of her spouse, who might change his mind at any time.

It can therefore be said that the presumed intention of the woman was that a change of mind on the part of the man would not affect the procedure that had been begun.

And what is the husband‟s position? He was required at the outset to make a decision to agree to fertilize the ova with his sperm. Can it be presumed that he would have refrained from this had he known that he could not subsequently change his mind? Not necessarily. Husbands do not refrain from having sexual relations merely because their wishes will not be consulted later with regard to an abortion (following CA 413/80 A v. B [9]).

It therefore seems to me that we should assume that the presumed intention of both parties in this case was that neither party has a right to stop the continuation of the procedure.

With regard to „imputed‟ intention, an intention can be imputed for considerations of justice or considerations of policy. The considerations of justice have already been set out above, and we will mention them briefly. Giving a right to the husband to destroy the ova (or to prevent their use — which is the same thing) will deprive the woman of her only chance of having a child, while he has had children by another woman. On the other hand, giving the wife the ability to continue the procedure will impose on him undesired burdens. There is no basis whatsoever for comparing these

evils. Moreover, we are speaking of a man who gave his consent, and in reliance on this the woman consented to interference in her body and painful treatments, and also adversely and irrevocably changed her position. She did so by relying on a representation that the procedure would continue; thus the criteria for „promissory estoppel‟ were met, as I explained in CA 5587/93.* Now, after all of this, the husband wants to change his mind. Of cases such as this, it is said that „whoever changes course has the disadvantage‟. And when we consider whether to impute to the husband an intention that he could change his mind whenever he wanted, it seems to me undesirable to do so.

Another of the considerations of justice is that neither party should be given an unfair advantage. Saying that, in the absence of express consent, either party may change his mind whenever he wishes, disturbs the equilibrium and equality  between the parties. A need for the continuing consent of both spouses throughout the procedure gives the party wanting the procedure to be stopped a right of veto over the other party. This right leaves the party that wants to continue the procedure entirely at the mercy of the other party, who may consent and change his mind a moment later. This result is unacceptable. Instead, it should be held that in the absence of explicit consent with regard to a case of separation, an intention should be imputed to the parties that no party can change his mind.

In this matter also let us turn to the legal literature concerning Davis v.

Davis [47] for the purpose of comparison and inspiration.

The consideration that the party uninterested in implantation should not be given „control‟ over the other party was discussed in detail in the article of

A.            R. Panitch, „The Davis Dilemma; How to Prevent Battles Over Frozen Preembryos‟, 41 Case W. Res. L. Rev. (1991) 543, 572-573.

„One approach would be to require mutual spousal consent as a prerequisite to implantation of all preembryos created through IVF. This approach would require obtaining consent twice from each spouse — once when the IVF procedure is initiated and again before each implantation.

…

This rule would also have disadvantages, however. Most significantly it would grant tremendous power to one spouse over the other. It would mean that even though both spouses

*             Ibid..

initially consented to having a child through IVF, neither could proceed with certainty that the other would not truncate the process. Such an outcome would surely  frustrate the spouse seeking implantation, who will have invested large financial expense, time, energy, and, in the wife‟s case, physical pain. The required second consent for implantation could become a tool for manipulation and abuse between spouses, especially under circumstances of a pending divorce. Any spouse ultimately denied the chance to have a child through IVF would probably suffer considerable emotional stress‟ (emphases supplied).

After the author considers the advantages and disadvantages of this approach, she reaches the conclusion that the consent given at the time of fertilization should be sufficient, on the basis of the laws of estoppel:

„Fairness considerations require a determination of whether it would be more equitable to allow the spouse who wants to prevent the possibility of a birth to prevail, or instead to allow the spouse who wants to continue the process of procreation to prevail. One fact is of vital importance in making this judgment; the spouse who opposes implantation wanted a child at one time and submitted to the IVF process with that end in mind. The two spouses once agreed on this issue and initiated the IVF procedure in reliance on that mutual wish. Given this background, the greater injustice would be to deny implantation to the spouse who detrimentally relied on the other‟s words and conduct.

Protection against this sort of injustice is recognized by the well established doctrine of estoppel…

The elements of estoppel are satisfied in a dispute such as Davis. The knowing action of the objecting spouse is the undertaking of IVF for the purpose of producing a child. The prejudice to the other spouse consists of money, time and the psychological commitment necessarily expended in pursuing the full procedure. The injury would include not only the time and money spent, but also the last opportunity to have a child‟ (at pp. 574-575; emphases supplied).

See also B. L. Henderson, „Achieving Consistent Disposition of Frozen Embryos in Marital Dissolution under Florida Law‟, 17 Nova L. Rev. (1992) 549.

The conclusion arising from all of the aforesaid is that in the absence of an express stipulation between the parties concerning the fate of the ova in a case of separation, it should be presumed that their intention was that one party would be unable to stop the procedure against the will of the party interested in the implantation. And if their intention cannot be presumed, this intention should be imputed to them. According to weighty considerations of justice, the right of reliance and legitimate expectations, these expectations should be fulfilled without the need for continuing consent in order to continue the procedure once the fertilization was carried out by consent.

Policy considerations

Besides the abovementioned considerations, there are additional policy considerations according to which it should be held that consent of the parties only at the time of fertilization is sufficient.

First, legal stability and legal certainty demand that the period of time during which the consent of the parties is required should be reduced to a minimum. Apart from the two spouses, additional parties and bodies are involved in the procedure, including the surrogate mother and the medical institution. Allowing the possibility of unilateral cancellation is likely to increase the number of cases in which there are fluctuations and reversals, and it will make it more difficult to carry out the procedure.

This consideration has been mentioned in the context of adoption, and it was said that the court should restrict the number of cases where parents are allowed to withdraw their consent. In CA 623/80 A v. Attorney-General [10], at p. 77, Justice Shamgar said:

„… The results of the described approach, as established in Israel, are also dictated by logic and life experience: it will be very difficult to complete the adoption of a minor if,  even though the parents gave their consent, it would be necessary to fear or expect, each morning of the months that necessarily pass between the parents giving their consent and the granting of the adoption order, that perhaps the natural parents will suddenly change their minds, of their own initiative or through the influence of others, whatever their considerations or reasons may be.‟

Another consideration is that we should seek for an arrangement that will encourage couples that are unable to conceive naturally, to make use of methods of artificial insemination, and we should refrain from an arrangement that is likely to deter and prevent couples from using such methods. The determination that each party can change his mind whenever he so desires will certainly serve as a deterrent. This is true of both spouses, but especially of the woman who must undergo long and complex treatments. This is especially so when, as in the case before us, a single and last opportunity is involved.

On the other hand, there is no reason to believe that a determination that consent at the time of fertilization is irreversible will serve as a deterrent. The couple will consider all the factors before carrying out the fertilization, in the knowledge that they are irrevocably bound by their consent, unless the change of heart is a joint one. We have already pointed out above that the inability of husbands to demand that their wives have abortions does not constitute a deterrent to starting the process.

Considerations of proper legal policy, together with the ethical considerations and considerations of justice enumerated above, all combine to point to a clear and unequivocal conclusion: we should reaffirm the result reached by the District Court, and order the hospital to allow the woman to carry out the continuation of the treatment required for the purpose of surrogacy.

The right to abort

We can compare the question in this case to a similar issue, namely the issue of abortions.

The right of the woman, in certain circumstances, to abort a pregnancy is recognized in our legal system, even though there is public debate as to the grounds that justify an abortion, as reflected in statute (see chapter 10, article 2, of the Penal Law, 5737-1977). Exercising this right may harm the interests of the man; notwithstanding, it has been established that there is no need for his consent, and he even does not have any standing before the „abortions committee‟ under section 316(a) of the Penal Law (see CA 413/80 A v. B [9]).

In an article devoted to our case, Prof. Chaim Gans sought to reach the conclusion that:

„I said, that if women have the right to abort at the beginning of their pregnancy on the basis of their right to control their lives, Daniel Nahmani ought to have a right to stop the proceedings

leading to surrogacy of the ova impregnated with his sperm. Since I have shown that women have such a right, Nahmani also has such a right‟ (Gans, „The Frozen Embryos of the Nahmani Couple‟, supra, at p. 91).

However, the conclusion reached by Gans does not stand up to scrutiny. The preference that the law gives to the woman to decide about an abortion, while discriminating against the man and despite his objection, derives solely from the fact that we are speaking of a decision concerning her body. The woman alone carries the embryo, and therefore the decision to abort is hers alone. The symmetrical analogy regarding a similar right for the man is merely an imaginary and spurious analogy.

In an article that was published after the decision in Roe v. Wade (1973) [53], which developed the right of abortion, it was said that:

„Allowing women the exclusive right to decide whether the child should be born may discriminate against men, but at some point the law must recognize that there are differences between men  and  women,  and   must   reflect   those   differences‟ (R. A. Gilbert, „Abortion: The Father‟s Rights‟, 24 Cin. L. Rev. (1973) 443).

Indeed, the Supreme Court of the United States so held in Planned Parenthood v. Danforth (1976) [54], at p. 71:

„We recognize, of course, that when a woman, with the approval of her physician, but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor‟ (emphasis supplied).

Even under our law the principle that the husband has no right to oppose the abortion derives from the same reasons. The learned Prof. Shifman summarized the matter as follows:

„The main emphasis on the woman‟s right to control her body has led to the man having no standing in decisions regarding the termination of pregnancy. Thus it has been held in Israel, following similar rulings in the United States and Britain, that

the man is not entitled to prevent the woman from terminating her pregnancy, just as he is not entitled to demand that she abort if she wishes to continue the pregnancy. The woman‟s decision to terminate her pregnancy may harm the man‟s expectations of being a father, i.e., of the birth of a child originating in their joint genetic material, whose creation was, perhaps, the result of their joint decision. If the man is married to the woman, the woman‟s decision to abort might constitute a breach of legitimate expectations created by the marriage, which is conceived as a framework whose purposes include the bringing of children into the world.

Nonetheless, these considerations do not give the man, even if he is married to the woman, a right equal to hers in making the decision concerning termination of the pregnancy. The woman‟s preference derives from her interests in control over her body. These interests give her absolute discretion whether to initiate a termination of a pregnancy or not‟ (Shifman, Family Law in Israel, vol. 2, at p. 213).

It follows that, were it not for the decisive factor — the embryo being part of the woman‟s body, or in the words of the Rabbis: „An embryo is an organic part of its mother‟ — the woman would not have a right to destroy the embryo against the wishes of her spouse. Therefore, the logical conclusion from the laws of abortion is the opposite of the one that Gans sought to deduce. When not speaking of interference in her body, the woman is not entitled to destroy the embryo without her spouse‟s consent; in exactly the same way, the man is not entitled to destroy the ova against the woman‟s wishes (and is not preventing the use of them the same as destroying them?).

We should decide that the husband is not entitled to destroy the ova against the wife‟s wishes. On the contrary, the wife is entitled to continue the implantation procedure, notwithstanding the husband‟s opposition.

Equality

A substantial part of the majority opinion in CA 5587/93,* the subject of this hearing, was devoted to the principle of equality between the sexes. This is a fundamental legal principle, and therefore we must consider whether the solution proposed here stands up to the test of equality. In other words, do the

*             Ibid..

considerations and principles proposed hitherto remain unchanged in the opposite case, where the woman is the one who wishes to destroy the fertilized genetic material, and the husband is the one who wishes to continue the implantation process in the womb of a surrogate mother?

Admittedly, there was someone who argued that the advantage that the law gives the woman in the laws of abortion also exists in disputes over the fate of fertilized ova. However, as has been explained above, this position cannot be accepted. The woman‟s advantage in the laws of abortion derives solely from the fact that the embryo is a „part of its mother‟, and where this factor does not exist, there is no reason to depart from the principle of equality.

The answer to our question is clear and unequivocal. In the „opposite‟ case, when the man wishes to continue the procedure by means of another surrogate mother, the woman cannot object. The same considerations apply to the same extent, and it should be held that consent given at the time of fertilization is sufficient, and therefore the husband is entitled to continue the procedure even against the wife‟s wishes, and it need not be said, when this is his only opportunity to bring children into the world. The considerations of justice and proper legal policy then work in favour of the husband:

„There are several forms which a disagreement between progenitors could take. The woman may want the embryo to be brought to term, and the man may want the embryo terminated. In that case, it would seem appropriate for the woman to be allowed to gestate the embryo. The Supreme Court‟s abortion and contraception decisions have indicated that the right of procreation is the right of an individual which does not require the agreement of the individual‟s partner. In particular, the woman has been held to have a right to abort without the husband‟s consent and the right not to abort over the wish of the husband that she abort.

But what if the positions were reversed and the woman wished to terminate the embryo and her male partner wished to have it brought to term? When an embryo conceived naturally is developing within a woman during the first two trimesters, it is clear that the woman‟s decision whether or not to terminate it takes precedence over the desires of the man who provided the sperm… it is at least arguable that the man‟s wishes should be honored when the embryo‟s continued existence need not be

balanced against the physical and psychological needs of the woman carrying it. The man clearly would not have the right to force the female progenitor to gestate the embryo, but there seems to be no reason not to give him custody of the embryo for gestation in a surrogate mother‟ (L. B. Andrews, „The Legal Status of the Embryo‟, 32 Loy. L. Rev. (1986-87) 357, 406-407).

It follows that the proposed solution stands up to the test of equality and does not discriminate at all between the sexes. On the contrary, it limits the discrimination between the sexes in the laws of abortion merely to those cases where it is relevant, i.e., where the woman‟s autonomy over her body is concerned. But in the field of in-vitro fertilization absolute equality should be applied, and it should be held that the party interested in the implantation of the ova is entitled to do this, notwithstanding the opposition of the spouse.

Jewish heritage

There is no doubt that the fundamental principles of our legal system, according to the Foundations of Justice Law, 5740-1980, include Jewish heritage (see A. Barak, Interpretation in Law, vol. 1, The General Theory of Interpretation supra, at p. 616). Notwithstanding his criticism of the Foundations of Justice Law, Prof. Barak says that the arrangement prescribed therein is preferable to the arrangement that preceded the statute. In his words, „an arrangement that refers to Jewish heritage, which is our heritage, is preferable to an arrangement that refers to a foreign heritage‟ (ibid.).

It should be pointed out that reference to Jewish heritage comes after defining the legal question that requires decision, and the inspiration comes within the framework of this question. In our case, we have defined the question as follows: how should we balance between the value of parenthood and the value of non-parenthood?

Our heritage regards parenthood and having children as one of the highest values. In the Bible, we see that man was blessed:

„And God blessed them and God said to them: be fruitful and multiply, and fill the earth and subdue it…‟ (Genesis 1, 28 [65]).

This value is emphasized many times in the sayings of the Rabbis, and we will limit ourselves to one reference from the Mishnah (Gittin 4, 5 [69]): „The world was created only for being fruitful and multiplying, as it is said (Isaiah 45, 18): “He did not create it empty, he made it to be inhabited”.‟

It need not be said that non-parenthood is not one of the values of Jewish heritage. On the contrary, we find among the sayings of the Rabbis that:

„It has been taught: Rabbi Eliezer says: whoever does not engage in the commandment of being fruitful and multiplying is as if he spills blood‟ (Babylonian Talmud, Tractate Yevamot 63b [70]).

The Rabbis also explained in the Talmud (Babylonian Talmud, Tractate Berachot 10a [71]), with regard to Isaiah‟s prophecy to King Hezekiah (II Kings 20, 1 [72]): „Give instructions to your house for you are dying and you shall not live‟ that he would die in this world, and he would not have life in the world to come, because he had not engaged in the commandment of being fruitful and multiplying.

In relations between spouses, Jewish law holds that the husband has an obligation to his wife, to help her bring children in to the world. Admittedly, this obligation is not enforceable, but a lack of enforcement is not relevant in our case, since the question of enforcement does not arise at all. The husband is liable to help, and he most certainly is not permitted to sabotage the process. In the judgment in CA 5587/93,* I cited the source for the existence of this obligation, which is in the Talmud (Babylonian Talmud, Tractate Yevamot 65b [70]), to which I refer.

Conclusion

The outcome of this case stems from its beginning. In his decision to hold a further hearing, President Shamgar said that:

„I think, with all due respect, that the questions that arose in Civil Appeal 5587/93 were examined thoroughly, comprehensively and in an illuminating manner, both in the majority opinion and the minority opinion. But the matter is novel and original, and without doubt of special importance in our world which is changing its appearance from a scientific and social perspective.‟

Now, after considering the issues in breadth and depth, it can be seen that the „novelty‟ of the matter did indeed justify a further hearing. It is the nature of a novel and original issue that one cannot understand it fully without revision and additional study.

*             Ibid..

After such study, I have reached the conclusion that ideally decisions concerning fertilized ova should be made by both spouses and with the consent of both. However, where there is no consent between the parties, as in the case before us, the spouse wishing to continue with the implantation procedure should be allowed to do so, notwithstanding the opposition of the other spouse.

Justice D. Dorner

1.            In this dispute between Ruth Nahmani (hereafter — the wife) and her husband Daniel Nahmani (hereafter — the husband) over the fate of their joint genetic material — the fertilized ova — the wife‟s right, in my opinion, take precedence.

The facts

2.            The couple married about twelve years ago. Like most couples, they wanted children. But the wife contracted a dangerous illness, and she was compelled to undergo a hysterectomy. Nevertheless, the couple did not give up their hope of children, and they decided to try in-vitro fertilization. The wife agreed that during the surgery to remove her womb, the surgeon would not harm her ovaries, and he would move them aside in such a way that they would not be damaged by the radiation that was to follow. By doing this, the wife — who fully consulted her husband in her decision — endangered her health.

The surgery was successful. The couple began to search for a „surrogate‟ mother in whom the ova, which would be taken from the wife and fertilized with the husband‟s sperm, could be implanted. But this search failed. The couple discovered that in view of the Public Health (In-vitro Fertilization) Regulations, 5747-1987, it was prohibited to implant fertilized ova in the womb of a „surrogate‟. For lack of any other option, the couple decided to carry out the whole procedure in the United States. For this purpose they flew to the United States and even succeeded, with considerable effort, in raising approximately 30,000 dollars. However, they soon discovered that this amount fell far short of the amount required. This economic obstacle left them with only one possibility. The couple began a legal battle. Their plan was that the fertilization should take place in Israel, whereas the implantation and „surrogacy‟ stages should take place in the United States. When they tried to carry out their plan, Assuta hospital made the fertility treatment conditional on the consent of the Ministry of Health. When this consent was

not given, the couple petitioned the High Court of Justice. After more than three years, in the middle of 1991, the battle ended. The Ministry of Health agreed to the petitioners‟ plan, and the consent was given the force of a judgment.

Immediately following this, the couple began to carry out their plan. Over eight months, the wife underwent a series of difficult medical procedures, in which ova were removed from her body. Eleven of these were successfully fertilized with the husband‟s sperm, and they were frozen for the purpose of their future implantation. Throughout this entire period, the couple went through the procedure together and the husband supported, encouraged and helped his wife. At the same time, the couple began the procedures for making a contract with a „surrogacy‟ institute in the United States. At the end of January 1992, the wife and the husband signed an agreement with the institute, which dealt with the financial aspects of the procedure. The couple also made payments necessary for the procedure.

While the spouses were at the crucial stage of the procedure, in March 1992 — two months after signing the agreement with the „surrogacy‟ institute — the husband decided to leave home and to move in with his girlfriend. A daughter was also born. He refused to give his consent to the continuation of the procedure and to the implantation of the fertilized ova. The wife has no practical possibility of repeating the procedure.

3.            On the basis of these facts, my colleague Justice Strasberg-Cohen held, in paragraph 33 of her opinion, that there is no doubt that in the balance of harm, the harm to Ruth from not realizing her parenthood is greater than the harm to Daniel if parenthood is forced on him. It would appear, therefore, that even the majority in the judgment that is the subject of this further hearing (hereafter — the Nahmani appeal) do not dispute that in this case the scales of justice in the struggle between the parties are tipped in favour of the wife. But the conclusion of Justice Strasberg-Cohen is that „we should not consider only the specific case before us, and sympathy and understanding for Ruth Nahmani‟s aspiration is insufficient for giving rise to a legal remedy to her problem‟ (paragraph 4), and that there is no proper basis that gives the court power to force parenthood on a person against his will (paragraph 33).

Even Prof. David Hed, who teaches the philosophy of morality at the Hebrew University of Jerusalem, reached the conclusion that in this case a rift exists between the moral duty and the legal duty. He said the following in a newspaper interview:

„He [the husband] agreed to in-vitro fertilization with his wife. This decision required her to undergo painful treatments that endangered her health, treatments that also gave her great expectations. The price that she paid for the fertility treatment was immeasurably higher than the price that he paid, and this fact imposes on him a moral duty to let her complete the procedure, even if he lives apart from her. That is, so to speak, the price of the divorce. True, the price is enormous, but from a moral perspective I would expect him to bear it. In addition, her chance of having a child, if this ovum is not fertilized, is low… [nonetheless] the law cannot oblige  a  person to be a father against his will… since half of the genetic material of that ovum is his‟ (square parentheses supplied) (Hebrew University of Jerusalem Graduate Newspaper, 1996, 26).

The question that arises before us is whether the husband‟s right not to be a parent, based on his „ownership‟ of half of the genetic material of the ova fertilized with his sperm, really takes precedence over the right of Ruth, who also contributed half of the genetic material of these ova, to be a parent.

4.            Indeed, not every moral duty is a duty in law. But the law must lead to a just result. Prof. Dworkin, who denies the existence of judicial discretion, believes that the court should decide difficult cases on the basis of principles, morality and justice. He wrote as follows:

„I call a “principle” a standard that is to be observed… because it is a requirement of justice or fairness or some other dimension of morality‟ (R. Dworkin, Taking Rights Seriously, London, 1979, at p. 22).

Even according to the approach that advocates the existence of judicial discretion, legal norms must be interpreted on the basis of the principles of morality, justice and human rights. In cases where fundamental principles conflict with one other, the conflict will be resolved by a proper balance between the conflicting values. See Barak, Interpretation in Law, vol. 1, The General Theory of Interpretation, supra, at p. 301. See also D. Lyons, Moral Aspects of Legal Theory, Essays on Law, Justice and Political Responsibility, Cambridge, 1993, at pp. 64-101.

Referring to the relationship between justice and law, Cohn wrote in

HaMishpat, supra, at p. 83:

„… The law must include an inventory of standards that take their place when other sources of law are insufficient. This does not necessarily concern considerations “beyond the letter of the law”. It would be more accurate to say that justice is a subset of the law, one of its limbs. It falls within the raw material available to the judge when he comes to determine the “law”; and subject to the supremacy of legislation, it influences — and it must influence — not only the creation of the “law” as part of the general law, but also the dispensing of justice between litigants.‟

5.            The aspiration to do justice lies at the basis of the law. This was already discussed by Aristotle, when he wrote:

τὸ γὰρ ἁμάρτημα οὐκ ἐν τῷ νόμῳ οὐδ᾽ ἐν τῷ νομοθέτῃ ἀλλ᾽ ἐν τῇ φύσει τοῦ πράγματός ἐστιν... ὅταν οὖν λέγῃ μὲν ὁ νόμος καθόλου, συμβῇ δ᾽ ἐπὶ τούτου παρὰ τὸ καθόλου, τότε ὀρθῶς ἔχει, ᾗ παραλείπει ὁ νομοθέτης καὶ ἥμαρτεν ἁπλῶς εἰπών, ἐπανορθοῦν τὸ ἐλλειφθέν... διὸ δίκαιον μέν ἐστι, καὶ βέλτιόν τινος δικαίου, οὐ τοῦ ἁπλῶς δὲ ἀλλὰ τοῦ διὰ τὸ ἁπλῶς ἁμαρτήματος.

„… for the error is not in the law nor in the legislator, but in the nature of the case: … Whenever at all events the law speaks in a generality, and thereafter a case arises which is an exception to the generality, it is then right, where the legislator, by speaking in a generality, makes an omission or an error, to correct the omission… Therefore it [equity] is just and better than some justice, not better than the generality, but better than the error resulting from the generality‟ (Aristotle, Nicomachean Ethics, 5, 10, translated by the editor).

Aristotle solved the dilemma by holding that when equity is done by the judge in a case that comes before him, this is a part of justice, even if this is not expressly stipulated in statute.

Sometimes, when it turns out that the law does not achieve justice, the law is changed or adapted to the circumstances that have arisen, in a way that a just outcome is obtained. Thus, for example, the English rules of equity were developed as a result of the need to soften the rigidity of the rules of the common law, which in certain cases led to unjust results. The rules of equity

allowed a degree of flexibility in implementing the rules of the common law while taking account of the circumstances of each specific case, and they gave relief that was unavailable under the common law.

The doctrine of estoppel is associated with the rules of equity. This doctrine was intended to prevent an unjust result that would apparently be required by the law, by estopping litigants, in certain circumstances, from making in the court legal and factual arguments that are in  themselves correct. See H. G. Hanbury & R. H. Mausty, Modern Equity, London, 13th ed., by J. E. Martin, 1989, at pp. 5-51; G. Spencer Bower and A. K. Turner, The Law Relating To Estoppel By Representation, London, 3rd ed., 1977, at p. 4.

The rules of equity also exist in Jewish law sources. Justice Elon discussed this in HCJ 702/81 Mintzer v. Bar Association Central Committee [11], at p. 18:

„… the principled approach of Jewish law regarding the need for fixed and stable criteria and standards as a rule did not prevent it from requiring the judge trying a case to endeavour to find a solution for an exceptional case, if and when such a solution was required according to the criteria of justice…‟

Rabbi Yaakov ben Asher (Arba‟ah Turim, Hoshen Mishpat 1 [73]) cited the saying of the Rabbis (Babylonian Talmud, Tractate Shabbat 10a [74]) that

„any  judge  who  judges  according  to  the  absolute  truth…‟.  This  was interpreted by Rabbi Yehoshua Falk as meaning:

„Their intention in saying the absolute truth was that one should judge the matter according to the time and place truthfully, and one should not always rule according to the strict law of the Torah, for sometimes the judge should rule beyond the letter of the law according to the time and the matter; and when he does not do this, even though he judges truly, it is not the absolute truth. In this vein the Rabbis said (Babylonian Talmud, Tractate Bava Metzia, 30b) “Jerusalem was only destroyed because they based their rulings on the law of the Torah and not beyond the letter of the law”.‟ (Rabbi Yehoshua ben Alexander HaCohen Falk, Drisha, on Rabbi Yaakov ben Asher, Arba‟ah Turim, Hoshen Mishpat 1, 2 [75]).

The close relationship between the law and justice also finds expression in our case-law. In FH 22/73 Ben-Shahar v. Mahlav [12], at p. 96, it was held —

contrary to the law in England and the United States — that a litigant should be exempted from complying with his undertaking under a consent judgment, as long as he is in a condition of helplessness. This is what Justice Berinson wrote:

„In Israel, perhaps more than with any other people, law and justice are synonyms, and the concept of just law is very deeply rooted in the nation‟s conscience…

Counsel for the petitioner also referred to the well-known expression that “hard cases make bad law”, since, according to him, in this case, in order to grant relief to the respondent who is in distress, the court innovated a far-reaching rule giving it discretionary power far beyond what courts have appropriated for themselves hitherto, or what has been given to them under any legislation. To this a reply can be made in the words of Lord Blackburn in River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743, 770, that “this is a bad law making hard cases”. I cannot believe that our law is so bad that it cannot help a respondent in great distress that befell him after judgment was given.‟

And in his remarks when retiring from the judiciary, Justice Berinson emphasized:

„… The law and justice are one, if you make proper use and interpretation of the law. Law is law if it is just law… and I have always found that justice is within reach if you wholeheartedly wish to reach it…‟ („Remarks made by Justice Berinson on his Retirement from the Judiciary‟, 8 Mishpatim (1977) 3, 5).

See also I. Zamir, „In Honour of Justice Zvi Berinson‟, 2 Mishpat Umimshal (1994) 325, 327-330.

6.            The issue before us arises because of scientific advances. Human biology, on one hand, and the right of a person to control his body, on the other hand, had hitherto established clear limits for the rights of husband and wife. Until the stage of pregnancy, each of the spouses is free to engage in sexual relations for the purpose of procreation or to refuse to engage in such relations, but from that stage on, the right of the wife carrying the embryo in her womb overrides the right of the husband, in so far as this concerns the relationship between them, and the decision to continue the pregnancy or terminate  it  is  hers,  and  the  husband —  unlike  the  statutory  committee

empowered to approve the termination of pregnancy — is not entitled to force his will on her. See sections 314-316 of the Penal Law; CA 413/80 A v. B [9], at p. 67.

Scientific-technological advances today allow couples that cannot have children naturally to bring children into the world. The ability of the spouses to interfere in the procreation process, which is being carried out with innovative methods, to influence it and even to stop it has increased. In consequence, the position of the law and its involvement in the disputes surrounding the  use of the  new procreation techniques are sought  more frequently. New areas have even been created where the intervention of the law is required.

The legal issues that are arising are new and fundamental. They involve many principles and factors, from which we must, in a careful process of evaluation, ascertain the correct and fair rules that should be applied. In the words of Justice Witkon in CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [13], at p. 1337 {138}:

„… As with most problems in law and in life in general, it is not the choice between good and bad that makes our decision difficult. The difficulty is in choosing between various considerations, all of which are good and deserving of attention, but which conflict with one other, and we must determine which will take precedence.‟

Had the matter before us been governed by an established rule of law, the court would be obliged to interpret it in a way consistent with other principles of the legal system and consistent with the demands of justice. When no such rule exists, the principles of law and justice can operate together to establish the appropriate rule.

7.            In the case before us, we need to balance between the right to be a parent and the right not to be a parent. Today, in cases where couples require a „surrogate‟ mother who will carry their embryo in her womb, the balance is achieved within the framework of the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law (hereafter — „the Agreements Law‟). The Agreements Law restricts the couple‟s autonomy and allows a

„surrogate‟ to be used only if a written agreement is made between the woman intended to carry the embryo and the prospective parents, and that agreement is approved by the Statutory Committee (section 2(1) of the Agreements Law).

A „surrogacy‟ agreement is therefore not absolutely binding. An agreement made under the Agreements Law is not an ordinary contract. As long as the fertilized ovum has not been implanted in the body of the woman intended to carry the embryos, she is entitled, and the two spouses (jointly) are entitled, to be released from the agreement. Even the statutory committee may stop the fertility procedure as long as the ovum has not been implanted. Nonetheless, neither of the spouses — without the consent of the other — has the power to prevent the implantation after the ovum has been fertilized. Stopping the procedure at this stage requires approval of the statutory committee.

8.            The Agreements Law, which, as aforesaid, was enacted only recently, does not apply to the case before us. The parties also did not make a formal agreement between them. But this has no significance, since, in my opinion, even according to the legal position before the Agreements Law, an agreement with regard to having children is not a contract. Couples are presumed not to be interested in applying the law of contracts to matters of this kind. This presumption has not been rebutted in our case. In any event, even were it proved that the parties had such an intention, they still did not have the power to give the agreement between them the force of a contract, since making a contract to have children is contrary to public policy. Therefore, the contract is void under sections 30 and 31 of the Contracts (General Part) Law, 5733-1973. Note that there is nothing improper in the purpose of the agreement — bringing children into the world — or the means of carrying out the agreement. The impropriety lies in the application of the law of contracts to the agreement, which is contrary to public policy. See and compare D. Freedman, N. Cohen, Contracts, Aviram, vol. 1, 1991, at p. 326;

A. Bendor, „The Law of Political Agreements‟, 3 Mishpat Umimshal (1995) 297, 316.

However, the fact that an agreement to have children is not a contract does not entirely negate the legal significance of the agreement or even of a representation with regard to consent. This is because, within the framework of balancing between the rights of the parties, there are reasons to take into account also the existence of an agreement between them or the existence of a representation with regard to consent. An agreement, like a representation, may lead to expectations and even reliance. These must be taken into account among the other factors affecting the balance. Cf. A. Barak, „Protected Human Rights and Private Law‟, Klinghoffer Book on Public Law (The

Harry  and  Michael  Sacher  Institute  for  Research  of  Legislation  and Comparative Law), I. Zamir ed., 1993) 163, 169.

It would seem that this principle also applies today with regard to the discretion of the committee acting under the Agreements Law to prevent implantation of a fertilized ovum in the body of a „surrogate‟. We may assume that in many cases the committee will consider the matter at the request of one of the spouses. By exercising the discretion given to it, the committee will take into account, inter alia, any expectation or reliance that the agreement created in the other spouse.

9.            In a conflict between the right of the husband and the right of the wife, the two have equal status with regard to their relationship to the fertilized ova, which contains their joint genetic material. Moreover, I do not think that we should distinguish between a man and a woman with regard to their yearning for parenthood. The proper balance between the rights of the two is therefore unaffected by the sex of the spouse who wants the ova be implanted, or of the spouse opposing this.

