Contracts

Nahmani v. Nahmani

Case/docket number: 
CFH 2401/95
Date Decided: 
Thursday, September 12, 1996
Decision Type: 
Appellate
Abstract: 

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.

Voting Justices: 
Author
majority opinion
Author
concurrence
Author
concurrence
Author
concurrence
Author
concurrence
Author
concurrence
Author
concurrence
Author
dissent
Author
dissent
Author
dissent
Author
dissent
Full text of the opinion: 

 

 

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.

 
full text (continued): 

Justice E. Goldberg

1.            The process of creating man was, in the past, solely governed by the forces of nature. Conception was the result of intimate acts, which were entirely in the realm of the privacy of the individual. Medical-technological advances have  changed the methods of creation, and  made  inroads into nature‟s sole dominion over the secret of creation. Against this background the dispute between the Nahmani couple has arisen and come knocking at the doors of the court. This dispute does not essentially fall within the framework of an existing legal norm. It cannot be fitted into the legal frameworks of a contract or quasi-contract. It lies entirely in the realm of emotion, morality, sociology and philosophy. This explains the normative void and the inability

 

 

of accepted legal rules to provide a solution to the dispute. But since the case has arrived on the threshold of the court, it cannot avoid deciding it.

2.            In the dispute before us a positive right and a negative right are opposed to one another. Ruth Nahmani (hereafter — Ruth) wishes to exercise her positive right  to be a parent, whereas Daniel Nahmani (hereafter — Daniel) insists on his negative right not to be a parent. The right to be a parent is based on the autonomy of the will that respects, inter alia, the choice of the individual to establish a family unit. The other side of the coin, as stated, is the right not to be a parent, which is also based on the autonomy of the will that respects the desire of the individual to control the course of his life and his commitments.

Both of the aforesaid rights have their source in the right to liberty. As Thomas Hobbes said: „A free man is he that… is not hindered to do what he has a will to‟ (Hobbes, The Leviathan, ch. 21). The scholar Isaiah Berlin discussed the positive meaning of this concept in his essay „Two concepts of liberty‟:

„The “positive” sense of the word “liberty” derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men‟s, acts of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were, from outside‟ (I. Berlin, Two Concepts of Liberty, 1958).

Indeed, there is a strong connection between the right of liberty, and its derivative the autonomy of the will, and human dignity. This was discussed by President Barak in Interpretation in Law, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 426, where he says

„A central component of human dignity is the freedom of will of the individual. Human dignity is expressed in the freedom of choice of the individual and his power to develop his personality and to decide his fate.‟

The right to be a parent and the right not to be a parent therefore derive their existence from the same basic values of liberty and human dignity, which are now protected in the Basic Law: Human Dignity and Liberty.

Even though the basic laws may be used to determine criteria for exercising judicial discretion, which would serve as „a workshop for a new,

 

 

concrete law, according to the changing needs of life‟ (A. Barak, „Judicial Case-law and Social Reality: The Connection with Basic Principles‟, The Sussman Book, Daf-Hen, 1984, 71, 85), this path is, in my opinion, unavailable to us in this case, where two rights of equal value and status compete with one another.

3.            What are the legal tools that a court will use to make a decision in this position of „stalemate‟ between the rights, when the right to be a parent and the right not to be a parent are mutually exclusive, and a clear decision is required in the dispute, in the absence of a compromise path that will bridge between them.

4.            In so far as termination of a pregnancy is concerned, this involves an incursion into the woman‟s body, and her freedom over her body implies a duty to obtain her consent before such an incursion. It is „the basic right of every person to protect his body from an unwanted incursion, not merely because of the physical discomfort, but mainly because of the invasion of his privacy, his unique existence and the foundation of his being‟ (Davidov- Motola, „A Feminist Judgment? A Further Aspect of the Nahmani Case‟, supra, at p. 234). The need for the consent of the woman to terminate the pregnancy, which is derived, as stated, from the value of the woman‟s liberty over her body, gives her a „right of veto‟ over the pregnancy. This conclusion, in deliberations about the termination of pregnancy, makes it unnecessary to decide whether the woman‟s right to be a parent overrides the man‟s right not to be a parent. This is not so in our case, when realizing Ruth‟s right to be a parent does not require an invasive incursion into Daniel‟s body, just as realization of his own right not to be a parent does not require an incursion into Ruth‟s body. It follows that there is no basis for drawing an analogy in our case from the case-law relating to the right of abortion.

5.            Until recently the legislator refrained from regulating the sensitive and complex question of fertilization and surrogacy in legislation. The first direct legislation in this sensitive field has now been introduced in the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law (hereafter — the Law). It should be emphasized that the Law does not apply directly to the case of the Nahmani couple, who did not, from the outset, follow the path that it outlines. Nonetheless, we should consider whether the position adopted by the legislator can serve as a source of inspiration for solving the dispute before us.

The Law focuses mainly on the relationship between prospective parents and a surrogate mother. It  stipulates several conditions for implanting a

 

 

fertilized ovum in the body of a surrogate mother, which include, as stated in section 2(1) of the Law, the need for „a written agreement between a surrogate mother and prospective parents, which has been approved by an approvals committee pursuant to the provisions of this law‟. Section 5(c) of the Law provides that:

„The approvals committee is entitled to reconsider an approval that it gave if a significant change has occurred in the facts, circumstances or conditions that underlay its decision, as long as the fertilized ovum has not been implanted in the surrogate mother in accordance with the surrogacy agreement.‟

As can be seen from the deliberations of the Knesset‟s Welfare Committee (on 9 January 1996), this section was mainly intended for cases where it is discovered, after approval of the agreement, that the surrogate mother has contracted an illness that affects her ability to bring a healthy child into the world. During the deliberation it was said:

„With regard to the question of withdrawing from an agreement before implantation: the authority of the committee is merely to approve an agreement. The committee does not need to approve a withdrawal from, or a breach of, an agreement. An agreement is an agreement like any other agreement… [the] committee is not supposed to give approval for one side to withdraw from the agreement. What we have provided in sub-section (c) refers only to one situation: the committee gave approval and afterwards it was informed that a change occurred which could cast doubt on the approval that it gave. It can be presumed that it gave approval on the basis of the assumption that the surrogate mother was healthy, and afterwards the surrogate mother contracted AIDS or another disease that may affect her ability to bring a healthy child into the world. This is the situation in which the committee will be entitled to reconsider the matter, and, if it sees fit, to cancel the approval that it gave. If, as a result of a dispute between the parties, they decide to cancel the agreement, or one party decides that he no longer wishes it… for this the committee is not needed. It is not a court and it will not adjudicate legal disputes‟ (at page 17).

If a danger arises to the welfare of the unborn child, the tendency to push the „point of no return‟ as far back in time as possible is obvious. On the other hand, there is an obvious fear of establishing the „point of no return‟

 

 

after the implantation of the ovum, when cancelling the approval of the agreement involves intrusive interference in the body of the surrogate mother. The proper balance between the welfare of the child and the liberty of the surrogate mother is what led to establishing the „point of no return‟ at the implantation of the ovum. This point of balance does not necessarily reflect the proper point of when an internal dispute arises between the prospective parents, and the decision then, as stated, is between the right to be a parent which conflicts with the right not to be a parent. The solution to such a dispute cannot be derived from the Law, which refers even a dispute between the prospective parents and the surrogate mother to the court.

6.            The possibility of „involving‟ the fertilized ovum in the dispute in order to decide the matter, namely „that one should not allow the birth of children where there is a dispute‟ (see the Report of the Professional Public Commission for Examining the Issue of In-vitro Fertilization (1994), at page

36) is also, in my opinion, improper.

Certainly, one cannot deny that it is preferable for a child to grow up in a warm and loving home, where the parents behave with emotional and economic responsibility towards him. But can it be said that, where the

„father‟ is uninterested in facing his parental responsibility, destruction of the ovum is preferable to it being allowed to develop into a child? In this regard, the rhetorical questions of Prof. Shifman with regard to the best interests of the child in an one-parent family are relevant, by way of analogy:

„… With artificial insemination we are concerned with planning to bring an unborn child into the world in order to realize peoples‟ expectations of becoming parents. Can it be said categorically that such a child would be better off not being born than being born? Will the child‟s situation necessarily be so wretched, merely because he is born into a single-parent family, that we have a duty ab initio to prevent his being brought into the world?‟ (Shifman, Family Law in Israel, supra, vol. 2, at p. 156).

The answer to the question whether destruction is preferable to existence lies in the expanses of philosophy and the depths of morality, and the court is clearly unable to provide an answer. In this context it has been said that:

„Existing rules of court do not incorporate the hidden world, and we cannot find in them an answer to the existence of the right not  to  be  born  that  the  child  claims.  The  abstract  ethical

 

 

approach concerning the nature of creation and life, which is determined according to the critic‟s outlook on life, is insufficient for the creation of a criterion for the existence of the legal right. The crux of the problem before us concerning the “nature” of non-existence lies entirely in the field of speculation about the secrets of creation and not in the field of practical law…

… Since the theory raised by the child with regard to his right to non-existence does not lie in the field of human criticism, as long as the legislator has not established such a right, even the “reasonable man” (on whom we frequently rely) will not help us, since the secrets of the universe and the mysteries of every living thing are hidden from him also. Therefore we cannot provide an answer as to the existence or non-existence of a right not to exist in rational terms of the “reasonable man”, when we are concerned with a decision in a world of ethics in which the concept of “rationality” has no part‟ (CA 518/82 Zaitsov v. Shaul [15], at pp. 127-128).

7.            The sub-classification of the conflicting rights in our case into rights not to be harmed (negative rights) that „do not impose a duty on another, except for the demand to refrain from violating this freedom (or liberty)‟ (Barak, Interpretation in Law, vol. 1, The General Theory of Interpretation, supra, at p. 362) and positive rights, which „are rights that have a corresponding duty of another (usually the State) to act to protect them…‟ (Barak, ibid., at p. 364), also does not further us in solving the dispute. The question whether the State has a duty to help an individual to realize his desire to be a parent does not arise at all in this case. But whether or not such a duty exists cannot decide the interpersonal dispute between the spouses. Defining the right of the individual as positive vis-à-vis the State cannot, in itself, be of decisive weight in the conflict between the right of that individual and the right of another individual, whereas classifying Ruth‟s right as positive vis-à-vis Daniel‟s right is impossible as long as we have not first decided the question whether the initial agreement of the spouses to begin the in-vitro fertilization procedure also includes the power to continue the procedure until its completion. If we say that the consent of each spouse is required for each stage, then it follows that Daniel should be regarded as enjoying  a  „right  of  veto‟,  and  it  becomes  unnecessary  to  classify  the

 

 

conflicting rights. By contrast, if Daniel‟s consent is not required for implantation of the ova, there is no basis for saying, as we have already explained, that his liberty takes precedence over Ruth‟s liberty.

8.            The Nahmani  couple did  not think of determining expressly what would happen to the ova if their marriage broke down. In so far as Ruth‟s expectations are concerned, it is hard to determine that she actually ruled out the possibility that her right to be a parent would be realized within the framework of a one-parent family, if the marriage should break down. With regard to Daniel‟s expectations, it can be said, on the one hand, that he took part in the in-vitro fertilization process only in order to establish a family home together with Ruth. The threat of childlessness did not hang over his head, and he knew that he could fulfil his aspiration to be a parent even if he separated from her. But on the other hand, is it clear that this would also have been his position had the „officious bystander‟ troubled him at that time to consider the question of the fate of the ova, should he become infertile for any reason and his relationship with Ruth deteriorate? Is it not more reasonable to assume that his answer would be that in such a case the procedure should continue?

The couple‟s silence should be interpreted as a repression of the possibility that the marriage would break down. This pessimistic scenario is contrary to the spirit of union implied by the very decision to travel together along the hazardous road of the in-vitro fertilization procedure. In my opinion, at that time the couple‟s horizon extended only as far as the possibility of joint parenthood. They did not consider the possibility of continuing the procedure and the single parenthood of one of them, should they separate from one other. Attempting to fill this lacuna will not, in my opinion, be successful. It cannot be established that when the ova were fertilized, the couple mutually discounted the possibility of single parenthood, just as it cannot be established that their consent to fertilization of the ovum incorporated consent of both of them to single parenthood.

9.            Application of the rule that prohibits harming someone without his consent is also not without its difficulties. The answer to the question whether a status quo has been adversely affected requires a determination as to what the status quo is. If we say that the status quo is the procedure in its entirety, then Daniel is the one seeking to change the status quo in that he wants to stop the procedure, thereby adversely affecting Ruth‟s position, in that she will lose the experience of parenthood. If we say that the procedure should be divided into stages, then it is Ruth who wishes to change the status

 

 

quo by trying to move on to the next stage of the procedure — the stage of implanting the ova —thereby changing the status quo for Daniel, who will become a father against his will. The answer to the question whether the initial consent includes agreement to the entire procedure cannot be  no merely because moving from one stage to another adversely affects Daniel, when we have already established that refraining from moving from one stage to another adversely affects Ruth. This problem of the scope of the initial consent cannot be solved by an abstract analysis of rights. Such an analysis involves a circular argument, in the sense that classifying Ruth‟s right vis-à-vis Daniel as a „positive‟ right can only be done after determining the scope of the original consent.

10.          We can summarize thus far as follows: we are dealing with a normative lacuna. Resorting to the basic principles of the legal system does not provide a solution, for if we limit ourselves to a preliminary classification of the rights, then we are dealing with an internal conflict between two derivatives of the same right, the right to dignity and liberty. Because the type of basic value being harmed is identical, the scales are balanced. The sub- classification of the conflicting rights as „negative‟ rights and „positive‟ rights also does not help solve the conflict. Defining the right of an individual as positive vis-à-vis the State cannot, in itself, be decisive in a conflict between the right of an individual and the right of another individual. Classifying Ruth‟s right as positive vis-à-vis Daniel‟s right requires a prior determination of the question whether the initial consent to the procedure has the strength to move the process on to its conclusion. If the consent of both spouses is required for each stage of the procedure, then Daniel has a „right of veto‟, and holding Ruth‟s right to be conditional on Daniel‟s consent makes it superfluous to classify the conflicting rights. If Daniel‟s consent to the implantation of the ova is not required, there is no basis for saying that Ruth‟s liberty is inferior to his.

11.          In the absence of any legal norm, which is either a rule or a standard (for the difference between the two, see M. Mautner, „Rules and Standards: Comments on the Jurisprudence of Israel‟s New Civil Code‟, 17 Mishpatim (1988) 321, at p. 325), the court must „formulate its own criterion‟ (see G. Tedeschi, „The Problem of Lacunae and section 46 of the Palestine Order In Council‟, Research in Israeli Law, Newman, 2nd ed., 1959, 132, at p. 180). The court must (unwillingly) carry out a legislative function that does not apply existing legal norms, but creates a norm based on the general principles of the legal system.

 

 

Note that we are not speaking of filling a lacuna in an existing legal norm, which requires the application of the Foundations of Justice Law. Indeed, in my opinion there exists no legislative arrangement that we can use to solve the dispute, and we are certainly not speaking of an incomplete arrangement that the court would be justified in filling. We are dealing with a need for creation ex nihilo — by filling an extra-legislative lacuna through creating a norm which is required not by a defective norm but by a total „legislative silence‟.

12.          Since, in my opinion, we have no „conventional‟ tools to solve the dispute, we must search for an alternative to these, which is founded on a basic value that governs our legal system. A fitting basic value is justice.

Justice is the essence of Israeli law. It is the abstract ideal to which the legal system aspires. It —

„… expresses the ideal arrangement vis-à-vis the law as a system of interpersonal rules. It is the ethical yardstick of the law‟ (I. Englard, Introduction to Jurisprudence, Yahalom, 1991, at p. 42).

Legislation also contains many provisions in which justice has been translated from a supreme principle governing the legal system into a specific legal norm. Thus, for example, the fundamental principles clause enshrined in section 1 of the Basic Law: Human Dignity and Liberty, states that „Basic human rights… will be honoured in the spirit of the principles in the Declaration of the Establishment of the State of Israel‟, according to which the State of Israel is to be founded, inter alia, on the principle of justice.

When deciding a dispute between the citizen and the government, the court is empowered not to grant relief to an injured party even when he has a cause of action, if it thinks it just to do so. In this spirit, section 15(c) of the Basic Law: Administration of Justice states that the Supreme Court, sitting as a high court of justice, „shall hear matters in which it sees a need to grant equitable relief and which are not within the jurisdiction of another court or tribunal‟.

The branches of private law are based on justice. In the law of contracts, justice and fairness play a major part. Section 31 of the Contracts (General Part) Law empowers the court to exempt a party to an illegal contract from the duty of restitution „if it thinks it just to do so‟. Section 14(b) of the Contracts (General Part) Law authorizes the court to void a contract in which there was a mistake unknown to the other party „if it thinks it just to do so‟.

 

 

Section 3(4) of the Contracts (Remedies for Breach of Contract) Law, 5731- 1970, does not allow the remedy of enforcement when „enforcement of the contract is unjust in the circumstances of the case‟. Justice makes its mark also in the other branches of private law. In the law of torts, the contributory payments between joint tortfeasors are determined according to criteria „of justice and equity‟ (section 84 of the Torts Ordinance [New Version]). Justice naturally governs the laws of unjust enrichment. Section 2 of the Unjust Enrichment Law, 5739-1979, states that the court may exempt a beneficiary from restitution if it thinks there are circumstances that „make restitution unjust‟. The principles of justice can also be found in property law. Section 132(a) of the Tenant‟s Protection Law [Consolidated Version], 5732-1972, provides that „notwithstanding the existence of a ground for eviction, the court may refuse to give a judgment ordering eviction if it is persuaded that in the circumstances of the case it would be unjust to give it‟. Section 10 of the Land Law, 5729-1969, and section 10 of the Immovable Property Law, 5731-1971, provide that the court may order the severance of joint ownership of a property notwithstanding that the parties contracted out of the right to sue for severance of the joint ownership, if „it is just in the circumstances of the case‟. Even in the field of family law justice has a place. Section 9 of the Family Law (Maintenance) Amendment Law, 5719-1959, provides that „the court may, if it thinks it just and equitable to do so, exempt someone from an obligation of maintenance…‟.

In the procedural sphere, the legislator instructed the judge sitting on the bench to fill a lacuna in the field of procedure in the way that seems to him just in the circumstances of the case. Section 3 of the Criminal Procedure Law [Consolidated Version], 5742-1982, states that „in any matter of procedure where there is no provision in legislation, the court shall act in a manner it considers best for doing justice‟. In the same vein, see also section 33 of the Labour Court Law, 5729-1969; section 22 of the Administrative Courts Law, 5752-1992; and regulation 524 of the Civil Procedure Regulations, 5744-1984.

In the Foundations of Justice Law, the „principles of freedom, justice, equity and peace of Jewish heritage‟ were determined as supplementary legal sources where there is a lacuna.

This survey does not purport to exhaust all the cases where the aspiration for justice is reflected in Israeli legislation. It merely serves to show that there are cases where the legislator stipulated a just solution to be a goal in itself, wherever he saw justice as a fitting mechanism for a solution, even though

 

 

the court must then interpret the value of justice in accordance with its meaning in that piece of legislation, and in the specific context.

13.          The aspiration for a just solution influences judicial discretion, and it serves as a guide for the judge searching for a way to decide a conflict. It has been said that „the task of translating legislation into an act of justice is entrusted to the judge, and thus he is given the ultimate opportunity of doing justice between the parties‟ (CA 398/65 Rimon v. Trustee in bankruptcy of Shepsals [16], at p. 408). Indeed, this aspiration cannot bring about creation ex nihilo. Where the law, which dictates a certain outcome, departs from justice, the court may not assume a discretion that has not been given to it. But where the judge has been granted discretion, then „the law and justice, whose paths often diverge, meet at the convergence of judicial discretion‟ (Barak, Interpretation in Law, supra, vol. 1, at p. 194). The judge on the bench committed himself to aspire to this convergence when he swore to

„judge justly‟. This was well expressed by President Barak when he said:

„In my opinion, justice has an additional normative force that we can call a “residual” force, which is the following: assuming that in the initial balancing the scales are balanced, and the various considerations, including the considerations of justice, balance once another, then the judge faces a true dilemma. The discretion is his. The different values, including the value of justice, conflict with one another, and are equally balanced. How will the judge exercise his discretion in such a case? He is not entitled to toss a coin, even though by doing so he would realize the value of judicial neutrality and a lack of judicial bias. How shall he solve the problem that confronts him? He must exercise his discretion in a way that will provide the solution he thinks best. But what is this solution?

Different judges may have a different approach in this area. In my opinion, the best solution is the just solution. Indeed, when all criteria have been exhausted and no solution has been found, the judge should aspire to the most just solution‟ (A. Barak, „On Law, Judging and Justice‟, 27 Mishpatim (1996) 1, at p. 7).

14.          It follows that, in the absence of another criterion for solving the dispute, the court has the power, and it is also obliged, to provide the best solution, which is the just solution, not by interpreting this value in specific legislation, but as a value in itself.

 

 

A just legal determination, based on the judge‟s sense of justice, is albeit not a neutral determination. But it is also not arbitrary. Although it is the judge‟s feeling that ultimately tips the scales, nonetheless, before the judge listens to the dictates of the sense of justice, he undergoes a process of reasoning, consciously and subconsciously, in which all the circumstances are considered, and different values are balanced.

15.          When every decision in a dispute between two individuals will harm one of them, the just solution is the solution that is „the lesser of two evils‟, and as has been said in this respect, „the “balance of convenience” of which the courts speak is a balance of justice‟ (CA 214/89 Avneri v. Shapira [17], at

p. 870). Therefore, it is proper to consider whether the harm to Ruth, should she be prohibited from using the ova, is greater than the harm that Daniel will suffer if he becomes a parent against his will, or vice versa.

When examining the harm to Ruth, it should be remembered that the biological aspect of parenthood, namely the transfer of the genetic material from one generation to another, has great importance from an emotional viewpoint. Therefore it is clear why „Ruth insists on her right to be a mother of children who will be her children in the biological sense‟ (Marmor, „The Frozen Embryos of the Nahmani couple: A Response to Haim Gans‟, supra, at pp. 448-449). The individual‟s aspiration to realize biological parenthood emanates from the source of human existence. The parental experience is considered the essence of life, in the sense of „Give me children, else I die‟ (Genesis 30, 1 [65]). This was discussed by Professor Shifman who said:

„Man‟s desire to have children, and in this way to ensure continuity for himself after his death, no less than the hoped for satisfaction from raising children in his lifetime, is  without doubt a basic psychological fact‟ (Shipman, Family Law in Israel, supra, vol. 2, at p. 151).

In this regard, the remarks of Daphna Barak-Erez are also relevant:

„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… It expresses a basic existential need‟ (Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra, at p. 200).

Losing the opportunity of biological parenthood is, in effect, missing out on the opportunity for self-realization in the family sphere.

 

 

We must adopt this premise — namely that the biological aspect of parenthood has great importance — also when examining the harm to Daniel. Coerced biological parenthood, like the deprivation of biological parenthood, involves emotional harm. There is no doubt that Daniel will suffer a feeling of distress from knowing of the existence of a child, whom he does not want, that carries his genetic material. It is therefore clear why Daniel „also insists on his right not to be connected, even if only biologically, with a parenthood that he does not want‟ (Marmor, „The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟, supra, at p. 449).

16.          Indeed, Daniel will suffer more than just emotional harm. The status of parenthood involves many duties, including in the economic sphere. But the practical duties involved in the status of parenthood cannot tip the scales in Daniel‟s favour. Since the couple has separated, Daniel‟s main obligations towards the child who will be born are in the economic sphere. His economic harm resulting from the duty of maintenance that he bears can be mitigated by making the use of the ova conditional upon an undertaking on the part of Ruth to indemnify him, and the date of realizing this undertaking will be subject to the principles developed in case-law relating to divorce agreements (see FH 4/82 Kut v. Kut [18]). In these circumstances, the reversible nature of the economic damage that Daniel will suffer deprives it of decisive force.

17.          Here we come to the hardest question of all, whether Ruth‟s suffering as a childless woman against her will is preferable to Daniel‟s suffering as a parent against his will, when the scales for weighing the force of these emotional injuries have not yet been created. On the altar of justice, we can sacrifice the expectations of whoever was not entitled to rely on the other‟s consent. But justice demands that we do not, retroactively, undermine the position of someone who was entitled to rely on a representation of another.