One can conceive of three main ways of balancing between the rights of the spouses after the woman‟s ovum has been fertilized with the man‟s sperm and they do not agree upon its implantation in the womb of a „surrogate‟ mother. These are as follows:

The first way, which was the majority opinion in the Nahmani appeal, is to prefer always the spouse who does not want to be a parent. This absolute preference is based on the principle of the autonomy of the individual, which rejects the coercion of parenthood. According to this principle, an agreement to bring children into the world should be regarded as a weak agreement, whose existence — until the implantation of the ova — is conditional on the consent of both spouses. Enforcement of such an agreement will violate a basic human right, and therefore is contrary to public policy. This position has some support in one of two judgments in the United States that considered the issue before us. In Davis v. Davis [47], where the judgment was given by the Supreme Court of the State of Tennessee, it was held that, as a rule, the right not to be a parent should be preferred. Nonetheless, it was held that this rule would not apply in a case where preference of the right not to be a parent would deprive the other spouse absolutely and finally of the possibility of being a parent. Justice Daughtrey wrote as follows, at p. 604:

„Ordinarily,  the  party  wishing  to  avoid  procreation  should prevail,   assuming   that   the   other   party   has   a   reasonable

possibility of achieving parenthood by means other than the use of the preembryos in question. If no other reasonable alternatives exist, then the argument in favor of using the preembryos to achieve pregnancy should be considered…

… the rule does not contemplate the creation of an automatic veto…‟.

The second way, upon which the approach of my colleague, Justice Kedmi, is based, supports a preference, in all circumstances, of the right to parenthood. This approach is based on the outlook that the point of no-return is not implantation of the ovum in the body of the „surrogate‟, but fertilization of the ovum, which is what creates a new entity. This approach has support in the second American ruling that exists on the question before us, Kass v. Kass [51], which was given by a trial court in the State of New York. In this judgment it was held that a stipulation in an agreement made by the spouses, which said that if they did not reach agreement on how to deal with the fertilized ova they would be used for research, should not be regarded as a waiver by the woman of her right to parenthood. The court disagreed with the ruling in Davis v. Davis, and it held that there was no basis for distinguishing between in-vitro fertilization of an ovum and fertilization of the ovum in the body of the woman, and in both cases, once fertilization has occurred, the husband cannot impose a veto on the continuation of the procedure. Justice Roncallo wrote as follows:

„In my opinion there is no legal, ethical or logical reason why an in vitro fertilization should give rise to additional rights on the part of the husband. From a propositional standpoint it matters little whether the ovum/sperm union takes place in the private darkness of a fallopian tube or the public glare of a petri dish. Fertilization is fertilization and fertilization of the ovum is the inception of the reproductive process. Biological life exists from that moment forward… To deny a husband rights while an embryo develops in the womb and grant a right to destroy while it is in a hospital freezer is to favor situs over substance.‟

The third way, which my colleague Justice Tal advocates, is to balance the rights of the specific parties. In my opinion, this is the correct way, because balancing rights on an abstract level may lead to unjust results. This was discussed by Justice Holmes of the Supreme Court of the United States in Lochner v. New York (1905) [55], at p. 547:

„General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise.‟

Of course, even a balancing of this kind is not an ad hoc balancing without any guiding principles, but it is made on the basis of rules that are applied to the special circumstances of each case.

This method of balancing — according to which, in our case, the woman‟s right is preferable — was proposed also in three articles written as a result of the Nahmani appeal. See Marmor, „The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟, supra; Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra; S. Davidov-Motola, „A Feminist Judgment? A Further Aspect of the Nahmani Case‟, 20 Iyunei Mishpat (1996) 221.

10.          Freedom in it fullest sense is not merely freedom from external interference of the government or others. It also includes a person‟s ability to direct his lifestyle, to realize his basic desires, and to choose from a variety of possibilities by exercising discretion. In human society, one of the strongest expressions of an aspiration without which many will not regard themselves as free in the fullest sense of the word is the aspiration to parenthood. We are not speaking merely of  a natural-biological need. We are speaking of a freedom which, in human society, symbolizes the uniqueness of man. „Any person who does not have children is considered as a dead person‟ said Rabbi Yehoshua ben Levi (Babylonian Talmud, Tractate Nedarim, 64b [76]). Indeed, whether man or woman, most people regard having children as an existential necessity that gives meaning to their lives.

11.          Against this basic right, which constitutes a central element in the definition of humanity, we must consider the right not to be a parent. The basis of the right not to be a parent is the individual‟s autonomy not to suffer interference of the government in his privacy. This was discussed by Justice Brennan in Eisenstadt v. Baird [49], at p. 453:

„If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.‟

In the conflict of rights before us we are not speaking of relations between the individual and the government, but of relations within the framework of the family unit. Although the autonomy of the individual is also recognized

within the framework of the family, it seems to me that the right of privacy from the government is in general of greater weight than the right of privacy in the family. In the case before us, the husband does not even insist on his right for reasons of principle that oppose bringing children into the world. After all, he has a daughter from another woman, and he wanted that daughter. His argument is against a parenthood specifically with regard to an embryo created in the fertility procedure that the parties underwent. Moreover, the husband has declared that his objection to parenthood does not derive from a fear of the personal and financial burdens involved. Therefore, the interest not to be liable for personal and financial obligations towards a child born against the parent‟s wishes, which might be a relevant consideration when balancing the interests as a rule, is not relevant in this case.

What, then, is the importance of the freedom expressed in a person‟s knowing that he does not have in the world a child that he does not want? It seems to me that for both men and women this freedom is regarded as limited, conditional, and in essence secondary compared to the right to have children and to create the next generation.

In so far as a man is concerned, once a woman has been impregnated by a man, he has no power to force her to have an abortion even when he is not interested in a child. In so far as a woman is concerned, as a rule she is not entitled to have an abortion. Abortion is permitted only on the basis of a permit from a statutory committee given according to a closed list of grounds. The mere fact that the woman does not want a child is not one of the reasons on the list. A fundamental principle, which applies to both women and men, is therefore that once a woman becomes pregnant, neither she nor her spouse have a right not to be parents.

Another basic principle is that the right of a man or a woman to be a parent does not override the right of the spouses to control over their body, and it does not impose on them positive duties to participate in a procedure that may lead to parenthood.

Subject to these fundamental principles, the balance between the rights of the spouses will be made in each case by taking into account the current stage of the procedure, the representations made by the spouses, the expectations raised by the representations and any reliance on them, and the alternatives that exist for realizing the right of parenthood. I will discuss these considerations in this order.

12.          The current stage of the procedure: The more advanced the stage of the fertilization procedure, the greater the weight of the right to be a parent. As aforesaid, the right to be a parent and the right not to be a parent are subject to a person‟s right over his body, and in no case can one spouse be compelled to undergo a physical act to realize the right of the other spouse. The situation is different in circumstances where the realization of the right to be a parent does not involve a violation of the other spouse over his body. In our case, it can be said that the right to be a parent has begun the journey from theory to practice, and it is not merely a yearning. On the other hand, the ovum has not yet been implanted, and there is no absolute obstacle to terminating the procedure.

13.          Representations, expectations and reliances: Estoppel by representation prevents a party from denying a representation that he made to another party, if that party relied on the representation reasonably and in good faith and in consequence adversely changed his position. In Israeli law, the doctrine of estoppel — which we received from English law — can be regarded as a facet of the principle of good faith, which is a basic principle in our legal system. See LCA 4298/92 Ezra v. Tel-Mond Local Council [14]. In this regard, the following remarks were written in a review of the judgment in Davis v. Davis:

„… the doctrine of reliance should be applied to resolve a dispute between the gamete providers. The consistent application of a reliance-based theory of contract law to enforce promises to reproduce through IVF will enable IVF participants to asset control over their reproductive choices by enabling them to anticipate their rights and duties, and to know with reasonable certainty that their expectations will be enforced by the courts.‟ (C. D. Ahmen, Comment, „Disputes Over Frozen Embryos: Who Wins, Who Loses, and How Do We Decide?‟ 24 Creighton L. R. (1990-91) 1299, 1302, 1303).

Nonetheless, in my view, the decision between the rights of the parties is not be based on estoppel alone. Representations made by one spouse to another (including their making an agreement) may be a factor in the balance between the rights of the parties, when they created reliances and sometimes even mere expectations. A similar position was adopted in another article reviewing the judgment in Davis v. Davis [47], where it was written:

„One fact is of vital importance in making this judgment: the spouse who opposes implantation wanted a child at one time and

submitted to the IVF process with that end in mind… the greater injustice would be to deny implantation to the spouse who detrimentally relied on the other‟s words and conduct‟ (Panitch,

„The Davis Dilemma; How to Prevent Battles Over Frozen Preembryos‟, supra, at p. 547).

In our case, as a result of the husband‟s consent to the procedure, including his encouraging the wife to undergo the limited surgery and the fertilization, the wife underwent difficult fertility treatment with his sperm and did not need, for example, an anonymous sperm donation. In his article

„The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟,

supra, Dr. Marmor discusses this, at p. 445:

„By agreeing to begin the fertility and surrogacy procedures, and even more by his conduct during the initial stages of the procedure, there is no doubt that Daniel Nahmani made a representation towards his wife, from which she could conclude that he had no intention of stopping them; there is also no doubt that as a result of this representation, and relying on it reasonably and in good faith, Ruth adversely changed her position, by beginning the procedures with him (and not, as aforesaid, with an anonymous sperm donation).‟

Similar comments were written by Dr Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra, at p. 215, and Ms Davidov-Motola, „A Feminist Judgment? A Further Aspect of the Nahmani Case‟, supra, at p. 299.

This adverse change in the wife‟s position is a major consideration in the balance of interests between the spouses, even if it has not been proved that the husband wanted to become the father of the wife‟s child even if they separate.

14.          Possible Alternatives: A case of refusal to continue a fertility procedure when the spouse can perform it with another partner is not the same as a case where refusal will doom the other spouse to childlessness. The fewer the alternatives available to the spouse wishing to become a parent, the greater the need to protect his right to parenthood, even at the expense of trespassing on the rights of the other spouse. As stated, this was the approach of the court in Davis v. Davis [47]. Prof. Robertson adopted a similar approach:

„If the right to reproduce and the right to reproduction are in conflict, favoring reproduction is not unreasonable when there is no alternative way for one party to reproduce‟ (J. A. Robertson,

„Prior Agreements for Disposition Of Frozen Embryos‟, 51 Ohio St. L. J. (1990) 407, 420).

This consideration in our case has an additional weight of justice, since the spouse who is not interested in continuing the procedure — the husband — has been blessed with a daughter of his own in another family that he has established.

15.          In our case, the basic principles and considerations which I have mentioned therefore lead to a preference of the wife to be a parent over the right of the husband not to be a parent. As stated, I do not believe that women and men attach different degrees of importance to having children. Therefore, were the positions reversed and were the man, in similar circumstances, to want to continue the procedure and were the woman to refuse, the result I have reached — namely, allowing the implantation of the frozen ova in the womb of a „surrogate‟ mother — would not be different.

I have read the opinion of my colleague Justice Goldberg, and I agree with his remarks (except for what he says in paragraph 5 of his opinion with regard to the scope of the powers of the committee acting under the Agreements Law, a question that does not need to be decided in this case).

My opinion, therefore, is that the petition should be granted, the judgment in the Nahmani appeal should be cancelled, and the judgment of the District Court should be reinstated.

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

                                                                                                                          HCJ 5771/12

Before:                                    The Honorable President A. Grunis

                                    The Honorable Deputy President M. Naor

                                    The Honorable Justice (Ret.) E. Arbel

The Honorable Justice E. Rubinstein

The Honorable Justice S. Joubran

The Honorable Justice E. Hayut

The Honorable Justice H. Melcer

The Petitioners:

1. Liat Moshe
2. Dana Glisko

                                    versus

The Respondents:

1. The Board for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child), 5756-1996
2. The Ministry of Health
3. Knesset of Israel

                                    Response to Order Nisi

Date of sessions:         8th Tishrei 5773; September 24, 2012

                                    5th Kislev 5773; November 19, 2012

                                    18th Iyar 5773; April 28, 2013

                                    14th Elul 5773; August 20, 2013

Adv. Yehuda Resler; Adv. Amir Rosencrantz

                                    on behalf of the Petitioners

Adv. Nahi Ben Or; Adv. Dana Briskman

                                    on behalf of the First and Second Respondents

Adv. Gur Blai

                                    on behalf of the Third Respondent

Justice A. Hayut

The Petitioners are a couple who wish to bring offspring into the world by fertilizing an egg taken from the body of the First Petitioner and implanted in the womb of the Second Petitioner, who will carry the pregnancy and give birth. The Ministry of Health rejected their requests for the necessary authorizations to execute this and therefore filed the petition, which in its amended form challenges different provisions in the Embryo Carrying Agreements Law (Approval  of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the Eggs Donation Law 5770-2010 (Hereinafter: the Eggs Donation Law.)

                  After two hearings in the petition that were held before a panel of three Justices, an  order nisi was issued for the amended petition and it was decided that the hearing for the Respondents’ response would be held before an extended panel. The extended panel heard two hearings and after the second hearing, held on August 20, 2013, a decision rejecting the petition was given without reasons. This was done in order to permit the petitioners to plan their steps and to decide whether to accept the partial solution proposed by the Respondents – which I detail below – and because of the concern that the passing of time may adversely impact the chances of success for the medical procedure that could be done under such proposal (among others, due to the age of the First Petitioner, who is about forty one years old.) Therefore, on September 1, 2013 a decision without reasons that rejects the petition by a majority of the panel (President A. Grunis, Deputy President M. Naor, Justice E. Rubinstein and Justice S. Joubran) and against the dissenting position of Justice E. Arbel, Justice H. Melcer and my own was handed down. Below are detailed the reasons at the base of my dissenting opinion, as noted.

The Factual Background

1. The First Petitioner, Liat Moshe (hereinafter: Liat) was born in 1972 and serves as an officer in the IDF at the rank of Lieutenant Colonel. The Second Petitioner, Dana Glisko (hereinafter: Dana) was born in 1983 and the two have been living together as a couple for about ten years. They even signed a “prenuptial agreement” and a “common law marriage agreement” and drafted mutual wills. Since 2007 the two have attempted to bring a child into the world. For this purpose, during the years 2007-2008 Liat underwent artificial inseminations and hormone treatments, but these have been unsuccessful. Similarly, treatments Liat underwent in 2008-2012 for in vitro fertilization of eggs extracted from her body and then implanted have sadly failed as well.  Medical tests on Liat have not diagnosed a cause for the failure of the many fertilization treatments she had underwent, and the reason may be that her uterus may be unable to carry a pregnancy. Such repeated failures have not weakened Liat’s spirit and she wishes with all her might to bring a child into the world from her own eggs. As a last resort, the couple has tried to bring a child into the world by extracting an egg from Liat’s body, fertilizing it and implanting it in Dana’s uterus, so that Dana would carry the pregnancy and give birth. In such a way, the two emphasize, the child would be “genetically and physically connected to them both.”
2. Only it quickly became clear to the couple that realizing their wish to bring a child into the world in the described method may implicate them and the treating physician, who would perform the necessary medical procedure, in illegal conduct and a criminal sanction. In February 2012, Liat wrote to the Ministry of Health’s Legal Advisor and requested to permit her to donate eggs to her partner, Dana, after their in vitro fertilization. This request relied on earlier decisions by the Ministry of Health that permitted such medical procedure in the past and paved the way, at least in one case, for eggs donations between a female couple. On February 26, 2012 the Ministry of Health’s Legal Advisor, Advocate M. Hivner-Harel, that the procedure requested by the couple is contrary to the Eggs Donation Law, which was passed in 2010, because according to this law eggs donation may be approved only for a woman who may not become pregnant with her own eggs due to a medical problem, or who has a different medical problem that justifies using eggs that are not hers in order to have a child (a condition established in section 11 of the Law.) in this case, Dana – who is intended to receive the eggs donation from Liat – does not suffer, as far as we know, from a medical problem and thus their request is denied.

Liat and Dana did not give up and turned to the national supervisor for surrogacy issues in the Ministry of Health and requested to be permitted to undergo a procedure where Dana would serve as surrogate and carry an embryo from Liat’s fertilized eggs. This request came after in May 2012 the recommendations of the public committee formed by the Ministry of Health to examine legislative regulation of the issue of fertilization and birth in Israel, headed by Professor Shlomo Mor Yossef (hereinafter: the Mor Yossef Committee) were published. The Mor Yossef Committee report concerns, among others, the issue of surrogacy in Israel. Among the Committee’s recommendation was the recommendation to expand the circle of those eligible to undergo a procedure of bringing an offspring into the world via surrogacy that would include also “a single woman who has a medical problem that prevents carrying a pregnancy.” This request by Liat was also denied for the reason that the Surrogacy Law in its current language only permits “intended parents” (defined in section 1 of the law as “a man and a woman who are a couple”) to enter an agreement for embryo carrying with a “carrying mother” whose relationship with the child is severed after the birth. The national supervisor for surrogacy added in her response that a team appointed by the Ministry of Health to explore and implement the Mor Yossef Committee recommendations had yet to complete its work and therefore it was impossible at the time to accept Liat’s request. In light of this and in light of Liat’s age (who at the time had already turned forty years old) – this petition was filed.

The Legal Framework

3.  In their amended petition, the couple relies on two alternative legal paths. First, an interpretation of the Surrogacy Law, or judicial intervention in its provisions on a constitutional basis, that would allow the requested procedure through surrogacy where by Dana would serve as the “carrying mother” for Liat’s fertilized eggs. The second – judicial intervention on a constitutional basis in the Eggs Donation Law and striking down some of its provisions that bar Liat’s eggs donation to Dana. Before we detail the parties’ arguments and the different developments that occurred since the petition was submitted we briefly present the arrangements established in each of the above laws and the obstacles they each present to the couple when they wish to undergo the desired procedure.
4. The Surrogacy Law was passed in 1996 following a report by a public professional committee headed by District Court Judge (Ret.) Shaul Aloni, which in 1994 recommended to permit entering into agreements for carrying embryo  in Israel while regulating the issue in primary legislation. In 1995, before the Law was passed, this Court struck down regulations 11 and 13 of the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: the Fertilization Regulations,) which prohibited implanting a fertilized egg in a woman who would not be the child’s mother as well as prohibited the implantation of an egg taken from a donor unless it was fertilized with the sperm of the woman’s husband (see: HCJ 5087/94, Zebro v. The Minister of Health (July 17, 1995); for detailed discussion of the background for the Law’s legislations, see HCJ 2458/01, New Family v. The Committee for Approval of Embryo Carrying Agreements, The Ministry of Health, IsrSC 57(1) 419, 431-35 (2002) (hereinafter: the New Family case; see also the Embryo Carrying Agreements Bill (Approving Agreements and Status of the Child), 5756-1996, Bills 2456.) as reflected from the explanatory notes  of the Bill, the Surrogacy Law was designed to permit agreements for carrying embryo in Israel “under certain conditions and in a supervised manner.” According to section 1 of the Surrogacy Law, an agreement for carrying an embryo  is made between “intended parents” – who are defined in section 1 as “a man and a woman who are a couple” – and a “carrying mother” who agrees to become pregnant through the implantation of a fertilized egg in her body and to carry a pregnancy for the intended parents. Under section 2 of the Surrogacy Law, the implantation of a fertilized egg in order to impregnate a carrying mother in order to give the child to the intended parents is contingent upon the existence of several conjunctive conditions, including the drafting of a written agreement between the intended parents and the carrying mother, the approval of the agreement by the approving board mentioned in section 3 of the Law, and meeting several additional threshold conditions such as the lack of familial relationships between one of the intended parents and the carrying mother (see HCJ 625/10, Jane Doe v. The Board for Approval of Embryo Carrying Agreements under the Agreements Act, paras. 12-16 (July 26, 2011)). As a rule – except for exceptional cases where the carrying mother wishes to withdraw her  embryo carrying agreement and keep the child under the circumstances detailed in section 13 of the Surrogacy Law – the carrying mother gives the child to the intended parents after the birth, and after a parenting order is issued, they are considered the child’s parents “for all intents and purposes” (section 12 of the surrogacy Law.)

Section 7 of the Surrogacy Law, titled “Performing an Embryo Carrying Agreement” prohibits performing a surrogacy procedure outside of the path and conditions established by the law, as follows:

“An in vitro fertilization and implantation of a fertilized egg shall not be performed except for at a recognized department and on the basis of an agreement for carrying an embryo , which was approved as detailed.”

Section 19(a) of the Surrogacy Law adds a criminal provision whereby anyone implanting a fertilized egg in order to impregnate a carrying mother with the purpose of giving the child not according to the provisions of the law is punishable by one year imprisonment. Therefore the Surrogacy Law creates an arrangement for how agreements for carrying embryo in Israel must be entered into and performed, and under its provisions as detailed above a surrogacy procedure that is inconsistent with its detailed directions cannot be done in Israel (see the New Family case, 438-39.)

5. The Eggs Donation Law, which was passed in 2010, about 14 years after the Surrogacy Law was passed, was designed to “regulate the different aspects involved in extracting and donating eggs in Israel, and the use of such eggs” (see the explanatory notes to the Eggs Donation Bill, 5767-2007, Government Bills 289.) Until the law was passed the possibility to donate eggs in Israel was regulated in the Fertilization Regulations. According to those, it was possible to extract eggs only from a woman who was under medical treatment due to infertility problems if the supervising physician determined that extracting the eggs would advance her treatment. In light of this restriction on the pool of donors, Israel saw a dire shortage of eggs for donation and women who required eggs donation were required to travel to far away countries in order to receive a donation there. The Fertilization Regulations even set various restrictions on the possibility of women to receive eggs donation. For instance, the regulations established that a single woman would not be implanted with a fertilized egg unless the egg is hers and a report from a social worker to support her wishes has been secured. The Eggs Donation Law was meant to expand the circle of donor women to include – alongside the “treated” women (women requiring medical care involved in extracting eggs from their bodies for their own use, and intending the remaining eggs for donation) – also “volunteer donors,” who do not undergo fertilization treatments or other treatments involving extracting eggs from their bodies. Additionally, the Law lifted the restriction on receiving eggs donation that the Fertilization Regulations imposed upon single women.

At the background of the law’s legislation was a painful incident where a doctor was convicted in disciplinary proceedings for a high dosage of hormones he gave women to whom he provided fertility treatments in order to produce a high number of eggs and intend them for treating other women’s infertility. This was done without securing the consent of these women or notifying them (see: the Mor Yossef Committee Report, p. 38; Smadar Kanyun, Eggs Donation – Social, Ethical and Legal Aspects, Medicine and Law 35, 145, 164 (2006); minutes of the 17^th Knesset’s Labor, Welfare and Health Committee meeting, dated February 18, 2008, p. 2.) One of the purposes the law was designed to achieve, aside from expanding the circle of donor women, was then responding to the concern over the trade in eggs and over the exploitation and disrespect for women’s bodies (see minutes of the 17^th Knesset’s Labor, Welfare and Health Committee meeting, dated March 4, 2008, p. 10-12.) therefore the law established various restrictions as to the maximum number of donations that may be received from the same woman and as to the frequency of extraction of eggs from her body; duties regarding the information that must be given to the donating woman and securing her consent for performing procedures in the eggs extracted from her body; and a prohibition on trade in eggs (see articles A and B of the Eggs Donation Law.) Additionally, section 4 of the Eggs Donation Law establishes the exclusivity of the law’s provisions, as such:

“(a) One shall not perform an eggs extraction from a donor, lab treatment of the eggs, allocation of eggs for implantation or research, or implantation of eggs, but according to this law’s provisions.

(b) The provisions of sub-section (a) shall not apply to the extraction of eggs from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of performing an agreement for carrying embryo according to the Agreements Law.”

Therefore, a procedure of extracting eggs from a donor woman and implanting them in the woman who receive the donation is subject to the provisions of the Eggs Donation Law and performing this inconsistently with these provisions is prohibited unless it is done under an agreement for carrying embryo that was entered into according to the Surrogacy Law.

6. Section 12 of the Eggs Donation Law requires the authorization of a special approving board of six members (hereinafter: the approving board) in order to extract eggs from a “volunteer donor.” The approving board is charged with examining the request of a volunteer donor in order to ensure that the intended procedure meets all the conditions detailed in section 12(f) of the Act, and they are:

“(1) The donor is a resident of Israel who is over the age of 21 but is not yet 35;

(2) The donor is not legally incompetent, under guardianship, under arrest or incarcerated;

(3) The donor had signed, before the approving board, a form as instructed by the administration, which includes the information form and her consent to extracting the eggs for their implantation;

(4) The approving board is satisfied that the donor’s consent is given with a sound mind, out of free will, and not out of family, social, economic or other pressure; and in regard to a donor who intended in advance the eggs extracted from her body to a specific recipient – that her consent was given not for financial reward or any other reward, directly or indirectly, from the recipient or her representative; and it may summon for such purposes the recipient, should the eggs be intended to a particular recipient, or any other person as it sees fit.”

In this context the petitioners are seemingly already faced with an obstacle because Liat – the intended donor – was born in 1972 where section 12(f)(1) of the law sets an age limit. However in light of the medical difficulties Liat faced and the many treatments she went through, she may be considered a “treated donor” whose eggs are extracted from her body in the course of medical treatments conducted for her own benefit. Therefore, and under the provision of section 15 of the Eggs Donation law, she is not required to secure the authorization of the approving board for the extraction of her eggs and is thus not subject to such age restrictions.

7. The main relevant restriction here is the restriction on a receiving woman established in section 11 of the Eggs Donation Law. Under this section, only a woman who suffers from a medical condition that prevents her from being impregnated with the eggs in her body or from a medical condition that justifies using another woman’s eggs in order to have a child, may apply to receive an eggs donation. This section stipulates as follows:

“Once a treating physician discovers that a patient who is a resident of Israel who is over the age of 18 but is not yet 54 years old, is incapable of becoming pregnant with eggs in her body due to a medical condition, or that she has another medical condition that justifies using the eggs of another woman in order to have a child, including by implanting the eggs in a carrying mother under the Agreements Law, the physician shall notify the patient that she may apply for an eggs donation. Such an application shall be submitted with the supervising doctor according to the form instructed by the Administration.”

This provision seemingly prevents the petitioning couple to realize their wishes, as it stipulates that in order to receive an eggs donation the receiving woman must present a medical need for the donation, whereas in our case, Dana – the intended recipient – does not suffer, as far as we know, from any medical condition that prevents her from becoming pregnant with the eggs in her body or that justifies using another woman’s eggs to have a child. Liat – who wishes to donate her eggs – is the one who suffers from a medical condition that prevents her from becoming pregnant with the eggs in her body. Section 13 of the law adds the condition that the implantation of the eggs in the receiving woman’s body must be approved by the “supervising doctor” as defined in the law. Under this section the supervising doctor must make sure that, among others, the receiving woman indeed does suffer from a medical condition that justifies the implantation of the eggs in her uterus (section 13(e)(2)). Additionally, the doctor must receive confirmation from the database established under the law that the conditions set in section 13(e)(3), which include the condition that the donor is of the same religion as the recipient and is not her family member and that the donor is not married, are met.

8. To this list of restrictions the provision in section 4(a) of the Eggs Donation Law must be added. This provision mandates, as discussed, the exclusivity of this law’s provisions whereby any procedure of extracting eggs from a donor, lab treatment of the eggs, allocating them and implanting them would be performed only under the provisions of the Law. Section 5 of the Eggs Donation Law adds a prohibition of taking out eggs that have been extracted in Israel – whether they are fertilized or not – for their implantation aboard, unless this was approved by a statutory exceptions committee and the intended implantation is in the body of the woman from whom the eggs were extracted. This section prevents the Petitioners to take eggs extracted from Liat’s body out of Israel to be implanted in Dana’s uterus. Additionally to all this, section 6(b) of the law mandates:

“An implantation of eggs shall not be performed but in the body of the recipient or the body of a carrying mother who entered into an agreement for carrying an embryo with the recipient according to the Agreements Law.”

Similarly to the Surrogacy Law, the legal arrangement established in the Eggs Donation Law, which we detailed above, is also supported by criminal provisions that establish criminal sanctions for an offense under the law’s provisions. Thus, for instance, performing an eggs implantation in a woman in violation of section 6(b) of the Act constitutes an offense punishable with six months incarceration or a fine (see section 41(b)(4) of the Eggs Donation Law.)

9. Still, Title C in Chapter C of the Eggs Donation Law authorizes the Minister of Health to convene a committee for exceptional cases, which would comprise of two doctors, a psychologist, a social worker, an attorney, and a clergy person (hereinafter: the exceptions committee.) The committee is charged with examining the approval of a procedure for eggs donation in particular cases which do not meet the conditions established by the Law. However, the authority of the exceptions committee is narrow and limited to permitting procedures in one of the four case as detailed in section 20(a) of the law:

(-) Approving extraction, allocation or implantation of eggs from a donor who designates, in advance, the eggs extracted from her body to a particular recipient. (section 20(a)(1));

(-) Approving extraction, allocation or implantation of eggs from a married donor (section 20(a)(2));

(-) Approving extraction, allocation or implantation of eggs from a donor who is not a member of the recipient’s religion (section 20(a)(3));

(-) Approving to take eggs outside of Israel in order to be implanted in the body of the woman from whom they were extracted (section 20(a)(4)).

The recipient woman or the “supervising physician” (as the latter is defined in the Eggs Donation Law) may approach the exceptions committee, and under section 21(c) of the law the committee may consider the factors detailed in section 22 of the law, which are:

1. The exceptions committee may approve the extraction, allocation of eggs for implantation or the implantation of eggs, when the recipient intends in advance the eggs extracted from her body to a particular recipient, when it is persuaded that the following has been met, as appropriate under the circumstances:

1. In terms of a donor who intends in advance the eggs extracted from her body to a particular recipient who is her family member – that there are religious reasons that justify such eggs donation.
2. In terms of a donor who intends in advance the eggs extracted from her body to a particular recipient who is not her family member – that there are religious or social reasons that justify such eggs donation.

2. The exceptions committee may approve the extraction, allocation of eggs for implantation or implantation of eggs when the donor is married, when it is satisfied that the following has been met, as appropriate under the circumstances:

1. In terms of a married donor who intends in advance the eggs extracted from her body to a particular recipient – that there are religious reasons that justify such eggs donation.
2. In terms of a married donor who does not intend in advance the eggs extracted from her body to a particular recipient – that the eggs extraction is required for their implantation in a particular recipient who, due to a shortage in suitable eggs from donors who are not married, cannot receive an eggs donation but for from a donor who is married.

3. The Exceptions committee may approve the extraction, allocation of eggs for implantation or extraction of eggs when the recipient is not a member of the donor’s religious and when the eggs have not intended in advance by the donor for a particular recipient, when the committee is satisfied that the recipient’s religion prohibits her from receiving a donation from a woman who is a member of her religion or due to a shortage of eggs from donors of her religion.
4. The exceptions committee may approve the taking of eggs extracted in Israel from a patient’s body for their implantation out of Israel, when it is satisfied that the eggs are intended to be implanted in her body and when there is justification for approving the implantation outside of Israel.

The provisions quoted above clearly express that the authority of the exceptions committee is limited to an exhausted list of the four cases detailed. They also clearly reflect that the matter of the Petitioners is not among these cases and thus approaching the exceptions committee would not be to their benefit. Given all this, the Ministry of Health’s legal advisor believed that the eggs donation route which they wished to take was not available to the Petitioners, which resulted in her response that:

“[…] According to the law, an eggs donation may only be approved for a woman who cannot become pregnant by her own eggs or who has another medical condition that justifies using the eggs of another woman in order to have a child.

According to your letter, your partner, Ms. Glisko, has no medical condition that justifies receiving an eggs donation. Therefore, regretfully, your request may not be approved.”

Developments Since The Petition Was Filed

10. In the amended petition, submitted on October 3, 2012, the Petitioners requested permission to execute their wishes, whether by striking down different provisions of the Surrogacy Law and the Eggs Donation Law or by interpreting the provisions of these statutes differently than the interpretation of the Ministry of Health. After holding a hearing for the amended petition on November 19, 2012 before a panel of three justices, an  order nisi was issued:

“Based on the petition brought before this Court today, the Court issues an order nisi for the Respondents and instructs them to present themselves and justify:

1. Why the Court should not order that the definition of ‘intended parents’ as in section 1 of the Embryo Carrying Agreements Law(Approval of  the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Law) be struck down for unconstitutionality, and why the Court should not instruct the approving board as established by section 3 of the Law to discuss the Petitioners’ request to approve an agreement for carrying embryo on its merits;
2. Why the surrogacy arrangement established by the Law should not be interpreted to include also an arrangement where there is no obligation for disconnecting the ‘carrying mother’ and the child, and/or that it would be possible to perform in vitro fertilization and implantation of a fertilized egg outside of an agreement for carrying embryo between ‘intended parents’ and a ‘carrying mother,’ as defined in section 1 of the Law;
3. Why the Petitioners should not be permitted to perform a procedure of egg donation such that the First Petitioner would donate an egg to the Second Petitioner in order for it to be implanted in her uterus and fertilized according to the provisions of the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law);
4. Why the Court should not order that the exception in section 11 of the Eggs Donation Law, which restrict the possibility of Eggs Donation to cases where the recipient cannot become pregnant with her own eggs due to a medical condition, is struck down for being unconstitutional;
5. Why the language of section 11 of the Eggs Donation Law should not be amended so that the words ‘in a carrying mother’ be struck out of it.”

At the same time, and in an attempt to find a practical resolution for the Petitioners’ problem the Attorney General has been requested to notify the Court its position as to the legal procedures under the Eggs Donation Law that may be taken against the Petitioners or any medical professional, were they to perform in Israel any medical procedures in order to execute the medical process they wish to perform. It was also decided that as long as the Attorney General’s position is that under the circumstances such legal proceedings should not be initiated, there will be no longer a need for a response on behalf of the Respondents to the order nisi that was issued, and that should there be a need to hold a hearing in the response to the order nisi after the Attorney General’s position is received, it would be held before an expanded panel.

11. The Attorney General’s notice from December 26, 2012 stated that there is no possibility of declaring in advance that no legal proceedings would be initiated in terms of the described actions, which as to his understanding are not permitted under the Eggs Donation Law or the Surrogacy Law. The Attorney General explained his position as such: “There is an inherent difficulty to notifying in advance, in a notice that constitutes a pre-ruling of sorts that the general prosecution would refrain from enforcing the law on statutorily prohibited acts.” Thus the First and Second Respondents (hereinafter, jointly: the State) and the Third Respondents (hereinafter: the Knesset) filed response papers in the Petitions, and on April 28, 2013 a first hearing in the objections to the order nisi was held before an extended panel of seven Justices. During the hearing, the State’s lawyer noted that from the State’s perspective there is no restriction on the procedure of extracting Liat’s eggs, fertilizing them and freezing them but that until the necessary statutory amendments are passed they cannot be used to be implanted in Dana, as requested in the Petition (see page 6 of the hearing record dated April 28, 2013, l. 24-35.) The State’s lawyer also noted that the implementation team appointed by the Ministry of Health to examine the recommendations of the Mor Yossef Committee (hereinafter: the implementation team) is expected to complete its work soon and that after that the Minister of Health would consider the possibility of submitting statutory amendment proposals that may resolve the problem the Petitioners face. At the end of the hearing it was decided that the Respondents would submit update notices and on June 30, 2013 the State updated the Court that the implementation team was expected within several days to submit to the Minister of Health a document summarizing its work and that practical steps, including statutory amendments, were expected – according to the assessment of professional bodies – to be brought for discussion before the Knesset’s Labor, Welfare and Health Committee within six months. In an additional notice the State submitted on August 14, 2013 it stated that on July 21, 2013 the Ministry of Health issued a protocol for “taking sperm, eggs or fertilized eggs out from Israel” (hereinafter: the protocol) whose operative meaning, to the extent concerns us, is that the Petitioners would be able, subject to the authorization of the exceptions committee, to follow the route requested – that is to perform the implantation of Liat’s fertilized eggs in Dana’s womb – but to do so outside of Israel. As a result, and in order to flesh out the Petitioners’ position regarding the proposal raised, an additional hearing was held before the extended panel on August 20, 2013, but the Petitioners insisted that they wished to be able to perform the entire medical procedure in Israel. The Petitioners noted in this context the financial burden involved in performing the medical procedure out of Israel; the concern that performing the medical procedure out of Israel would reduce its prospects of success; as well as noted the various restrictions related to the fact that Liat is an officer in the IDF.

As all of the attempts to find a practical solution for the problem raised by the petition have failed, we were required to rule on the arguments the parties called upon us to do, and as noted on September 1, 2013 a judgment without reasons which rejects the petition by a majority was handed down.

The Parties’ Arguments

12.  The Petitioners argue that the arrangements established in the Surrogacy Law and the Eggs Donation Law, which bar them from performing the medical procedure where Liat’s fertilized eggs would be implanted in Dana’s body are arrangements that violate Liat’s right to be a genetic parent and which discriminate against her and Dana compared to other couples. In this context, the Petitioners raise arguments on a constitutional level and on an interpretive level challenging the provisions of the laws mentioned above, and in essence they argue that there is no public interest that must be protected and that justifies barring them from the possibility of conducting the medical procedure which they wish to go through.

To the extent that the petition concerns the Surrogacy Law, the Petitioners argue that the definition of the term “intended parents” in this law as “a man and a woman who are a couple,” is discriminatory and unconstitutional because it does not recognize same sex couples or single people as intended parents for purposes of surrogacy in Israel. The Petitioners rely here on a decision from 2002 in the New Family case, where it was noted that the definition of “intended parents” in the Surrogacy Law violates the principle of equality because it denies a woman who does not have a male partner the possibility to be an “intended mother.” The Petitioners argue that although in the New Family case the Court refrained from striking down the arrangements in the Surrogacy Law, but they believe this was only because the Surrogacy Law was a new statute at the time and because the experience necessary for its way of implementation was yet to be amassed. The Petitioners additionally argue that in the years that passed since the Surrogacy Law was enacted there have been developments in the willingness to recognize “nontraditional families” including same sex families raising children. They claim there is no relevant justification for differentiating between such families and heterosexual couples in terms of surrogacy procedures in Israel. The Petitioners add that the holding in New Family as to the unjustified discrimination created by the Surrogacy Law, creates an estoppel by record in our matter. In relying on the Mor Yossef Committee report, the Petitioners also argue that this report includes a recommendation to expand the circle of those eligible to conduct surrogacy procedures to include unmarried women or women who cannot carry a pregnancy due to a medical condition, and they argue that Liat falls under this recommendation. The Petitioners further argue that many of the concerns involved in the surrogacy process, including the surrogate’s distress after the birth and the concern over her exploitation, do not exist in this case since Dana – who is to serve as surrogate – is the “other half of the family unit into which the child would be brought.” The Petitioners add that striking down the definition of “intended parents” in section 1 of the Surrogacy Law would allow applying the law’s provisions to them, and this although the connection between surrogate carrying the pregnancy and the child would not be severed after birth. In this context the Petitioners note that the Surrogacy Law does not establish a requirement of disconnection between the surrogate and the child and that the separation required is from the “intended parents” and the “carrying mother” is a “secondary aspect” which serves a “secondary purpose” that is irrelevant to their extraordinary case.

As to the Eggs Donation Law, the Petitioners claim that this law was designed to regulate eggs donation while protecting the dignity, rights, and health of the donor woman and the recipient woman and to prevent trade in  eggs. The Petitioners emphasize that the eggs donation in their desired route is not expected to infringe upon any public interests or rights that the law was meant to protect. They also emphasize the case law whereby the State must not intervene in intimate events such as the decision whether and how to bring children into the world. The Petitioners add that the medical procedure they wish to undergo is the only one that ensures Liat can realize her right to parenthood in a way that allows for a genetic relationship with the child, and according to them since there is available suitable technology that enables her to realize that right on one hand and on the other there are no weighty considerations that justify it, they should not be barred from the option they wish to pursue. The Petitioners argue that the requirement of section 11 for the recipient woman’s “medical need” violates their right to parenthood and is inconsistent with the legal state that existed before the Eggs Donation Law was passed, whereby a female couple was permitted to donate eggs to one another. In this context, the Petitioners rely on Attorney General M. Mazuz’s guidelines from 2009 on the issue of eggs donation between a female couple (hereinafter: the Attorney General’s guidelines,) where it was noted that the eggs donation between a female couple must not be seen as an act that is violates the public policy and it must be permitted where appropriate. The Petitioners note that had they wished to do the opposite – that is, to extract Dana’s eggs, fertilize them and implant them in Liat’s uterus – the restriction in section 11 of the Eggs Donation Law would not have been an obstacle because, as noted, Liat suffers from a medical condition that prevents her from becoming pregnant and carrying a pregnancy with her own eggs. Therefore, in their view, their unique situation warrants a remedy that compels the statutory exceptions committee to discuss their request and to approve it. The Petitioners further argue that the Eggs Donation Law must be interpreted in a way that permits them to perform the desired procedure, or alternatively to strike down the exception in section 11 of the Eggs Donation Law. Moreover, the Petitioners maintain that, at the very least, the term “in a carrying mother” which appears in section 11 of the Eggs Donation Law must be deleted from the text, as – under their reading – it limits the implementation of the law’s provision in their case because it folds into it the discriminatory definition of “intended parents” from the Surrogacy Law.

13. The State argues, on the other hand, that though the sincerity of the Petitioners’ desires to realize their right to parenthood in the particular way they wish to follow, the Petition must be denied for lack of cause to intervene in the manner in which the relevant statutory provisions have been interpreted, as well as a lack of constitutional cause to strike down any of them. The State emphasized in its arguments that the Petitioners claims were made generally and that they did not point out to the specific constitutional rights that they maintain have been violated by the laws at the center of this Petition. Further, the State argues that the Petitioners have not proven the existence of an infringement at the core of the right to parenthood and have not shown why they should be permitted to exercise this right particularly in the one and only manner they desire and not in any other way.

That State also maintains that the procedure the Petitioners wish to perform attempts to create a new arrangement of what it terms as “genetic biological co-parenting” that does not at all fit the surrogacy institution as regulated in the Surrogacy Law, and thus the provisions of the Surrogacy Law cannot be applied to it. In this context, the State argues that at the foundation of the arrangements established by the Surrogacy Law is the separation between “the intended parents” and the “carrying mother” who enter into an agreement to carry embryo, as well as severing the relationship between the birthing woman and the child after the birth. However, the State further argues, Dana – who will serve as the carrying mother, according to the Petitioners’ request – is one of the intended mothers and there is no anticipated severing of the relationship between her and the child after the birth. The State claims that recognizing a surrogacy route under these circumstances may open the door for recognizing the surrogate as the mother of the child for all intents and purposes, which threatens the system of balances established in the Surrogacy Law and might harm in the future the child’s best interest and other interests. The State adds that the basic premise of the Surrogacy Law regarding the separation and severance as mentioned were at the basis of the opinion in New Family as well as at the basis of the Mor Yossef Committee’s recommendations, and thus the Petitioners cannot rely on these sources for supporting their position. The State maintains that even should the term “intended parents” be struck out of the Surrogacy Law for being unconstitutional, this would not assist the Petitioners, because their matter does not fall under the Surrogacy Law’s provisions to begin with. Beyond the necessary scope, the State argues that the proposal to change the term “intended parents” in the Surrogacy Law is now under consideration of the relevant bodies in the executive authority in preparation of bringing it before the Knesset. The State believes that completing the work of the implementation team and the legislature’s expected consideration of the amending the Surrogacy Law also support a restrained approach from the Court in terms of intervening in the provisions of the Surrogacy Law at this time.

As for the arguments raised about the constitutionality of the Eggs Donation Law, the State maintains that this is a relatively new statute – enacted in 2010 – and thus the Mor Yossef Commission also refrained from directly considering its provisions. The State adds that there should be no intervention in the limit established in section 11, which conditions egg donation upon the recipient’s medical need. This condition, according to the State, is worthy, reasonable and proportional and reflects the view that “an egg is not a ‘commodity’ – it cannot be traded, and considerations of autonomy and free will, in their ordinary sense, do not apply to it.” The State emphasizes that the “medical need” is a relevant characteristic of the Eggs Donation Law which is meant to protect the woman’s health, to ensure the child’s best interest, and to prevent the possibility that the mechanism of eggs donation would be used, for instance, due to the parents’ desire to have a “high-quality” child in the genetic sense. Therefore the State believes that should we hold that the arrangement in section 11 of the Law infringements upon any fundamental right, then this infringement meets the requirements of the Limitations Clause and it should not be struck down. The State further argues that the Petitioners’ request to require the exceptions committee to consider their matter is contrary to sections 20-22 of the Eggs Donation Law, which limits the discretion of the exceptions committee to limited cases and this is not one of them. The State also argues that accepting this argument would lead to a significant expansion of the exceptions committee’s authorities, against the instructions of the law provisions and against the legislature’s purpose that explicitly avoided granting the exceptions committee more extensive authorities, though according to the bill such a proposal was before it. The State further maintains that the Attorney General’s guideline from 2009 was issued under different circumstances than those arising in this case, and in any event, with the legislation of the Eggs Donation Law a comprehensive legislative response was provided to the issue of the eggs donation, which should not be strayed from. Furthermore the State argues that striking out the words “in a carrying mother” from section 11 of the Eggs Donation Law would not be of assistance to the petitioners and it may create uncertainty as to the possibility of women who received an eggs donation to implant them in a surrogate. Finally, the State claims that this case raises complex precedential issues in the area of fertilization and birth and as such it is best left to the Legislature, who is charged with developing clear rules according to social standards and broad policy considerations.

14. The Knesset, which was joined to the Petition in its amended version, concentrated its response on the constitutional arguments that the Petitioners raise and joined the State’s position in noting that these claims were made by the Petitioners in general and without meaningful substantiation; that the issue of fertilization and birth is a sensitive and complex issue that is best regulated by the Legislature; and that providing a singular solution to the Petitioners’ plight may threaten the stability of the comprehensive arrangement established in the relevant laws. Like the State, the Knesset, too, believes that there is no place to consider the arguments by the Petitioners in terms of the Surrogacy Law because the medical procedure they wish to perform does not fall under surrogacy and thus their arguments in this context – even were they to be accepted – to assist them. Furthermore, the Knesset argues that the Court should not currently intervene in the Surrogacy Law’s provisions because recommendations as to their amendments are on the Government’s agenda in preparation of bringing them before the Knesset.

In the Knesset’s approach, the constitutional protection at the base of the right to parenthood goes to the core of the right – that is the ability to bring children into the world – rather than in realizing the right in a particular way. Therefore, the Knesset argues that a healthy woman like Dana, who is able to realize her parenthood by using her own eggs, cannot be viewed as a holder of a constitutional right to receive an eggs donation in order to be pregnant by another woman’s eggs. The Knesset adds that although there is no “moral objection” to the route which the Petitioners wish to follow, the concern about striking down section 11 of the Law stems from the mere risk in the Court’s intervention in primary legislation in a way that may harm the system of balances between the branches of government in general and the delicate balances involved in the issue of eggs donation in particular. It was also argued that the restriction in section 11 of the Eggs Donation Law does not violate the right to equality, because it creates a reasonable and logical distinction that achieves the purpose of the law that is providing a solution to the recipient woman’s fertilization problems. In any event, the Knesset believes that the purpose of the requirement for medical justification established in section 11 is worthy and consistent with other legislative arrangements in the area of fertilization and birth; that this is a relatively limited restriction that requires that the recipient have some medical condition that warrants the use of another woman’s eggs in order to have a child (rather than specifically a medical condition that prevents her from becoming pregnant by her own eggs); and that the restriction goes to the fringes of the right to parent rather than its core. The Knesset argues further that the section that authorizes the exceptions committee to exercise the provisions of the Eggs Donation Law is not a “blanket section” but a limited section that accurately defines the scope of the committee’s powers. In this contest the Knesset emphasizes that the Eggs Donation Bill originally included a broader exceptions section which was eliminated. In light of all this, the Knesset believes that the order nisi must be revoked and that the petition must be denied.

Discussion

15. The case before us raises human concerns of the highest order, and it again highlights the existing gap between technological advances and the welcome existing medical abilities in the area of fertilization and birth – which enable couples and single people around the world to realize their hearts’ desires and bring children into the world – and between the slow development of the law which trails behind them attempting to establish proper rules for their regulation (on the law’s trailing behind scientific advances and changing social perceptions, see in similar context: HCJ 5785/03, Gadvan v. The State of Israel, The Ministry of Health, IsrSC 58(1) 29, 34 (2003); HCJ 4077/12, Jane Doe v. The Ministry of Health , para. 2 of Justice E. Rubinstein’s judgment and paras. 33-32 of Justice D. Barak-Erez’s judgment (February 5, 2013) (hereinafter: the Jane Doe case); the New Family case, p. 459-60; HCJ 566/11, Magad v. The Ministry of Interior, para. 4 of Justice E. Arbel’s judgment (January 28, 2014) (hereinafter: the Magad case); see also and compare CFH 6407/01, Zahav Channels and Partners v. Tele Event Ltd., IsrSC 58(6) 6, 22-28 (2004); CA 9183/09, The Football Association Premier League Limited v. John Doe, para. 6 of Justice N. Hendel’s judgment (May 13, 2012); LCA 3810/06, I. Dory and Chicovski Construction and Investments Ltd. v. Goldstein, IsrSC 62(3) 175, 196 (2007); Dan Shinman, A Defense Attorney’s View of the Reliance Defense, The Or Book – A Collection of Essays in Honor of Justice Theodore Or 507, 510-12 (Aharon Barak, Ron Sokol and Oded Shaham, Eds., 2013.))

From the outset, I will then say that the complex case before us, underscores the need that modern pieces of legislation that wish to comprehensively regulate such central aspects of people’s lives such as the issue of fertilization and birth, and that when they establish a blanket criminal prohibition against conduct that is inconsistent with them,  also include a built in mechanism that allows the competent authority designated to do so under the arrangement, to examine and approve on a case by case instances that are exceptional and out of the ordinary. This is because reality often surpasses the imagination and the goal to provide a complete, comprehensive and rigid solution in legislation that inherently cannot fully anticipate all the possible variations in the regulated context, may turn positive and law abiding people into criminals, without this serving any public interest and without it advancing the realization of the purpose that stands at the foundation of the discussed statutory arrangement.

16. Liat’s desire to bring a child into the world from her own eggs has not diminished even after the difficult fertilization treatments she had gone through for years. Liat wishes, therefore, to take the last step that may enable her, hopefully, to bring a child who would carry her genetic background into the world. This route is using her eggs through their extraction, fertilization and implantation in Dana’s body, her partner for about a decade. This is a process that involves a complex medical procedure, which is mostly to take place in the bodies of the partners who desire it. The Respondents confirmed in their arguments that the procedure they wish to perform does not elicit any “moral objection.” Still, it is currently prohibited under both the Surrogacy Law and the Eggs Donation Law that even set a criminal sanction to those violating such prohibition. In other words, the extraction of Liat’s eggs, their fertilization and their implantation in Dana’s body is caught in the net of the prohibitions included in the above statutes and may implicate all the people involved (including the attending physician) in criminal offense, only because of the broad and extensive language of these provisions and without an actual violation in the case at hand of any interest which these statutes are designed to protect.

Under these circumstances, it is appropriate to grant the Petitioners any of the remedies they seek?

The Surrogacy Law

17. In their amended petition, the Petitioners wished to find a solution within the institution of surrogacy or alternatively through eggs donation. From the reasons detailed below, I believe that the legal discussion ought to center around the Eggs Donation Law, both because it is clearly the piece of legislation that bars the Petitioners from executing their plan, and because the surrogacy path inherently is unsuitable for their matter.

The obstacle facing the Petitioners in terms of surrogacy is twofold: first, the Petitioners (either of them and both of them together) do not meet the definition of “intended parents” as established in the Surrogacy Law and thus are not eligible to take this route in Israel. Second, it is seriously doubtful whether under the circumstances surrogacy fits their wishes.

The definition established in section 1 of the Surrogacy Law, whereby “intended parents” are: “A woman and a man who are a couple” raises considerable constitutional difficulties, some of which this Court discussed in New Family case (see the position of then Justice M. Cheshin, which was joined by most of the members of the extended panel adjudicating that petition.) The Court noted that this definition unjustifiably discriminated against “single” women compared to a man and a woman who are a couple (there, p. 455-56.) And yet, I see no reason to address in further detail the constitutionality of this definition because it seem that currently real steps are being taken in order to change it, including as a result of the criticism over the Law’s provisions expressed in the decision given in the New Family case (for a critique of the Court’s unwillingness to strike down this definition as early as 2002 in New Family, see Dafna Haker, Beyond ‘Old Maid’ and ‘Sex and the City’: Singlehood as an Important Option for Women and Its Treatment in Israeli Law, Iyunei Mishpat 28, 903, 941-43 (2005); see also HCJ 1078/10, Pinkas v. The Board for Approval of Embryo Carrying Agreements , (June 28, 2010) where the Petitioners withdrew their petition challenging this definition in light of the convening of the Mor Yosef Committee.) As has already been noted, in May 2012 the recommendations of the Mor Yosef Committee, which was appointed by the Director General of the Ministry of Health, were published. The recommendations include a concrete proposal to change the definition of the term “intended parents” to also include an unmarried woman who has a medical condition that prevents her from carrying a pregnancy. Additionally, the commission recommended establishing another route for surrogacy in Israel, which would afford access to surrogacy to men without female partners as well. As reflected from the State’s arguments, the Mor Yosef Committee’s recommendations were passed onto an implementation team established for such purposes in the Ministry of Health, and the fruits of the implementation team’s labor were recently submitted to the Minister of Health in order to process them into a bill for amending the legislation that would be brought before the Knesset. It should also be noted that the 18^th Knesset is also considering the Agreements for Carrying Embryo Bill (Amendment – Intended Parents), 5772-2012 (P/18/4266), which aims to amend the definition of the term “intended parents” to include also “a woman and a woman or a man and a man” (for additional recent developments on this issue see the Memorandum regarding the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child) (Amendment – Definition of Intended Parents and Executing Agreements out of Israel), 5774-2014, which was approved by the Committee of Ministers for Legislative Matters on March 2, 2014). In light of these developments, it seems that to the extent that the Petitioners are faced with obstacles due to the existing definition of “intended parents” in the Surrogacy Law, the Legislature must be allowed to exhaust the legislative processes and we must refrain at this point from judicial intervention in the Surrogacy Law’s provisions (on the self-restraint that binds the Court when asked to intervene in ongoing legislative processes, see and compare: CFH 5161/03, E.S.T Projects and Human Resources Management Ltd. v. The State of Israel, IsrSC 60(2) 196, 206 (2005); HCJ 761/86, Miaari v. The Speaker of the Knesset,  IsrSC 42(4) 868, 873-74 (1989)).

18. However, as noted, even had the Surrogacy Law’s definition of “intended parents” been amended – whether by legislation or by judicial intervention – I seriously doubt whether the institution of surrogacy is the appropriate pate to execute and realize the process which the Petitioners seek (see: Ruth Zafran, There Are Also Two Mothers – The Definition of Motherhood for A Child Born to Same-Sex Female Couples, Din U’Dvarim 3 351, 366-67 (2008) (hereinafter: Zafarn)). This is because as opposed to the well-known and acceptable path of surrogacy which the Surrogacy Law also lays out according to which the relationship between the surrogate and the child is severed upon birth, in our matter Dana (the “carrying mother”) is expected to continue and raise the child alongside Liat (the “intended mother”) as she is, as the Petitioners put it, “the other half of the family unit into which the child would be brought.” The State and the Knesset emphasized in their arguments that the issue of severing the parenting link between the surrogate (as the “carrying mother”) and the child after birth is a central aspect of the arrangements established by the Surrogacy Law. I accept their approach that without this severance it would be incorrect to see the route the Petitioners wish to take as a surrogacy process. Though the Surrogacy Law regulates the exceptional cases where the court may approve the surrogate’s withdrawal from the surrogacy agreement into which she had entered, while establishing her status as mother and guardian over the child (see section 13 of the Law,) but these cases are irrelevant to our matter, which to begin with does not fit any of the characteristics of the institution of surrogacy, in light of the Petitioner’s declared intentions to raise the child together in the family unit they started.

As I have found that the surrogacy path is not the right path to examine the Petitioners’ claims, this means that should my opinion be heard, the Petition ought to be denied in terms of section 1 and 2 of the issued order nisi.

The Eggs Donation Law

19. The Eggs Donation Law creates different obstacles for the Petitioners. Under section 11 of the Law, a woman who has a medical condition that prevents her from becoming pregnant with the eggs in her body or any other medical condition that justifies using the eggs of another woman in order to have a child is entitled to submit a request to receive an eggs donation. The Eggs Donation Law also stipulates that a child born as a result of an egg donation would be the child of the recipient mother for all intents and purposes, and that the donor woman would have none of the authorities granted parents vis-à-vis their children (section 42 of the Law.) Therefore a woman needing an eggs donation is, as a general rule, a woman who cannot become pregnant by her own eggs because of fertility difficulties or a woman who fears passing on a genetic defect to her children (see Zafran, p. 362.) The woman who donates the eggs does not take, as a general rule, any part of raising the child carried by the recipient woman.

In our case, the Petitioners wish to use a “donation” due to a medical condition that the donating woman (Liat) has, rather than the recipient woman (Dana). This is coupled by the fact that they are a couple who wishes to raise together the child whom they bring into the world together, so that it has genetic ties to one of them and biological ties to the other. As we can see, Dana and Liat do not meet the requirements in the Eggs Donation Law and thus the prohibition in section 4(a) of the Eggs Donation Law, which mandates that “no one shall perform the extraction of eggs from a donor […] or the implantation of eggs, unless according to the provisions of this Law” applies to them, along with the criminal sanction set in section 41 of the Law which can be expected by anyone violating the Law’s provisions.

The Background for The Eggs Donation Law’s Legislation

20. As noted above, the case before us is not the first case where the Ministry of Health was requested to allow a female couple to bring a child into the world via egg donation from one female partner to the other. Indeed, in July 2006, T.Z. and N.Z., a female couple, approached the legal advisor of the Ministry of Health with a request to approve a medical procedure whereby the eggs of one of them (T.Z.) be extracted, fertilized and implanted in the uterus of the other (N.Z.) who has reproductive difficulties (the facts of the case were detailed in FA (Tel Aviv) 60320/07, T.Z. v. The Attorney General – State Attorney, District of Tel Aviv (March 4, 2012) (hereinafter: the T.Z. case,) where the court discussed a motion to establish the legal motherhood of the egg donor.) The case took place before the legislation of the Eggs Donation Law, and therefore the relevant legislative framework for examining the request was mainly the Fertilization  Regulations and regulation 4 there (in its version then) which prohibited extracting eggs from a woman who is not undergoing medical treatment for fertility difficulties. Despite such prohibition, as described in the decision in T.Z., the couple’s request was accepted by attorney Hibner-Harel, as following:

“We do not see any bar for performing the medical procedure mentioned in your letter. The Regulations require that egg be extracted from a woman who is undergoing medical treatment for infertility, however considering that you and your partner are a family unit – I believe it is sufficient that the fertility treatments are a result of a fertility difficulty of both of you, even if it is not the woman from whom the egg is extracted” (there, paras. 3 and 26.)

Therefore, the Ministry of Health has accepted the request from the female couple to extract eggs from T.Z. even though she did not go through fertility treatments because it considered the couple a family unit and thus was satisfied by the fact that one of them had fertility difficulties. As a result of this position of the Ministry of Health, in that case the necessary medical procedure was performed in September 2006 and in June 2007 the minor D.Z. was born. The case received wide publicity (see Zafran, p. 352) and consequently in July 2008 and April 2009 two additional requests were received by the legal advisor of the Ministry of Health from female couples who wished to be permitted to donate egg to one another. In light of the issue’s sensitivity it was decided to bring it to then Attorney General M. Mazuz and in a discussion held in the matter on September 6, 2009 the Attorney General decided that “where a donation between a female couple is concerned […] this must not be seen as an act that violates public policy, and the donation must be permitted” (see document dated November 24, 2009, entitled “Discussion Summary – Eggs Donation between Female Partners,” Annexure R/4 of the State’s response dated November 12, 2012.) Still, and given that regulation 4 of the Fertilization Regulations establishes an exclusive procedure for extracting eggs, it was decided that it was impossible to permit extracting egg from a woman who does not meet the requirements of the regulation – that is, that is not under medical treatment for fertility difficulties. The Attorney General added that the current legal situation is unsatisfactory and that there are additional circumstances that would justify eggs donation that are out of the regulation’s scope. The Attorney General also noted that the Eggs Donation Bill, which was already being contemplated, must be advanced.

21. Prior to the legislation of the Eggs Donation Law, then, at least one case of an egg donation between women partners was permitted, and this was since the Ministry of Health considering the couple a family unit that merited accepting their request in light of the circumstances of their shared lives. In addition the Attorney General noted that such donation must not be seen as an infringement of the public policy, and called upon the legislature to make an effort to advance the Eggs Donation Bill and through it resolve such cases as well. And indeed, after the Eggs Donation Bill 5767-2007 had passed in the Knesset at first reading, the Knesset’s Labor, Welfare and Health Committee took its time between 2008-2010 and poured over different proposed languages for the provisions. The Bill included, among others, different conditions which only when they are met it was possible to receive an eggs donation. They included presenting a “medical need” by the recipient; expanding the circle of donors to include also “volunteer donors” not receiving fertility treatments; and establishing the exceptions committee authorized to approve donations even if certain conditions detailed in the law were not met. On the latter, section 18 of the Bill stipulates:

“Approval in Exceptional Cases:

18. When any condition of the conditions for approving the extraction of eggs, approving the allocation of eggs or approving the implantation of eggs under sections 12, 14 or 16, respectively, are not met but the supervising physician believes there are exceptional and unique circumstances that merit the approval even without that particular condition, the physician may approach the exceptions committee with a request to secure such approval.”

And section 21 of the Bill, which addresses the exceptions committee’s authorities and the scope of its discretion, instructs generally as follows:

“Approval by the Exceptions Committee

21. […]

(e) The exceptions committee may approve the extraction of eggs, allocation of eggs or implantation of eggs, per the request of a supervising physician under section 18, should it believe that under the circumstances there are exceptional and unique reasons to justify doing so.”

The explanatory notes to the Bill addressed these sections and noted that they were designed to allow the exceptions committee to consider an eggs donation even with the different conditions detailed in the law are not met “in cases that justify doing so and that are impossible to anticipate in advance, and without this requiring an amendment to the law.” The Ministry of Health’s legal advisor, Adv. M. Hibner-Harel had even explained the need for sections 18 and 21(e) above to the members of the sub-committee that was convened in order to supervise the Bill’s advancement, saying that:

“[…] I would like there to be some section for an exit strategy. There are things in life that I don’t anticipate today. I would like to qualify this exit section. I’m not here to climb mountains or to start revolutions, but I need a section because of the problems I see in the course of my position, because of problems that we did not anticipate in the legislation and then I have do diverge from the law and from the courts notes, but we do it because it must be done” (see minutes of meeting Labor, Welfare and Health Sub-Committee for Supervising the Eggs Donation Bill, 5769-2008, dated November 3, 2008, p. 47.)

Some of the members of the sub-committee expressed their concern that these sections would make circumventing the other conditions in the law possible, and after discussing the necessity of the above “basket sections” the mentioned  sub-committee members decided to remove them from the Bill noting that “this could be left to the courts.” This followed comments by Rabbi Dr. Mordechai Halperin, representative of the Ministry of Health’s Bioethics Committee, who told the committee members that:

“It is better to remove section 18 and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is explicitly in violation of the law” (there, p. 50-51.)

And in the exchange between the sub-committee chair, Member of Knesset A. Eldad and Rabbi Halperin, it was also said:

“Chair Aryeh Eldad: The court cannot act in violation of the law. Maybe we should add here a basket provision that authorizes the court to act as an exception of an exception.

[…]

Mordechai Halperin: But this does not to be written. The court does this anyway, regardless of a basket section. So we do not need it.” (There, p. 49.)

22. This puzzling and mistaken reasoning is that lead to the removal of the said “basket” sections from the Bill and as a result the Eggs Donation Law, which was passed in 2010, was left without a flexible route to allow considering exceptions from the law’s requirements in the unique cases that may not be anticipated in advance, including, for instance, a case such as the one before us where the recipient has no “medical need” for the eggs donation but there are other reasons that justify permitting the donation. The language of the law in the version that passed allows the exceptions committee limited authority that was restricted only to the cases detailed in section 20(a) of the law and only when the conditions detailed in section 22 of the law are met for each of those instances. The Petitioners’ case is not among those detailed there and thus they cannot find a solution in turning to the exceptions committee.

Do the law’s provisions in their current state violate the constitutional rights of the Petitioners to an extent that merits judicial intervention?

The Eggs Donation Law’s Violation of Constitutional Rights

23. Since the legislation of Basic Law: Human Dignity and Liberty in 1992, Israeli law had identified a string of basic rights from the right to dignity, including: the right to equality, to autonomy, to family life, to parenting and to free expression. Do the provisions of the Eggs Donation Law infringe upon the Petitioners’ basic right to dignity and its derivative rights? This is the first question that must be examined in order to exercise judicial review over the law’s constitutionality. To the extent that we find the answer to be in the affirmative, we must continue and examine whether this infringement meets the requirements of the Limitations Clause of section 8 of Basic Law: Human Dignity and Liberty, and which outlines the scope of protection granted to these basic rights, as relative rights. Finally, to the extent that we may find the infringement by the Eggs Donation Law upon the Petitioners’ basic rights to violate the Limitations Clause the consequences of this unconstitutionality must explored, along with ways to cure it (for the three step constitutional analysis and the relativity of constitutional rights, see HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset, IsrSC 61(1) 619, 669-670 (2006); HCJ 7052/03, Adalla – Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Interior, IsrSC 61(2) 202, 281-82 (2006) (hereinafter: the Adalla case); HCJ 10662/04, Hassan v. the National Insurance Institute of Israel, para. 24 of President D. Beinisch’s judgment (February 28, 2012) (hereinafter: the Hassan case); HCJ 7146/12, Adam v. The Knesset, paras. 68-69 of Justice E. Arbel’s judgment (September 16, 2013); Aharon Barak, Proportionality in Law – the Infringement of a Constitutional Right and its Limits, 51-53, 56-57 (2010) (hereinafter: Barak, Proportionality)).
24. The Eggs Donation Law prohibits, as discussed, the Petitioners by criminal sanctions from performing egg extraction from Liat’s body and implant that same egg in Dana’s uterus after it has been fertilized. Does this amount to a violation of the Petitioners’ constitutional rights?