The reasonableness of Ruth‟s reliance on Daniel‟s consent to begin the procedure jointly must necessarily be considered together with the question of the existence of other possibilities available to her for realizing her desire to be a parent, other than implantation of the fertilized ova. The fact is that at the time the ova were removed, Ruth did not have any reasonable alternative. From a medical viewpoint, it is not possible to freeze an ovum that is not fertilized (see the aforementioned Report of the Professional Public Commission for Examining the Issue of In-vitro Fertilization, at p. 118), and from a legal and emotional viewpoint, Ruth was inhibited, as a married woman, from freezing an ovum fertilized with the sperm of another, especially when her husband was not infertile. The possibility of separating

 

 

from Daniel and fertilizing an ovum with the sperm of another man was also not reasonable. The callousness emanating from this possibility is contrary to the spirit of intimacy implied by the decision to walk together along the hazardous path of the in-vitro fertilization procedure. Moreover, when the dispute broke out and Daniel objected to the implantation of the ova, Ruth was no longer able, from a physiological viewpoint, to undergo another fertilization procedure, since her medical condition resulted in her losing her fertility and her ability to bring children into the world.

In such circumstances, Ruth‟s reliance on Daniel‟s initial consent should be regarded as reasonable. This reasonability of her reliance on the path that she and Daniel chose to pursue require, in this case, the just conclusion that there is no going back, and whoever wishes to make a change is at a disadvantage.

I would therefore grant the petition.

 

Justice Y. Kedmi

I have studied the illuminating opinions of my colleagues, Justice Strasberg-Cohen and Justice Tal, and I support the conclusion reached by Justice Tal. The following, in brief, are the reasons underlying my decision:

1.            Indeed, it is a basic human right — for men and women — to choose whether to be a parent or not; and a mere contractual obligation must give way before this right. Nonetheless, it is not an absolute right, nor even an equal right. When a woman becomes pregnant, her spouse may no longer go back on his choice and force her to undergo an abortion, whereas the woman is entitled to terminate the pregnancy, by virtue of her „prevailing‟ right to the integrity of her body.

2.            The practical question that requires a decision in this case is whether, even in so far as in-vitro fertilization is concerned, the „point of no return‟ from the decision to realize the right to parenthood is the time of fertilization (as the equivalent of the time of conception), or whether this point is pushed back over time to the moment when the fertilized ovum is implanted in the body of the surrogate mother (so that only from this stage onwards, the woman‟s right to the integrity of her body prevails, and the right not to be a parent yields to it).

3.            (a) Were we speaking of such circumstances, of a conflict between the right to parenthood (or not to be a parent) and the right to the integrity of the

 

 

body of the „pregnant‟ woman only, then the answer required under the current legal position to the aforesaid practical question would be yes. In other words, as long as the fertilized ovum has not been implanted in the body of the surrogate mother, the right not to be a parent prevails, and each of the spouses is entitled to turn the clock back and demand the destruction of the fertilized ovum.

(b)          However, in my opinion, one should not, in this context, ignore the fact that „fertilization of the ovum‟ is not merely one of the stages in the development of the embryo, but it is the act that „creates‟ it and turns the ovum and the sperm into a new „entity‟, consisting of the two entities that created it and that can no longer be separated. Just as the sperm and the ovum have been assimilated into one other and become one, so the rights of the man and his spouse — the „owners‟ of the ovum and the sperm — have assimilated into one another and become a „joint right‟ in so far as the fate of the fertilized ovum is concerned. This „joint right‟ is identical in its nature and status to the parental right that each of its creators had, with one difference: each of the owners of the right has a right of veto over a decision by the other, so that only a „joint decision‟ can be carried out and enforced.

(c)           In order to remove doubt, I should clarify:

(1)          Before the date of the actual fertilization, each of the spouses 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 made between them in this regard. This is the position only until fertilization; this is so because the fertilization changes the position, and creates new circumstances that do not allow „going back‟ and returning to the original position. Until fertilization, each of the spouses can be given back what is „his‟: the man can be given back his sperm and the woman can be given back her ovum. But after fertilization, restitution is impossible, as this involves an injury to the right of the other over his share.

(2)          After the fertilization, the man and the woman continue to control jointly — and only jointly — the fate of the fertilized ovum, until it is implanted in the body of the surrogate mother; on implantation, the surrogate mother acquires the basic right to the integrity of her body, as if she had

„conceived‟ naturally, and her right takes precedence over the joint right of the couple to the fertilized ovum.

(3)          Fertilization of an ovum — whether inside or outside the body of a woman — amounts to a „fait accompli‟ from which there is no return, if only

 

Justice Y. Kedmi

 

for the simple reason that the original position can no longer be restored and what the man and woman concerned invested of themselves in the „new entity‟ — the fertilized ovum — cannot be returned. It is true that we can turn the clock back by destroying the „fertilized ovum‟. But since it is no longer possible to separate the sperm from the ovum, the spouse wishing to withdraw and to destroy his „contribution‟ to the fertilized ovum does not have a right to destroy also the „contribution‟ of the other. Destruction of the fertilized ovum requires the consent of both spouses, and each of them has a right of veto over the other‟s decision.

In these circumstances, a spouse‟s right to change his mind and „not to be a parent‟ is, after fertilization, opposed by the „strengthened‟ right of the other spouse to complete the procedure of bringing the child into the world and

„becoming a parent‟. The act of fertilization sets the „right of changing one‟s mind‟ against the „right to complete the procedure‟; in my opinion, in view of the new situation that has been created, the „right of changing one‟s mind‟ is of lesser force than the „right to complete the procedure‟ that has just been created.

The new reality created by fertilization of the ovum therefore changes the balance of rights: the right „not to be a parent‟, which was weakened by the fertilization agreement, is now opposed by the right „to be a parent‟, which has been strengthened by the right „to complete the procedure‟ created by the fertilization.

4.            (a) This is similar (but not identical, of course) to two people who agreed to create a work of art together, which requires „firing‟ in a kiln to be preserved; after the work has been completed and all that is left is to put it in the kiln, one of the two changes his mind and wants to prevent his companion from putting the work in the kiln, thereby causing it to be destroyed. According to my opinion, it is inconceivable that after the joint work has been completed, one of the partners will be entitled to destroy it against the wishes of the other partner who wants to complete the creation process. It may be that each of the partners will retain a right to change his mind as long as the work has not been completed. But when the work has been completed, each of the partners has an identical rights with regard to its „fate‟; and the right of the person wishing to preserve it overrides the right of the one who wants to destroy it.

(b) Bringing the work of art to the stage of processing in the kiln is equivalent, if we like, to the fertilization of the ovum, which is the first and decisive stage in the development of the child; just as the right of the partner

 

 

wishing to complete the „creation‟ of the work of art overrides the other‟s right to destroy it, so too 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.

 

Justice Y. Türkel

1.            In this difficult case, I choose life; the life — in the metaphorical sense — of Ruth Nahmani, and the „life‟ — or the potential for life — of the fertilized ova.

2.            When I considered the matter, I had before me the opinions of my colleagues, Justice Goldberg, Justice Kedmi, Justice Strasberg-Cohen, Justice Tal and Justice Dorner, who considered every aspect and facet of the subject under discussion so well that no aspect was left for me to elucidate or illuminate. I would add, therefore, but a small embellishment of my own, a few of the reasons for my decision.

3.            Elsewhere I have said:

„The enormous progress that has occurred in our times in all the fields of science and technology (and mainly the advances in medicine and the development of medical technology) have created problems that were unknown to us … and have made problems that we did know more difficult. The classic story of those two persons walking in the desert where only one of them has a flask of water — a flask capable of keeping only one of them alive — has changed from a theoretical Talmudic proposition into a very painful and pressing reality, and the question it raises has become a relevant issue demanding a solution. This progress has erased the clear boundaries and blurred the well-used paths trodden by the scientist, the doctor and the jurist, and defined areas have become unbounded and awesome expanses. Tension, and maybe even a rift, has been created between the achievements of science and medicine and the values that have been developed over the course of human history‟ („Tikkun Halev‟, 40 Hapraklit (1992), 34).

In these unbounded and awesome expanses, the law has no power to set our course. Like my colleague, Justice Goldberg, I too believe that  the dispute before us —

 

 

„… does not essentially fall within the framework of an existing legal norm. It cannot be fitted into the legal frameworks of a contract or quasi-contract. It lies entirely in the realm of emotion, morality, sociology and philosophy. This explains the normative void and the inability of accepted legal rules to provide a solution to the dispute.‟

The answer will be found, therefore, in the inner world of values of each of us. I would even not hesitate to say that it is permitted to be found in the wealth of emotions in the heart of each of us.

The main question to be decided in this dispute is which of the rights is preferable: the right to be a parent or the right not to be a parent, or, if you wish, as my colleague Justice Strasberg-Cohen further clarified the question:

„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?‟

4.            The majority opinion in the appeal was, in essence, that recognizing the autonomous will of the individual requires us to prefer the right of the spouse who does not wish to be a parent. I disagree with this. In my opinion, once the act of in-vitro fertilization has occurred, the positive right to be a parent prevails, as a rule, over the negative right not to be a parent. I will explain my main reasons.

The modern social and legal view recognizes the autonomous will of the individual. From this are derived the prima facie conflicting rights of being a parent and not being a parent (see, in this regard, the interesting analyses of the issue in the articles of Gans, „The Frozen Embryos of the Nahmani Couple‟, supra; Marmor, „The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟, supra; Gans, „The Frozen Embryos of the Nahmani Couple: a Reply to Andrei Marmor‟, supra; Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra; Davidov-Motola, „A Feminist Judgment? A Further Aspect of the Nahmani Case‟, supra, cited in my colleagues‟ opinions). Indeed, according to the remarks of Yosef Raz, cited in the articles of Prof. Gans and Dr Marmor: „An autonomous person is a person who writes the story of his life on his own‟. However, to use this analogy, is there really symmetry between the rights of each of the spouses to write the story of his life on his own?

In my view, there is no symmetry between the rights, despite the „external‟ similarity between them, and the right to be a parent should not be viewed

 

 

simply as a derivative of the autonomy of the will, a counterpart of the right not to be a parent. However, even if we view the two rights as derivatives in this way, they are not of equal value and status, as if existence and destruction were equal to each other and as if they were the symbols 1 and 0 in the binary code of a computer (I accept the remarks made by Dr Barak- Erez in this respect, in her article „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra, that were cited in the opinion of Justice Tal).

5.            It seems to me that no one would disagree that the right to life is a basic right that has been sanctified in Jewish history and the history of mankind in general:

„Judaism has always exalted and glorified the enormous value of human life. Jewish law is not a philosophical system of opinions and beliefs but a law of life — of life and for the sake of life‟ (in the words of the honourable Justice Silberg in Zim Israeli Shipping Co. Ltd v. Maziar [13], at p. 1333 {132}).

This has been the case since antiquity.

Alongside the right to life, as understood in Jewish sources, additional rights were created that were deemed equal to it, and without which human life is meaningless. This we can learn, for example, from the law of the person who kills negligently, who is condemned to flee to one of the cities of refuge „that he may live‟ (Deuteronomy 4, 42; 19, 2-5 [64]), and if he is a student then „his rabbi is exiled with him‟ and if he is a rabbi then „his school is exiled with him‟. The reason for this is: „that the Bible says “and he shall live” — do for him whatever is necessary so that he may live, and the life of those who have wisdom and those who seek it without the study of the Torah is considered as death‟ (Babylonian Talmud, Tractate Makkot, 10a [77]; Maimonides, Mishneh Torah, Hilechot Rotzeah uShemirat Nefesh (Laws of Homicide and Preservation of Life), 7, 1 [78]). Even the right to be a parent should be regarded in this way. Alongside the right to life — which is the right to a full and meaningful life — or as a part of it, the right to be a parent is also worthy of recognition as an independent basic human right and not merely as a derivative of the autonomy of the will.