The right to autonomy which encompasses one’s right over their body is at the “hard core” of the constitutional right to dignity (see CLA 1412/94, The Hadassah Medical Organization Ein Kerem v. Gilad, IsrSC 49(2) 516, 525 (1995); CA 2781/93, Daaka v. “Carmel” Hospital, Haifa, IsrSC 53(4) 526, 571 (1999) (hereinafter: the Daaka case); CA 10064/02, “Migdal” Insurance Company Ltd. v. Abu Hana, 60(3) 13, 48 (2005); CA 4576/08, Ben-Zvi v. Hiss, para. 25 of Deputy President E. Rivlin’s judgment (July 7, 2011); CA 10085/08, Tnuvah – Co-operational Center v. Estate of Raabi, para. 33 (December 4, 2011); CA 1303/09, Kadosh v. Bikur Holim Hospital, para. 31 (March 5, 2012.)) So, for instance, in Daaka it was decided that the basic right to autonomy over one’s body means that the patient’s informed consent is necessary in order to perform any medical treatment on them, and as Justice T. Or wrote there:

“This right of a person to determine their life and fate holds within it all the central aspects of their life – where they may live; what may be their occupation; who they may live with; what they may believe. It is central to the existence of each and every individual in society. It expresses the recognition of each and every individual’s value as a world unto themselves. It is essential to each individual’s self-determination in the sense that the entirety of our choices defines our personality and our life […]

An individual’s right to autonomy is not exhausted  in this narrow sense, of the possibility to choose. It also includes another aspect – a physical one – of the right to autonomy which goes to one’s right to be left alone […] This right means, among others, that every person must be free of intervention in their body without their consent” (there, p. 570-71.)

Justice H. Ben-Ito discussed the autonomy a woman has over her body in terms of intimate decisions involving reproduction and birth, in CA 413/80, Jane Dow v. John Doe, IsrSC 35(3) 57, 81 (1981), as follows:

“Impregnation, pregnancy and birth are intimate events, which are wholly within the private sphere; the State cannot intervene in this area unless there are weighty considerations stemming from the need to protect an individual right or a serious public interest” (and see also CA 1326/09, Hamer v. Amit, para. 71 of Deputy President E. Rivlin’s judgment (May 28, 2012.)

Regulating the area of eggs donation in legislation that establishes what may or may not be done with a woman’s eggs, therefore, on its face infringes a woman’s autonomy to determine what may be done with her body. From the donor’s perspective, this is an intervention in her ability to realize her wishes to donate an egg to another woman. From the recipient’s perspective this is an intervention in her ability to receive in her uterus a fertilized egg and to carry the resulting pregnancy. The law infringes, then, upon the liberty of these two women to choose how they lead their lives free of any external intervention in decisions involving their bodies (see Meir Shamgar, Issues of fertilization and Birth, Hapraclit 39 21, 27, 31-32 (1989)). However, one’s autonomy over their body and the liberty to make decisions involving the body are not absolute rights, and as any other right they must be balanced against conflicting rights or limited in some instances. Therefore, as to the extent that infringing upon the Petitioners’ autonomy is concerned, it is necessary to go on and examine whether this infringement meets the requirements of the Limitations Clause.

25. An additional right is infringed under the circumstances  and it is also a derivative of the constitutional right to dignity. It is the Petitioners’ right to a family life and to designing their family unit as they choose (see CA 5587/93, Nahmani v. Nahmani, IsrSC 49(1) 485, 499 (1995); CA 7155/96, John Doe v. The Attorney General, IsrSC 51(1) 160, 175 (1997); the Adalla case p. 296, 400, 465, 474, 496-97, 523; HCJ 466/07, MK Zehava Galon – Meretz-Yahad v. The Attorney General, para. 10 of Justice E. Rubinstein’s judgment (January 11, 2012); Yaniv Ron-El, The Limits of Fertility Freedom from a Liberal Perspective: the Case of Selecting the Child’s Sex, Iyunei Mishpat 32 391, 451 (2010) (hereinafter: Ron-El)). Justice A. Procaccia discussed the right to family life in HCJ 7444/03, Dakka v. The Minister of Interior, (February 22, 2010) saying:

“One’s right to family is one of the foundations of human existence. Its realization is required for fulfillment and purpose in life. It is a condition to one’s self-realization and their ability to tie their life to their partner and to their children in true partnership of fate. It reflects the essence of one’s being and the realization of their heart’s desires. The right to family is located at the top of the list of human rights. Taking away from this right is possible only where it conflicts an opposing value of special force and importance” (there, para. 15.)

The Petitioners wish to have a child together and to expand their family unit. Such a meaningful decision by a couple that goes to having children expresses in full force not only the Petitioners right to autonomy but also their right to family life. In this case the right to family life encompasses an additional important right, which is the right to parenthood (see CA 451/88, Does v. The State of Israel, IsrSC 44(1) 330, 337 (1990); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 719 (1996) (hereinafter: the Nahmani case); HCJ 2245/06, Dovrin v. Israel Prison Service, para. 12 (June 13, 2006); The Jane Doe case, paras 26-27 of Justice E. Rubinstein’s judgment; The Magad case, para. 41 of Deputy President M. Naor’s judgment; Pinhas Shifman Family Law in Israel vol. 2 139 (1989); Yossi Green In Vitro Fertilization From A Consent Perspective 66 (1995) (hereinafter: Green.))

There are those who consider the right to parenthood to be the meaning of life, but even if this approach is not universally accepted, it seems the right to parenthood cannot be overstated (see Vardit Rabitzki, The Right to Parenthood in the Age of Technological Fertilization, Dilemmas in Medical Ethics 137, 145-147 (Rephael Cohen-Almagor, ed. 2002) (hereinafter: Rabitzki); on the “reproductive freedom” included within the right to parenthood, see Shulamit Almog and Ariel Bendor, Reproductive Freedom as a Basic Right, A Different Kind of Pregnancy 115, 116-17 (Shulamit Almog and Avinoam Ben Zeev, eds. 1996) (hereinafter: Almog and Bendor); the right to parenthood is also mentioned in section 16 of the United Nations’ Universal Declaration of Human Rights from 1948 (“Men and women of full age, without any limitations due to race, nationality or religion, have the right to marry and to found a family”) as well as in other declarations or treaties, see: Almog and Bendor, p. 117; Rabitzki, p. 137-38; the Adalla case p. 470-73.) Indeed, the desire for parenthood follows humans since the dawn of history and scholar P. Shifman notes that while in the past the ability to bring children into the world was in the hands of fate, one of the characteristics of the modern age is that fulfilling such desire is subject to a large extent to one’s choice and free will (see P. Shifman, On the New Family: Notes to Start A Discussion, Iyunei Mishpat 28 643, 661 (2005)).

Professor D. Barak-Erez discussed the statues of the right to parenthood, noting:

“The right to parenthood is an independent right, rather than a reflection of autonomy of free will. Realizing the option of parenthood is not just a possible way of life, but it is also rooted in human existence. Some may find it to be a cure for loneliness; others may use it to cope with awareness of death […] The choice of parenthood is not just a choice about a way of life – it has weight beyond this in human existence. It expresses a fundamental existential need. In addition, the decision to become a parent also solidifies self-realization, particularly in modern society that emphasizes self-realization as a value. However the right to parenthood does not only stem from self-realization. The right to life is an independent fundamental right, rather than merely a derivative of the autonomy of will, and so is the right to parenthood.” (Daphne Barak-Erez, On Symmetry and Neutrality: Following the Nahmani cases, Iyunei Mishpat 20 197, 199-200 (1996)).

In her emotional arguments before us, Liat expressed her desire to be a parent and to have a child who carries her genetic code, as well as the grave pain and frustration she experiences after years of unsuccessful fertilization treatments. All this led Liat to conclude that she will likely be unable to fulfill her wishes unless implanting her fertilized eggs in the uterus of another woman who would carry the pregnancy would become possible. The natural choice for this is of course her partner, Dana, who expressed her wishes to take part in the process as someone interested in expanding their common family unit in this way. In this sense the obstacles mounted by the Eggs Donation Law infringe Liat’s right to parenthood, whereas it seems this is a different level of infringement in terms of Dana’s right to parenthood.

26. Indeed, the case law and literature discussed the facets of the right to parenthood and have distinguished between the core of the right – such as the “practical ability to bring children into the world” – and facets that are at the periphery of the right – such as “one’s ability to choose how to exercise their natural right” (see the Jane Doe case, paras. 27-32 of Justice E. Rubinstein’s judgment and para. 11 of Justice D. Barak-Erez’s judgment; see also Ruth Zafran, The Range of Legitimacy in Choosing the Genetic Characteristics of the Child by the Parents – Choosing the Sex of the Child for Social Reasons as a Case Study” Mishpat V’Asakim 6 451, 460-61 (2007); Green, p. 68-69; Almog and Bendor, p. 118.) Categorizing each case along this distinction influences the force of the infringed right and the way the right to parenthood must be balanced against other rights and interests that relate to, for instance, the potential child’s best interest, the public interest, and the different requirements by the bodies participating in the reproductive process such as sperm donors, egg donors, doctors and treating institutions (see Rabitzki, p. 151-59). In this context, for example, in the Jane Doe case it was held that a woman’s wishes to bring children into the world who would all have the same genetic father by once more using the sperm donation of the same donor she used for her first child is not in the core of the right to parenthood and it must be balanced against the refusal of that same anonymous donor for additional uses of his sperm and against his right not to be a parent.

Therefore, the arrangement established in Eggs Donation Law which restricts extraction and implantation of eggs and prohibits through criminal prohibition performing these acts unless they meet the requirements in the law, infringes the Petitioners’ constitutional rights to autonomy, family life and parenting. As a result we must continue and examine whether this infringement meets the requirements of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty.

The Eggs Donations Law and the Requirements of the Limitations Clause

27. The Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty sets four conjunctive requirements that must be met in order to justify infringing upon a constitutional right that is protected by the Basic Law. The infringement must be done through legislation (or by explicit authorization in legislation); the law must fit the values of the State of Israel; it must be for a worthy purpose ; and the infringement of the right must be to extent not greater than necessary. In our case, there is no dispute that the infringement of the Petitioners’ rights is done through legislation – the Eggs Donation Law, and to the extent that this law is concerned the Petitioners have not argued in terms of its fit with the values of the State of Israel. It is possible, then, to focus the discussion in terms of the Limitations Clause on the question of the worthiness of the law’s purpose and the proportionality of its arrangements.

Worthy Purpose

28. Section 1 of the law states:

“The purpose of this law  is to regulate eggs donation for the purposes of reproduction and birth, while achieving maximum protection for the dignity, rights and health of the donor woman and the recipient woman, as well as to regulate the use of eggs for research purposes, all while protecting women.”

In stating so the law informs that it is designed to regulate the use of technology for extraction and implantation of eggs primarily for the purposes of reproduction, but also for the purposes of research. This purpose is of course worthy and welcome. It advances an important social causes and facilitates the realization of many women’s basic, natural and understandable desire for a child while using advance technologies developed in this field and that allow overcoming medical conditions and bringing children into the world (see minutes from meeting of the 17^th Knesset's Labor, Welfare and Health Committee, dated February 18, 2008, p. 5.) Still, it is important to remember that the legislative arrangement regarding eggs donation, like other legislative arrangements (see and compare: the Organ Implantation Law, 5768-2008) trails behind the technological advances that were achieved and have been implemented in medicine for many years before the law was legislated. The need for an arrangement was born, therefore, in order to establish what was and was not to be permitted in this complex and sensitive area in order for it not to remain open for exploitation by different bodies. This explains the emphasis at the end of section 1 that the law was meant to “regulate eggs donation for the purposes of reproduction and birth, while achieving maximum protection for the dignity, rights and health of the donor woman and the recipient woman (emphasis added.)”

Examining the purpose of the law must focus then on the rationales behind its various restrictions and prohibitions. The premise that must guide us in this examination is similar in its essence to the premise that then Justice M. Cheshin outlined in the New Family case when he discussed the Surrogacy Law:

“A main aspect of this human need – the need to exist and to survive – in a woman’s desire, a desire to the end, for a fruit of her womb, a child that is a flesh of her flesh. Previously, man knew only one way to realize this wish, and this is how the family unit was created. Currently, when technology may assist people where nature fails it, a material rationale is required in order to bar a woman from using this technology” (there, p. 447.)

In other words, the force of the reasons and rationales necessary to limit birth with the assistance of technology must essentially be on par with the force of the reasons and rationales required to limit natural reproduction (see Rabitzki, p. 149-51.)

Reviewing the restrictions and prohibitions established in the Eggs Donation Law indicates that they were meant, generally, to ensure the protection of the health of women involved in the process as well as the health of the child. The law was also intended to prevent trade in eggs and exploitation of women (see, for instance, section 12 and 14 of the Eggs Donation Law which set age limits for a “volunteer donor”, restrictions on the number of eggs that may be extracted each time and on the frequency of the extraction process; see also the prohibition on trading and mediations eggs established in section 8 and 9 of the law.) The restriction in section 11 whereby the eligibility for an eggs donation under the law is contingent upon the recipient being “unable due to a medical condition to become pregnant with the eggs in her body, or has another medical problem justifying using another woman’s eggs in order to have a child” was designed to prevent using fertilization and implantation technology for purposes which the legislature considers, and rightly so, as antisocial. This was discussed by scholar Ruth Zafran who noted that the condition in terms of the necessary medical condition of the recipient was meant to prevent using the eggs for eugenics reasons – that is, experimenting with “improving” the genes of the offspring (see Zafran, p. 362.) The resulting conclusion is that the arrangement established by the Legislature in the Eggs Donation Law was for a worthy purpose. Therefore we must further examine whether the means taken by the Legislature to achieve the law’s purposes are proportional.

The Proportionality of the Arrangement in the Eggs Donation Law.

29. The proportionality issue may be examined under three sub tests established by the case law. They are: the existence of a rational link between the chosen means and the desired end; a lack of a least restrictive alternative; and proportionality between the benefit achieved by the statute and its different arrangements and the harm caused by its virtue (see, out of many: HCJ 1715/97, Israel Investment Managers Guild v. The Minister of Finance, IsrSC 51(4) 367, 385-86 (1997); HCJ 3648/97, Stamka v. The Minister of Interior, IsrSC 53(2) 728, 776 (1999) (hereinafter: the Stamka case); HCJ 1661/05, Gaza Beach Regional Council v. Knesset of Israel, IsrSC 59(2) 481, 549-550 (2005) and the many sources there; HCJ 2442/11, Stanger v. Speaker of the Knesset, paras. 41-42 of President A. Grunis’ judgment (June 26, 2013); Barak, Proportionality, p. 169-72.)

The rational connection test is designed to detect the existence of the probability that the means chosen by the statutes would indeed lead to achieving the end for which it was enacted. Under this test it is not necessary that the statute ensures fully achieving that end, but it must point to a real link to accomplishing it. In my view, regulating the issue of eggs donation in Israel while imposing different limitations and prohibitions on the possibility to donate and receive eggs, including a criminal prohibition designed to deter and enforce these restrictions, may lead to achieving the purposes of the statute, as we described them above. The fact that as a result of a statute’s broad language the possibility of an eggs donation is prohibited even in cases that the law did not attempt to prevent, such as this case, cannot in and of itself sever the rational link between the prohibition and the purpose the law was meant to achieve (Barak, Proportionality, p. 376-78, 411-12.) The matter of the arrangement’s proportionality in light of the fact that its restrictions catch in their net cases where there is no concern for harming any of the interests the law wishes to protect, should therefore be explored under the second sub test which poses the question whether there is an alternative means to achieving the law’s purpose in a manner that is less restrictive.

30. Indeed, the tight knit net the law casts caught even the Petitioning couple’s heart desire, though it is undisputed that it carries no moral flaws and though it is universally clear that it does not harm any other individual or any of the social and public interests which the law wishes to protect. The Respondents raised many good reasons to justify the conditions and restrictions set by the Eggs Donation Law, but they cannot point even to one meaningful reason to justify preventing the Petitioners from going ahead with the extraction, fertilization and implantation procedure they wish to perform, apart from the fact that the law – due to is broad and expansive language – prohibits doing so. It should be emphasized that since we are concerned with the elimination of the Petitioners’ basic rights, the prohibition in the law is that which requires justification (see New Family, p. 444-45, 448-49) and given the force of the infringed rights and their nature as “negative rights” whose exercise does not impose on the state any duties (see Ravitzki, p. 141; Ron-El, p. 445-448), it seem the strength of the justification for the expansive means chosen, must meet a higher bar.
31. I am afraid that the fact that the Eggs Donation Law (as opposed to its Bill) does not authorize the exceptions committee it forms the general power to examine exceptional and unusual cases leads to the conclusion that the means established by the arrangements included in the law to realize the worthy purposes for which it was enacted, are disproportional and rigid and may cause – as was the case here – arbitrary harm to women whose right to use relevant assisted reproductive technology in order to have a child the law never intended to infringe.

The need to set an exceptions mechanism to allow the examination of particular cases that were impossible to anticipate in advance, particularly where the Legislature established an extensive arrangement that infringes upon basic rights, was discussed by this Court, among others, when analyzing the second sub test of the proportionality requirement in the Adalla case (and see also: HCJ 2150/07, Head of Beit Sirah Village Council v. The Minister of Defense, para. 5 of Justice E. E. Levi judgment (December 29, 2009); HCJ 10533/04, Weis v. The Minister of Interior, para. 43 (June 28, 2011); the Hassan case, para. 68 of President D. Beinisch’s judgment.) And in the words of President A. Barak:

“The exceptions mechanism may reduce the law’s infringement of rights, without compromising the achievement of the worthy purpose. Therefore, creating such a mechanism is an obvious outcome of the second sub test which addresses identifying a less restrictive alternative. Indeed, just as it is the duty of any administrative authority to exercise judgment on a case by case basis and to recognize the exceptions to the established rules and instructions when circumstances call for doing so […] so is it the duty of the Legislature, when setting an arrangement whose outcome is broad infringement of rights, to consider the establishment of an exceptions mechanism that would allow resolution in special cases when the circumstances justify it.” (The Adalla case, p. 329; see also Barak, Proportionality, p. 407-09.)

Although President A. Barak remained in the minority in Adalla, but it seems that on this particular issue, Deputy President (Ret.) M. Cheshin was of the same opinion as Barak (there, p. 455.) Then Justice M. Cheshin’s words as to the exceptions mechanism’s necessity from a different case are apt here as well:

“A policy lacking exceptions is like an engine without oil for lubrication. Just as the latter will burn out soon and stop operating, so is the fate of the policy.” (The Stamka case, p. 794.)

32. The Eggs Donation Law does include a mechanism to examine exceptions, but as was explained in detail above, the authority of this committee is limited and restricted to only four sets of circumstances, as detailed in sections 20 and 22 of the law. In my view this limited and narrow mechanism is insufficient because it does not at all resolve the unjustified infringement on the basic rights of women – such as the Petitioners or others – in those cases where they cannot all be anticipated in advance and do not fall under one of these four sets of circumstances.

To summarize so far – the law in its current version infringes disproportionately upon the rights of the Petitioners and other women whose circumstances are unusual and warrant resolution, and thus because of the limited and unsatisfactory mechanism the law sets to examine and approve exceptional cases. In the absence of a more flexible mechanism to explore exceptional cases that may not be anticipated in advance, the law is flawed for a lack of a proportional means, which is less restrictive on basic rights.

33. In light of this conclusion, there is no longer any need to discuss the third sub test – the narrow proportionality test. In this context I will note, beyond the necessary scope, that expanding the circle of donors, preventing the trade in eggs, and protecting the health of donating and receiving women certainly are important purposes that highly benefit society. Still, the harm incidentally caused to the Petitioners and other women like them whose right to form their family unit and exercise the most meaningful choices in their life are compromised by the law, cannot be justified. This is particularly in the absence of a social or public interest whose protection justifies such infringement, and given the fact that realizing their rights to autonomy, to family life and to parenthood as they wish to does not infringe in any way upon the rights of any other person. The fact that in this case Liat has no other actual way to have a child to bear her genetic code – other than the method the couple wishes to pursue – only serves to emphasize and exacerbate the unjustified harm to them (compare with the Jane Doe case, para. 6 of Justice D. Barak-Erez’s judgment.) Indeed the biological genetic link between a parent and child is not the end all be all. Of no less significance (and often of more) “ingredient” to building and shaping the relationship between parents and children is the emotional connection and commitment to the child’s well-being and upbringing (see and compare CFH 6211/13, The Attorney General – The Ministry of Welfare and Social Services v. Jane Doe, paras. 27-28 of Deputy President M. Naor judgment (December 23, 2013); the Magad case, para. 14 of Justice S. Joubran’s judgment.) Still, and as already noted, there must be real and meaningful justification to denying a person the possibility to exercise the right to parenthood in a way that includes blood ties between them and the child. In our case it has not been argued, and in any event, it has not been proven that the added value achieved through the blanket prohibition in the Eggs Donation Law is greater than benefit achieved had the law included a mechanism for individual examination of exceptional cases. It cannot be denied – tight prohibitions that have defined in general and all-encompassing provisions present advantages. They facilitate efficiency and efficacy in enforcing the law. However, the main disadvantage of general and extensive language of statutory provisions is the inability to anticipate in advance all those situations that would be caught in the wide and tight net of the prohibition. Therefore, once the legislature chose to cast this tight knit net it must at the same time also establish what Justice M. Cheshin called in Stamka “oil for lubrication.” In other words, there must be a flexible mechanism that would allow resolution in exceptional cases that justify not applying the prohibition in the law. In this case, and as we are concerned with the Eggs Donations Law, which addresses one of the most sensitive and meaningful issues in human society, the importance of such flexible mechanism that would allow the exceptions committee to perform its function in an appropriate manner cannot be overrated. Sadly, such a mechanism did not find its way into the Eggs Donation Law.

To complete the picture, I will note that in later stages of the adjudication before us, and in an honest effort to find a practical solution, among others, to the Petitioners’ problem, the State presented the “Taking of Semen, Eggs or Fertilized Eggs out of Israel” protocol accepted in July 2013. This protocol somewhat opens the door in the strict and extensive prohibition against implanting eggs in violation of the law as established by the Legislature in the Egg Donations Law. Under the protocol it may have been possible, seemingly, to permit the Petitioners to take eggs extracted from Liat’s body out from Israel in order for them to be implanted in Dana’s uterus abroad. Only this partial solution is not a real response to the constitutional difficulties created by the law. It does not permit the implantation to be done in Israel. It places a serious financial burden on the petitioners because of the requirement to perform the implantation overseas and all that may be involved in this, and according to the Petitioners, it also reduced the prospects of the procedure’s success. Therefore, following this protocol is of some solution to the Petitioners’ concrete plight, but it is only a partial fix which forces the Petitioners and others in their situation to leave for overseas in order to find a remedy for their troubles there, without any real justification.

34. Therefore, the legislative arrangement in the Eggs Donations Law includes conditions to perform the extraction and implantation of eggs in Israel and a blanket prohibition against performing these procedures where such conditions are not met. This is without granting the exceptions committee the sufficiently flexible authority to consider individual exceptional cases that justify diverging from the provisions of the law. This arrangement is unconstitutional because it infringes the basic rights of the Petitioners in a way that is consistent with the requirements of the Limitations Clause. The criminal prohibition established in section 41 of the Eggs Donation Law exacerbates the law’s violation of these rights because it paints the human desire to have a child in criminal colors, and this without any obvious reason or justification.

In light of all this, we must consider the outcomes of unconstitutionality – that is the question of relief.

The Outcomes of Unconstitutionality

35. Finding that the Eggs Donation Law unconstitutionally violates the Petitioners’ basic rights and those of others like them, does not necessarily mean that the law must be struck down. When we come to decide which constitutional relief is appropriate, we must strive as much as possible for a fit between that relief and the harm to be cured. As professor A. Barak wrote in his book about interpretation in the law “the nature of the relief is related to the nature of the harm and the reason it is unconstitutional” (Aharon Barak, Interpretation in the Law, Vol. 3 – Constitutional Interpretation, 732, 767-68 (1994) (hereinafter: Barak, Interpretation in the Law.) Once we have held that arrangements established in the Eggs Donation Law are for a worthy purpose but infringe upon the Petitioners’ rights to an extent more than is necessary, we must continue and examine whether there are appropriate means to relieve the infringement or mitigate it without the Court having to strike down the law or any part of it (as to the careful manner in which the Court is required to act before striking down a statute, see HCJ 7111/95, The Center for Local Government v. The Knesset, IsrSC 50(3) 485, 496 (1996); HCJ 2605/05, The Academic Center for Law and Business v. Minister of Finance, IsrSC 63(2) 545, 592-94 (2009.)) In our case, there is no reason to strike down the entire Eggs Donation Law, or even to strike down section 4(a) of the law which prohibits performing extraction and implantation of eggs in violation of the law, because such a move would create a significant “statutory void” which would leave the area of eggs donation unregulated and would cause more harm than good. Striking down section 11 of the Eggs Donation Law, all of it or part of it, would also fail to achieve the outcome desired by the Petitioners because that would mean removing an essential and justified requirement, generally, in terms of the necessity of a recipient’s woman medical need as a prerequisite for receiving an eggs donation without resolving the problem of many others who face additional rigid restrictions set by the law. Under the circumstances, I believe that the appropriate solution can be found in the mechanism of the exceptions committee. Were my opinion be heard, we shall read into the Eggs Donation Law an additional sub section, that would follow section 20(a)(4), whereby the exceptions committee would be authorized to approve an eggs donation “where it believes that under the circumstances there are special and exceptional circumstances that justify doing so.”
36. This remedy, of “reading into the statute” is well known in the Israeli and foreign case law and literature, and it aims to read into the unconstitutional statutory arrangement provisions that would remove the flaw and alleviate the need for striking down the statute (see Barak, Interpretation in the Law, p. 763.) So, for instance, this remedy is designed to address situations where the statutory provision grants benefits to members of one group, but does not grant that same benefit to members of a different group that is entitled to the same rights. In this situation the blanket striking down of the benefit due to its infringement upon equality would not be the appropriate remedy, because this would undermine the worthy purpose of the statute while harming the members of the group that lawfully enjoy the existing benefit. Therefore courts in the United States and in Canada have developed an appropriate remedy that would expand the scope of the existing arrangement and thus remove the unconstitutional harm it includes, while preserving the statute and protecting the purposes it is meant to achieve (for a comprehensive comparative review see: Barak, Interpretation in the Law, p. 759-65; Imanuel Gross, Constitutional Remedies, Mishpat U’Mimshal 4 433, 458-59 (1998) (hereinafter: Gross); Igal Marzel, Suspending Invalidity Declaration, Mishpat U’Mimshal 9 39, 62-63 (2005)). In that way, American courts have recognized the possibility of “extension” – the possibility to extend the scope of the statute where appropriate to do so as a constitutional remedy that is preferable to striking down the statute (see Welsh v. United States, 398 U.S. 333, 361 (1970), where Justice Harlen, in a dissenting opinion, first proposed the doctrine which became precedent later in Califano v. Westcott, 443 U.S. 76, 79 (1979); see also Ruth Bader Ginsburg, Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation, 28 Clev. St. L. Rev. 301 (1979); Evan H. Caminker, A Norm-Based Remedial Model for Under Inclusive Statutes, 95 Yale L. J. 1185 (1986)). The Canadian Supreme Court similarly developed the Reading In doctrine which means reading provisions into the statute that negate its unconstitutionality (see Schachter v. Canada, [1992] 2 S.C.R. 679; see also Vriend v. Alberta [1998] 1 S.C.R. 493; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers [2013] S.C.C. 62). The Canadian Court has held, however, that the court would not opt for the remedy of reading into the arrangement while intervening in the statute’s framework in every case, and that in order to read in the court must consider, among others, the scope of the necessary extension, whether the extension is simple to execute, the budgetary cost of extension and whether it preserves the basic fabric of the statute (see Schachter, p. 19-21.)
37. The reading in doctrine has been absorbed into Israeli law. It was first raised in HCJ 721/94, El Al Israel Airlines v. Danilovitz, IsrSC 48(5) 749, 767-69 (1994), where the Court noted, though it was unnecessary for purposes of the decision, that this remedy should have been used on the constitutional level because it advances the purpose underlying the statutory arrangement and alleviates the need to strike down the legislation (id., p. 769.) The case in which this Court found it appropriate to apply the doctrine was HCJ 8300/02, Nasser v. The Government of Israel (May 22, 2012,) where the Court considered a mechanism of tax benefits established by section 11 (b) of the Income Tax Ordinance [New Version], which detailed a particular list of localities whose residents were entitled to reductions in income tax payments. This list of localities, for the most part, was not defined by any particular criteria and the entitlement for the tax benefit was granted through explicitly noting the names of the localities in the said section. Once it held that the list of localities detailed in section 11(b) of the Ordinance was discriminatory, the Court ordered that the appropriate constitutional remedy would be granting the same benefits to the residents of three Arab and Druze localities that were discriminated against in comparison to the Jewish residents in the nearby localities. The Court then read into the Ordinance the names of the additional localities noting that this move is not inconsistent with the exceptions established in comparative law (see there, paras. 57-59 of President (Ret.) D. Beinisch’s judgment; for other cases where the possible use of the Reading In doctrine was discussed, see HCJ 3809/08, The Association of Civil Rights in Israel v. The Israel Police, para. 15 of President (Ret.) D. Beinisch’s judgment (May 28, 2012); HCJ 3734/11, Davidian v. The Knesset of Israel, para. 59 (August 15, 2012.)) In the New Family case, too, where the constitutionality of the Surrogacy Law’s narrow definition of “intended parents” was discussed, Deputy President S. Levin noted that “the Petitioners [wish] to expand the small opening created by the law in order to resolve the plight of several tens of couples and expand it based on the principle of equality. This technique is permitted through the principles of constitutional interpretation of reading in, but we do not apply it in cases where it deals a complex issue that its consequences are unclear and where by nature warrant regulation by the Legislature (see New Family, p. 468.)
38. In my opinion, the constitutional remedy appropriate in this case is, again, reading a sub-section into section 20(a), as proposed in paragraph 35 above, whereby the exceptions committee would be granted, in addition to the limited powers it currently has, the general and flexible authority to approve an eggs donation where it finds “there are special and exceptional reasons that justify doing so.” This remedy leaves the entirety of the arrangements in the law as they are. It preserves the “fabric of the legislation” and does not at all compromise the worthy purposes that the legislature wished to realized through the law. It removes the unconstitutionality of the law’s arrangements by allowing, alongside the blanket criminal prohibition in the law, a flexible mechanism that is not bound only to the four case detailed in section 20(a)(1)-(4), and it permits individual examination of cases where the donating or recipient women do not meet (one or more) of the conditions set by the law, but where there may still be special and exceptional reasons that justify approving the donation (for justifying the application of the reading in doctrine, particularly in order to develop exceptions to criminal responsibility, see Gross p. 466-67.) Reading this arrangement into the law does not involve, as I understand, additional budgetary costs, and as discussed, in the proposed version it is intended to cover only unique and exceptional cases that merit it. Nor does the proposed addition pose a significant change to the law’s provisions and it is merely a specific extension of the narrow opening left by the legislature when limiting the exceptions committee to the four cases detailed in section 20(a) of the law.

It is important to recall – and I discussed this above in paragraph 21 – that the Bill included an exception clause in the very same language that I propose to read into the law, but it was removed from the final version of the law that was passed after Rabbi Halperin noted to the members of the sub-committee that discussed the Bill, that the section is redundant and that petitioners that do not fall under sections 20(a)(1)-(4) (as marked in the law’s final version) that would turn to courts in their distress and present to them special and exceptional circumstances would be granted remedies there. And as Rabbi Halperin said there:

“It is better to remove section 18 and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is explicitly in violation of the law” (Minutes of meeting of the Sub Committee of the Labor, Welfare and Health Committee for Supervising the Eggs Donation Bill 2008, dated November 3, 2008, p. 50-51.)

These things by Rabbi Halperin are unfounded, with all due respect, and they are which ultimately led to removing the general exceptions clause that initially was included in the Bill from the final version that was passed. This caused the final version to be unconstitutional and in order to remedy this flaw I propose reinstating the section that was removed, particularly because it is abundantly clear that removing it was rooted in reasons that are mistaken on their face.

Before concluding, I will note that the State’s argument that the Eggs Donation Law is a new statute legislated about three years ago and therefore, similarly to the approach the Court took in New Family, intervention in its provisions should be avoided and its application and consequent developments that would follow incrementally should be permitted to take their course, has not escaped me. Indeed in New Family the Court believed that though it was found that the Petitioner was unconstitutionally discriminated against there was no place to intervene in the Surrogacy Law because this was “a new and complex issue, and issue with many unknowns that we have yet to experience to the fullest.” Instead of intervening in the legislation, the Court therefore opted in that case to call upon the Legislature to contemplate the plight of single women as petitioners and weightily consider applying the law to them. I do not believe that such a move fits the case before us. Since the legislation of the Surrogacy Law about 18 years have passed and still to this day a resolution has yet to be found for petitioners such as the petitioner in New Family, though recently and as detailed above, a certain glimmer of hope has been created in this context. Such long wait for action by the legislature requires those whose basic rights have been infringed upon as a result of the current version of the law to hold their breath. Given the nature and substance of these infringed rights, and given the medical procedure required for eggs donations, which must attribute significant – even determinative – weight to the “ticking” of the biological clock, I do not believe that it is proper to adopt here the path walked by this Court in New Family.