The cry of our ancestress Rachel, „Give me children, else I die‟, (Genesis 30, 1 [65]), mentioned by my colleague Justice Tal in his opinion, the silent cry of Hannah „speaking in her heart, only her lips moved, but her voice was not heard‟ (I Samuel 1, 13 [79]) and praying „for this child‟ (I Samuel 1, 27 [79]) and countless other cases in our literature and that of other nations are a

 

 

striking expression of the force of the yearning for a child, which is unrivalled in its intensity. This yearning encompasses man‟s will to continue, through his descendants, the physical and spiritual existence of himself, his family and also his people. It reflects his aspiration to realize himself and even to fulfil his dreams that have not yet been realized. It contains his love for his descendants, those who have been born and those as yet unborn; a love of „would that I had died in your stead‟ (II Samuel 19, 1), which overrides a person‟s desire for his own life, and also a yearning that holds out hope for comfort and consolation in his loneliness, old age and on his death bed. It has been said that „When your parent dies, you have lost your past… When your child dies, you have lost your future‟ (Dr Elliot Luby, quoted in

H. S. Shiff, The Bereaved Parent, 1978). The child is the future and his existence gives the lives of most people special meaning, and perhaps their main meaning.

In my view, the ethical weight of this right is immeasurably greater than the weight of the right not to be a parent, which is the right not to be burdened with the emotional, moral and economic burdens that parenthood imposes. Doing „ethical justice‟ (HCJ 200/83 Wathad v. Minister of Finance [19], at p. 121) compels us to prefer the former right to the latter.

6.            However, even if we regard the right not to be a parent as equal to the right to be a parent, there is another fact that tips the scales in favour of the latter right: the life potential of the fertilized ova. Here I would like to emphasize that I do not intend to adopt any position on the difficult philosophical questions: when does life begin? When does a person become entitled to a moral status? From what moment in his development does his life become sacred and protected as a natural right? The biological sense as contrasted with the moral sense of human existence; or to express an opinion about the different approaches on these issues, including the  legal conclusions that can be derived therefrom (see in this regard the lectures of Prof. D. Hed, Medical Ethics, in the chapter „Embryos as Humans‟, Ministry of Defence, 1990, at p. 51 et seq.). These and other associated questions, such as the right of abortion, in the context of this case have been discussed by Prof. Gans, „The Frozen Embryos of the Nahmani Couple‟, 18 Tel-Aviv Uni.

L. Rev., 1994, at p. 86 and by Dr Marmor, „The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟, 19 Tel-Aviv Uni. L. Rev., 1995, at p. 437, where ultimately they reached different conclusions.

As stated, I do not intend to adopt a position on the different approaches. I also do not know whether it is at all possible to ascribe to the fertilized ova

 

 

an interest to be born, which merits moral recognition, and whether it prevails over the interest of Daniel Nahmani. However my moral sense leads me to the conclusion that the very existence of this life potential, whatever its weight, tips the scales in Ruth Nahmani‟s favour.

7.            I intended to be brief and I fear that I have overstepped the mark. After writing my opinion, I saw the opinions of my colleagues Justices Bach, Or, Mazza and Zamir, as well as additions and corrections to the opinions written before my opinion. I will also add another small embellishment to some of their remarks.

8.            Justice Zamir distinguishes between law and justice:

„My Maker is the law… my inclination is justice.‟

He also says that „it happens to a judge that the law and justice struggle within him, each pulling in different directions, and he cannot reconcile one with the other‟ (paragraph 1 of his opinion). According to him, it is possible to distinguish between the two and thereby also to find the path that should be followed:

„The court must seek its path in order to reach this norm… Jurisprudence guides it on its way and gives it tools in order to determine the law…

… From a practical viewpoint, and maybe even from a theoretical viewpoint, it is inconceivable that the court will not find a legal norm somewhere along this path. In any case, the court is not entitled to say, before it has traversed the whole length of this path, that there is no legal norm in the matter under consideration, and therefore it is entitled to decide that matter according to justice‟ (paragraph 4 of his opinion).

Justice Or made similar remarks in paragraph 13 of his opinion:

„It [the court] must ascertain the law and decide accordingly… When I reached the conclusion that there is a legal solution to this problem, as I have sought to clarify above, this solution should apply in our case, even if its result is inconsistent with Ruth‟s expectations, and the situation in which she finds herself arouses sympathy.‟

In my opinion, in a matter as difficult and complex as the one before us, which involves and combines moral, social, philosophical and legal questions that cannot be separated from one another and that raise strong emotions, it is

 

 

impossible to distinguish between the dictates of the „law‟ and the „justice‟ of the judge. The one is bound up in the other. The one stems from the other. Their existence is interconnected, like fire in a coal.

It should also be said that some believe that a decision according to the

„law‟ is an „objective‟ decision, that should be discovered and revealed in the way outlined by jurisprudence. By contrast, a decision according to „justice‟, as described by Justice Zamir, is like a decision of a person „searching for the proper path, wandering…‟ — it is analogous to a subjective decision — each person according to the spirit within him. In my opinion, even a decision according to the „law‟, in the case before us, is essentially a subjective-value decision, each judge according to the tune played on the harp hanging above his window (see: „a harp was suspended above David‟s bed, and when midnight arrived, a north wind came and blew on it, and it played on its own‟, Babylonian Talmud, Tractate Berachot, 3b [71]). Objectivity, in a case like ours, as the historian Peter Novick said in his book That Noble Dream: The Objectivity Question & the American Historical Profession, Cambridge, 1993), is a myth and nothing more.

9.            At the end of his decision, Justice Zamir candidly says the following:

„In this case, I have not tried to take a shortcut. I have followed the main road, although it was arduous, and have reached this conclusion: between Ruth and Daniel, the law is on Daniel‟s side. I suppose that another path could have been chosen among the paths of the law, and that perhaps a different result could have been reached by that path. However, the important point in my opinion is that the court must follow one of the paths of the law. I concede that had I seen that the path was leading me to a result of injustice, I would have stopped along the way and sought out another path, from among the abundance of legal rules, that might lead me to a just result. Moreover, even at the end of the path I am still ready and prepared to look and see whether I have reached an unjust result. For if so, I am prepared to retrace my steps and start the journey over again in an attempt to reach a more just result. But have I really, in the result that I have reached, not dispensed just law?‟

In a similar vein, Justice Tal also said in the appeal that is the subject of this further hearing:

 

 

„But there is not always only one legal solution. Sometimes different potential solutions compete with one another. This is particularly the case with a painful human problem like the one before us. And where there is such a competition, we should, in my opinion, prefer the solution that appears to be more just.‟

See also paragraphs 3 and 4 of the opinion of Justice Bach; paragraphs 11 and 12 of the opinion of Justice Goldberg; paragraph 21 of the opinion of Justice Mazza; paragraph 6 of the opinion of Justice Dorner.

After all this, I wonder what is the point in trying to weigh the competing values in the scales of the law, or in trying to follow „one of the paths of the law‟, when the weight of the values changes according to the person applying the law, when it is possible to choose between several paths and when one path may even lead to different results. Even in the opinions of those of my colleagues who are of my opinion, more than one „legal path‟ is presented whereby  one  may  reach  the  result  that  they  reached,  which  is  no  less

„legalistic‟ than the paths followed by those who disagree with them. If this is the case, what did those who followed this path achieve thereby?

10.          Moreover, if there is indeed more than one „legal path‟, how does one choose between the different paths and the different destinations to which each path leads? Is this choice also dictated by „the law‟? In complex issues, like the one before us, there is no legal geometry that necessitates unequivocal results. Unlike my colleagues who think this, I cannot point to one solution, or to a „more correct‟ solution, that can be applied in the case before us. The opinions before us illustrate well how different values can be put in place of each variable in the chosen formula. Instead of the findings on which judges espousing one  viewpoint rely, one  can reach the  opposite findings. Instead of the finding that there is no agreement between the parties, one can reach the opposite finding. Instead of the rule that contracts should be honoured, one can rely on the rule in section 30 of the Contracts (General Part) Law, according to which there are contracts that are void because they are contrary to public policy. Instead of the balance between (positive and negative) liberties, a balance can be made between (general and specific) rights. Legal geometry allows both the one and the other. There is no single solution, no single path and no single „law‟ (see M. Mautner, The Decline of Formalism and the Rise of Values in Israeli Law, Ma‟agalei Da‟at, 1993, at pp. 13-23; G. L. Coleman and B. Leiter, „Determinacy, Objectivity and Authority‟, 18 Iyunei Mishpat 1994, 309; R. M. Cover, Justice Accused, New Haven, 1975). In such a chaotic legal world, if we may call it that, the judge

 

 

needs an external, extra-legal norm — call it what you will — in order to choose between the range of solutions that „the law‟ allows. If so, it would appear that in resorting directly to „justice‟ no greater „shortcut‟ was made that the one taken by the minority-opinion judges in this further hearing when they chose, for example, the legal rule that „where there is no representation, there is no argument of estoppel‟ (paragraph 16 of the opinion by Justice Zamir).

This is what we have been saying. When there is no legal determinism (as the scholar Cover calls it in Justice Accused) with regard to the case, requiring one outcome, there is, in my opinion, no reason to try to follow ab initio the „path of law”, which has no advantage over the „path of justice‟.

11.          Furthermore, a solution that depends upon an external authority that is

„forced‟ on the judge (see the analysis of „the can not argument‟ in Cover‟s book Justice Accused) is a tempting solution, but that is not the position here. The case before us is one of those difficult cases where the judge alone must bear, on his own shoulders, full personal responsibility for his decision, without relying on the support of another authority, because of the absence of any norm that regulates the issue (in this regard, see also R. W. Gordon,

„Critical Legal Histories‟, 36 Stan. L. Rev. (1984) 57).

I have no hesitation in saying that the result I have reached is not merely the result of legal analysis but also of intuition and internal feeling (see my article, „Tikkun Halev‟, 40 Hapraklit (1992), 34, at p. 41). I think that in a special case like the one under discussion there is nothing wrong in this. As President A. Barak wrote in his book Judicial Discretion, Papyrus, 1987, at p. 197:

„Indeed, intuition plays a role in judicial discretion. The judge is a human creature, and intuition plays an important role in the activity of every person.‟

Ultimately, in a case such as this, every path towards a solution passes through an intersection of value judgments, and it makes no difference whether we call it the path of the law, or the path of justice. In HCJ 4712/96 Meretz Democratic Israel Party v. Jerusalem District Commissioner of Police [20], I said, at p. 835:

„Not every dispute, even if it is justiciable, has a legal solution; and not every legal solution, even if there is one, is the true solution of every dispute.‟

 

 

The case before us is an example of a justiciable dispute, which the court is obliged to decide, but which has no „pure‟ legal solution, and it is doubtful whether it has a true solution.

12.          I will permit myself to quote additional remarks that I said elsewhere:

„Like the prophet, the judge seeks to find a path among all these, for the public and for himself. He enters the hidden parts of the orchard, with a torch in his hand — his small torch — and all its paths  are  hazardous,  deep  abysses   and   tall   mountains (C. N. Bialik, „He looked and was injured‟).

What is justice, what is equity, what is liberty, what criteria will he adopt to measure these? When will he wield the iron sword of justice and when he act gently with the full measure of compassion?… When will he apply the standard of truth? And when will he apply the standard of stability?

Between all of these, as between poles of many magnets, the judge tries to find his way. In his hand he holds a measure of law, with innumerable half-measures. In every case he judges himself, in every case, consciously and unconsciously, he decides the law and the characteristics of the law, both in his image and likeness, and in the image and likeness to which he aspires…‟ (Y. Türkel, „Humility, Awe and Love‟, 23 The Judicial Authority — Israeli Judges Circular (5756), 12).

We carry a heavy burden of responsibility on our shoulders. The light that guides us is neither the light of the sun nor the light of the stars, which are the property of all. It is merely the light of the small torch in the hand of each one of us, lighting up the way.

13.          I began my remarks by saying that I choose life; I intended thereby to hint also at something else. According to my approach, the justice done and radiated by the court must be human justice, which is not only the result of logical analysis, but which must also flow from the depths of the heart. A decision in favour of Ruth Nahmani is, in my opinion, such a decision. Indeed, the human approach was also in the minds of those holding the majority opinion in the appeal, who did not ignore the yearning of Ruth Nahmani for motherhood, but nonetheless they reached a conclusion different from mine. These matters follow after the heart, and my heart has led me to the conclusion that I have reached. For these reasons, and for some of the

 

 

reasons of my colleagues, Justice Bach, Justice Goldberg, Justice Mazza, Justice Kedmi, Justice Tal and Justice Dorner, I will join myself with them.

In my opinion, the petition should be granted.

 

Justice G. Bach

1.            After studying the judgment of this court in CA 5587/93,* the subject of this further hearing,  the arguments of the parties, the opinion of my esteemed colleague, Justice Strasberg-Cohen, which supports the majority opinion in the aforementioned judgment, namely the position of the respondent, Mr Daniel Nahmani, as well as the opinions of my esteemed colleagues, Justices Tal, Kedmi, Goldberg, Dorner and Türkel, who propose that we grant the application of Mrs Ruth Nahmani to reverse the original judgment and to accept the dissenting opinion in the original judgment, I have reached the opinion that I must join with the opinions of my five colleagues and support Ruth‟s position with regard to the problem that we must decide.

2.            This is not a conclusion that I have reached lightly. As can be seen from the opinions of my colleagues, who also had difficulty in deciding the issue under discussion, I too have experienced many serious reservations in this matter.

We have here a situation in which not only can we understand the feelings of each of the litigants, but each of them is also entitled to a large measure of sympathy.

Sympathy for the situation in which Ruth finds herself stands out in the opinion of all the judges. Even my esteemed colleague, Justice Strasberg- Cohen, emphasizes this, and she also agrees with the assessment that the emotional suffering caused to Ruth as a result of denying the right of parenthood exceeds that which will be caused to Daniel if the parenthood will nonetheless be realized.

But even the dilemma in which Daniel finds himself is deserving of understanding and empathy. It is hard to find fault with him when he is not interested in having a child jointly with a woman after their family unit has split, and he has since begun a relationship with another partner and intends to develop a family life with her and with their children only. Even if Daniel

 

 

 

*             IsrSC 49(1) 485; [1995-6] IsrLR 1.

 

 

does not emphasize the economic factor in raising the child, this factor nonetheless exists. The child‟s right to economic support will not be prejudiced even as a result of Ruth‟s promise that she, for her part, will not make any financial claims. But the emphasis is placed without doubt on the emotional, psychological and family factor, and we can understand Daniel‟s objection to the creation of the additional dependence that is expected if a child is indeed born from these parents.

For this reason, I have difficulty in agreeing with that part of the reasoning of my esteemed colleague, Justice Kedmi, in which he compares the position of the litigants in our case to a case in which two people have agreed „to create a work of art together, which requires “firing” in a kiln to be preserved; after the work has been completed and all that is left is to put it in the kiln, one of the two changes his mind and wants to prevent his companion from putting the work in the kiln, thereby causing it to be destroyed‟. In my opinion the two cases are not similar. One cannot compare the preservation of a work of art, whatever the value and reputation involved in its ownership may be, with the change of status involved in parenthood, and with the emotional baggage and material and moral obligations that arise when a person becomes a parent.

In other words: in my opinion, I cannot decide this appeal because of a clear disapproval of the behaviour of one of the parties to the dispute.

3.            I also believe that a solution will not be found to the problem that we are considering by relying on specific legislation, or the interpretation of such legislation. The Surrogacy Agreements (Approval of Agreement and Status of the Child) Law is albeit relevant to the case, but it gives no real answer to the difficulty before us. Admittedly section 5(c) of that law does stipulate that the approvals committee may reconsider an approval that it gave „… as long as the ovum has not been implanted‟, but I share the view that this provision refers mainly to the relationship between the prospective parents and the surrogate mother, and does not determine the period in which one of the prospective parents still has a „right of veto‟ over completion of the parenthood procedure.

A study of the laws of contract also cannot help to provide a proper solution. We are not dealing here with an ordinary contract that can be enforced, or with a contract where an attempt to enforce it is doomed to failure.

 

 

But these factors are insufficient to exempt us from the duty of deciding this difficult question.

4.            Here I agree with the opinion of my colleagues, who believe that in the situation before us, where there is no express statute that can 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. I expressed my view as to finding a just solution in the absence of legislation that dictates an express solution, in my opinion in CA 499/81 Odeh v. Haduri [21], at pp. 739-740.  My opinion  in that judgment  was admittedly in the minority, but my remarks regarding the issue of considerations of justice remain unchanged. I wrote there, inter alia:

„It is clear to us all that the application of the provisions of statute to the specific facts of a particular case does not always lead to a result that satisfies our sense of justice. There are many cases — some would say too many — in which the court is compelled by statute or by case-law, established in authorities that bind it, to make decisions whose outcome in practice conflicts with the rules of logic and reasonableness and is outrageous from the viewpoint of the sense of justice that beats in the heart of the judge.

This is mainly the result of the fact that even the most talented legislator does not foresee all the situations that may arise; life is more diverse than even the richest imagination of the parliamentary draftsman. And as for the judge, he is unable to depart from the clear language of the statute or from sacred case- law rules, lest he cause chaos and uncertainty with regard to the legal position on a specific issue, and thereby public crisis, which is worse even than the injustice caused to one of the parties in a particular case.

But awareness of the fact that such situations cannot entirely be prevented does not need to lead us to the conclusion that we must resign ourselves to this phenomenon, and that we are exempt from making maximum efforts to minimize the cases in which such a conflict arises between application of the statute and the requirements of justice.‟

And further on, at p. 740:

 

 

„Lord Denning, in his book The Road To Justice, London, 1955, discussed the approach of many jurists, who make a clear distinction between the law and its principles and the demands of justice, and who believe that the legal system should engage in interpreting the existing law only, and not look for ways to make it more just. Lord Denning writes, on p. 2:

“Lawyers with this cast of thought draw a clear and absolute line between law and morals, or what is nearly the  same  thing, between law  and justice. Judges and advocates are, to their minds, not concerned with the morality or justice of the law but only with the interpretation of it and its enforcement…

This is a great mistake. It overlooks the reason why people obey the law”.‟

Justice Strasberg-Cohen doubts the effectiveness of this test as a decisive factor. She points to the difficulty in determining what is the just solution and what is the unjust path. What seems just in the eyes of one observer may appear an outrageous injustice in the eyes of another.

This difficulty exists, but it is not the only one confronting the judge. When a judge must decide the question what is reasonable behaviour or reasonable care, or how the reasonable person would react in a given situation, these questions may have different and conflicting answers, and such are even given by different judges. Therefore on these issues there are majority and minority opinions, and sometimes the decisions of judges are reversed by higher courts. None of this prevents the court from deciding such questions. The judge must decide in accordance with his logic, life experience and conscience, and where there are differences of opinion, as there are in this case, the majority opinion is decisive.

As to the legitimacy of considerations of justice, let it be said that this factor constitutes an element in many statutes, which were cited in the opinion of my esteemed colleague, Justice Goldberg, such as section 31 of the Contracts (General Part) Law, which empowers the court to exempt a party to an illegal contract from the duty of restitution „if it thinks it just to do so‟, or section 3(4) of the Contracts (Remedies for Breach of Contract) Law, which allows non-enforcement of a contract when „enforcement of the contract is unjust in the circumstances of the case‟, or section 132(a) of the

 

 

Tenant‟s  Protection  Law  [Consolidated  Version],  according  to  which,

„notwithstanding the existence of a ground for eviction, the court may refuse to give a judgment requiring eviction if it is persuaded that in the circumstances of the case it would not be just to give it‟.

First and foremost in this context we should mention section 15(c) of the Basic Law: Administration of Justice, according to which the Supreme Court, when sitting as the High Court of Justice, shall „hear cases in which it thinks it necessary to grant relief for the sake of justice…‟

In each of those cases, there are differences of opinion on the questions whether justice requires or justifies the intervention of the court, and on the side of which party justice lies. But this is insufficient to prevent us from stating our position on the subject, even if the matter often involves serious reservations.

This consideration  has  therefore been, in this unique case, a guiding principle for me.

5.            I have already said that I feel a large degree of sympathy for the two adversaries in this tragic dispute. But ultimately, when I consider the facts of this special case as a whole and I try to weigh them in the scales of justice, I feel, like my five colleagues mentioned above, that Ruth‟s right is weightier and will tip the scales in her favour.

I reach this conclusion on the basis of the cumulative weight of the following considerations and facts:

(a)          Not only did Ruth and Daniel agree to bring a child into the world by this method of fertilizing the ova and availing themselves of a surrogate mother, but they went to the extent of realizing this plan. Daniel contributed his sperm and caused the fertilization of the ova with full consent.

(b)          The procedure adopted involved serious physical suffering for Ruth. Because of her state of health, this even involved a risk to her life.

(c)           Originally, Ruth could have achieved the same result with the sperm of another man, but she preferred the partnership with Daniel for obvious reasons, by relying on his full consent to the joint plan.

(d)          Ruth is no longer capable of repeating this attempt, because of her age and her state of health. Consequently, this is her only and last chance for her to realize her brave aspiration of parenthood.

(e)          By contrast, Daniel, who has become a parent, can experience this wonderful experience in the future.

 

 

(f)           Were we to encounter the opposite situation, i.e., a situation where the man was incapable of fathering children, and his only chance to become a parent would be by implanting the ovum of his spouse, fertilized by him in her body, in a surrogate mother, then I think it would be right to reach the same conclusion, whereby the woman who provided the ovum should not be allowed to oppose the completion of the process.

(g)          It should be noted that, in view of the need to consider all the relevant facts as a whole, my conclusion in this appeal might have been different, had it transpired, for example, that Daniel had found out that it was intended to implant the fertilized ovum in the body of a surrogate mother suffering from a terrible disease, or had it suddenly been discovered that because of the rare blood types of Daniel and Ruth, there existed a danger, from a genetic viewpoint, to the health or physical integrity of the foetus. But in the absence of such exceptional circumstances, the requirements of justice demand that Daniel should not be allowed to frustrate the completion of the procedure under discussion, merely for the reason that, in the meantime, there has been a change in his desire of being a father.

(h)          The fact that, in certain circumstances, we recognize the right of a woman to terminate her pregnancy by means of an abortion, and that the man cannot compel her to continue the course of the pregnancy or to terminate it, makes no contribution towards solving the present problem. The decisive factor with regard to the question of abortions concerns the fact that the embryo is a part of the mother‟s body, and therefore the mother has control over the embryo‟s fate.

(i)            My esteemed colleagues have extensively discussed the right and liberty of every person to achieve parenthood, and about the corresponding right and liberty of a person not to become a parent against his will.

My esteemed colleague, Justice Strasberg-Cohen, writes:

„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 [i.e., the freedom of someone who is not prepared to undertake parenthood] and deals it a mortal blow‟ (parentheses supplied).

This might have been the position had the intention been to impose an obligation on the respondent to further the realization of parenthood. But no such demand is currently being made of Daniel. The active contribution required of him in this matter has already been performed by him, of his own

 

 

free will, in the past, before there was a change in his position. Today, no-one wishes to impose on him an obligation to do anything, and he is merely denied the right to frustrate Ruth‟s ability to make use of her ova, which were fertilized previously by the respondent‟s sperm with his full consent.

Justice Strasberg-Cohen does not agree with this approach. In her opinion, Ruth is demanding of Daniel acts that are of significance. My colleague says as follows:

„Is it really the case that Ruth is making no demands of Daniel? 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.‟

In so far as these remarks indicate the serious dilemma in which Daniel Nahmani currently finds himself, I can only agree with them, and I have emphasized this in my remarks above. But this cannot obscure the practical and basic difference between imposing a duty on someone to perform an active deed to further parenthood, against his will, and not recognizing his right to do something that is intended to prevent his spouse from completing her realization of parenthood.

In other words: were the court now to be asked to order the respondent to cooperate actively with the continuation of the fertilization procedure, by contributing sperm or by participating in any medical tests or treatments, or by making payments to a surrogate mother or to other parties for procedures that have not yet been carried out, then there would be a basis to  the argument that making such an order would infringe upon a protected liberty of the respondent. But this is not the position in our case. Daniel is not currently being asked by Ruth to do anything, but he is seeking to prevent the hospital, by means of an active instruction on his part, from delivering the fertilized ova to the applicant, and he is seeking in this way to frustrate the

 

 

realization of the parenthood that was planned in the past by the two spouses jointly.

I have, in the meantime, had the opportunity of reading also the opinion of my esteemed colleague, Justice Zamir. With the intention of showing that, even after the husband consented to the fertilization of the ovum and the completion of the acts required for this end, of his own free will, the husband is still required to perform a positive act with regard to the additional steps connected with the implantation of the ova, Justice Zamir refers mainly to the Public Health (In-vitro Fertilization) Regulations (hereafter — the regulations). Under regulation 14 of those regulations, the husband‟s consent is required for any act involved in in-vitro fertilization of the woman, and under regulation 9 of the regulations, the consent of both the wife and the husband is required to extend the freezing of the ovum beyond five years.