Conclusion

39. Had my opinion been heard, we would make the order nisi permanent and hold that the Eggs Donation Law disproportionately violates the Petitioners’ constitutional rights to autonomy over their bodies, to family life and to parenthood. We would further find that in order to cure this violation we must read into the provisions of the Eggs Donation Law an additional section – section 20(a)(5) – that would authorize the exceptions committee formed under the law to approve the extraction of eggs, their allocation and their implantation in the body of a recipient woman, should the committee be satisfied that under the circumstances there are special and exceptional reasons that justify doing so. We would also find that the Petitioners be permitted to come before the exceptions committee and seek its approval according to such section to perform the extraction of Liat’s eggs, their fertilization and implantation in Dana’s uterus in order to make it possible for them to bring into their family unit a child that would have a genetic link to Liat and a biological link to Dana, as all of Liat’s attempts over the years to become pregnant herself have been unsuccessful. As my opinion remains in the dissent, I see no need to expand about the consequences of section 42(c) of the law for the status of Liat as the child’s mother, had the donation been permitted. But it seems that to the extent we are concerned with approval that excepts the procedure from the law not just for Liat’s inability to become pregnant herself, but also because of the characteristics of the family unit created by Liat and Dana as a couple, it would have been possible to find a reasonable and proper solution on this issue as well.

                                                                        Justice

Justice E. Arbel (Ret.)

“And Rachel saw that she did not bear a child with Jacob, and Rachel was envious of her sister and said to Jacob ‘Give me sons, or I shall die.’” (Genesis 30, 1.)

1. Our issue in this case concerns the desire for a child, which we hear with an open heart and a forthcoming spirit and try to realize it if only it were possible.

After having read the comprehensive and impressive judgment by my colleague, Justice E. Hayut, I join wholeheartedly with the outcome whereby the Petition must be accepted. However, I intend to propose an additional but different way to reach this outcome, and will detail it below. Since the chain of events and the parties’ arguments were presented at length in my colleague’s opinion, I can begin at the stage of discussion and decision.

Introduction

2. As my colleague Justice E. Hayut noted, in recent years we witness significant scientific and technological advances in birth and reproductive techniques. These developments open the door to many people, women, couples and families for many additional possibilities to bring children into the world and realize their desires to become parents. All the while our time is also characterized by social developments that create new types of families that were not acceptable in the past. The combination of technological and social advances presents a real challenge for the law, which is constantly required to face unique situations that were not previously known (see HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 2 of justice Rubinstein’s judgment (February 5, 2013) (hereinafter: the Sperm Bank case); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 694 (1996) (hereinafter: the Nahmani case); Pinhas Shiffman, On the New Family: Introductory Notes, Iyunei Mishpat 28, 643 (2005) (hereinafter: Shiffman)). The Expectation is that the Legislature regulates the use of different reproductive techniques. The main difficulty is caused by the great gap between the time it takes to legislate and legally regulate the use of each reproductive technique and the rate of technological advances (see Ruth Zafran, There Can Be Two Mothers – The Definition of Motherhood to A Child Born of A Same Sex Couple, Din U’Dvarim 3 351, 397 (2008) hereinafter: Zafarn – There Can Be Two Mothers.); Ruth Zafran, The Family in the Genetic Age - the Definition of Parenthood under the Circumstances of Artificial Reproduction as a Case Study, Din U’Dvarim 2 223, 230 (2006) (hereinafter: Zafarn – The Family in the Genetic Age.)) This gap leads to situations where the knowledge and technological capabilities to turn people into parents exist, but cannot be permitted to be used without legal and legislative regulation, even when the State has no general objection to realizing parenthood in this way by this couple. This is also our case here. Before us are two women, a couple, where the implantation of one’s eggs in the other’s uterus may realize their wishes and desires to parenthood. The technological route exists. The State declared it had no general objection to this move, and it should be noted that in the past the State did in fact permit women partners to perform this procedure. Still, the State now argues that there is nothing in the law to regulate the desired procedure, and thus executing the technological possibility cannot be permitted.
3. In my view, this Court has a role in bridging this gap, at least in part. Indeed the Court does not act as a substitute for the Legislature. And obviously the Court must accept and apply the legislative arrangements in place, as long as there is no constitutional reason to intervene in them. However, the Court can assist those who approach it in two ways. One is through the tool of purposive interpretation of legislation. Interpreting an existing legislative arrangement in the field of reproduction and birth must consider the basic human desire of singles and couples to realize their right to parenthood and to have a child. Of course, this purposive interpretation would only be possible when some anchor is found in the language to lay down the foundation for the interpretation and when the considerations and interests existing in the matter justify such interpretation. Another tool at the Court’s disposal is finding normative solutions to situations that have yet to be regulated in legislation (see Nahmani). Because of the issue’s sensitivity and the severe harm to couples and singles who cannot realize their right to parenthood merely due to the Legislature taking its time in forming a legislative arrangement, I believe that the Court must roll up its sleeves and find resolutions for the interim period before the proper arrangements are completed by the Legislature. This in the acceptable manner of developing the law and according to the Foundations of Law 5740-1980 (and see in this regard the different positions by the Justices in Nahmani, p. 694, 719, 723, 756.) there is no dispute that at a later stage the Legislature may form a different legal arrangement than that arrived at by the case law. It is its duty and its authority. And thus summarized Deputy President M. Cheshin:

“It is true: courts have forever been required to handle gaps formed between yesterday’s legislation and jurisprudence and today’s life phenomena. The law and legislation are always the law and legislation of yesterday and their progress is slow to advance, it is careful and calculated. Whereas reality, it changes and flows constantly, often at warp speed. So are the reality and the disputes that arise against its backdrop…

Only that for the most part the law is wise to adapt to changing reality, and even as a gap is formed between the language of the law and reality we take the interpretive tools in our hands and use them to catch up and have the law cover the advances of reality…

And indeed, courts have always done so, and do what they can – within the boundaries of language – to cast the written law’s net over phenomena coming into the world after the law’s enactment, and this even when at the time of legislation the legislature could not have anticipated the existence of such phenomena. The court’s first duty is to effect justice between the litigants that come before it, and in performing this duty the court must do whatever possible within the confines of the existing law even if the solution at which it arrives is not the best solution” (CFH 6407/01, Arutzei Zahav and Co. v. Tele Event Ltd., IsrSC 58(6) 6, 23-24 (2004)).

4. Two statutes must be examined in the matter before us: one is the Embryo Carrying Agreements  Law (the Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the other is the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law.) But before I turn to reviewing these statutes, their interpretation and their ramifications for the case at hand, I wish to discuss two important principles that will influence the interpretive process: the right to parenthood and the principle of equality.

The Right to Parenthood

If only I had a son! A little child,

With black curls and smart.

To hold his hand and walk slowly

Along the garden’s paths

A little. Child.

…

I will be bitter as our Mother Rachel.

I will pray as Hannah in Shiloh.

I will wait

For him.

5. A woman’s (or man’s) desire to a child of their own is a common and deep sentiment rooted in human existence and deriving from the desire for self-realization since the dawn of time to this day. It was expressed in the Tanach repeatedly, books and songs were written about it (one of the best known is “Akarah” – “barren” or “infertile”, eds. note – by the poet Rachel.) the desire to have and hold a child of one’s own body is a fundamental and natural desire that is common to humanity in its entirety. Whatever the explanation for it – biological, psychological or other – most people have a significant, strong and deep wish to become parents. Indeed people go to great lengths and make huge investments – financial, physical and emotional – and are willing to suffer greatly in order to realize their desire for a child even when it is impossible in the natural sense. And in the words of Deputy President M. Cheshin in HCJ 2458/01, New Family v. the Committee for Approving Agreements for Carrying Embryo, Ministry of Health, IsrSC 57(1) 419, 445 (2002) (hereinafter: the New Family case)):

“The core of the issue is the heart’s desire for a child, that deep, primordial emotional need to parenthood that burns in the woman’s soul and does not expire. The core of the issue is the human’s survival instinct and need for continuation, if you will. The need and desire to parenthood is inherent to humans.”

And Justice Dorner expressed this in Nahmani as following, on page 714:

“In human society, one of the strong expressions for the desire, without whose realization, many cannot see themselves as fully free, is the desire to be a parent. This is not merely a natural, biological need. We are concerned with choices that in human society signify one’s individuality and uniqueness. ‘Any man who has no children is seen as dead’ said Rabbi Yehoshua Ben Levi (Nedarim, 64, 2.) And indeed, for both man and woman, most people see having offspring an existential need that gives meaning to their lives.”

(see also Daphne Barak-Erez, On Symmetry and Neutrality: After The Nahmani Case, Iyunei Mishpat 20 197, 200-01 (1996); Shiffman, p. 664.)

The emotional need to become parents received legal recognition through the right to parenthood. It appears that in the State of Israel there is particular sensitivity to this right, in light of Israeli society’s approach to the value of family and the value of having children as central and weighty values (see New Family, p. 466.)

6. The right to parenthood, therefore, is generally recognized in Israeli law, both in terms of one’s reproductive freedom and in terms of the right to realize the relationship with the child (see Zafran – There Can Be Two Mothers, p. 381-82; the Sperm Bank case, para. 26 of Justice Rubinstein’s judgment.) “Every person has the right to parenthood and the right to raise and inculcate a child” (HCJ 11437/05, Kav La’Oved v. Ministry of Interior, para. 38 of Justice Procaccia’s judgment (April 13, 2011.)) Different aspects of the right to parenthood were even enshrined as a constitutional right in Basic Law: Human Dignity and Liberty. Though a comprehensive and exhaustive discussion of the range of the aspects and entire scope of this important and meaningful right has yet to take place, it is in any event clear that the practical possibility to bring children into the world is at the core of the right to parenthood, and thus the State may not infringe on these possibilities without weighty reasons (see 2245/06, Dovrin v. The Prison Service, para. 15 of Justice Procaccia’s judgment (June 13, 2006) (hereinafter: the Dovrin case.)) The Court distinguished between two levels of the right to parenthood, in terms of reproductive and birth freedoms, with the first level being the possibility to exercise one’s reproductive abilities and become a parent, whereas the second level goes to the way in which one’s natural right to become a parent is realized. This level, it was said there, is in the periphery of the right to parenthood and it protects values such as the right to privacy, the right to autonomy and the like (see the Sperm Bank case, para. 29 of Justice Rubinstein’s judgment.) Beyond the scope necessary for a decision in our case, I will comment that in my view this case falls under the first level of the right to parenthood rather than the second level, as the State attempts to argue. It is no wonder that for the First Petitioner realizing her right to parenthood is by having a child who carries her genetic code. It seems to me that this desire, which is indeed a natural and understandable human desire, warrants recognition within the core of the right to parenthood, even if today, in the modern age, a genetic relationship is not the end all be all (see the Sperm Bank case, paras. 43-45 of Justice Rubinstein’s judgment; Zafran – the Family in the Genetic Age, p. 233 onward; Shiffman, p. 668.) therefore the State’s proposal to turn the tables – so that the Second Petitioner’s eggs be extracted and implanted in the First Petitioner’s uterus is not “comparable” in terms of the ranking of rights to the First Petitioner’s request to extract eggs from her and implant them in the Second Petitioner’s uterus (see Nahmani, p. 753, and compare with the Sperm Bank case.) and this is true even without considering the probability, which is closer to a near certainty, as to the physical, medical inability of the First Petitioner to carry a pregnancy in her uterus.
7. The right to parenthood was recognized by this Court in the context of using artificial reproductive techniques (see the Sperm Bank case, para. 6 of Justice Barak-Erez’s judgment and the references there) as well. The current times have opened many avenues for hope to bring a genetic child into the world for those who cannot have children. There are also the possibilities for adopting non biological children. These possibilities repeatedly inspire dilemmas that involve the development of the right to parenthood and exploring its place within the existing legislative framework. Of course, this is not an absolute right. Often times, examining reproductive techniques raises questions of morality and conflict between rights. Thus, for instance, when there is concern for harm to surrogate mothers or women who wish to donate eggs. In these cases, balance is of course required between the different rights and the conflicting interests. In any event, the importance of the right to parenthood and its high status among rights must influence the interpretation of statutes that address the relevant field. It is usually the primary goal of these statutes and thus it must be respected within the purposeful interpretation of the legislation on the matter.

The Principle of Equality

8. Discrimination is the unequal treatment of equals, when there is no relevant difference between them. We cannot ignore the fact that the case before us involves a same sex couple. A reality was created where heterosexual couples are able to use a variety of methods in order to become pregnant and bring a child into the world – from the natural method, through use of eggs donation, surrogacy agreements and the like. On the other hand, same sex couples are limited in the ways they can bring children into the world, both for biological reasons and for legal reasons (see judgment by Justice Joubran in HCJ 566/11, Mamat-Magad v. The Minister of Interior (January 28, 2014.)) Indeed there may be cases where it could be argued that there is indeed a relevant difference resulting from the biological difference (such as the need of male couples to use surrogacy arrangements even when neither of them has a medical condition, which can raise the concern of over use of the method of surrogate women, when arguments are made about the harm, medical injuries or exploitation of these women or some of them. see in this regard the recommendations by the public committee for examining the legislative arrangement of fertility and reproduction in Israel, 2012 (the Mor-Yosef Report) p. 57-62; in a different context, see regarding the consideration of the role of existing social attitudes in the best interest of the child: CA 10280/01, Yarus-Hakak v. The Attorney General, IsrSC 59(5) 64, 107 (2005) (hereinafter: the Yarus-Hakak case)). Still, in many cases it was impossible to point out to such a relevant difference. The social reality is that there are many same sex couples now. Indeed, this is an issue that is not yet a social consensus, but we cannot nevertheless ignore from the reality as it exists both as a matter of fact and a matter of law (see the New Family case, p. 450-51; and see also Zafran – There Can Be Two Mothers, p. 380; HCJ 273/97, The Association for Protecting Individual Rights v. The Minister of Education, Culture and Sport, IsrSC 51(5) 822 (1997); Hanan Goldschmit, The Missed Identification Card of the Israeli Family – The Legal Consequences of Case Law Regarding Adoption by Same Sex Couples, HaMishpat 7, 217, 237 (2012); Shiffman, p. 645.) Many same sex couples raise children, whether through arrangements permitted out of Israel, or through arrangements permitting having children in Israel itself (such as a sperm donation for a female couple.) It should still be emphasized that the Court does not purport here in this context to go into questions about the status of same sex couples and to decide on the value based discussion taking place on the matter (see, the Yarus-Haka case, p. 114; HCJ 3045/05, Ben-Ari v. Director of the Population Administrator, para. 22 of President Barak’s judgment (November 21, 2006) (hereinafter: the Ben Ari case.)) Nor do I propose in this opinion to decide on the question of same sex couples’ constitutional right to have equal access to artificial reproductive techniques as heterosexual couples (see AAA 343/09, The Jerusalem Open House for Pride and Tolerance v. The Municipality of Jerusalem, para. 40 (September 14, 2010) (hereinafter: The Open House case.)) Still, to the extent that we are concerned with the interpretation of a legislative arrangement, or the lack of any arrangement at all, we must assume that any legislative arrangement would be interpreted or established to fit the principle of equality and prevent discrimination on the basis of sexual orientation, as long as there is not explicit instruction from the Legislature to the contrary (see also, Ifat Biton, The Influence of Basic Law: Human Dignity and Liberty on the Status of Same Sex Couples, Kiryat HaMishpat 2 401 (2002); Michal Tamir (Itzhaki), The Right to Equality of Homosexuals and Lesbians, HaPraclit 45 94, (2000-2001)).
9. The above approach also fits the existing legislative arrangements that indicated the Legislature’s negative view of discrimination on the basis of sexual orientation. Some of these arrangements were added to legislation in recent years and can teach us about the present view of the Legislature in the matter. Thus, for example, it was established that in certain cases one who has committed an offense motivated by animus based on sexual orientation they are punishable at double the penalty set for that same offense (section 144F of the Penal Law 5737-1977.) An employer is prohibited from discriminating between its employees or candidates for employment on the basis of their sexual orientation (section 2(1) of the Equal Opportunities in Employment Law 5748-1988). Similarly it is prohibited to discriminate in public accommodations, supplying products or access to public services because of sexual orientation (section 3(a) of the Prohibition of Discrimination in Products, services and Entrance to Entertainment Establishments and Public Places Law 5761-2000). Caretakers and medical institutions may not discrimination between patients based on their sexual orientation (section 4(a) of the Patient’s Rights Law 5756-1996.) It was additionally legislated that committees for admission to community towns cannot refuse a candidate for reasons of sexual orientation (section 6C of the Cooperative Associations Ordinance.) Those obligated to run tenders are prohibited from discriminating among candidates because of their sexual orientation (section 2(b) of the Tender Obligations Law 5752-1992). And this is only a partial list.
10. Courts, too, throughout all their levels, when coming to interpret legislative arrangements contemplated the principle of equality between heterosexuals and homosexuals, both as single people and as couples. In one case, President Barak reviewed a long list of judgments where it was held that homosexual couples are granted rights under specific statutes and arrangements (see, the Ben Ari case, para. 19 of President Barak’s judgment, and see also The Open House case, para. 54.) It should be noted that in the matter of Ben Ari, the State itself declared that it recognized that the shared life of a homosexual couple constitutes “a social unit with some legal implications.” Since that review, this list expanded to include additional judgments walking in the same direction (see, for instance, CA (Nazareth) 3245/03, A.M. v. The Attorney General in the Custodian General, (November 11, 2004); AP (Tel Aviv Yaffo) 1255/05, Garcia v. The Ministry of Interior (August 17, 2008.) And indeed it was held:

“The law in Israel regarding the LGBT community and its members reflects the changes that took place over the years in Israeli society. The position of Israeli society is that the law must be indifferent to sexual orientation, just as it must be indifferent to other traits in one’s identity or a group – such as age, race, nationality, sex and others. Similarly there is a wide agreement that members of the LGBT community must not be restricted or discriminated against. This position is also expressed both in the case law and in the legislation that prohibits discrimination on the basis of sexual orientation…” (The Open House case, para. 54.)

It was even noted that “it seems these are no longer ‘islands’ of rights, but a comprehensive constitutional concept of a right not to be discriminated against because of sexual orientation.” (The Open House case, para. 56.)

Without addressing the constitutional issue or establishing a new status, it appears then that legislative arrangements must be interpreted to conform with the principle of equality that requires the equal treatment of same sex couples.

Fertilization Treatments

11. For the purposes of the discussion before us, a woman’s fertility difficulties may be schematically divided into two categories: the first is difficulties related to the woman’s eggs that make it impossible to use them for having a child. The second is a medical difficulty to carry a pregnancy. Therefore, there may be four potential situations: a woman with healthy eggs who is able to carry a pregnancy and give birth, a woman with healthy eggs but who is unable to carry a pregnancy; a woman with unhealthy eggs who is able to carry a pregnancy and a woman with unhealthy eggs who is unable to carry a pregnancy. These distinctions will be helpful below as we interpret the legislative arrangements in effect in the field of reproductive techniques.

The Agreements for Carrying Embryo Law

12. As my colleague, Justice E. Hayut, noted, the Surrogacy Law was enacted in Israel in 1996 as a result of the work of a public committee headed by Judge (Ret.) Shaul Aloni that was set up to explore the issue. The law was first to regulate couples’ assistance from  a surrogate in order to have a child. Under the law, the surrogacy procedure involves the implantation of a fertilized egg in order to impregnate the carrying mother so that she can give the child born as a result to the intended parents (see section 2 of the Surrogacy Law.) The fertilized egg would be, under the Surrogacy Law, an egg that is not from the surrogate. In other words, the egg may be from the intended mother who solicits the surrogacy, or from a donor that is not the intended mother or the carrying mother (see section 2(4) of the Surrogacy Law; section 11 of the Eggs Donation Law.) The sperm fertilizing the egg must be from the intended father (section 2(4) of the Surrogacy Law.) During the surrogacy process the fertilized egg is implanted in the uterus of the surrogate woman who in effect has not genetic relationship to the fertilized egg. After birth, the surrogate is supposed to give the child to the intended parents (see New Family, p. 429.) The Surrogacy Law includes many arrangements regarding the procedure, including the conditions for entering into agreements with a surrogate, the conditions for approving an agreement between the intended parents and the surrogate, the status of the child after birth and so on. It should also be noted that the intended parents are defined by the Surrogacy Law as “a man and a woman who are a couple and who enter into an agreement with a carrying mother in order to have a child” (section 1 of the Surrogacy Law.)

It is important to emphasize that the Surrogacy Law does not address the stage of in vitro fertilization, which is regulated by the People’s Health Regulations (In Vitro Fertilization) 5747-1987 (hereinafter: the People’s Health Regulations.) The law only addresses the stage after fertilized eggs have been created, when the couple seeks the approval of an agreement to implant the eggs with a surrogate (see New Family, p. 435.)

13. As the State argues, the Surrogacy Law is irrelevant to the matter before us and does not apply to it. The law clearly distinguishes between the surrogate mother and the intended parents. As mentioned, after the birth no legal link is meant to exist between the surrogate mother and the child. The physical handing over of the child into the custody of the intended parents must be done as soon as possible after the birth. The welfare administrator is the child’s guardian until the intended parents are granted a parenting order. The request of a surrogate mother to renege on the agreement with the intended parents and to keep the child would not, as a general rule, be approved unless by a court and under circumstances that justify it while considering the child’s best interest (see chapter C of the Surrogacy Law.) In the case before us, the Petitioners request that the Second Petitioner serve both as a surrogate mother and as an intended mother. This situation is not included in the Surrogacy Law and is beyond its purpose and provisions. The arrangements covered by the Surrogacy Law have nothing to do with the procedure the Petitioners wish to perform. The conclusion is that this law does not apply to the case at hand and does not at all assist in regulating it.

The Eggs Donation Law

14. The second statute related to the issue, which the parties address, is the Eggs Donation Law, enacted in 2010. This law came to resolve the difficulties caused by a shortage of eggs for donation in Israel, a fact that created obstacles to many women requiring fertility treatments where the eggs in their bodies could not be used for these treatments. As emphasized in the explanatory notes  to the law, the law’s main concern is to regulate the eggs donation in Israel for purposes of having a child, as well as for purposes of research (see the Eggs Donation Bill, 5767- 2007, Bills 292 (hereinafter: the Bill.)) the law concerns two phases in the donation process – the phase of receiving the donation and its designation, and the stage after the birth of the child born as a result of the donation (see the explanatory notes to the Bill, p. 292.) The State argues that the law does not permit the First Petitioner to donate eggs to the Second Petitioner, because under section 11 of the law, the recipient in whose body the egg is implanted must have a medical condition that justifies using the eggs of another woman. The Second Petitioner does not meet this definition because she has not medical condition, as detailed at length in my colleague’s judgment. Indeed, these things cannot be disputed. Moreover, I do not believe we must intervene in the medical condition requirement of section 11 of the law. Still, this is not the end of our road, because in my opinion the Eggs Donation Law is not at all relevant to our matter, does not regulate it, and in fact is silent about it without creating a negative arrangement for this case. I shall clarify my position.
15. The Eggs Donation Law, as its name indicated, was designed to regulate the donation of eggs in Israel for women, who due to a medical condition, need to use another woman’s eggs in order to have a child (this alongside the research purposes regulated in the law that are irrelevant to our case.) Should we return to the schematic distinction we articulated above (para. 11) then the law applies to two categories of women: the one is the woman with unhealthy eggs who can carry a pregnancy and the other is the woman with unhealthy eggs who cannot carry a pregnancy. In the first case, the woman can use the assistance of an egg donation under the Eggs Donation Law, an egg that would then be implanted in her own uterus. In the second case the woman is assisted by both the Eggs Donation Law and the Surrogacy Law, when the egg received from the donor is fertilized and implanted in the uterus of a surrogate mother.

The law, however, according to is purpose and provisions, does not concern the case that do not involve an egg donation. The meaning of donation in this context is the giving of an egg to another woman in order for that woman to use the egg, fertilize it and become the mother of the child born out of the fertilized egg. The meaning of donation includes the giving of something to someone, rather to the donor themselves. Therefore, this is different from someone who extracts eggs in order to become herself the mother of the child born out of those fertilized eggs. In such a case it cannot be said that this is a donation, and thus the Eggs Donation Law would not apply to such circumstances. Such, for instance, is a woman who extracts eggs in order to fertilize the eggs, return them into her uterus and become the child’s mother. In such a case that is not a donation, because the egg is intended to turn the egg owner into the future child’s mother. Indeed, such a case is not covered by the Eggs Donation Law and the People’s Health Regulations in terms of in vitro fertilization would instead apply. Similarly, as well, the Eggs Donation Law does not apply to cases of egg extracted from a woman in order to fertilize them and implant them in the uterus of a surrogate (see section 4(b) of the Eggs Donation Law.) This, too, is not a donation, because the owner of the egg intends to be the mother of the child born from the fertilized egg (see the explanatory notes to the Bill, p. 295, which clarify that in this case the extraction of the eggs is not done for the purposes of donation.) Similarly, a woman who extracts eggs in order to implant them in her partner’s uterus intends to be the mother of the child born of the fertilized egg and to raise that child. Here too it cannot be said that there is a donor and a recipient, and thus the Eggs Donation Law is irrelevant to it. One cannot donate something to himself because then it would not consider a donation. I should not that the use of the term “mother” in this context refers to the social role and the woman’s subjective intent rather than to the legal determination regarding who shall be registered and recognized as the child’s mother (see on this point Zafran – There Can Be Two Mothers. In any event, I will note that the registration of two women as mothers of a child was made possible through adoption in Israel or abroad: see the Yarus-Hakak case as well as HCJ 1779/99, Jane Doe v. The Minister of Interior, IsrSC 54(2) 368 (2000); and through a parenting order: FA (Tel Aviv) 60320/07, T.Z. v. The Attorney General, State Attorney – District of Tel Aviv  (March 4, 2012) (hereinafter: the T.Z. case.))

16. The Act’s sections must be read and understood in light of the above, and according to this purpose. Indeed, the law wishes to make its provisions exclusive and limit the use of eggs donation to comport with its provisions alone. Section 4 of the Egg Donation Law stipulates as follows:

“4. Exclusivity of the Law’s Provisions:

(a) One shall not perform an eggs extraction from a donor, lab treatment of the eggs, allocation of eggs for implantation or research, or implantation of eggs, but according to this law’s provisions.

(b) The provisions of sub-section (a) shall not apply to the extraction of eggs from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of performing an agreement for carrying embryo according to the Agreements Law.”

Additionally, section 6(b) of the Eggs Donation Law mandates that:

“6. Restrictions on the Extraction and Implantation of Eggs

(a) No one shall perform medical treatment on a volunteer donor in order to prepare eggs for extraction to be implanted, unless after securing the approval of the eggs’ extraction from the donor’s body according to section 12.

(b)An implantation of eggs shall not be performed but in the body of the recipient or the body of a carrying mother who entered into an agreement for carrying embryo with the recipient according to the Agreements Law.”

17. These sections must be read, as noted, in light of the purpose of the Eggs Donation Law and in the context of its other sections. They must therefore be understood as excluding the law’s provisions to any case in terms of eggs donation, that is cases where a woman gives her eggs to another person in order for that person, rather than the donor herself would become the parent of the child born from the donated egg and would be the person raising that child. This interpretation is consistent with the language of the law, its provisions, and its purpose. An alternative interpretation, a more comprehensive one, which requires the application of the law’s provision to any extraction and implantation of any egg, would have led to an absurd outcome where in vitro fertilizations would be impossible for women whose eggs are completely healthy, and who wish to extract those eggs and implant them in their uterus in order to become mothers of the child, because then section 11 of the Eggs Donation Law would not apply to them. Certainly, such interpretation cannot be accepted.

The conclusion that the matter at hand, where the First Petitioner wishes to extract her own healthy eggs, fertilize them, and implant them in her partner’s uterus, without requiring a donation but in order for the First Petitioner to raise herself the child that would be born (along with the Second Petitioner, who would give birth to the child) – such a case is not included in the Eggs Donation Law and the law does not create a negative arrangement in its regard.

Interim Conclusion

18. Our conclusion is that a case where a woman wishes to extract eggs in order to fertilize them and implant them in her partner’s uterus, with both women serving as mothers to the child (at least “mothers” in the social sense and in terms of their intent to raise the child together), falls neither under the Surrogacy Law nor the Eggs Donation Law. This case is neither regulated by either of these laws nor prohibited by them. But we are still left with the question which statutory arrangement does cover this case? In my view, the answer to this is simple. Since neither of these statutes applies to this case, the arrangement that would apply is the same as that which applied until now, at least according to the position of the State and the Attorney General. This arrangement combines the norms established by the People’s Health Regulations, and the authorization created by the absence of any legal regulation in the matter. I shall explain.

The People’s Health Regulations

19. The People’s Health Regulations of 1987 regulate the conditions for in vitro fertilizations. Section 2 prohibits the extraction of eggs, their fertilization, freezing or implantation unless done in a recognized hospital unit and according to the Regulations’ mandates. Section 2A details instructions for eggs extracted and fertilized out of Israel. Sections 3 and 4 stipulate as follows:

“3. Exclusivity of Purpose of Egg Extraction

The Extraction of eggs will be done only for the purpose of in vitro fertilization and its implantation after fertilization.

4. Restricting the Extraction of Eggs

Eggs shall be extracted only from a woman who meets one of the following conditions:

(1) She is undergoing fertility treatments and a supervising physician has determined that the eggs extraction would advance her treatment.”

These Regulations have regulated the matter of eggs donations before the Eggs Donation Law was legislated. It should be noted that today eggs donation, as understood according to our interpretation above, cannot be done unless according to these Regulations or the arrangements of the Eggs Donation Law.

20. As for the implantation of a woman’s eggs in her partner, the Regulations do not explicitly address this situation, but in my view their arrangements may be applied to it without difficulty, and indeed this was done in the past (see, for example, the T.Z. case.) Extracting the egg will be done only from a woman who is undergoing fertility treatments, and only for the purpose of implanting them after their fertilization (section 3 and 4 of the People’s Health Regulations.) The egg would be fertilized by the sperm of a donor and implanted in the partner’s uterus, in the absence of any prohibition in the Regulations and where the Surrogacy Law does not apply as the birth mother is also one of the intended mothers. And indeed, an instruction by the Attorney General from November 30, 2009 in terms of eggs donations between female partners establishes as follows:

“Following a discussion recently held by the Attorney General on the issue of eggs donations between female couples, the Attorney General instructed the Ministry of Health that the donation of an egg extracted from a woman under the In Vitro Fertilization Regulations (in the course of fertility treatments that she is undergoing) must not prohibited or restricted, unless under circumstances where there is concern that doing so would violate the public policy, such as where there is concern that this is done in exploitation or for the purposes of trade eggs.

Accordingly, the Attorney General instructs that as a general rule, the donation of an egg extracted from a woman in a lawful procedure under these Regulations, and that is intended for her female partner, with whom she shares a common household, must not be prohibited or restricted. Such donation must not be seen as an act that violates the public policies.

The discussion in the matter was convened following several requests received by the Ministry of Health to approve the donation and implantation of egg donated by a woman to her  female partner. At the end of the discussion the Attorney General decided, among others, as following:

• The legal point of departure is that imposing restriction by the State on eggs donations requires an authorization under law. Therefore, since the only restriction in the Regulations on our matter is that the extraction of eggs must be in the course of medical treatment due to the donor’s fertility difficulties and only when the extraction is to advance her treatment, then once the eggs have been extracted under these circumstances the Regulations include no lawful anchor for prohibiting their use as a donation to another woman.
• Still, the use of eggs may be prohibited, even when extracted according to the procedure established by the Regulations, where this violates the "public policy," such as when it is done to exploit or for the purposes of trade eggs.
• Where a donation between female partners is concerned, such as the case involving the request to the Ministry of Health, this cannot be viewed as a case that violates public policies, and the donation must be approved.
• The Attorney General emphasized, as was previously made clear in terms of other issues concerning the rights of same sex couples, that this position should not be seen as the creation or recognition of a new family status. Matters of status must be determined and regulated by the Legislature.

...”

And indeed, under this instruction, the implantation of a woman’s eggs in her female partner was made possible where the former is undergoing fertility treatments. This instruction by the Attorney General is proper and correct, and in my view, still in effect in light of my conclusion that there is no other legislative arrangement that applies or prohibits the situation before us.

21. It should be noted that in the course of the petitions that have previously submitted the difficulty in establishing meaningful and sensitive regulations in terms of reproductive techniques in regulations rather than in primary legislation were acknowledged. So, for instance, a petition was submitted to challenged regulations 11 and 13 of the People’s Health Regulations, which effectively lifted the prohibition against using a surrogate mother in Israel in order to bring a child into the world, and impose restrictions on the implantation of eggs from a donor. The State agreed to striking down these Regulations. I will further note that voiding the regulations was stayed for a certain period of time that would enable the issue’s regulation in primary legislation (see HCJ 5087/94, Zabro v. The Minister of Health (July 17, 1995); and HCJ 1237/91, Nahmani v. The Minister of Health (unreported,) where the State ultimately permitted the Nahmani couple to perform in vitro fertilization in Israel in order to implant it in the body of a surrogate abroad.) In an additional petition section 8(b) of the People’s Health Regulations, which distinguished between the requirements in terms of implanting an egg in a married woman and the requirements in terms of implanting an egg in a single woman, was challenged. With the State’s consent, this regulation, too, was struck down and it was held that a single, egalitarian arrangement would apply (see HCJ 998/96, Yarus-Hakak v. The Director General of the Ministry of Health (February 11, 1997.)) In the Sperm Bank case, the Court’s harsh criticism was expressed over the issue of sperm donations and the sperm bank is not regulated in primary legislation (the Sperm Bank case, para. 38 of Justice Rubinstein’s judgment, para. 33 of Justice Barak-Erez’s judgment.)
22. Therefore, the general approach of this Court has been that the use of artificial reproductive techniques must be regulated in primary legislation. Certainly this takes stronger force in terms of issues that have not been regulated at all, in primary or secondary legislation. Still, it seems the Court’s general approach has also been to permit the use of artificial reproductive technologies as long as there is no primary legislative arrangement prohibiting so, and where the rights of no third party or other considerable interests are infringed. “Nowadays, when technology may assist people where nature has failed them, a determinative consideration is necessary in order to prevent a woman from using that technology” (New Family, p. 447.) And Justice Procaccia emphasized this in terms of a prisoner’s right to perform artificial fertilization with his partner:

“The premise of the petition is that in order for a competent authority to permit a prisoner to perform a procedure of artificial fertilization with his partner, explicit authorization in a statute is required and without it, such permission is outside of the powers granted to it by law. This premise is fundamentally mistaken, and it turns the order of things on their head and undermines foundations of public and constitutional law. Once one has a right, certainly a basic constitutional right, a public authority need not a lawful authorization in order to exercise the right and respect it, the opposite is true. It needs a lawful authorization to limit and violate it, and where the violation limits or prohibits exercising that human right it must pass muster under the tests of the Limitation Clause as a condition to its validity and application.” (The Dovrin case, para. 16 of Justice Procaccia’s judgment.)

This position has been applied in the Attorney General’s instruction, and thus I, too, support it in terms of the situation before us. Therefore, I shall briefly detail the remaining considerations that support a holding whereby the procedure requested by the Petitioners must be approved in the absence of any lawful arrangement to prohibit it.

23. First, the principles I detailed above about the right to parenthood and the principle of equality must be woven into the relevant considerations in the matter. These principles of course support permitting the requested procedure in the absence of instructions from the Legislature to the contrary. Second, the arrangement does not raise a concern for infringing the rights of third parties, as it does not involve third parties beyond the couple that is interested in the procedure and participates in it. There is no involvement of a surrogate mother or an egg donor, so there is no concern for their rights or exploitation (see the New Family case, p. 453, 464.) Neither does the arrangement raise other typical concerns such as creating an offspring with no genetic link to his parents or caregivers, or the use of medical techniques for the purposes of the child’s genetic modification (see Zafran – There Can Be Two Mothers, p. 363.) Third, when a couple of women with no fertility difficulties are concerned, they would be able to bring a child into the world with a sperm donation without difficulty, and there is no restriction here. I see no reason why such a couple should be treated differently than an unlucky couple who is unable to bring children into the world in this way (see New Family, p. 442.) Fourth, the State’s position is not founded on principled objection to the procedure requested by the Petitioners, and no claim has been raised regarding a harm to public policy or any other meaningful argument. And indeed, as noted, the Ministry of Health has in the past approved the requested procedure. Additionally, the State emphasizes that the procedure would have been permitted in the converse – that is it would have been possible to permit the Second Petitioner to extract eggs in order to implant it in the uterus of the First Petitioner. There is no logic in approving the procedure in only one direction, when no legal arrangement prohibits the opposite direction. Finally, I will note that this is not about bringing a child into a single person’s family unit, which undisputedly is a different matter than bringing a child into the family unit of a couple (see New Family, p. 453.) And I will note that no research was brought before us to indicate that children benefit from being raised in heterosexual families, and it seems there is research to deny this assumption (see, for example: Zafran – There Can Be Two Mothers, p. 376 and the references there: see also additional research on this issue that substantiate the assumption that there is no correlation between parents’ sexual orientation and the children’s social and psychological function, and which refute the findings of research claiming otherwise: Nanette Gartrell and Henny Bos “U.S. National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents” Pediatrics 2010, 126:1 28-36; Carlos A. Ball “Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective”, 21 Wm. & Mary Bill Rts. J. 691 (2012-2013); Andrew J. Perrin, Philip N. Cohen & Neal Caren “Are children of parents who had same sex relationships disadvantaged? A scientific evaluation of the no-difference Hypothesis”, Journal of Gay & Lesbian Mental Health, 17:3 327-336 (2013). See also Justice Procaccia’s on the difficulties created by the issue of when the child’s best interest consideration may justify preventing the child’s birth and when the law may intervene in the matter: “The question when may the child’s best interest justify preventing the child’s birth is a deep question in the areas of ethics and philosophy. The question of when the law may intervene in this and when a public authority may have the power to intervene in one’s right to have a child for reasons of the child’s best interest and other reasons is highly difficult and complex. The right to have a child and the right to be born are concepts that are very much within the purview of the extra-legal areas of morality and ethics” (the Dovrin case, p. 17 of her judgment.))

Conclusion

24.  The picture created by the categorization we mapped out above, then, is as follows: a woman with unhealthy eggs who can carry a pregnancy may be assisted by an eggs donation under the Eggs Donation Law; a woman with unhealthy eggs who cannot carry a pregnancy can be assisted by both an eggs donation under the Eggs Donation Law and by the Surrogacy Law for purposes of implanting the fertilized egg (with the sperm of the intended father) in the uterus of a surrogate mother; a woman with healthy eggs who is able to carry a pregnancy can be assisted by in vitro fertilization when experiencing fertility difficulties under the People’s Health Regulations; a woman with healthy eggs who is unable to carry a pregnancy may too perform in vitro fertilization under the People’s Health Regulations. The implantation of the eggs in another woman can be done according to the Surrogacy Law(when the other woman is a surrogate) or according to the People’s Health Regulations (when the other woman is the partner who is also intended to be the child’s parent.)

My conclusion, as that of my colleague’s E. Hayut, but by a different rationale and reasons, whereby had my opinion been heard we were to accept the Petition and order the State to permit the First Petitioner to extract eggs, fertilize them, and implant them in the uterus of the Second Petitioner.

                                                                              Justice (Ret.)

Justice E. Rubinstein:

"Then [God - eds. note] remembered her way of integrity [Mother Rachel - eds. note],

a fetus was exchanged in [her - eds. note] sister's womb"

(Even Chug Piyut, attributed to Rabi Eleazar Ha-Kalir, from Rosh Hashana's first morning prayer's liturgical poems)   

Background and Essence

1. The First Petitioner – Liat Moshe (hereinafter: “Liat” or “the First Petitioner”) – wishes to bring a genetic child into the world through the Second Petitioner – Dana Glisko (hereinafter: “Dana” or “the Second Petitioner”) – her life partner for about a decade now. The difficulty at the basis of this Petition is rooted – it seems – in the difficulties in carrying a pregnancy by the First Petitioner, and the Petition is for eggs from her body be implanted in the uterus of the Second Petitioner so that the child be linked to them both – a genetic link to the First Petitioner, and a physiological link to the Second Petitioner – and thus both of their motherhoods be realized. Once again this Court is called upon to pronounce upon an issue that is not one our fathers and mothers anticipated as there was no real possibility, only few decades ago, that the medical and technological advances would lead to it (HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 1 of my judgment (2013) (hereinafter: the Sperm Bank case.))
2. On September 1, 2013 we decided (by majority) to reject the Petitioners’ request – to implant an egg taken from the First Petitioner’s body, fertilized and then implanted in the uterus of the Second Petitioner – and thus in light of the current state of the law. So that the Petitioners know where they stand without delay, the decision was handed down without reasons, by the majority comprised of President A. Grunis, Deputy President M. Naor, Justice S. Joubran and myself, against the dissenting opinions of Justice E. Arbel, Justice E. Hayut and Justice H. Melcer. The facts of the case and the parties’ arguments were broadly detailed in the opinion of my colleague Justice Hayut, the core of her position will be presented below, and the same outcome, but by a different reasoning was reached by my colleague Justice Arbel. It so happened that the majority opinion in this judgment was not written in the regular order, but only after the dissenting opinions. With all best intentions to find in favor of the Petitioners, we believe that the significant strides made by the State, including during the deliberation in this case, as detailed by Justice Hayut is the best possible without legislative amendments; despite the appealing proposals of our colleagues. Therefore we present immediately below the reasons that led us – the majority justices – to reject the petition.
3. The essence of our reasons is that the current state of Israeli law, on the level of existing law, does not permit what the Petitioners request, and this because the Embryo Carrying Agreements Law (Approval of  the Agreement and the Status of the Child) 5756-1996 (hereinafter: the Surrogacy Law) does not apply on such circumstances, as will be briefly detailed below, and effectively even our colleagues do not dispute this. The Eggs Donation Law 5770-2010 (hereinafter: the Eggs Donation Law) does not apply either, in our opinion, and we did not see it fit to join the constitutional position of our colleague Justice Hayut, who “reads into” the exceptions committee’s powers under the law (article C in chapter C) the authority in this case as well, an authority which the legislature did not grant, and explicitly so, perhaps due to advice from a governmental body which itself is not acceptable to us under the circumstances. This advice, as we will show below, highlights the tension between the words of the Legislature and the powers of the Court. Finally, the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: the IVF Regulations,) which our colleague Justice Arbel wishes to use are no longer suitable, in our view, to what is requested, following the legislation of the Eggs Donation Law. There is therefore no lawful way currently to assist the Petitioners beyond what the State was prepared to do after the negotiation and changes in its position.
4. In this context let us recall, as Justice Hayut noted in paragraph 11, during the long hearings in this Petition (four time before an extended panel of this Court) the Ministry of Health issued on July 21, 2013 a protocol regarding “The Taking of Sperm, Eggs or Fertilized Eggs Out of Israel” which permits the Petitioners to perform the requested implantation outside of the country. This protocol allows the taking out of eggs extracted in Israel, among others, “for the purposes of realizing parenting… for the woman from whom the eggs were extracted,” with the approval of the exceptions committee. In a notice by the State (dated August 17, 2013) it was also said that the implementation team for the recommendations of the Mor Yossef Committee, which – as noted by Justice Hayut in paragraph 2 – recommended to extend the circle of those eligible to bring children into the world through surrogacy by including “single women who have medical conditions preventing them from creating a pregnancy” prepared a summarizing document in anticipation of legislative amendments.
5. And now for further detail. We will first note that in the medical world the procedure requested by the Petitioners is termed “Partner Assisted Reproduction/ Reciprocal IVF” (hereinafter: Reciprocal IVF.) Reciprocal IVF has become over the years fairly common in fertility clinics around the world for female same sex couples despite its high cost compared to “regular” IVF. This is because it allows both partners to participate in the process of creating the child, through dividing the “maternal function” between the partner who furnishes the egg (hereinafter: the genetic mother) and the partner who carries the pregnancy (hereinafter: the physiological mother) (see Lilith Ryiah, The G.I.F.T of Two Biological and Legal Mothers, 9 AM. U.J. GENDER SOC. POL’Y & L. 207 (2001); Dorothy A. Greenfield and Emre Seli, Assisted Reproduction in Same Sex Couple, 289, 291 Principles of Oocyte and Embryo Donation (Mark V. Sauer ed., 2013)).
6. In their amended petition, the Petitioners challenge two pieces of legislation that regulate the use of artificial reproductive technologies: the first is the Surrogacy Law, and the second is the Eggs Donation Law, as mentioned. My colleagues, Justices Hayut and Arbel, agree about the inherent misfit between the routes regulated in the Surrogacy Law and the medical procedure requested by the Petitioners. But they believe we should accommodate them through other legal paths, and as to those their opinions differ, as discussed.
7. In a realistic world, there are three potential scenarios where the State may be called upon to approve the medical procedure of reciprocal IVF between women partners: couple 1 – where both partners have healthy eggs and are able to carry a pregnancy; couple 2 – where one partner has healthy eggs but is unable to carry a pregnancy; couple 3 – where one partner has unhealthy eggs but is able to carry a pregnancy. Still, when one partner has unhealthy eggs and is unable to carry a pregnancy there is inherently no realistic possibility to initiate a process of reciprocal IVF. These scenarios before us when we examine the different statutes and the purposes behind them. We now move on to review the paths in which my colleagues walked in searching for a lawful route to realize the Petitioners’ wishes to bring into the world a child, who would be genetically linked to Liat, together with her partner – Dana – who is meant to carry the pregnancy with Liat’s fertilized eggs (and a sperm donation, of course), as well as to explain why our views differ. We will then address the Petitioners' arguments regarding the unconstitutionality of the Surrogacy Law, while the fundamental position as to its inapplicability is acceptable to us all, both majority and minority justices.

Accepting the Petition through the Eggs Donation Law?

8. Justice Hayut identifies section 11 of the Eggs Donation Law as the primary obstacle to realizing the Petitioners’ wishes, in light of the demand that the recipient be a woman who “cannot due to a medical condition become pregnant with the eggs in her body, or who has another medical condition which justifies using another woman’s eggs in order to have a child” (emphasis added – E.R.). Once my colleague reached the conclusion that the Eggs Donation Law infringes the Petitioners’ constitutional rights to autonomy (para. 24), to family life and to parenthood (para. 25), the constitutionality of the infringement was examined. It was said that the arrangement in the Eggs Donation Law was for a worthy purpose, but does not meet the proportionality requirements, because article C of the Eggs Donation Law creates an exception committee under the law, but “without granting the committee a sufficiently flexible authority to consider individual and exceptional cases that warrant diverging from the law’s provisions” (para. 34, and see also paras. 30-32.) Justice Hayut therefore suggest constitutional relief of reading into the Eggs Donation Law an additional sub-section – section 20(a)(5) – that would authorize the exceptions committee to approve eggs donation in circumstances where there are “exceptional and special reasons to do so” (para. 35.)
9. Justice Hayut therefore proposes that the Eggs Donation Law would allow the exceptions committee to approve an eggs donation for a recipient who had not pointed to a medical need for donation. Unlike the content of section 11 of the Eggs Donation Law, according to which – in the words of its heading – “a request for donation for the purposes of birth” may be submitted by a woman who is unable due to medical reasons to become pregnant with the eggs in her body and for using another woman’s eggs including for surrogacy. As much as we would like to, the history of the exceptions committee makes it difficult to support this position, though I do believe the Legislature would do well to consider authorizing the committee to consider exceptional cases on a broader basis than it has. The current state of the law, until the “amended” legislation is in effect cannot, in our view, encompass more than what the State is willing to agree to, that is, taking the eggs out from the country without penalty as detailed above (para. 4.)
10. Until the Eggs Donation Law was passed in 2010, eggs donation was regulated by the IVF Regulations which permitted eggs donation only from a woman who was “undergoing fertility treatment and where a supervising physician determined that the extraction of eggs advances her treatment” (reg. 4(1)). The restriction in the IVF Regulations on the identity of the donor created a national shortage in the pool of eggs for donation. In 2000, a public professional committee, headed by Rabbi Dr. Mordechai Halperin of the Ministry of Health, was convened in order to study the issue of eggs donation in Israel (hereinafter: the Halperin Committee). The Halperin Committee recommended to make eggs donation possible also from women who are not undergoing fertility treatments, and this only for the purposes of fertilization and in return for “comprehensive compensation” (sections 7(a) and 9(b) of the Halperin Committee’s recommendations.) It should be noted, that in the Committee’s recommendations there was no explicit demand that the recipient would have a medical need for donation. And so, in section 4(2) of the recommendations it was said that the donation recipient would be “a woman past the age of minority and an Israeli citizen whose age at the time of the eggs’ implantation in her body is under 51 years” – this and no more. Still, it is important to note that the recommendations of the Halperin Committee were not presented as is to the Knesset as a bill (see Mordechai Halperin, Eggs Donation in Israel – Dilemmas and Recommendations, Medicine and Law – The Jubilee Book 165 (2001)).
11. In 2007, the Eggs Donation Bill, 5767-2007 was published in Government Bills 289, p. 292 (hereinafter: the Bill ) and it matured into legislation only in 2010. As was said in the explanatory notes:

“The proposed statute is intended to regulate the different aspects involved in extraction and donation of eggs in Israel, and the use of these eggs. The essence of the proposed statute is to regulate eggs donation for the purposes of having children, but it also includes provisions that allow, under certain circumstances, use of donated eggs as described, for the purposes of research as well.”

As opposed to the Halperin Committee’s recommendations, section 11 of the Bill proposed to limit donations to a recipient who points to a medical condition (for a review of the many differences between the Halperin Committee’s recommendations and the Eggs Donation Bill, 5767-2007, see Smadar Noy, Daniel Mishori and Yali Hashesh, Gold Eggs Laying Geese – The Eggs Donation Bill 5767, Refu’a U’Mishpat 36, 161, 175-79 (2007)). The explanatory notes for section 11 clarify that the requesting woman may also point to the existence of “other justifying reasons” (there, p. 297, emphasis added – E.R.). Additionally, in section 21(e) of the Bill it was proposed to grant the exceptions committee the following powers:

“To approve the extraction of eggs, the allocation of eggs or the implantation of eggs, according to the request of a supervising physician as defined in section 18, should the committee be satisfied that under the circumstances there are exceptional  and special reasons to do so.”

The explanatory notes clarified that the unique reasons are those “which cannot be anticipated in advance, and this without requiring an amendment to the statute” (there, p. 304, emphasis added – E.R.) The catch all section that aimed to authorize the exceptions committee to consider “exceptional and special reasons” was deliberately removed by the sub-committee of the Labor, Welfare and Health Committee that discussed the statue. This removal was criticized in my colleague Justice Hayut’s opinion (paras. 21-22, 38.) A question remains, on the “legislative intent” level, whether even had the catch all section been enacted into the Eggs Donation Law, was there place under the circumstances before us for the exceptions committee to have approved egg donation where the recipient does not demonstrate any medical need, because we are concerned with a case where it is seemingly clear that the law did not have in mind in its origin. We shall review the legislative history in order to uncover this.

12. The minutes of the meetings of the sub-committee of the Labor, Welfare and Health Committee reveal that the Ministry of Health’s legal advisor, Adv. M. Hibner Harel, wished to create through the catch all section “an exit strategy, there are things in life I do not anticipate today” (sub-committee meeting, dated November 3, 2008.) Things to this effect were quoted by Justice Hayut in paragraph 21. And indeed justice Hayut believes that the catch all section should have covered “cases such as the one before us where the recipient has no medical need for an eggs donation but there are other reasons the justify permitting the donation” (para. 22.) However, were we to take a closer look at the sub committee’s discussions from November 3, 2008 we find – it seems – that the catch all section, before it was removed, was not designed to resolve such cases. During the discussion Rabbi Dr. Halperin expressed his concern that “the catch all section makes everything else redundant. It compromises anonymity, infringes the woman’s rights, infringes the man’s rights. It is a section that violates all the rights.” Adv. M. Hivner Harel clarified that “this section was actually born out of the shortage in eggs donation for research… this section was written for catastrophes. It was not born as a catch all section for cases that are not catastrophes” (there, p. 46, emphasis added – E.R.) Is the scenario of partners wishing to perform a procedure of reciprocal in vitro fertilization one that is a “catastrophe”? I doubt it. Let us recall that the medical procedure – reciprocal IVF – as requested by the Petitioners was anticipated and familiar to professional bodies, including in FA (Tel Aviv Dis.) 60320/07, T.Z. v. The Attorney General, State Attorney – District of Tel Aviv (2012) (hereinafter: the T.Z. case.) This was a case where in 2006 a lesbian couple secured the approval of the Ministry of Health’s legal advisor herself to perform the procedure of reciprocal IVF. I will later discuss the distinctions between that case and ours. It is therefore doubtful whether, it was actually proposed to legislate the catch all section in order to provide a solution for the procedure the petitioners request to perform.
13. The foreseeability of the procedure requested by the Petitioners is seemingly also inferred from the sub-committee’s discussions in regards to the drafting of section 22(a)(2) which addresses the designation of a donation from particular donor to a particular recipient for “religious or social” reasons:

“Chair Aryeh Eldad:

If there is an opening for lesbians, there is also an opening for the best friend. It is unclear what it is, but there is opening for the exceptions committee to discuss and say she can’t. This is a good opening.” (Minutes of sub-committee of the Labor, Welfare and Health Committee for Reviewing the Eggs Donation Bill, 5769-2008 (November 3, 2008.)) (emphases added – E.R.)

It seems that in the committee there was the opinion that saw section 22(a)(2) of the Eggs Donation Law the door to the exceptions committee for permitting lesbian couples non anonymous donations of eggs from one partner to the other who needs the donation for “a medical need” (couple number 3 in the scenarios presented in paragraph 7 above.)

14. My colleague Justice Hayut quoted extensively (para. 21) things from the discussion of the sub-committee, though at the end of the day it was decided not to include a catch all section, as a result of Rabbi Dr. Halperin noting during the discussion that “It is better to remove section 18 (approval in special cases – E.R.) and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is in violation of the explicit law.” And in response to the comment by the Chair, Professor Eldad, that “the court cannot operate in violation of the law, maybe we can add here a catch all section that authorizes the court as an exception to the exception,” Rabbi Dr. Halperin replied “but this does not need to be written. The court does that anyway even without catch all sections. So we do not need this.”

My colleague criticizes these things as “puzzling and mistaken reasoning.” I regret that Dr. Halperin, who is a rabbi, a gynecologist and a legal expert, and an author of many works in medicine, and in particularly in the field of fertility “a symptomatic dysfunction” – that is, the conventional wisdom common in different circles as if the Court does as it wills. No matter what the law is, the Court walks its own path. The law is not a “pick your own adventure” even, and perhaps first and foremost, to the Court. The Court’s role is to interpret, and often the law is subject to different interpretations between which the Court must decide (on the issue of interpretation see – for instance – the series of books by Professor Aharon Barak on Interpretation in the Law, which reviews all aspects of the issue.) Moreover, when the legislature “burdens” the court with interpretive duties in matters that are subject to great moral and public debated, such as the phrase “the values of the State of Israel as a Jewish and democratic state” in section 1A of Basic Law: Human Dignity and Liberty and section 2 of Basic Law: Freedom of Occupation. However, where the Legislature’s position is clear, even under the legislative purpose as it the statute was enacted (as opposed to questions of interpretation where a statute is open to interpretation) – the Court must exercise great caution and it is not free to decide as it wishes, even when a worthy cause is at stake – and there the Court must wait for the Legislature.

15. Indeed, even were the proposed catch all section in the Eggs Donation bill enacted into the Eggs Donation Law, and in my view it should have been, the question remains – and I shall leave it for determination in future cases – whether it would have been appropriate to permit the Petitioners’ request, and this in light of the primacy given by the Eggs Donation Law to physiological parenthood over genetic parenthood. In Israeli legislation there are several statutes that address parenthood (for the different models, see Yechezkel Margalit, On the Determination of Legal Parenthood by Consent as a Response to the Challenges of Determining Parenthood in Modern Times, Din U’Dvarim 6, 533 (2012) (hereinafter: Margalit); Mordechai Halperin, "A Woman Conceived Seed and Gave Birth" Biological Parenting and Genetic Parenting, Weekly Parasha – Legal Reviews of Torah Portions, Vayikra 110 (A. HaCohen and M. Vigoda, eds. 2012.)) Section 3(a) of the Woman’s Equal Opportunity Law, 5711-1951 and section 14 of the Legal Competence and Guardianship Law, 5722-1962 reflect approach that bemoan the genetic element, an approach absent from the Adoption Law 5741-1981 and the Eggs Donation Law and even under some views in the Surrogacy Law, where the genetic element is somewhat marginalized and allows the establishment of parenthood not on the basis of clear genetic foundations (see Hagai Kalai, Suspected Parents: Legal Supervision and Control over Non Heteronormative Parents Following HCJ 566/11 Mamat-Magad v. The Minister of Interior, Law in the Net – Human Rights – Decision Commentary Updates 28, 5, 9-13 (2014) (hereinafter: Kalai.)) I will admit that in my eyes genetic parenthood within surrogacy is primary and therefore also the theoretical and moral approval of surrogacy. It should be noted that rulers of Jewish law are split on the question of which woman is considered the mother in the case of surrogacy, and see paragraph 36 below. In any event, in order to fit our case under the confines of such a “catch all section” it would have been necessary to create a model of “inherent constructed co-parenthood” and this remains in question.
16. What is the model of parenthood reflected in the Eggs Donation Law? Section 42 of the law stipulates that the child born of an egg donation shall be the child of the recipient and this without any need for issuing a parenthood order. In other words, through the Eggs Donation Law, despite the genetic link between the egg donor and the child, the physiological contribution of the recipient in creating the child is privileged. The Egg Donations Law, as we detail further in the context of the Surrogacy Law, aimed to “delink” the egg donor from the child and the recipient (see in this context of disconnecting the legal link in section 42(c) of the Eggs Donation Law, which mandates the severance of legal rights and obligations between the donor and the child; see also the references in the Eggs Donation Law in defining an “intended mother” and a “carrying mother” in the definitions section to the Surrogacy Law which at its basis is the view of “delinking” the “intended parents” from the “carrying mother” and in effect from the child and the “carrying mother.”) Only the issue of delinking is similar in both statutes.
17. The purpose of the Eggs Donation Law is expressed in section 1 of the law which stipulates that the law is essentially intended to regulate eggs donation for the purposes of birth for women who cannot realize their parenthood without an eggs donation, and this “while maximum preservation of their dignity, and protection of the rights and the health of the donor and the recipient.” This is also reflected in the legislative history: “realizing parenthood is a paramount value in the State of Israel… We must understand that when the State of Israel approved this Bill it was concerned with the realization of parenthood by women who would be unable to do so without an eggs donation” (Adv. M. Hibner Harel, minutes of discussions in the sub-committee, dated February 18, 2008, emphasis added – E.R.) The goal of realizing parenthood by the recipient, despite the absence or deficiency in genetic material, is also inferred from the medical route to receiving an eggs donation:  “Women who suffer ovarian dysfunction, a lack of ovaries, or reduced ovarian reserves; women who repeatedly produce eggs and/or embryos of compromised quality; women who have failed, after repeated attempts, to become pregnant through IVF treatments; carriers of a severe genetic defect; women over the age of 45” (Orly Loten, Eggs Donation for Fertilization and Research, The Knesset – Center of Research and Information (November 13, 2007)).
18. The fundamental approach of limiting the donation to a recipient with a medical need has, therefore, medical justifications, such as avoiding medical treatment that is unnecessary (Michal Agmon Gonen and Keren Dabach Deutsch, The Physician’s Right To Refuse Providing Fertility Treatments, Refu’a U’Mishpat 33, 13 (2005)), as well as social justifications such as preventing the use of donations for purposes of genetic engineering (Ruth Zafran, There Can Be Two Mothers – The Definition of Motherhood to a Child Born to a Female Same Sex Couple, Din U’Dvarim 3 351, 362 (2008) (hereinafter: Zafran.)) Creating a distinction between recipients who require the donation due to a medical need and recipients who seek the donation without demonstrating a medical need is at its core consistent with the legislative purpose, which is protecting the health of the donor and the recipient involved in eggs donation for the purposes of having a child. We therefore find that the approval granted by the exceptions committee to a donation by the First Petitioner to the Second Petitions would doubtfully, on its face, fit into the harmony within the entire provisions of the law in light of the primacy it affords physiological parenthood in cases where the woman is unable to realize her genetic motherhood. Realizing the desire of a woman, such as in the case before us, to bring into the world a child with genetic code that is similar to hers on its face diverges from the rationale motivating the Eggs Donation Law which was designed to assist women with medical conditions involving their eggs to realize their right to parenthood. Had the law intended for it to be possible to give an eggs donation to a healthy woman due to the medical need of the donor as well, presumably this would have been said explicitly (LCA 5638/95, Migdal Insurance Company Ltd. v. Shamur, IsrSC 49(4) 865, 871 (1996); CA 4100/97, Ridner v. Vizaltier, IsrSC 52(4) 580, 594 (1998); AAA 1721/10,  Ganei Tikva Local Council v. Kopelvitch, para. 12 (2011)).
19. At the basis of the law, therefore, is the giving of an egg donation to a woman who has a medical need for the donation. This realizes the law’s primary objective – to assist women with defects in their eggs to realize their right to parenthood. The distinction the law created between women who have a medical need and women who do not, seemingly does not discriminate against the Second Petitioner, in light of the existing relevant difference (HCJ 4124/00, Yekutieli v. The Minister for Religious Affairs, para. 35 of President Beinisch’s judgment (2010)). Thus, as opposed to my colleague Justice Hayut, I do not believe we are concerned with the constitutional level of examining the Eggs Donation Law, as this law to begin with did not come to cast its net over our case.
20. The opinion of my colleague Justice Hayut emphasized the matter of T.Z., a case from 2006 where the Ministry of Health permitted, before the legislation of the Eggs Donation Law, to women partners to donate eggs to one another. The T.Z. case was brought as evidence that the Ministry of Health “see the female couple a family unit that justifies granting their request while considering the circumstances of their shared lives” (Hayut, para. 21.) However, I am afraid that this case does not constitute evidence. Examining the facts of that case reveals that the receiving partner had a clear medical need for a donation from her partner, unlike the circumstances of the Second Petitioner. In other words, had the Eggs Donation Law already been on the books 2006 when the partners in T.Z. sought approval for an eggs donation, they would have been granted such approval according to the law, as the recipient meets the restriction legislated into section 11 of the law due to her medical need. And the other partner would have been permitted to donate, as the Eggs Donation Law removed the requirement for the donor to be in the midst of reproductive treatments. This route was proposed to the Petitioners during the hearing held on November 19, 2012 – it was suggested that Dana would donate to Liat, who has a proved medical need, a non-anonymous donation, as was also done in T.Z., but this proposal was rejected by the Petitioners.
21. When reciprocal IVF between women partners was approved in the past, before the Eggs Donation Law was legislated, it was done according to medical policy that was later supported through primary legislation. My colleague Justice Hayut described (para. 20) the Attorney General’s Guidelines  from November 24, 2009 (following a discussion dated September 6, 2009) and thus the reason that the approval of the Attorney General was necessary in T.Z. was that the donor in that case was not at the time undergoing fertility treatments, and this limitation was lifted by the Eggs Donation Law, and indeed was not an obstacle for the Petitioners in our case either.

In the absence of the recipient’s “medical need,” even had the Attorney General’s Guidelines from 2009 applied, the Petitioners could not have relied upon it. The novelty in the Attorney General’s Guidelines was lifting the restriction imposed by the IVF Regulations on the identity of the donor, while the hindrance faced by the Petitioners here stems from the requirement that the donor would have a medical need for a donation, a restriction that, as noted, is inferred from the legislative history, the legislative purpose  and the primacy the Eggs Donation Law affords physiological parenthood.

22. Were we to return to the scenarios we presented at the outset of the judgment, the Eggs Donation Law in its present version resolves only the problems of couple number 3, who seeks a procedure of eggs donation from a partner with healthy eggs who wishes to make a non-anonymous donation to her partner who has unhealthy eggs and would carry the pregnancy. By adding the catch all section, my colleague Justice Hayut seeks to additionally allow couple number 2 – where one of the partners has healthy eggs but is unable to carry the pregnancy – to come under the provisions of the law, in order to realize Liat’s wishes to be a genetic parent through her partner. It should be noted, that even had the catch all section been included in the Eggs Donation Law, as my colleague suggests, this would not resolve the problems of couple number 1 – two partners who have no proven medical condition – but still wish to pursue the process of reciprocal IVF in order to create a common genetic physiological child.
23. It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an eggs donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in Laws 8 (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, Moznei Mishpat 7, 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, who is charged with weighting the balances. In any event, and certainly in light of the legislative history on one hand and the partial solution proposed by the State on the other hand, it seems there is no place to authorize the exceptions committee to create medical public policy out of thin air through a catch all section and while eliminating the requirement for medical need in specific cases – this without any guidelines in the form of legislative instructions, which are possible through a not too great legislative effort.

Approving the Request through The People’s Health Regulations (In Vitro Fertilization), 5747-1987?

24. My colleague Justice Arbel, believes too that the Petitioners cannot prevail through the Eggs Donation Law, because “one cannot donate something to themselves, because that cannot be considered a donation” (para. 15,) and found that there is no justification to intervene in the requirement for a medical need under section 11 of the Eggs Donation Law (para. 14.) Also she suggested in her opinion an alternative path to the one proposed by Justice Hayut to accomplish a procedure of reciprocal IVF as requested by the Petitioners, through the IVF Regulations (paras. 17-18.) According to Justice Arbel, it is possible to apply the People’s Health Regulations to the situation requested by the Petitioners without difficulty, as it has already been done in the T.Z. case.
25. However, as we have already shown above (para. 20,) the circumstances of T.Z. are greatly different from the circumstances of the Petition before us. It is true that the Attorney General’s Guidelines from November 30, 2009 addresses a donation between women partners, saying that “this should not be seen as an act that violates the public policy.” However, in all the cases detailed as the foundation for this premise, which were presented at the discussion held on November 24, 2009, the recipient partner demonstrated a medical need for the donation from her partner. Meaning, we are concerned with cases that are clearly covered by the current legal arrangement established by the Eggs Donation Law, which is not seemingly the case in the case here.
26. Moreover, the language of regulation 4 of the IVF Regulations can be viewed as evidence for the indispensability of the requirement for a medical need:

“Extraction of an egg shall be done only from a woman who has met one of these conditions: (1) she is undergoing fertility treatments and a supervising physician has determined that extracting the eggs would advance her treatment; (2) she is not undergoing fertility treatments, but is interested in preserving fertility, due to her age…” (Emphasis added – E.R.)