These provisions are insufficient to obscure the major difference between imposing a duty on someone to carry out a positive act and a decision that merely neutralizes the opposition of that party to the act of the other party. With regard to what is stated in regulation 14 of the regulations, I am of the opinion that Daniel should be regarded as someone who not only agreed to the in-vitro fertilization, but even carried out all the acts required on his part to realize the fertilization. And with regard to what is stated in regulation 9 of the regulations, I will make two observations:

(1)          The problem concerning an extension of the freezing of the ovum in excess of five years was created only because Daniel refused to agree to the ova being delivered to Ruth, and as a result of the protracted legal proceedings, of which the current proceeding, it is to be hoped, is the last. In these circumstances, a decision by the court, which will invalidate Daniel‟s objection, should not be regarded as forcing Daniel to perform a positive act against his will, thereby violating one of his basic liberties.

(2)          In any case, when the court decides to accept Ruth‟s claim, according to the opinion formed by a majority of the judges on this panel of the court, the meaning of this is that the court is deciding, instead of the husband, to consent to implantation of the ovum, and it is instructing the hospital to deliver the fertilized ovum to Ruth in order to continue the activity required for carrying out the implantation. Again, Daniel is not required to take any tangible step as a result of this judgment. The power is now being transferred to Ruth to take, on her own, all the steps required for completion of the procedure involved in the implantation of the fertilized ovum.

 

 

(j)           In these circumstances, it is my opinion that the respondent‟s right to carry out an act to undermine the procedure must yield before the right of the applicant to realize her right to parenthood. On this issue, my colleague Justice Strasberg-Cohen writes:

„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”.‟

But, in my opinion, we must distinguish between someone‟s spoken promise to have children with his spouse, and such a promise which, from his point of view, has already been carried out by fertilization of the wife‟s ova, with all the associated circumstances in the present case.

(k)          In this regard, I will not repeat the citations of judgments and learned opinions that were cited by my esteemed colleagues Justices Tal and Dorner, which point to the factor of estoppel that exists in the present circumstances, at least from the moral perspective. In order to illustrate the principle which seems to me persuasive, I will merely cite once again a short passage from the aforementioned article of Panitch, „The Davis Dilemma; How to Prevent Battles Over Frozen Preembryos‟, 41 Case W. Res. L. Rev. (1991) 543, at

p. 574, upon which Justice Tal relies:

„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…‟

(l)            To all of these we must add another consideration, which was also discussed by my esteemed colleague, Justice Türkel, that preferring the position of Ruth involves the possibility of granting life and bringing a living person into our world. Even were the scales of justice balanced (and this is not the case), even this thought would have tipped the scales.

 

 

6.            Conclusion:

For the reasons set out above, I share the view of my five colleagues, who think that Ruth‟s application in this further hearing should be granted, and that it should be held that she is entitled to continue her efforts to bring about the birth of a child by implanting the fertilized ova in the body of a surrogate mother.

 

Justice E. Mazza

Ruth Nahmani wants to become a mother, and justice is on her side. Daniel Nahmani does not want to be a parent of joint children with Ruth, and justice is on his side too. But the justice on Ruth‟s side is greater than that on Daniel‟s side, and the law is therefore on Ruth‟s side.

Deciding between rights

Are the right to be a parent and the right not to be a parent two facets of the same right? This is not an easy question. But even is we assume that the answer to this question is yes — i.e., that we are dealing with „opposing‟ rights — we cannot easily prefer one to the other. Possibly the intensity of the rights is equal and possibility it is not equal; deciding this question requires a value judgment (see D. Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, 20 Tel-Aviv Uni. L. Rev. (1996), 197, at pp. 198-200). Indeed, not always do the positive right and its opposing negative right have the same status. Thus, for example, the right to speak and the right to remain silent are not necessarily equal rights. When the positive and negative aspects of the same right conflict with one another, a judicial determination is required. Sometimes there is no escaping a value judgment that determines the rank of the competing rights and accords them different statuses. Thus, for example, it was held (in CA 506/88 Shefer v. State of Israel [22]) that the right to die is not equal to the right to live. It seems to me that in our case we are not required to make such a value judgment of this kind. A decision in favour of Ruth‟s right to parenthood is not contingent on a determination that the right to be a parent, in itself, is stronger than the right not to be a parent. The reason for this is that in our case there is a clear and major gap, not between the inherent weight of the conflicting rights as such, but rather in the intensity of the manifestation of each of them in the circumstances of the specific case. It follows that, while the right to be a parent is manifested here in one of its strongest forms, the right not to be a parent is manifested here in a form that is relatively weak. Indeed, a just

 

 

decision in the matter of the Nahmani couple must be based on a proper balance between their conflicting rights. But this balance cannot be based merely on a feeling of justice. It must be made with an objective criterion. The criterion required, in the absence of a recognized legal norm that regulates the issue, is the doctrine of rights. As with any decision based on a comparison between conflicting rights, our decision will also be a value judgment. But in the circumstances of the case, as I have already said, we can exempt ourselves from the value judgment between the conflicting rights as such (as in Shefer v. State of Israel), and it is sufficient for us to compare the relative intensity of the rights as manifested and expressed in the concrete dispute. As a premise we can therefore assume that Daniel‟s basic right not to be a father to Ruth‟s children is equal to Ruth‟s right to be a mother to these children. However even with a premise that assumes the existence of absolute equality in the intensity of the conflicting rights, Daniel‟s case is weaker.

„Fundamental‟ rights, „general‟ rights and „specific‟ rights

3.            The term „right‟ has different meanings. In the discussion below we will seek to recommend a distinction between the following three meanings:

„fundamental‟ right, „general‟ right and „specific‟ right. A „fundamental‟ right reflects the norm and constitutes a part of the legal system. A „general‟ right is the right of a specific person to have the „fundamental right. A

„specific‟ right is the right of a person to a certain application of his general right. Take, for example, the freedom of speech. There is, in our legal system, a basic right of freedom of speech. This right, whose existence reflects the constitutional norm underlying it, is a fundamental right to the freedom of speech. The right given to the individual to express himself as he wishes is a general right of freedom of speech. It is „general‟ in that it gives the individual the fundamental right in principle. However, the right of the individual to a particular application of his right to freedom of speech, such as his right to express a particular idea or to do so in a particular way (by publishing an article, orally, etc.) is a specific right. As distinct from his having the general right, which derives from the fundamental right, his right to a particular implementation of the general right constitutes a „specific‟ right.

The distinction between a „general‟ right and a „specific‟ right focuses on two aspects of the right: the object to which the right relates, and the interest that is protected by the right. A right is general if the object of the right is the person having the right himself, and the protected interest is the very existence  of  the  fundamental  right  for  the  person  having  the  right.  By

 

 

contrast, if the object of the right is one of those objects with regard to which it is possible to implement a particular general right, and the interest protected by the right is the implementation of the said general right vis-à-vis that object, then the right is specific. For example: someone who opposes any restriction of his freedom of movement is in practice insisting that the fundamental right of freedom of movement applies to him too; his demand is for a general right of freedom of movement. By contrast, someone seeking to be released from a restriction preventing him from entering a specific place is seeking a specific freedom of movement, and the same is also true of someone seeking permission to leave the country. Note that a specific right does not need to relate to one specific object, but may relate also to a specific group of objects, as distinct from objects not included in that group. Thus, for example, a person who demands to be given the right to leave the country is asking for himself a specific right of freedom of movement, even though exercising the right may be expressed by travelling to several countries. All foreign countries to which he may wish to travel constitute potential objects for the exercise of his specific right. Travelling to other places that are inside the country, even though these are also possible objects for exercising the right of freedom of movement, are not objects for exercising the specific right of leaving the country. On the other hand, for someone asking to be released from arrest or from another restriction imposed on his freedom of movement, so that he may travel to specific places inside the country, only the places to which he wishes to travel will constitute objects for the exercise of the specific right of freedom of movement inside the country.

A comparison with the accepted distinction between absolute rights and relative rights

4.            I would like to emphasize that our distinction between a general right and a specific right is different from the accepted distinction in our legal system between an „absolute‟ right and a „relative‟ right. The distinction between an absolute right and a relative right focuses on the weight of the right, whereas the distinction between a general right and a specific right focuses on other questions: identification of the object to which the right relates and defining the interest which the right is intended to protect. Note that even the distinction between a general right and a specific right may influence the weight given to that right. But the weight of the right is not one of the characteristics of this distinction. The characteristics of this distinction are the identification of the object to which the right relates and defining the interest protected by it.

 

 

The distinction between an absolute right and a relative right combines a theoretical approach and a practical approach, which are like two distinctions existing alongside one another. The premise for the theoretical approach is definitional: an absolute right is a right that is protected absolutely against infringement, whereas a relative right may yield to conflicting interests and considerations. Professor Dworkin says that whoever has an opinion that a right is absolute is bound to hold that the right must always exist, and there can be no justification for restricting it (see R. M. Dworkin, Taking Rights Seriously, supra, at p. 92). The theoretical approach guiding the case-law of this court holds that the rights recognized in our legal system are never

„absolute‟, but are always „relative‟. This is the case with regard to the right of freedom of speech (HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [23], at page 879 {99}); the right of holding a demonstration and procession (HCJ 153/83 Levy v. Southern District Commissioner of Police [24], at p. 399

{115}); the right of assembly and demonstration (HCJ 292/83 Temple Mount Faithful v. Jerusalem District Commissioner of Police [25], at p. 454); the right of a journalist to refuse to answer a question regarding the source of his information (MApp 298/86 Citrin v. Tel-Aviv District Disciplinary Tribunal of Bar Association [26], at p. 347); the freedom of occupation (CA 496/88 Henfeld v. Ramat Hasharon Sports Association [27], at p. 721); the right to receive information (HCJ 1601/90 Shalit v. Peres [28], at p. 366 {223}); the right of being heard (HCJ 4112/90 Association of Civil Rights in Israel v. Southern Commander [29], at p. 638); and the right of a suspect to meet with a lawyer (HCJ 3412/91 Sufian v. IDF Commander in Gaza Strip [30], at p. 848).

The practical approach deals with determining the weight of a particular right. According to this approach, the weight of a right is never determined by the actual recognition of the right‟s existence, but derives from the balance between it and the interests competing with it in a particular situation. The meaning of this is that the weight of any right cannot be expressed by indicating its place on any scale. All that can be said is that, in one or other set of specific circumstances, the right prevails over, or gives way to, a conflicting interest. In practice, the practical approach deals with relative rights, and in this way it realizes the ideological approach. It assumes a premise that we should not recognize a right as „absolute‟ (i.e., as reflecting an objective value that is absolutely independent of other values). Thus it provides an independent yardstick for distinguishing between „absolute‟ rights (in the primal-hypothetical sense) and „relative‟ rights, which alone

 

 

have a practical legal significance. Case-law also contains reference to the distinction between absolute rights and relative rights in this sense (see, mainly: CA 105/92 Re‟em Contracting Engineers Ltd v. Upper Nazareth Municipality [31], at p. 205; CA 2266/93 A v. B [32], at p. 266; cf. also what is stated in HCJ 753/87 Borstein v. Minister of Interior [33], at p. 474, and HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [34], at p. 760 {488}. In its operation, the practical approach proves the correctness of the ideological approach, and works jointly with it: in the absence of a „moral‟ possibility of determining the weight of any right in objective-absolute values, the necessary conclusion is that no right is absolute and that all rights  are relative.

5.            We have discussed the distinction between general rights and specific rights. If we wish to describe these rights in terms familiar to us from the field of distinguishing between absolute rights and relative rights, we will quickly discover that general rights and  specific rights are both relative rights. Someone claiming a general right of freedom of speech does not claim that his right must prevail over every conflicting right. The difference between him and someone claiming a specific right of freedom of speech is merely that the first demands a right to say anything that he wants to say, whereas the second demands that he be allowed to say something specific. But both of these have only a relative right, whose weight is determined by the existence of conflicting interests. The right is relative also in the sense of the practical approach. The weight of the right of freedom of speech is not fixed and absolute in either case, but it is determined in relation to other values that conflict with it. This conclusion also passes the definition test, that an absolute right is a right that must never be harmed. At any rate, for our purposes, both a general right and a specific right will always be (in the words of Dworkin in Taking Rights Seriously, supra, at p. 92) „less than absolute‟.