And indeed – the definitions section of the Regulations distinguishes between a procedure of “taking an egg” which involves extracting eggs from a woman and implanting them in her body and a process of “egg donation” which involves taking an egg from a woman and implanting it in the body of another woman. Regulation 3 stipulates that taking eggs will be done only “for the purpose of in vitro fertilization and implantation after its fertilization.” We learn that the taking process, which involves the IVF process of one woman only, cannot be applied to the process of reciprocal IVF as requested by the Petitioners. Indeed “in the past the Ministry of Health approved the requested process” (para. 23), as my colleague Justice Arbel noted, but I fear that now, after the Eggs Donation Law was legislated, we are living in a different legal reality, and it seems the permission granted by the Ministry of Health became obsolete once the Eggs Donation Law was passed, as it regulated what was previously allowed through the Ministry’s approval – a process of non-anonymous donation of an egg from a woman not undergoing fertility treatments to a woman requiring the donation for medical reasons. The Attorney General’s Guidelines from 2009 implicitly exists through the Eggs Donation Law, and thus it is difficult to use the Regulations to approve a procedure where an egg is taken from the First Petitioner's body to be implanted in the Second Petitioner’s uterus. I fear such a procedure has no source in the IVF Regulations. In light of the above regarding the T.Z. case, it is also impossible to say that the law aggravated the circumstances of women like the Petitioners, and of course the Legislature holds the key to any amendments.

Interim Conclusion – Perhaps I Will Build a Family Trough Her (Genesis 16:2)?

27. As mentioned, my colleagues Justices Hayut and Arbel propose to pave a lawful way for the medical procedure requested by the Petitioners be it through the Eggs Donation Law or through the IVF Regulations, respectively. They both rejected applying the Surrogacy Law on the circumstances at hand, due to the absence of the severance element between the carrying mother and the child. Only their proposals create, in effect, a “D tour” of sorts for the Surrogacy Law, only for the sake of offering a solution for this case, and in my view the current state of the law does not support this. It is a good question whether a broad interpretation is appropriate before the Legislature has had its say.
28. I will add several comments: the surrogacy and eggs donation procedures are in effect two aspects of the same medical procedure. In both processes – aside from surrogacy cases where the intended mother requires both the services of a uterus and an eggs donation – the function of motherhood is divided between two different women: the genetic function and the physiological function. In both processes there is Woman A who provides an egg to Woman B in whose body the fertilized egg is implanted. The difference between the procedures stems only from the agreement between the parties that determines who will be the parent of the child born as a result of the medical procedure:

“When egg is retrieved from one woman, fertilized, and then implanted in a second woman, the first woman could be functioning either as an egg donor – with no intention of rearing the child – or, alternatively, as the intended rearing mother. Moreover, the second woman (i.e., the woman who carries the fertilized egg to term) might be functioning as a ‘surrogate’ or, alternatively, as the intended rearing mother. In both situations, the cast of characters is identical. What differentiates the two circumstances is not the functions performed by parties, but rather the intentions of the parties upon entering into the arrangement. These intentions define the roles of the parties and should determine legal maternal status” (Anne Reichman Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 Iowa L. Rev. 265, 277 (1995). (Emphases added – E.R.)

And further:

“An egg donor recipient woman and a gestational surrogate differ only in maternal intent, usually also reflected by legal contract. This ‘only,’ however, yields a cosmos of different contested meanings of motherhood.” (Dion Farquhr, The Other Machine: Discourse and Reproductive Technologies 151 (1996) (Emphasis added – E.R.)

The Agreement between the parties depends on the medical need of the woman who initiates the procedure. When a woman requires an egg donation, the requested process is termed “egg donation” and when she requires assistance in carrying a pregnancy the requested process is termed “surrogacy” – whereas the medical procedure itself essentially remains the same, identical.

29. Evidence for this can be found in sections 4(b) and 6(b) of the Eggs Donation Law:

“4(b) The instruction of section 4(a) would not apply to an eggs extraction from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of executing an agreement for carrying embryo , under the Agreements Law.

…

6(b) There shall be no implantation of eggs but for implantation in the body of a recipient or of a carrying mother who entered into an agreement with a recipient for carrying embryo under the Agreements Law.” (Emphasis added – E.R.)

The identical medical procedure – extracting eggs from Woman A and implanting them in Woman B – is regulated by two different statutes. The root of the differences between the legislative arrangements is in the social agreement between the parties to the procedure and the State. Implanting a fertilized egg in the body of an intended mother according to the Surrogacy Law, is not considered a donation. Section 4(b) and 6(b) of the Eggs Donation Law clarify that there is a social choice in terms of categorizing the same procedure differently according to the medical need motivating the parties. I am afraid, that introducing a catch all section into the Eggs Donation Law, which would allow Woman A to donate an egg to a woman who has no medical need means the de facto creation of a surrogacy route under the Eggs Donation Law. This would require thought and examining legislative harmony. Extracting eggs from Woman A, fertilizing it and implanting it in the uterus of Woman B who herself has no medical need for a donation appears to put us close to a quasi-surrogacy procedure. Even in a surrogacy procedure, the carrying mother has not medical need for an egg donation and the fertilized egg is implanted in her body despite the lack of a medical need, this only if the link is severed after birth. See section 1 of this Law (the definition of “carrying mother”) as well as section 2 which addresses “implantation of fertilized eggs for the purposes of impregnating a carrying mother in order to give away the born child to the intended parents” (emphasis added – E.R.). The obstacle barring the Petitioners from coming under the confines of the Eggs Donation Law – the medical need – does not exist when we are concerned with a surrogacy procedure, thought, it is contingent upon severance, which in this case is the opposite from what the Petitioners seek.

30. The proposal to make use of the IVF Regulations, too, sounds like a “circumventing” of the Surrogacy Law because, indeed as long as the egg extraction is done for the purposes of fertilization in the body of the woman from whom the egg had been extracted, the legal arrangement which applies is the Regulations. However, once the egg is implanted in another woman’s body, the two relevant statutes are the Surrogacy Law and the Eggs Donation Law, and the determination as to the applying statute is examined in light of the intent of the party who requested the procedure in order to realize their parenthood. In our case, the First Petitioner seeks to create a child who will carry her genetic code, through the implantation of a fertilized egg from her body in the uterus of the Second Petitioner who has no medical need for the procedure. This all means that the using of the Eggs Donation Law and the IVF Regulations in order to enable a procedure where an egg is implanted in the Second Petitioner without a proven medical need, is therefore kind of circumvention of the Surrogacy Law and its provisions – an arrangement that allows, in effect, surrogacy where there is already a preexisting relationship between the intended mother and the recipient mother which is the foundation of the surrogacy, and this without applying the Surrogacy Law and the checks and balances included in its provisions, and in violation of the law’s approach in its current version.

Approving the Request through the Surrogacy Law?

31. To complete the picture, I shall address the Petitioners’ argument as to applying the Surrogacy Law which was at the foundation of their Petition from its outset. The State maintains that there are two main barriers in the Petitioners’ way when wishing to rely on the provisions of the Surrogacy Law. The first, that they are not included in the circle of eligible women; and second, the absence of severing the link between the carrying mother and the child after the birth, in light of their declared intent to raise the child together. To the State, the procedure desired by the Petitioners inherently does not fall under the Surrogacy Law, and exceeds its purpose and its provisions because it “creates genetic, biological co-parenting.” This position was general acceptable to the Justices in the extended panel – who saw the Surrogacy Law as an arrangement of severance after birth – and was at the foundation of the decision dated September 24, 2012 to have the Petitioners amend their Petition so that it would address also the Eggs Donation Law.
32. And yet I shall explore the question whether surrogacy in and of itself requires severance between the carrying mother and the child. During the hearing on April 28, 2013 Justice Arbel wondered about this, and I myself raised the question (see the records.) My concern was on the values level, first and foremost. According to the State, the severance between the carrying mother and the “intended parents” is an overarching principle of the institution of surrogacy, whereas recognizing the carrying mother as a legal mother has far reaching consequences, that is, recognizing a surrogate as the child’s mother for all intents and purposes, and doing so against the narrow and balanced arrangement established by section 13 of the Surrogacy Law which allows the carrying mother to renege on the agreement – including severance – in extreme circumstances alone.

And indeed it is seemingly possible to find in the various provisions of the Surrogacy Law evidence for the State’s position. We mentioned section 1 which defines an agreement for carrying embryo as an “agreement between intended parents and a carrying mother whereby the carrying mother agrees to become pregnant via implantation of a fertilized egg and to carry the pregnancy for the intended parents” (emphasis added – E.R.). We also pointed to section 2. Moreover, section 19 of the law stipulates that entering into an agreement to carry an embryo not according to the path laid out in the law is a criminal offense, punishable by incarceration. The law clearly designs the route to be followed by parties entering into an agreement of contractual, commercial surrogacy which involves compensation for the carrying mother ("Commercial Surrogacy") and does not involve regulation as altruistic surrogacy.

33. From the explanatory notes of the Surrogacy Law we learn that the law aims to permit surrogacy agreements “under certain conditions and in a supervised manner” (see the Embryo Carrying Agreements  Bill (Approval of the Agreement and the Status of the Child), 5756- 1995 (Bills 5756 n. 2456, p. 259, December 6, 1995.) The existing limitations in the law are inherent to the design of the surrogacy mechanism in light of the concerns for the exploitation of the surrogate mother. The Surrogacy Law was proposed following a report by a committee headed by Justice (Ret.) Shaul Aloni, and I will concede that reading the law on its face – including reading the explanatory notes to the Bill – resound of surrogacy based on severance. The explanatory notes (there) speak of advance technologies that allow “bringing children into the world… with the assistance of a woman (carrying mother) willing to become pregnant and to carry a pregnancy in her uterus for a couple, with the genetic code of the couple or at least one of them (intending parents) and to give away the child to them upon birth” (emphasis added – E.R.). I will not, however, discussing – beyond the necessary scope, it seems, of the case at hand – a situation where surrogacy does not in itself require complete severance between the carrying mother and the child.

Surrogacy seeks, at its core, to use the ability of a particular woman to carry a pregnancy and this in order to assist another (HCJ 625/10, Jane Doe v. The Committee for Approving Agreements for Carrying Embryo under the Agreements Law, para. 12 of Deputy President Rivlin’s judgment (2011)). Assistance in carrying a pregnancy in itself does not necessarily mean there must be severance, and this may depend on the circumstances, but it does require legislation, and I must say this – with emphasis – at this stage already. It should be noted that in certain countries which opted to permit surrogacy (Britain, Australia and Finland) an altruistic model was selected, rather than contractual, commercial (which our Law is modeled after, as inferred also by its title – the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child), 5756-1996.) The altruistic model, as opposed to the contractual, commercial model, is built on a foundation of a preexisting relationship between the surrogate and the intended parents (Nufar Lipkin and Eti Smama, From Vision to Shelf Product: The Crawling Normativation of Surrogacy in Israel, Mishpat U’Mimshal 15, 435, 449-453 (2013) (hereinafter: Lipkin and Smama)).

34. The normative advantage of the altruistic model is that it allows overcoming the concern as to the exploitation inherent to the paid surrogacy model, a model that the approach at its foundation is that the surrogate mother is but a service provided, while ignoring the uniqueness of the procedure and the costs it involves (Id., p. 489-490.) The existing relationship between the surrogate mother and the intended parents, on the basis of which the agreement is made, may negate and at least decrease the concern for the surrogate’s exploitation. The Israeli Surrogacy Law, which addresses – as noted – commercial surrogacy, was designed with particular emphasis on the interests of the intended parents, who are usually interested in receiving the child without committing to an ongoing relationship with the surrogate. However, this is not necessarily the only way it was possible to shape the relationship created in the framework of the agreement between the intended parents and the carrying mother.
35. It is not unnecessary to note that scholars of Jewish law have theorized that the child in the surrogacy procedure has two mothers and this because of the concern for prohibited relations (see Z. Lev, Test Tube Baby – the Status of the Surrogate Mother, Emek HaHalakha B 163, 169 (1989); David J. Bleich, Contemporary Halakhic Problems 107-108 (1977)). This, as we will see, is the strict position of Rabbi S.Z. Auerbach. This all means that determining whether we are concerned with severance or with a relationship is an epistemological choice resulting from public policy and is not imminent to the medical procedure itself. There are in fact those who would say that surrogacy has environmental consequences that implicate the child. Still, the Surrogacy Law in its current version, which wishes to severe the relationship between the carrying mother and the child and intended parents, leaves a period of “twilight” – between the child’s birth and the grant of the parenting order (sections 10-11 of the Surrogacy Law) – where legal status has yet to be given to the intended parents but the child has already been moved into their custody. In this short period of time, the generic link to the intended parents does not ensure them any legal status, but does ensure them custody, and only the parenting order afterwards is which creates the final severance. It seems that the law as it is, creates a period of time where both women (the carrying and the intended) are tied to the child, at the same time. However, clearly this was not the intention of the law, which was designed to regulate surrogacy on a contractual, commercial basis which is followed by severance. Still, I have decided to examine, in light of the Petitioners' arguments, the constitutionality of the Surrogacy Law in this regard.

Surrogacy – the Jewish Law

36. To the credit of Jewish law I will note that current rulers of Jewish law contemplate and deliberate the question of surrogacy, just as they do many questions of Jewish law that come out of the technological and medical advances prevalent in our times, as well as the new family configurations, whether they are single parents or couples (see Rabbi Z.N. Goldberg, Attributing Motherhood When Implanting An Embryo in the Uterus of Another, Tehumin 5 248 (1984); Rabbi M. Herschler, Halachic Problems of a Test Tube Baby, Halacha and Medicine 1, 307 (1980); Rabbi A Klab, Who is the Child’s Mother – The Parent or the Woman who Gave Birth?, Thumin 5, 260 (1984); Rabbi Y.B. Meir, In Vitro Fertilization – Attributing a Fetus Born to the Surrogate Mother and the Biological Mother, Asya 11, 25 (1986); Rabbi E. Bik, Attributing Motherhood in Embryo Implantation, Thumin 7, 266 (1987); Professor Michael Korinaldi, The Legal Status of a Child Born from Artificial Fertilization with a Sperm or an Egg Donor, Jewish Law Yearly 18-19, 295 (1992-1994); Professor Daniel Sinclair, Artificial Insemination and In Vitro Fertilization in Jewish Law: Comparative, Halachic-Methodological and Moral Perspectives, HaMishpat 9 291 (2004); Rachel Chishlvitz, Surrogacy Coupled with Eggs Donation: Legal and Halachic Perspectives, Refuah U’Mishpat 39, 82, 85 (2008)). Some of the rulers did not consider surrogacy in a positive light as they saw it as confusing and mixing. However, it seems it should be considered, though it is not at the hard of the issue, similarly to artificial insemination that was permitted where there was great need for it (for reservations about surrogacy see Kovetz Yeshurun, 21 535, 537 on behalf of Rabbi Y.S. Elyashiv and Rabbi S.Z. Auerbach; on permitting artificial insemination see Rabbi M. Feinstein following the M.H.R.S.M, Q.A. Igrot Moshe Even Ha’Ezer 1, 10.) What is this great need? Family continuation is seen as the woman’s (for instance, the woman who requests artificial insemination) request for assistance at her old age (“A stick in hand and a shovel for burial”), Bavli Ketubbot 64, 71) and see the Sperm Bank case, in paragraph 27 of my opinion. Is it possible to see the realization of the right to parenthood a great need? This may be an extension of the need “at old age” to a life that is meaningful and satisfactory.

Another question that is somewhat highlighted by our issue, is who is considered the mother of the child – the donor of the egg or the surrogate? Rabbi Yosef Shalom Elyashiv (Nishmat Avraham 4, Even Ha’Ezer 2, 2) believed that the genetic mother – the egg donor – is the mother (Kovetz Yeshurun, p. 535-40) though perhaps later he came to doubt this (Yeshurun 21 (2009)) and see the references in Rabbi Dr. M. Halperin’s book Medicine, Reality, Halacha and the Word of the Medically Wise (2012) 22-23, 294-95. So believed, too, Rabbi I.M. Soloveitchik, The Law of a Test Tube Baby, Or HaMizrach 100, 122-128 (1981); see also Rabbi S. Goren, Implanting Embryo According to Halacha, HaTzofe 17 (1984); Rabbi Dr. E. Warhaftig, Annexure to the Discussion regarding Test Tube Babies, Thumin 5 268-269 (1984)), but for another opinion, Rabbi E.I. Waldenberg (Tzitz Eliezer, part 19, 40; 20, 49) who thought that the eggs do not belong to the body of the surrogate and she therefore would be considered the mother; and see also Rabbi Zalman Nehemia Goldberg, Tehumin 5 270. In his book, Rabbi Halperin presents the contrary position of Rabbi Ovadiah Yosef, Rabbi M. Brandsdorfer and Rabbi S.M. Amar who believe that the genetic mother is the mother (see the sources there, pages 294-295; and there are also opinions that have changed.) For a collection of opinions that essentially tip in favor of the surrogate’s motherhood, see also Olamot (lesson 33, 2009); but see Rabbi Aviad Bartov, Permitted through his Mother – and a Surrogate Mother, Shiurim B’Masechet Beitza, Har-Etzion Yeshiva, which summarizes (and see the references there) as follows: “Today it seems that the common Halachic practice is to say that the status of the fetus born of this arrangement (in vitro fertilization of the surrogate mother – E.R.) must be determined by the status of the mother who is the source of the test tube, rather than the surrogate mother.” The opinion of Rabbi S.Z. Auerbach, as I have heard it from Rabbi Professor Abraham Steinberg, was that there is no clear solution in either direction because there is not satisfactory evidence for full determination and thus both women must be seen “mother in strictness” (which would require, for instance, the conversion of one of them should she not be Jewish.) See also Rabbi Itzhak Shilat Medicine, Halacha and the Tora’s Intentions (2014) 222, 231, who brings from Nishmat Avraham (2 Ed.) Even Ha’Ezer 35. Ultimately in this case there is no need to determine who the mother is, as the goal is complete partnership between the two specific women, though this may come up in matters of singleness or of separation (see K.M. v. E.G., 13 Cal. Rptr. 3d 136 (Ct. App. 2004); Sanja Zgonjanin, What Does It Take To Be A (Lesbian) Parent? On Intent and Genetics 16 Hastings Women’s L. J. 251 (2004-2005)).

Does the Surrogacy Law Infringe upon the Constitutional Right?

37. The Surrogacy Law reflects the social agreement reached whereby “commercial surrogacy” was established for a narrow circle of intended parents who are a heterosexual couple (HCJ 2458/01, New Family v. The Committee for Approving Agreements for Carrying Embryo, IsrSC 57(1) 419, 437-38 (2002) (hereinafter: the New Family case.)) Does the existing arrangement in the Surrogacy Law infringe upon the Petitioners’ right to parenthood? Further, does creating a genetic, biological child within a lesbian relationship  was not in the Legislature’s mind when passing the Surrogacy Law, but since the First Petitioner wishes to realize her right to genetic parenthood by using her partner’s uterus, can her request rely on the Surrogacy Law?

The First Step – Is There an Infringement upon the Right to Parenthood?

38. The right to family life is a sub right that derives from the constitutional right to human dignity (HCJ 7052/03, Adalla Center for Arab Minority Rights in Israel v. The Minister of Interior, IsrSC 61(2) 2002 (2006)). The right to parenthood is a granddaughter right to the right to family life and it encompasses various methods for fertility, reproduction and birth (Aharon Barak, The Constitution of the Family: Constitutional Aspects of Family Law, Mishpat V’Asakim 15, 13, 42 (2014) (hereinafter: Constitution of the Family); Aharon Barak Human Dignity – The Constitutional Right and its Daughters Vol. 2, 662-670 (2014)). There is no dispute that the right to parenthood was recognized repeatedly in the jurisprudence of this Court as a basic constitutional right (CA 5527/93, Nahmani v. Nahmani, IsrSC 49(1) 485, 499 (1995); CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 50(1) 48, 102 (1995); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 775 (1996); the New Family case, p. 445; HCJ 2245/06, Dovrin v. The Prison Service, para. 12 of Justice Procaccia’s judgment (2006); HCJ 4293/01, New Family v. The Minister of Labor and Welfare, paras. 17-21 of Justice Procaccia’s judgment (2009) (hereinafter: HCJ New Family); HCJ 11437/05, Kav L’Oved v. The Minister of Interior, para. 38 of Justice Procaccia’s judgment (2011) (hereinafter: the Kav L’Oved case); the Sperm Bank case, para. 27 of my judgment and para. 8 of Justice Barak-Erez’s judgment (2013)).
39. The right to parenthood was recognized as a right with “negative” and “positive” aspects (HCJ New Family, para. 3 of President Beinisch’s judgment and para. 5 of Deputy President Rivlin’s judgment.) The negative aspect concerns protecting the individual from external intervention in the right and its exercise. The positive aspect goes to the state’s duty to assist the individual in exercising the right (see Aharon Barak, Interpretation in Law 3, 312 (1994); Aharon Barak, Proportionality in Law: Infringement on Constitutional Rights and its Limitations 44 (2010) (hereinafter: Barak, Proportionality)). The right to parenthood was repeatedly considered against technological developments in the area of reproduction. Surrogacy has been recognized as part of the right to parenthood, but was categorized as a process that belongs on the positive level of the right to parenthood (HCJ New Family, para. 23 of Justice Procaccia’s judgment.) For critiques on this categorization, see Kalai, p. 19-20. In any event, by both aspects, the right to parenthood is not absolute (Barak, Proportionality, p. 56-57.)
40. The Petition at hand raises, among others, the question of whether the right to parenthood includes the right to genetic parenthood specifically. This question was not explicitly contemplated in the case law, but the “voice of blood” – the genetic element – has been heard (CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 56(1) 48, 102 (1995); the New Family case, p. 461; Pinhas Shiffman Family Law in Israel 132-133 (1989); the Kav L’Oved case, paras. 38-39 of Justice Procaccia’s judgment; CFH 1892/11, The Attorney General v. Jane Doe, para. 6 of Justice Joubran’s judgment (2011)). In the Sperm Bank case (paras. 43-45) I discussed the weakening of the genetic element, and that genetic parenthood cannot be considered to be the end all be all. This has support in Jewish law, too – “Happy is who does charity, one who raises orphan boys and girls in one’s home and brings them to be married” (Bavli, Ketubbot 50, 71); “Anyone teaching Torah to another’s son as if the child is his” (Bavli, Megila 13, 71); “I know no other father but you, as that who raises one is called father, rather than the only leading to birth” (Shemot Rabba, 46, 5, “and now, God, you are our father”); “Rabbi Hanina says ‘and her neighbors gave him a name that meant he was a child born to Naomi (Ruth 4, 17), as because Naomi gave birth and Ruth gave birth, but Ruth gave birth and Naomi raised he was therefore called for her” (Bavli, Sanhedrin 19, 72); on the model preferring the “social/ functional/ psychological parenthood” see Margalit, p. 576-582.)) Recently this Court considered the general and supplemental issue of a request to establish parenthood based only on a contractual foundation without any genetic element in AA 1118/14, Jane Doe v. The Ministry of Welfare and Social Services (the Petition was denied on July 13, 2014, in a decision that has yet to include reasons.)
41. In the Sperm Bank case, I addressed the two levels of the right to parenthood (para. 29):

“From all of this another distinction is revealed, which goes to the two levels of this right. The first level, which is in itself valuable, is the ability to realize reproduction ability and become a biological mother or father. The second level, which is that at the basis of the right not to be a parent, is one’s ability to choose how to realize their natural right that is the first level. The second level is in the periphery of the right to parenthood, it is not designed to protect the value itself of having children, but other values such as the right to privacy, autonomy and free will with whom, how and when if at all, to bring children into the world (including the ability to plan a family)” (emphases added – E.R.)

The distinction between the two aspects of the right is relevant here. The wise would easily see that on the legal level it is possible to distinguish between the infringement upon the First Petitioner’s right to parenthood and the infringement upon that right of the Second Petitioner’s. While the infringement upon the Second Petitioner is focused essentially on the second level of the right, because she is prevented from realizing the right in a manner she had requested , the infringement upon the First Petitioner is located in the first level of the right to parenthood, because she is barred from the very access for a surrogacy procedure and therefore, realizing her right to genetic parenthood. This categorization of the Second Petitioner’s issue does not negate the actual infringement because “as long as the margins are part of the right, the marginal character of the right's infringement is relevant only to the stage of constitutional review of the infringement, rather than the matter of whether there is in fact an infringement upon the right to human dignity” (The Constitution of the Family, p. 30; Barak, Proportionality, p. 44.)

42. For purposes of this discussion, I shall assume that the arrangement set in the Surrogacy Law which permits agreements between a man and woman and a surrogate and which requires severance of the relationship between the surrogate, the child and the intended parents upon birth, infringes the Petitioners’ right to parenthood. I will thus examine the constitutionality of this infringement.

The Second Step – Is the Infringement of the Constitutional Right Lawful (Limitations Clause)?

43. The Limitations Clause includes four conditions, as articulated by the language of section 8 of Basic Law: Human Dignity and Liberty – the infringement must be done in a law or by law under in its explicit authorization; it must be fitting of the values of the State of Israel; it must be for a worthy purpose; and to an extent no greater than necessary. Two main obstacles stand in the Petitioners’ way to be included by the arrangements of the Surrogacy Law. One, the statute’s definition of the term “intended parents,” which is (section 1) “a man and a woman who are a couple, who enter into an agreement with a carrying mother in order to have a child.” Two, the absence of severance between the carrying mother and the intended parents after the birth of the child. We shall address both these pivotal obstacles.

The Constitutionality of the Definition of the Term “Intended Parents”

44. The narrow circle of eligibility resulting from the definition of “intended parents” in the Surrogacy Law was considered in the New Family case within the issue of the eligibility of a single woman to realize her right to parenthood through a surrogacy procedure. It was held that “the law did not intend to fix the problems of a women without children who has no male partner, it did not even aim at solving the problems of a man without a female partner or any other couple” (Id. p. 439, by Deputy President Cheshin.) In the New Family case, the narrow circle of eligibility was considered constitutional primarily because the law’s novelty at the time. Deputy President Cheshin insisted that in the future, the issue will warrant revisiting, once relevant information was accumulated as to the execution of the surrogacy procedure as well as to its consequences (Id., p. 447-48, 456.) See also Yelena Chechko, On Ripeness and Constitutionality: Following HCJ 3429/11, Alumni of The Orthodox Arab High School v. The Minister of Finance and HCJ 3803/11, Board of Trusties of Israeli Stock Market v. The State of Israel, Mishpatim 43, 419 (2013)).
45. The Professor Shlomo Mor Yossef Committee – the Public Committee of Examining Legislative Regulation of Reproduction and Birth in Israel (2012) – did indeed recommend to expand the circle of eligibility for surrogacy, so that single women, too, would be able to access the process of commercial surrogacy. The Committee further recommended establishing altruistic surrogacy for single men (for critiques regarding the Committee’s recommendations, see Avraham, chapter 3d.)

Following the publication of the Committee’s recommendations, in June 2012 a team was put together to examine methods of implementing the recommendations, as we have noted above. This year the Memorandum for the Agreements for Carrying Embryo Law (Approval of an Agreement and the Status of the Child) (Amendment – Definition of Intended Parents and Executing an Agreement outside of Israel), 5774-2014 was presented and received the approval of the Ministers Committee for Legislative Matters on March 2, 2014. The memorandum proposes to change the definition of “intended parents” to include in the circle of eligibility single women and single men. That is, it was proposed to expand the circle of eligibility for commercial surrogacy, according to the spirit of the decision in the New Family case. The memorandum does not directly resolve the issue of the Petitioners here under the model they request – only making it possible for the First Petitioner to contract a strange woman as a surrogate, which of course is not the Petitioners’ intention.

46. In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it won't trail behind the Legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is first and foremost the Legislature, and the existence of advanced legislative processes warrants such judicial restraint.
47. To conclude so far, the definition of the term “intended parents” in the Surrogacy Law prevents the First Petitioner’s access to surrogacy. The State claims (para. 51) that this issue is merely theoretical in her regard in light of her desire to have the assistance of her partner in order to realize the surrogacy procedure. However, there should be a distinction between barring access to a procedure, on the first level of the First Petitioner’s right to parenthood, and the matter of how the surrogacy procedure will be executed on the second level of the right. We now move to the second bar, which is concerned with how the right to parenthood is exercised.

The Requirement for the Severance of the Relationship between the Carrying Mother and the Intended Parents – Constitutional?

48. The First Petitioner’s desire to execute the surrogacy procedure through her partner, appears to be, as mentioned above, concerned with the second level of the right to parenthood: the way in which the right it exercised. The First Petitioner wishes to exercise her right to genetic parenthood in a particular way, that is possible on its face in the medical sense – subject to the reservations of the First Petitioner’s treating physician that “there is no conclusive evidence as to whether the problem is the eggs or the pregnancy taking root (uterus-based)” (exhibit P/2 of the Amended Petition dated April 14, 2013), but it is still uncharted land in the legal sense.
49. Altruistic surrogacy, and at least surrogacy based on a relationship, is not recognized in the current legislative arrangement. Still, in the mentioned law’s memorandum it is possible to find slight hinting at establishing such surrogacy. Thus, it was suggested to change the definition of “relative” in section 1(3) of the Surrogacy Law so that cousins would not be considered relatives and could serve as carrying mothers. In section 2(3)(b) of the Surrogacy Law it was proposed to add an exception to the basic prohibition on the intended parents and the carrying mother being relatives as following: “despite the above, a sister cold use as a carrying mother as long as the sperm fertilizing the eggs implanted in her body is not of her brother.” The desire to increase the pool of candidates for carrying mothers brought the drafters of the memorandum to consider relatives of the intended parents under the assumption that the existence of a relationship would serve as a catalyst for entering into the surrogacy procedure.

In order to examine the proportionality of the demand to severe the relationship between the surrogate and the intended parents we shall consider the three accepted sub tests: first, the fit test – which requires a connection between the worthy purpose and the means selected to accomplishing it. Second, the least restrictive means test – which requires that the means chosen infringes on one’s right as little as possible. The third test concerns the existence of a proper connection between the means and the purpose, and weighs the benefits resulting from the infringing statute against the extent of harm done to the right (HCJ 4769/95, Menachem v. Minister of Transport, IsrSC 57(1) 235, 279-86 (2002); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 545-47 (1994); Barak, Proportionality, p. 373-454.)

50. Because there is on its fact a rational link between the surrogacy model built around the severance and the achievement of the purpose of the Surrogacy Law, as it currently is, we will move on to the second sub test for proportionality and ask whether there is an alternative which infringes on the right to parenthood less but may still achieve the law’s purpose. The Petitioners justifiably point to a variety of problems and criticisms raised in regard to commercial surrogacy – the exploitation of the surrogate’s financial circumstances, the hardship of severing the relationship with the child, regret for entering into the procedure, and the involvement of a third party in reproductive procedures (Lipkin and Smama, p. 480-85.) They argue that these are negated by an altruistic procedure which they seek. However, the altruistic model is not free of flaws, either. The main concern arising in an altruistic model is the social and familial pressure on the woman, which may lead her to enter into an intrusive and difficult procedure that does not reflect her true wishes (Rakhi Ruparelia, Giving Away the Gift of Life: Surrogacy and the Canadian Assisted Human Reproduction Act 23 Can. J. Fam. L 11, 14; 29; 35-36 (2007); Janice J. Raymond, Women as Wombs: Reproductive Technologies and the Battle over Women’s Freedom, 53-54 (1993)). In the United States, for example, there is a tendency to restrain altruistic agreements between relatives because of the concern for difficulties of disconnection from the child (Lipkin and Smama, p. 450.) An additional problem is the lack of sufficient psychological and scientific knowledge about the altruistic process and its consequences (Id., p. 490.)
51. Moreover, altruistic surrogacy may also raise, to greater force, the question of the surrogate’s legal status vis-à-vis the child. Ordinarily, in a procedure of surrogacy, once a parenting order is granted the carrying mother loses any legal status toward the child. In the procedure requested by the Petitioners, it is likely that the Second Petitioner who would have carried the child would seek legal recognition as the child’s mother (see also HCJ 566/11, Doron Mamat-Magad v. The Ministry of Interior (January 28, 2014) (hereinafter: the Mamat-Magad case.) Such a request poses significant difficulty to the institution of surrogacy in its current formulation which only recognizes the intended mother as the legal mother (Zafran, p. 388-395.) Legal recognition within the Surrogacy Law of the carrying mother may potentially cause harm to the group of “intended parents” who currently utilize the Surrogacy Law.
52. In light of all the above, permitting a model of “relationship” within the existing statutory arrangement cannot create an alternative that less infringes upon the constitutional right, which can still accomplish the purposes of the law. Though the establishment of altruistic surrogacy has great potential, the task of setting it up is clearly within the purview of the Legislature in light of the difficulties it presents in the absence of proper and balanced regulation. Establishing a model of altruistic surrogacy requires to create legislative mechanisms that would ensure the free will of the surrogate as well as methods for detection and follow up. Here is a challenge for the Legislature.
53. The Surrogacy Law therefore restricts the First Petitioner’s right to altruistic surrogacy, as this model has yet to be enacted in a statute. However, the infringement is limited to achieving the purpose of surrogacy through the altruistic model in Israel. The State did not block the First Petitioner’s way from executing the surrogacy procedure along the route she desires abroad. We refereed to the Ministry of Health’s protocol from July 21, 2013 titled “Taking Semen, Eggs or Fertilized Eggs out from Israel,” which enables the First Petitioner to take  fertilized eggs extracted from her body out of Israel, in order for them to be “implanted in the body of the woman from whom the eggs were extracted or in the body of a surrogate woman for the purposes of carrying a pregnancy for the woman from whom the eggs were extracted, or for the purposes of realizing parenthood in alternative means for the women from whom the eggs were extracted.” (Emphasis added – E.R.)

Through the protocol the State avoids defining the requested procedure as a surrogacy procedure, in light of the law’s absence of recognition of the altruistic model, but at the same time removes the obstacle standing in the Petitioners’ way to execute the procedure in other countries in the manner they wish to execute it. In my view, the option given to the First Petitioner to take her genetic material out of Israel meets the requirement of the third sub test (narrow proportionality) which concerns the relation between the infringement upon the constitutional right and the benefit achieved. Since altruistic surrogacy does not exist in Israel, it seems we have a proportional solution that balances the petitioners’ desire to execute the procedure in a specific manner they request and the need to refrain establishing judicial arrangements as a “patch work.” In contrast, allowing the Petitioners to realize their wishes in the specific manner they seek – that is, through altruistic surrogacy in Israel – would result in parts of the Surrogacy law becoming incoherent with each other (for the problems of “patch work” legislation, see HCJ 7691/95, Sagi v. The Government of Israel, IsrSC 52(5) 577, 587-88 (1998); LCA 418/03, Ossem Food Industries Ltd. v. Smaja, IsrSC 59(3) 541, 552-54 (2004); CrimA 4783/09, Shulstein v. The Antitrust Authority, para. 1 (2010)).

Finally, referring the First Petitioner under today’s state of the law to exercise her right out of Israel, with all the inconvenience involved, does not automatically cause unconstitutional infringement upon her right (HCJ 466/07, Galon v. The Attorney General, para. 8 of (then) Justice Naor's judgment (2012) (hereinafter: the Galon case.) Executing the procedure, in the specific manner requested, out of Israel constitutes a proportionate solution for the First Petitioner, as long as there is no existing legislative regulation of altruistic surrogacy. Executing the procedure allows the State to assist the Petitioners without causing disharmony to the existing statute. Indeed, there is discomfort with the State referring its citizens to realize their dreams and rights in other countries (the Mamat Magad case, paras. 5-10 of Justice Joubran’s judgment,) yet in the absence of a legislative arrangement that allows surrogacy along the route the Petitioners request, the solution suggested by the State through the protocol is proportionate, because “at times even the exercise of a constitutional right yields to the public interest” (see Galon, para. 11 of (then) Justice Naor's judgment) and in our case – to harmony in the system of parenthood arrangements and the balances between them. Interpretation such as the Petitioners requested stands, as my colleague Justice Hayut noted as well (para. 18), in contrast to the core of the existing arrangement, which focuses on severance between the surrogate and the intended parents.

54. Under the circumstances – as we have not accepted the Petition – it is unnecessary to delve into the issue of the legal recognition of the carrying mother (the Second Petitioner.) However, to the extent that the Petitioners chose or will choose to execute the procedure abroad, it seems the solution proposed by the District Court in T.Z. (paras. 31 and 34) – issuing a judicial parenting order (after conducting a review to support the petition for a parenting order) – and which comes out also of the Mamat Magad case (para. 43 of Deputy President Naor’s judgment, para. 11 of my judgment) could seemingly work in favor of the Petitioners here, because the State expressed no general objection to a family unit of “co mothers” which the Petitioners wish to contract, but only to the legal route in which they seek to construct it (on the legal recognition of two mothers in the United States, see Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J.C.R. & C.L 201 (2009)).
55. As to the future regulation of altruistic surrogacy within the general Surrogacy Law which currently only regulates commercial surrogacy, the Legislature must explore the possibility of establishing a route for altruistic surrogacy, which would operate in parallel to the commercial route where the law’s different parts would not conflict with one another, but complement each other. See – and this is only brought as an example – the proposal by the “Woman to Woman” Center in regard to introducing elements of a “relationship” into contractual commercial surrogacy as well, and this based on psychological research demonstrating that the human relationships formed are the primary benefit that the surrogate enjoys in the process (Nufar Lipkin and Eti Smama, Surrogacy in Israel – 2010 Snapshot and Proposal for Legislative Amendments – Report by ‘Woman to Woman-Feminist Center, Haifa’ 65, 80-82 (2010), Elly Teman, Birthing a Mother: The Surrogate Body and the Pregnant Self (2010)).

Conclusion and Final Words

56. At the end of the day, we did not see it fit to intervene in the State’s latest proposal, which meets the Petitioners significantly closer, though not exactly at their desired point. In our view, under the current state of the law it is impossible to fully assist the Petitioners, and doing so is up to the Legislature. As we have demonstrated, the dissenting opinion’s suggestions – as appealing as they may be – are not acceptable to us on the legal level. Hence our position not to accept the petition. There is no order as to costs.

                                                                                                Justice

President A. Grunis:

I agree with the judgment of my colleague, Justice E. Rubinstein.

                                                                                                President

Deputy President M. Naor:

1. I am among the majority Justices who have found the Petition must be denied.
2. The right to parenthood received recognition as a fundamental right, which expresses the natural desires of women and men for continuance in future generations (HCJ 566/11, Mamat-Magad v. The Ministry of Interior, para. 41 of my judgment (January 28, 2014); HCJ 4077/12, Jane Doe v. The Ministry of Health, paras. 25-29 of my colleague Justice E. Rubinstein’s judgment (February 5, 2013) (hereinafter: the Jane Doe case)); dismissing a motion for further hearing – HCJFH 1403/13, Jane Doe v. The Ministry of Health (June 6, 2013.)) The right to parenthood, as other rights in our law, has different aspects. At the core of the right to parenthood is the right of each man or woman to bring children into the world through natural reproduction, free of state intervention. It is also accepted that at the heart of the right is “the practical ability to enter the ‘group of parents’ and bring a child into the world (Id., para. 33). Another question, a more complex one, is what is the level of protection that must be given to one’s demand that the State assist him in creating genetic, physiological or legal parenthood. This, in light of the medical, technological advances that make creating parenthood by artificial means possible. These things found expression in the jurisprudence of this Court. See, for example: HCJ 4293/01, New Family v. The Minister of Labor and Welfare (March, 24, 2009), which addressed, among others, the question whether there is a constitutional right to adopt. Justice A. Procaccia discussed there the complexity inherent in the question whether one has a right to require the State to assist in the process of creating parenthood:

“The question from a different angle is whether the constitutional right to family life and parenthood, which is granted to any person, gives rise also to the right to require the state to take action in order to make it possible where one is not able, or does not wish, to exercise it naturally – for instance through adoption, through surrogacy or through in vitro fertilization. Does the state’s failure to act amount to an ‘infringement’ whose constitutionality is examined according to the Limitations Clause? Such questions are complex and multi-faceted. They go to the link between the constitutional right and the means one has to exercise that right. They raise issues with broad normative, moral, social and other ramifications. The approaches to resolving them are subject to the influences of time, place and circumstances…

… The question to what extent the state must assist the individual and grant the means necessary to assist reproductive processes through artificial reproductive techniques is difficult and complex. The greater the need for intervention of external factors in the reproduction processes, the farther we travel from the hard core of the right to parenthood as based on the individual’s autonomy and his independent right to make decisions that determine his fate without external intervention. The scope of the duty of the state to assist the individual through active steps to realize his natural parenthood through artificial means is difficult and has many aspects.” (Paras. 22-23.)

In that same matter, President D. Beinisch commented that the right to parenthood should not be interpreted as merely a negative right, but added that were there a constitutional right to parenthood through adoption, it would have been necessary to distinguish between the scope and the force of the constitutional protection given to the relevant right in different contexts (para. 3; see also the position of Deputy President E. Rivlin there, who believed that there is a liberty to adopt, and that restricting this liberty must be done in consideration of competing interests. See also, Aharon Barak, Human Dignity: the Constitutional Right and its Daughters, vol. 2, 667 (2014)). As my colleagues pointed out, alongside the right to parenthood, the best interest of third parties who are at times involved in the process of artificial reproduction as well as medical, social, and other ethical considerations must all come into account. These considerations may lead to the limitation of the means to realize the right to parenthood, as well as declining to recognize certain types of parenthood (see and compare: our decision without reasons in LFA 1118/14, Jane Doe v. The Ministry of Welfare and Social Services (July 13, 2014.)) The mere fact that there are various ways to become a parent does not mean that the State must allow their execution in any way that science and technology allow. A similar approach was expressed in the matter of Jane Doe, where Justice D. Barak-Erez discussed the fact that the protection of the right to parenthood must be distinguished from the protection for the goal to exercise the right to parenthood “in a particular way” (para. 11), and that “these situations continue to raise the question whether when a certain course of action is available, as a scientific and technological matter, would this mean that there is also a right to make use of it, and that the way the right is exercises cannot be restricted.” (Para. 32.)

3. In the case before us, the Petitioners wish to bring a common child into the world, in a manner where the child will be born of the Second Petitioner’s uterus and will carry the genetic code of the First Petitioner. According to the Petitioners, the Respondents have not indicated there was a moral flaw, or any other consideration that justifies preventing them from exercising their right to parenthood in this way. Although their plight is touching, my opinion was that the Petition must be dismissed.
4. My colleagues have demonstrated at length, and I shall not repeat, that under the system of statutes existing currently, what the Petitioners wish to do is impermissible and may even lead to a criminal sanction, including for the treating physician.
5. My colleague Justice Hayut in her humane and sensitive judgment wishes to find remedy for the Petitioners and their desires through the doctrine of “reading in.” In her view, this way allows authorizing the exceptions committee already exists under the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law) to approve eggs donation when the committee is satisfied that under the circumstances there are exceptional and special reasons that justify doing so. This language appeared in the Bill, but was removed as a result of Rabbi Halperin’s suggestion to leave this to the court because “the court permits things that the law prohibits.” My colleague points out that these things by Rabbi Halperin have no foundation. Indeed, as opposed to Rabbi Halperin’s suggestion, the courts do not do as they see fit with statutes and law, and they do not permit what the statute has prohibited. The way of courts is the way of interpretation, and when necessary – and when the court sees it to be justified – it takes the exceptional step of judicial intervention. Still, in my opinion, even were we to expand the powers of the exceptions committee, as my colleague suggests, there was no case before us that was necessarily suitable to apply the exception to the principles established in the Eggs Donation Law. On this point, I join the words of my colleague Justice Rubinstein in paras. 16-23 of his judgment. The arrangements in terms of eggs donation, which were described in detail, emphasize the physiological connection between the mother and the fetus. In this way, section 42(a) of the Eggs Donation Law, mandates that a child born of an egg donation would be the child of the recipient for all intents and purposes. Without devaluing the importance of the genetic connection, I believe this is an infringement upon a particular way to realize the right to parenthood, and thus its force is diminished in my eyes. Accepting the Petition may shift the weight to the genetic relationship between the child and the recipient, and thus impact the definitions of parenthood resulting from an eggs donation, as well. There is no moral flaw to the Petitioners request, but accepting it may implicate other issues and destabilize the balances established in the legislation of reproduction and birth. It should also be noted that the restrictions set in the Eggs Donation Law are not concerned with the sexual preference of the recipient or the donor but with resolving the recipient woman’s reproductive difficulties. As a result there is no prohibition against the Second Petitioner donating eggs to the First Petitioner. Additionally, that the legislation regulating egg donation is actually recent and that during the hearing before the extended panel held on April 28, 2013 the Respondents expressed their willingness to examine the need to amend it must also be factored in.

5.               The circumstances described above, along with the possibility open to the Petitioners to realize their wished outside of Israel leads to a conclusion that there is no justification, at this time, to intervene in primary legislation. In this case, taking the extraordinary step of reading into the law amounts, almost, to instructing the exceptions committee to stray from the law in the Petitioners’ case, under circumstances that have no justification for doing so. Another difficulty in taking this step is that expanding the powers of the exceptions committee, as proposed by me colleague, may have wide consequences outside of the individual case of the Petitioners and couples like them. This is, in my view, a substantive and significant change to the law, and I doubt whether it is proper to make in the way of “reading in.”

6.               Moreover, even were to intervene in the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756- 1996 (hereinafter: the Surrogacy Law,) and find that the term “intended parents” in this law includes not only couples who are a man and a woman but also a woman and a woman (and I am inclined to find as such; see also Memorandum regarding the Agreements to Carry Embryo Law (Approval of an Agreement and the Status of the Child) (Amendment – definition of Intended Parents and Executing an Agreement out of Israel), 5774-2014), this would not benefit the Petitioners. The Surrogacy Law reflects a model where the relationship between the surrogate and the child is severed upon birth, whereas the Petitioners wish to realize a different type of parenthood, where the woman carrying the pregnancy, along with the genetic mother, will together serve as mothers to the child. The Surrogacy Law is not the appropriate avenue for the Petitioners’ matter.

7.               My colleague, Justice Arbel emphasized in her sensitive opinion the First Petitioner’s desire for a child of her own. As to the legal route taken by Justice Arbel, I join the words of Justice Rubinstein in paragraphs 24-26 of his opinion.

8.               In conclusion: with all the empathy to the Petitioners’ desire to bring a child into the world in the particular way they suggest, including performing the entire procedure in Israel, I find it impossible to accept their petition. They are able, however, to take the route to which the Ministry of Health was willing to agree.

                                                                                                Deputy President

Justice S. Joubran:

1. The issue before us is not easy to decide. On one hand it touches the heart of human existence – the desire to be a parent; on the other hand it touches the heart of society’s existence – regulating its conduct through the law. The Amended Petition aims to challenge different provisions in two statutes, which according to the Petitioners, limit their ability to realize their will to be genetic and biological co parents by using artificial reproductive technologies. The first statute is the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law). The other statute is the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law). The dispute is, in short, whether it is possible under the circumstances of the case to allow the Petitioners to have their wish and this despite the limitations of the law.
2. I join the judgment of my colleague Justice Rubinstein, according to which we cannot permit the Petitioners’ request. Like my colleague, I too believe that there is currently no lawful avenue to fulfill their hearts’ desires, and I shall add but several short comments.
3. First as to the Surrogacy Law. I accept the position that the case before us does not fall under this law. The Second Petitioner – the “surrogate” mother – wishes to carry the embryo in her uterus and give birth to it and is intended additionally to be the co parent of the child. In order for the law to apply to the Petitioner, a central element of the Surrogacy Law must exist. This is the element of post birth severance. The current outline of the Surrogacy Law requires as a general rule, aside from exceptional cases that are detailed in section 13 of the law, severance between the carrying mother and the child and the intended parents after birth. It seems that the existing Surrogacy Law does not regulate situations where the mother who carries a fetus in her uterus and gives birth to it would also be the child’s mother, and thus the law does not exist in the case before us. This is true at least under the Israeli Surrogacy Law. It appears there are possible other outlines for surrogacy different than that in the law in its current version. The definition of surrogacy depends on the law and may take many different forms (see primarily paras. 32-33 of my colleague Justice Rubinstein’s judgment.) So, for example, there is altruistic surrogacy and there is contractual commercial surrogacy. However, as said, the current state of the law in our country indeed does not permit under any interpretive reading what the Petitioners ask.
4. Now for the Eggs Donation Law. In the case before us, the recipient who receives the eggs is, as far as we know, a healthy woman. The difficulty in applying the law to her is that the Eggs Donation Law requires that the recipient have a medical condition that requires an eggs donation from another woman (section 11 of the Eggs Donation Law,) and thus this basic condition is not met in the case at hand.
5. Although section 18 of the Eggs Donation Law authorizes an exceptions committee to approve an eggs donation procedure in certain exceptional case, but these are detailed in an exhaustive list in section 20(a) of the law and the case before us does not fall within the list. My colleague Justice Hayut proposed to use the reading in doctrine in order to read into the Eggs Donation Law a general catch all section, in addition to the list of exceptional cases detailed in the law, which authorizes the exceptions committee to approve an eggs donation “if it is satisfied that under the circumstances there are special and exceptional reasons which justify doing so” and thus permit what is requested by the Petitioners (paras. 35-38 of her judgment.) My position is identical to that of my colleague Justice Rubinstein, that this reading is impossible. The language of the Eggs Donation Bill did include such a catch all section that granted the exceptions committee the power to authorize an eggs donation “if [the committee] was satisfied that under the circumstances there are exceptional and special reasons which justify doing so” (section 21(e) of the Eggs Donation Bill, 5767-2007 Government Bills 289, 292,) and the explanatory notes clarify that the exceptional reasons are those which “were impossible to have anticipated, and this without requiring an amendment to the law” (para. 11 of my colleague Justice Rubinstein’s judgment.) However, the Petitioners’ request was anticipated and known to the professional bodies as well as the sub- committee of the Committee for Labor, Welfare and Health. This particularly in light of FA (Dist. Tel Aviv) 60320/07 T.Z. v. The Attorney General, State Attorney – District of Tel Aviv (March 4, 2012) (hereinafter: the T.Z. case) where a similar matter of a female couple interested in biological genetic co-parenting, but where the recipient woman had a medical need for the eggs donation, was decided. And yet, at the end of the day the Legislature decided not to include in the Eggs Donation Law a general catch all section or a specific exception that permitted a case such as the one before us. Under these circumstances, I doubt whether it is possible for us to read a reading that is inconsistent with the legislative intent. Therefore, it seems this law, too, does not apply to the circumstances of the case before us.
6. Beyond the necessary scope, the question whether the Eggs Donation Law is at all relevant to the case before us is raised. Indeed, the Eggs Donation Law was designed to assist women who are unable to realize their parenthood in means other than an eggs donation, but in my view – and in this regard my opinion converges with the opinion of my collogue Justice Arbel – this law is not relevant to our matter, both in light of its said purpose and the clarity of its sections which explicitly exclude cases where the woman is able to realize her parenthood even without the eggs donation, and in light of the fact that in effect this is not a “donation” in our case, as my colleague Justice Arbel analyzed in a deep and persuasive manner. I accept the conclusion that the meaning of “donation” is giving to another without receiving any compensation and in our case the “donor” receives the right to be a co mother to the child. In my opinion, this is the reasonable interpretation of this term. Therefore, and in light of my colleague Justice Arbel’s additional reasons, I believe that the Eggs Donation Law is irrelevant to our matter.
7. My colleague Justice Arbel thus turned to the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: The IVF Regulations) in order to locate a solution to the problem and her position is that these Regulations are relevant to the case at hand, as they were in the case of T.Z.. However, my position is as the position of my colleague Justice Rubinstein. These two cases are distinguishable in the fundamental element of the egg recipient’s medical need. In the case before us there is no such need because the woman seeking to receive the eggs is a healthy woman and thus the T.Z. case, which considered a recipient with a medical need, cannot be analogized. It seems that the guidelines by the Attorney General from November 30, 2009 regarding eggs donation between female partners are irrelevant as well because these guidelines also relied on a case where the receiving partner demonstrated a medical need for a donation from her partner. And in any event, the Eggs Donation Law was enacted after this and regulated the issue in primary legislation.
8. As to the application of the IVF Regulations to the case at hand, I believe that the procedure requested by the Petitioners lacks any anchor in these Regulations. The IVF Regulations establish, among others, the exclusivity of the purposes for egg extraction as in vitro fertilization of the egg and its consequent implantation (regulation 3,) but they do not address a procedure such as the one sought in this Petition in any way. The reasonable interpretation of these Regulations leads to the conclusion that there were designed to regulate in vitro fertilization of a woman’s egg in order to implant it in her own body rather than the body of another, whether the latter woman is her partner or a stranger. And in any event, as my colleague Justice Arbel emphasizes in section 19 of her opinion, the procedure of eggs donation can currently be done only according to the arrangements of the Eggs Donation Law. Section 4 of the Eggs Donation Law explicitly limits the activity of eggs extraction and implantation to follow only the provisions of this law, unless in cases of surrogacy.
9. We learn that the procedure where a woman wishes to give her egg to her (healthy) partner in order for it to be implanted in the partner who would give birth to a mutual genetic, biological child is not regulated in Israeli legislation. But had the Eggs Donation Law not include a provision mandates the treatment of eggs to conform solely to this law (section 4 of the Eggs Donation Law,) it seems the Petitioners’ request would have been permissible. However, the explicit prohibition to follow a different path than that set out in the Eggs Donation Law limits the steps of the Petitioners and does not afford them what they request (see and compare HCJ 2458/01, New Family v. The Committee for Approving Agreements for Carrying Embryo, IsrSC 57(1) 419, 445 (2002), in a parallel context of exclusivity of arrangements in the Surrogacy Law.) Therefore, in the case before us I believe that despite our willingness to do so, we cannot assist the Petitioners.
10. In this context, a central matter that came up in my colleagues positions was the legislative intent while enacting the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law) and the assumption about courts’ intervention in legislation (see the discussion in this regard in my colleague Justice Hayut’s judgment in paras. 21-22, 38 and in my colleague Justice Rubinstein’s judgment in paras. 11-14.) So, for instance, Rabbi Dr. Halperin said that “the court permits things that are prohibited… when there is a real need it finds the way to do so even in violation of express statute” and later “this does not need to be written. The court does this anyway even without a catch all section.” I have but to join the words of my colleagues Justice Hayut and Justice Rubinstein on this issue. The assumption that the court would intervene in legislation even if it were against the law is fundamentally mistaken and undermines the public’s trust in the court system. As emphasized by my colleague Justice Rubinstein, the court sees it fit to intervene in legislation only in extreme cases and it does so with great care. These things are of even more force where the Legislature clarified his position and where the question of the statute’s interpretation does not come up, as in the case before us.
11. Similarly to the position of my colleague Justice Rubinstein, I, too, believe that the removal of the requirement for the recipient’s medical need as set in section 11 of the Eggs Donation Law must be considered in order to extend the circle of men and women eligible for an eggs donation. Similarly certain aspects or the Surrogacy Law should also be revisited and current gaps in the statutory regime – such as the existence of a procedure of partner assisted reproduction, or reciprocal IVF, which permits eggs donation for healthy women as well, of course with inherent and imminent mechanisms of control and supervision – should be regulated in legislation.
12. The right to parenthood – as discussed at length in paragraphs 2-3 of my colleague Deputy President M. Naor’s judgment – is an important and fundamental right in our country, a basic constitutional right that stands to each man and woman by virtue of their humanity. However, I agree with the position that the right to parenthood is not the right to parenthood exercised in a particular way (see HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 11 of Justice Barak-Erez’s judgment (February 5, 2013.)) In the case before us, the Petitioners have several options to become parents, even if not all of them make the requested genetic biological co-parenting model possible. Specifically, they have the option, to which the State agreed, to perform the requested procedure abroad and receive recognition of the genetic biological co-parenting in Israel. We must hope that this option will be only temporary for such cases until the Legislature permits performing the procedure in our own country.

                                                                                                Justice

Justice H. Melcer:

1. At the time it was decided – by a majority of four Justices against three – to deny this petition. I was among the minority. The decision was made public with no reasoning so that the Petitioners may calculate their steps according to the outcome and explore whether they are willing to accept the partial solution proposed to them by the Respondents. We took this route in light of the constraints of “the biological clock” which weighed heavy on the Petitioner, and thus we allowed the Petitioners to make an informed decision in their matter as early as possible.

It is time now for giving reasons, and these took shape so that first the opinions of my colleagues in the minority, Justice E. Hayut and Justice (Ret.) E. Arbel were written and the opinions of the majority Justices, headed by the opinion of my colleague Justice E. Rubinstein, then followed. As a result before me is all the comprehensive and studious material and I have but to clarify why I was of the view that the Petition must not be rejected and how it should be upheld. I shall turn to this immediately, but I will open by briefly reviewing the Petition and focusing on the issues in agreement and those in dispute. 

2. The Petitioners are partners. They wish to bring a child into the world in the following way: an egg taken from the body of the First Petitioner would be fertilized and then implanted in the body of the Second Petitioner. Seemingly, under the statutory situation in our country, the said method is not permitted to be executed in Israel, in light of the different provisions in the Agreements for Carrying Embryo Law (Approval of an Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and in the Eggs Donation Law,5770-2010 (hereinafter: The Eggs Law.) In order for this to be permitted, the Petitioners have therefore raised different arguments on the interpretive and constitutional levels to challenge the restricting provisions. An order nisi was granted in the Petition and it was considered by an extended panel.
3. My colleague, Justice E. Hayut, described well (and thus I will not repeat): The various legal obstacles in the statutory network that the Petitioners face in realizing their desire to parenthood and the constitutional rights on which they rely in their arguments. Finally, my colleague analyzed the current restrictions in the mentioned statutes against the “Limitations Clause”. In a sharp and concise opinion she reached the conclusion that the arrangement set in the Eggs Donation Law, which restricts extraction, fertilization and implantation of the fertilized eggs and prohibits, under criminal prohibition, the performance of these procedures in the circumstances where the Petitioners find themselves, violates the Petitioners’ constitutional rights to autonomy, to family life and to parenthood. Therefore she found that the limitations in the Eggs Law in this sense do not pass the requirements of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty.

I join all these finding, as it was not said that there is an interpretive avenue that would grant the Petitioners’ wishes without judicial intervention in existing legislation (and I believe that there is such a path.) I additionally share my colleague’s conclusion and the views of the remaining members of the panel that judicial intervention in the Surrogacy Law is not the proper path to examine the arguments of the Petitioners and to find remedy to their plight.

4. Therefore it appears that the split in opinions between the majority and the minority is on the question whether the restrictions in the Eggs Law which bar the Petitioners from realizing their desires meet the requirements of the Limitations Clause. Together with this difference in opinions, within the minority justices, there is an agreement regarding the outcome (that the Petition should have been accepted), but we do not agree on the method of resolution and as to the legal basis for it.

It is fitting here to note further that even the Respondents, who were also aware of the Petitioners’ distress, proposed during the hearings in the Petition a certain partial solution for the Petitioners – an arrangement that the majority saw fit to accept as satisfactory under the circumstances, and not go beyond.

In the following paragraphs I will attempt to concisely demonstrate why the majority’s position is unsatisfactory, and why the minority position, with its differing aspects, is preferable to me.

5.  In analyzing the legal problem brought to us two insights should, at least, guide us, in my view:
   
   1. Technology generally precedes the law. In these cases where the Legislature and the courts are called upon to pour the essence of existing, good, and established fundamental principles into new legal vessels (as if were they wine which gets better with age, which only needs a more modern container. Compare: Stephen Breyer, Active Liberty 64 (2009)). And see my opinion in CA 9183/09, The Football Association Premier League Limited v. John Doe, (May 13, 2012.)
   2. Interpretation is the preferable method to resolve issues which overlap with constitutional questions and this before we reach the last resort of striking down legislation. See: judgments by President A. Barak and then Justices M. Cheshin and D. Beinisch in HCJ 9098/01, Genis v. The Ministry of Construction and Housing, IsrSC 59(4), 241 (2004); HCJ 3809/08, The Association of Civil Rights in Israel v. The Israel Police (May 28, 2012); my judgment in LCA 7204/06, Israela Erlich v. Yehoshua Bertel at para. 40 (August 22, 2012.) Review also comparative law – the judgment of the United States Supreme Court, by Justice Roberts (in majority) in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2593-94 (2012)).

Considering these insights and the distress of the Petitioners’ and others like them, the Respondents notified us in an updated notice that on July 21, 2013 the Ministry of Health published a protocol for the “taking  Sperm, Eggs or Fertilized Eggs out of Israel.” Following the protocol a decision was also made by the exceptions committee, which operates under the Eggs Law. The committee approved the taking of eggs out of Israel in order for them to be implanted abroad under certain circumstances. Such approval is permissible under section 22(d) of the Eggs Law. The protocol and the decision by the exceptions committee both mean that it is now permitted to perform the procedure of extracting eggs from the First Petitioner in Israel and later their fertilization, with their implantation in the Second Petitioners’ bodies to be done out of Israel.

The majority Justices are willing to consider this, under the circumstances, a satisfactory solution to this problem. I, with all due respect, think differently for two reasons:

1. Section 22(d) of the Eggs Law stipulates as follows:

“The exceptions committee may approve the taking out of eggs extracted in Israel from a patient’s body for the purposes of their implantation out of Israel, if it satisfied that the eggs were intended to be implanted in her body, and that there is justification to approve the eggs’ implantation out of Israel.” (My emphasis – H.M.)

Therefore, it seems, the requirement that the exceptions committee be satisfied that the eggs be intended to be implanted in the patient’s body, in its plain language, is not met here, and thus referring the matter abroad works primarily to “distance and marginalize”. What is more – moving the solution abroad is more burdensome.

2. Constitutionally, it is neither appropriate nor proportionate to send an Israeli citizen abroad to exercise her constitutional rights. In this context, the Petitioner’s cry (who is also an officer in the IDF) that called upon us from the bottom of her heart not to accept the partial solution proposed to the Petitioners by the Respondents, still rings in my ears, particularly because in my view she is not only correct on an emotional level, but also on a legal level.

What is, then, the right solution? I shall elaborate on this directly below.

6. It appears to me that granting the Petitioners’ wishes could have come to its resolution within the authority of the exceptions committee under section 22(a)(2) of the Eggs Law, which reads as follows:

“The Exceptions Committee may approve the extraction of eggs for implantation, or implantation of eggs when the donor designates in advance the eggs extracted from her body to a particular recipient, when it is satisfied that the following conditions are met, as appropriate to each case:

…(2) In the case of the donor who designates in advance the eggs extracted from her body to a particular recipient who is not her family member – there are religious or social reasons which justify such an egg donation.”

This sub section has none of the limitations of the type included is section 22(d) of the above Eggs Law. Moreover, the interpretation taken by the majority is much less sound. Furthermore, as demonstrated by my colleague Justice E. Rubinstein in paragraph 12 of his opinion – during the discussions of the Knesset’s sub-committee of Labor, Welfare and Health, which considered the Eggs law’s bill before it was prepared for its second and third reading the sub committee’s chair, MK Professor Ariyeh Eldad commented that this section was a good opening for same sex female couples.

In this way it would have been possible therefore to grant the requested by the Petitioners and accept, in this sense, their petition (there still would have been the issue of the Child’s status under section 42 of the Eggs Law, however this issue could be resolved by finding statutory solutions (see and compare with the situation in Britain – section 42-46 of the Human Fertilization and Embryology Act 2008,) or judicial ones (see the majority opinion in HCJ 566/11, Doron Mamat-Magad v. The Ministry of Interior (January 28, 2014.) Additionally, this issue was not included by the Petitioners in their Petition.)

However, since my colleagues do not accept, to my regret, for some reasons that were not expressed, the interpretive approach based on section 22(a)(2) of the Eggs Law in order to resolve the issue – I am also willing to walk down one of the paths proposed by my colleagues to the minority and in this sense will limit myself only to several short comments.

7. As to the proposal raised by my colleague Justice E. Hayut (as to the addition of a catch all section for an exception to the Eggs Law) – this solution, in principle, is acceptable to me as I support the approach that legislation should include authorities that enable solutions in “a special particular case,” or to instruct doing so by way of judicial interpretation. See HCJ 2390/10, Ala Halihal v. The Minister of Interior (May 23, 2010) para. 10 of my judgment; APA 9890/09, Nava v. The Ministry of Interior (July 11, 2013), para. 16(d) of my judgment; LAA 7272/10, Jane Doe v. John Doe (January 7, 2014), section 6 of my judgment.)

Furthermore – differently. The read in remedy also seems fitting to me under the circumstances (compare to my opinion in APA 343/09, Jerusalem Open House for Pride and Tolerance v. The Jerusalem Municipality, September 14, 2010, there in para. 5.)

On the apparent difficulty that views the “catch all exception” section to have been initially proposed in the Knesset, but then rejected – indeed this is possible to overcome in light of the mistaken reasoning which led (as my colleagues’ opinions clarify) to the removal of that section from the agenda.

8.  As for the alternative option, suggested by my colleague Justice (Ret.) E. Arbel, insofar that it is original and creative, which indeed it is – it is also acceptable to me. The reasons for this is that the People’s Health Regulations (In Vitro Fertilization), 5747-1987 were left standing despite the Eggs Law, and thus it is possible that they indeed are supposed to regulate different cases than those covered by the Eggs Law. This solution is not free of flaws either (see regulation 8(b)(1) of these Regulations) however its advantage lies in the possibility that it provides the tools to overcome the provision of section 42 of the Eggs Law.
9. In conclusion – though the path to resolution which we – my colleagues and I – support is different in its reasoning, we all believe that the Petitioners’ Petition must be accepted. This also validates my general approach that when the consideration of basic legal issues – from different perspectives of the relevant statutes – leads, in every path, to a similar conclusion – this is a sign and indication that from a general legal philosophy the outcome is correct (see my opinion in CA 4244/12, Haaretz Newspaper Publication Ltd. v. Major General Efrayim Bracha (February 19, 2014), there in para. 35.)
10. As a result, were the minority opinions heard – the Petitioners would not have to travel beyond the sea to realize their desires.

                                                                  Justice

For all these reasons it was decided on September 1, 2013 to reject the Petition by a majority of opinions by President A. Grunis, Deputy President M. Naor, Justice E. Rubinstein, and Justice S. Joubran, against the dissenting opinions by Justices E. Arbel, E. Hayut and H. Melcer.

There is no order as to costs.

Reasons given today, September 18, 2014.

President                                 Deputy President                                Justice (Ret.)

Justice                                                 Justice                                                 Justice

                                                                        Justice