A comparison with other accepted distinctions

6.            Additional distinctions are recognized in jurisprudence with regard to rights. Hohfeld‟s distinction between a   „right in the strict sense‟ and a

„liberty‟, a „power‟ and an „immunity‟ is well-known. In our case, it is important to distinguish between a right in the strict sense and a liberty. Hohfeld characterizes rights according to the relationship between them inter se and between them and the existence of duties: the existence of a right in the strict sense, for a specific person with regard to a specific object, means the existence of a corresponding duty for someone else with regard to that

 

 

object, whereas the existence of a liberty for a specific person with regard to a specific object means the absence of a duty for that person with regard to that  object  (W. N. Hohfeld,  Fundamental  Legal  Conceptions,  1919,  at

p. 1923). In the terms of this distinction, both the general right and the specific right can be either a right in the strict sense or a liberty. It is possible, therefore, to speak of the general right of freedom of movement, which is a liberty, as well as of a person‟s specific right to go out of his home, which also is a liberty; and by contrast, it is possible to speak of an employee‟s general right to receive his wages on time, which is a right in the strict sense, and of that employee‟s specific right to receive his wages for the month of May at the beginning of June, which is also a right in the strict sense.

7.            Professor Dworkin (in Taking Rights Seriously, supra, at p. 93) distinguishes between an „abstract‟ right and a „concrete‟ right. According to this distinction, a concrete right is a determination concerning the real entitlement of a person to act in a certain way in a particular situation, whereas an abstract right is the actual idea according to which a certain right ought to be given preference. Thus, for example, the declaration that everyone has a right of freedom of occupation merely expresses an abstract right; but when the court determines that a specific person is entitled to establish a business that will compete with the business of his former employer, despite his contractual undertaking not to do this, the court is ruling that the person has a concrete right to realize his freedom of occupation in this specific way. If we try to characterize the general right and the specific right in terms of the distinction between the abstract right and the concrete right, we will find that both of them — both the general right and the specific right — are abstract rights. It need not be said that the general right does not determine that there is an entitlement to act in a certain way in a particular situation. However even the specific right does not do this: it too merely outlines the principles that lead to a concrete decision, but it does not, in itself, embody a decision. The decision must be made separately. In reaching it, the court must take account of the existence of the specific right, but it is likely and entitled to take into account also the existence of contradictory interests and additional considerations.

8.            Of particular importance for our case is the comparison with several distinctions made by Professor Raz (see: J. Raz, „On the Nature of Rights‟,

93 Mind (1984) 194). His first distinction is between   „core‟ rights and

„derivative‟ rights. Raz says that sometimes the justification for recognizing a right derives from another right. He calls rights, whose justification derives

 

 

from another right, „derivative‟ rights, whereas he calls the rights that are not derivative „core‟ rights. However, Raz emphasizes, not every right that from a logical viewpoint has its source in another right is a derivative right; for a right to be considered „derivative‟, there must be a justification relationship between it and the core right. In other words, it is the core right that justifies recognition of the existence of the derivative right (ibid., at p. 197). In the absence of a justification relationship, there is no basis for the distinction. Consider a person who bought a house containing several apartments. His right of ownership in a particular apartment in that house derives from his right of ownership in the whole building; and since the justification for his right of ownership in the apartment derives from his right of ownership in the whole house, the right of ownership in the apartment is a derivative right. By contrast, consider a person who bought all the apartments in the house, but who did so in separate transactions: one apartment after another. He too, at the end of the process, has become the owner of the whole house. Despite this, it cannot be said that his right of ownership in a particular apartment in that building derives from his right of ownership in the whole building, since in this case the justification relationship works in the opposite direction: his ownership of the whole house derives from his ownership of each apartment in this house.

A general right always incorporates the specific right. But the relationship between a general right and a specific right does not require a justification relationship. It follows that a specific right cannot always be regarded as a derivative right, within the meaning of this term in Raz‟s distinction. In addition, the condition of the unidirectional derivation is unimportant here. Therefore, it is unavoidable that a general right is created as a result of the existence of several specific rights. The example of the owner of the house, who is also the owner of the apartments in the house, emphasized to us the distinction between a core right and a derivative right. But for the distinction between a general right and a specific right, we do not attribute any importance to the question which of the rights came into existence first. The general right will incorporate all the specific rights even if these came into existence, one by one, before it.

9.            In his article „On the Nature of Rights‟, supra, Raz refers to the nature of the relationship between a „right‟ and a „duty‟. He disagrees with Hohfeld‟s   assertion   concerning   the   existence   of   a   relationship   of

„correspondence‟ between rights and duties. In his opinion, the relationship between rights and duties is also a relationship of „justification‟, and not one

 

 

of correspondence. One person‟s right constitutes a basis that makes it possible to justify imposing a duty on another person, if the weight of the opposing considerations does not outweigh them (ibid., at p. 199). Further on, Raz distinguishes between a „general‟ right and a „particular‟ right. A general right means that a certain person has a right, but it does not necessarily follow from this right that another person has a duty. In every set of circumstances we must consider the fact that there is an opposing right and the considerations that conflict with the realization of the right in those circumstances. If this set of considerations leads to the conclusion that the right should be realized, then we will say that in these circumstances there is a particular right, which is accompanied by a duty of another person. The general right is the basis upon which, in appropriate circumstances, particular rights are founded (ibid., at p. 211).

Notwithstanding the similarity in the terms, it seems to me that there is an important difference between Raz‟s distinction (general right as compared with a particular right) and the distinction proposed by us: a general right as opposed to a specific right. To the best of my understanding, Raz‟s intention in the term „particular right‟ is similar to Dworkin‟s intention in the term

„concrete right‟, namely — this is an assertion as to the existence of a de facto entitlement. This assertion means that the general right overrides the opposing interests, and it should be realized. This is not the case according to our distinction: a specific right — like a general right — can be denied by virtue of the greater strength of conflicting interests. The existence of a specific right is not the end of the matter, but merely one consideration in the equation which serves as the basis for the decision. Moreover, a general right (according to our definition) includes many specific rights, some of which may never be exercised in practice, because of the existence of conflicting considerations. This classification is incompatible with Raz‟s approach: he defines as particular rights only those specific rights that ultimately have been realized, whereas specific rights that have not been realized, in his view, are not rights at all (see ibid., at p. 211).

10.          Another distinction of Professor Raz is between a „morally fundamental right‟ and a right that is not such. What justifies the existence of a right, according to Raz, is the interest that the right is intended to protect (see ibid., at p. 195). If the interest of the person having the right is in his actually having the right, and it does not derive from any other interest, then the right is „basic‟ (ibid., at p. 214). It follows that a right that is not basic is of two kinds: a right that derives from a basic right, and a right whose

 

 

justification derives from other or additional interests, apart from the interest of the person having the right in his actually realizing the right.

Professor Raz‟s definition of a basic right is similar, from the viewpoint of the structure of the definition, to our definition of a general right: as we said, a right is general, if the interest that it is intended to protect is the very existence of a fundamental right for a person who has the right. However, despite the similarity in wording, there is no similarity in meaning. First, Raz‟s definition refers to a person‟s interest in his having that right, and it can be any right. By contrast, our definition of a general right in based on a person‟s interest in his having the fundamental right. Second, Raz‟s theory is based on the concept of interest, and when he defines a right as „basic‟, his intention is to distinguish between this right and other rights on the level of the interest that justifies the existence of the right. Our distinction between a general right and a specific right does not focus on the interest in the existence of the right, but in identifying the object: is the object the person having the right, or is it one of those objects vis-à-vis whom the person having the right is likely to implement his right. A person claiming a general right is making a claim with regard to himself: he is demanding for himself the fundamental right. A person claiming a specific right is making a claim with regard to objects that are extrinsic to himself: he is seeking to apply his general right to (one or more) objects from amongst the objects to which it can be applied.

Restrictions on rights

11.          We have reviewed some of the better-known ways of distinguishing between rights. This review is certainly not complete, but I think that it should be sufficient to clarify somewhat the uniqueness of the method proposed by us for distinguishing between a general right and a specific right. We will seek, below, to rely on this distinction, but first let us consider briefly also the classification of restrictions on rights. This too will be required for our case, since the balance between conflicting rights is based, inter alia, also on the definition of the nature of the restriction that each of the rights imposes on the conflicting right.

The recognized restrictions are of several types. We will follow our method and assert that the main classification of the restrictions — like the main  classification  of  the  rights —  is  into    „fundamental‟  restrictions,

„general‟ restrictions and „specific‟ restrictions. The first type need not trouble us: a fundamental restriction is a restriction imposed by law on a fundamental right, and like the right to which it applies it is part of the law,

 

 

from which the general and specific rights are derived. By its nature the restriction may be general or specific. It is general when it relates to a general right. It is specific when it relates to a specific right. That it is fundamental merely identifies the normative source of the restriction; in other words, that its application derives from the law. But balancing and deciding between conflicting rights are only required for general restrictions and specific restrictions. The normative source, from which the imposition of the restriction (whether general or specific) is derived, makes no difference: the source may be a fundamental restriction — i.e., a prohibition prescribed by the law — and it may derive from another binding norm: a court order, an agreement or another legal relationship. The classification of the restriction as general or specific derives from its content. A general restriction, which can relate only to a general right, deprives the person who has the right of the ability of making any use of his right; thereby it de facto negates the very existence of the right. A specific restriction may be imposed on a general right or on a specific right. Its imposition prevents the person who has the right from implementing his (general) right only with regard to some of the potential objects. It should be said that the overwhelming majority of fundamental restrictions are specific. The right of freedom of movement is limited by the road traffic laws, the criminal prohibition against trespass and laws regulating leaving and entering the country. These are specific restrictions, subject to which the (fundamental or general) right of freedom of movement is retained. Even the restrictions on the right of freedom of speech are specific, and subject to the prohibition of libel and laws whose purpose it to protect essential interests such as protecting State security and maintaining public order, the general right is retained.

12.          For the purpose of our deliberation we would like also to classify two additional   types   of   restrictions,   which   are   derived   from   the   main classification: a „de facto general‟ restriction and a „quasi-general‟ restriction.

A „de-facto general‟ restriction is a restriction that prima facie can be classified as specific, or which ostensibly appears to be specific, whereas it is, de facto, general. Take, for example, the case of the prisoner imprisoned in his cell. Someone looking at him is liable to receive the impression that the restriction on his freedom of movement is specific, because it prevents him merely from leaving his cell, whereas all other movement is ostensibly permitted to him. But clearly presenting the nature of the restriction in this way distorts the reality. The real restriction imposed on the prisoner is not limited to a prohibition against leaving his cell, but it includes all the possible

 

 

expressions of freedom of movement outside the walls of the cell: the prisoner cannot go home, he cannot walk in the city streets, he cannot travel to another city, or leave the country. Indeed, at this moment the only restriction imposed on his freedom of movement is a specific restriction (preventing him leaving the cell) but this specific restriction places on his freedom of movement a general restriction. The restriction on the freedom of movement of that prisoner is therefore a „de facto general‟ restriction, and a restriction of this type is equivalent, as its consequences require, to a general restriction.

I am aware that attempting to classify a de facto general restriction as a special type of restriction is not without difficulties from a theoretical perspective. Someone will say, justifiably, that the restriction on the freedom of movement of a prisoner is, essentially, a general restriction. On the other hand, it may possibly be argued that a sentence of imprisonment for a very short period (e.g., one day) imposes only a specific restriction on the freedom of movement. These potential objections do not worry me. The classification of a de facto general restriction is not intended to add to the main classification of general and specific restrictions, or to subtract from the validity of either of these types. The sole purpose of this classification is to provide a diagnostic for deciding borderline cases. In other words, even when according to the basic definition we should, or can, classify a restriction on a right as a specific restriction, but its consequences are like those of a general restriction, then for the purposes of deciding a dispute, we should treat it as a general restriction. Note that the definition of a restriction as a de facto general one may be of use not only in cases where there the difficulty in classifying the restriction as general or specific derives from the factual circumstances of a particular situation, but also in cases that give rise to a theoretical dispute with regard to the normative classification of the restriction. Take, for example, the restriction embodied in the prohibition against incitement to racism. Some will say  that we are dealing  with a specific restriction on the freedom of speech, since subject to the prohibition against incitement to racism, the right is retained. Others will say that we are dealing with a general restriction, which means that the „right‟ of freedom of racist speech has been utterly excluded from the fundamental right of freedom of speech. For the purposes of a practical decision, this theoretical argument may be resolved by adopting the definition according to which the restriction against racist speech is a de facto general one: this means that even if it is found that there is a theoretical justification for including it in the

 

 

category of specific restrictions, for the purposes of the decision it should be treated as a general restriction. In summary, since its de facto consequences are the same as the consequences of a general restriction, it should be treated de facto as a general restriction.

13.          The classification of a quasi-general restriction seeks to establish an intermediate level, situated between the general restriction and the specific restriction. This classification will be appropriate in a case where the restriction imposed on the person having the right albeit leaves him potential ways of realizing his right, but from his point of view all the possibilities that the restriction leaves him are very unattractive, either because realizing them involves special risks, great inconvenience or an investment of huge resources, or because the way in which they allow him to realize the right is substantially different from the way in which the person having the right would have wanted to realize it had it not been for the restriction. From a technical-formal viewpoint, the restriction imposed on the person having the right is merely a specific restriction, since in theory he retains the possibility of realizing the right; but from a substantive-functional perspective, such a restriction is closer to a general restriction. The fact that all the possibilities of exercising his right are unattractive gives the person having the right a negative incentive to realize his right, and also very substantially reduces the chance that he will succeed in realizing it de facto. In such circumstances, the restriction on the right is „quasi-general‟, and a quasi-general restriction should also be treated as a general restriction.

It should be noted that a quasi-general restriction is substantively different from a de facto general restriction. Consider the right to eat, which is one of the derivatives of the human right to preserve his physical existence. If a person is deprived of all food, the restriction on his right to eat is general. If he is deprived only of one type of food, but that type is the only food available, the restriction is de facto general. But if he is offered to eat rotten food, which has a bad taste and little or no nutritional value, and he is deprived of any other food, then the restriction on his right is „quasi-general‟.

The extent of the violation of the right

14.          On the basis of these principles, we would like to lay down some basic premises for the extent of the anticipated violation of a person‟s right as a result of restrictions imposed on his right.

Our first premise is that imposing a general restriction on any right will violate that right more than imposing a specific restriction on it. The reason

 

 

for this is simple and obvious: a general restriction ipso facto includes all the possible specific restrictions. Thus, for example, a general restriction on someone‟s freedom of occupation means that he is prohibited from engaging in any occupation whatsoever. Such a restriction will violate his general right of freedom of occupation more than a specific restriction that will prohibit him from engaging in a specific profession or vocation, but will not restrict his right to engage in other professions or vocations. Note that not all specific restrictions on a particular right are of equal status. Imposing a specific restriction on a particular right may violate that right more than imposing another specific restriction on that right. But both of these will violate that right less than if a general restriction had been imposed on it. Thus, for example, an order prohibiting a resident of Haifa from entering the municipal boundaries of Tel-Aviv imposes a specific  restriction on his freedom of movement. But the violation caused by such an order to the person‟s freedom of movement will be less than that caused by an order prohibiting him from leaving the municipal boundaries of Haifa, which also imposes a specific restriction. However, even the violation caused by an order of the latter type is still more moderate than that caused by an order which prohibits the person from leaving his home and imposes a general restriction (or at least a de facto general restriction) on his freedom of movement.

The second premise is that the violation of a right that derives from imposing a de facto general restriction on it will be, in most cases, equal to the violation caused to the person having the right as a result of imposing a general restriction. A de facto general restriction does not leave the person having the right with a real possibility and a de facto ability to realize his right. The practical result of a de facto general restriction classifies the violation of the right as equivalent to the violation of a general restriction. That is usually the case, but there may be exceptions, since, although the results are the same, the type of restriction may indicate a difference in attitude to the protected social value. The very imposition of a general restriction may sometimes indicate a relative decrease in the value of the protected right. Thus, for example, the prohibition against incitement to racism (assuming that it is a general restriction) indicates a negative social attitude towards the existence of the freedom of racist speech. Even imposing a de facto general restriction may sometimes indicate a decrease in the value of the protected right (once again, consider the prohibition against incitement to racism, against the background of the assumption that the restriction it incorporates is not general but de facto general). But imposing a de facto

 

 

general restriction (as distinct from imposing a general restriction)  may derive also from circumstantial constraints, and it will not always indicate a decrease in the value of the right. Subject to this qualification, which requires caution in special cases, it can be established that a de facto general restriction violates the right to the same extent as the violation deriving from imposing a general restriction on that right.

Our third premise proposes that imposing a quasi-general restriction on a right violates that right less than imposing a general restriction or a de facto general restriction. The reason for this is clear: imposing a quasi-general restriction does not prevent realization of the right. By contrast, the violation to the right caused by a quasi-general restriction cannot be estimated as if it were a specific restriction. It has already been explained that a quasi-general restriction makes it difficult to realize the right to a greater extent than a specific restriction. It follows from this that even its violation of the right on which the restriction is imposed is greater than that caused as a result of imposing a specific restriction.

Classification of the competing rights in the Nahmani case

15.          Ruth Nahmani wants to be a mother. Her right to realize her desire derives from the fundamental right, and it follows that her right is a general right. But Ruth is also claiming a specific right. Ruth is focusing her struggle on the ova fertilized with her husband‟s sperm. She claims that she has no other ways in which to realize her desire to be a mother. The fertilized ova — her and Daniel‟s joint genetic material — are the object vis-à-vis which Ruth wishes to realize her specific right. Daniel Nahmani does not deny Ruth‟s general right to be a mother. Notwithstanding, he wishes to prevent her from realizing this right by using ova fertilized with his sperm. The restriction that he wishes to impose on Ruth‟s right to parenthood is, prima facie, a specific restriction. According to him, Ruth may realize her right to parenthood in any way she sees fit, provided that she does not make use of those ova. But is this restriction, which Daniel wishes to impose on Ruth‟s right, really — as it seems — only a specific restriction? In order to answer this question, we must consider the two other methods, apart from using the fertilized ova, that it is argued against Ruth are still available to her for realizing her aspiration and her right to be a mother: another in-vitro fertilization, and adoption. Consideration of the circumstances leads to the conclusion that neither of these two methods is an available alternative that reduces the extent of the anticipated violation from the restriction that Daniel wishes to impose on Ruth‟s right.

 

 

The possibility of another in-vitro fertilization is vague. First, it is not at all clear whether, from a medical perspective, this option indeed exists. It may be that the chance of this attempt succeeding is negligible, or will involve an unreasonable risk to Ruth‟s health. Second, as long as Ruth is bound to Daniel by marriage, fertilization with the sperm of another man may make the children bastards.* Third, in order to carry out the additional in- vitro fertilization, Ruth will again have to undergo great physical and emotional suffering. It follows that even if the option of in-vitro fertilization exists, it is clearly an unattractive option. Even the option of adopting a child, or children, does not offer a solution that Ruth can accept. First, it is questionable whether, according to the accepted order of precedence, Ruth is entitled to adopt a child. In this regard, we must not ignore Ruth‟s age and her stated intention of raising her children alone (and we do not express here any opinion as to the correctness or justification of the order of priorities accepted by the competent authorities). Second — and  this  is  the  main point — adoption does not fulfil Ruth‟s desire and right to be a biological parent. It follows that this option also is clearly unattractive.

It transpires that of the three methods available to Ruth for realizing her general right to be a mother — using the fertilized ova, resorting to a new in- vitro fertilization procedure and submitting an adoption application — only the first method gives Ruth a possibility that can be regarded as a real one, whereas the other two methods are clearly unattractive. It follows that the restriction that Daniel wants us to impose on Ruth‟s right, even though prima facie it is only a specific restriction, is in fact a quasi-general limitation.

16.          Daniel Nahmani does not insist on his general right not to be a father. Had this been his position, we would have had to decide which of the restrictions on the rights of the spouses is more severe: the quasi-general restriction on Ruth‟s right  to  be  a mother,  or  the general restriction on Daniel‟s right not to be a father. But Daniel does not base his case on his general right not to be a father. On the contrary, Daniel has already willingly become a father, together with his new partner. The implication is that he does not object to the very idea of being a father, but he wishes not to be the father of the specific children that may develop from the fertilized ova which are the subject of the dispute. The right not to be a parent, for which he is

 

 

 

*             Editor‟s note: the Hebrew term is mamzerim. The significance of this status under Jewish law is that a mamzer is not permitted to marry within the Jewish community: see Deuteronomy 23, 3.

 

 

fighting, is expressed here in a specific right: the right not to be a parent of these specific children. The restriction that Ruth wishes to impose on Daniel‟s right, not to be a parent against his will to her children, is also a specific limitation.

Deciding between the rights

17.          Deciding between Daniel‟s right and Ruth‟s right is not simple. A decision in Ruth‟s favour restricts Daniel‟s right not to be a father, since this decision forces him to be a father of children whom he does not want to father. A decision in Daniel‟s favour restricts Ruth‟s right to be a mother, since after such a decision all the options that remain to her for realizing her right to become a mother are, from her viewpoint, slight or very unattractive. Both restrictions are serious, but they are not equal. A decision in favour of Ruth imposes on Daniel‟s right not to be father a specific restriction, whereas a decision in favour of Daniel imposes on Ruth‟s right to be a mother a quasi- general restriction.

We have already explained that, as a rule, imposing a quasi-general restriction on any right violates that right more than imposing a specific restriction. In other words, a quasi-general restriction is more serious than a specific restriction. Admittedly, it does not necessarily follow from this that in every case where the court is faced with conflicting rights (whether they are opposing rights or whether they are different rights), it is sufficient for it to base the findings that must be balanced on this premise. When the rights are not equivalent, the premise may be false. Thus, for instance, in a situation where there is a difference between the inherent weight of the conflicting rights, it is possible that a balance between them will require a determination that a violation caused by imposing a quasi-general restriction on an insignificant right of one person is less serious than the violation involved in imposing a specific restriction on an important right of another person. It follows that a classification of the restricting causing the violation — as general, de facto general, quasi-general or specific — is merely one of the factors affecting the determination of the extent of the violation; when determining the extent of the violation — as required for making the balancing — we must take account not only of the classification of each of the restrictions violating the rights, but also of the „absolute‟ inherent weight of each of the violated rights. However, it is not always necessary to define exactly the absolute inherent weight of the conflicting rights in order to determine whether imposing a specific restriction on one of them is preferable to imposing a quasi-general restriction on the other, or vice versa.

 

 

In many cases we will be able to adopt the balancing formula outlined in our premise, even without a determination as to the strength of each of the conflicting rights. This is the case, for example, when it is clear that the inherent weight of the two rights is equal, or almost equal. In such a case, it is correct to adopt the premise that imposing a quasi-general restriction on one of the rights will harm the person who has that right more severely than the harm caused to the person who has the opposing right as a result of imposing a specific restriction on his right. But this rule is valid and logical not only for deciding between equivalent rights. This rule will also apply when the rights are not of equal weight, but it is clear that the right which is subject to the more severe restriction — even if not preferable to the opposing right — is certainly not inferior to it.

18.          These rules lead me to a decision in the case of the Nahmani couple. I accept that a person has a right not to be a parent against his will. This right is not stronger that a person‟s right to be a parent. It may be equal to it, or the latter may be stronger; but I have no doubt that the former right is not stronger. In the present case, the restriction that Daniel wishes to impose on Ruth‟s right to be a mother is a quasi-general restriction. The restriction that Ruth wishes to impose on Daniel‟s right not to be a father against his will is a specific restriction. Since we are required to make a decision, we must prefer imposing a specific restriction on Daniel‟s right not to be a father against his will, to imposing a quasi-general restriction on Ruth‟s right to be a mother. The violation caused by the first restriction to Daniel‟s right is, necessarily, less than the violation caused by the second restriction to Ruth‟s right. In circumstances where all other factors are equal, justice requires us to prefer the lesser violation to the greater violation. This is my reason for preferring the justice of Ruth‟s case to the justice of Daniel‟s case.

19.          I would like to emphasize that the decision that I have reached is based on the distinction between the different intensity of a quasi-general restriction as opposed to a specific restriction imposed on conflicting rights which are (in the case that is more favourable from Daniel‟s point of view) of equal weight. My determination that the restriction on Ruth‟s right is quasi- general is based on the proven premise that apart from her possibility of using the fertilized ova, Ruth has no alternative method (apart from possibilities that are clearly unattractive from her perspective) to realize her right to motherhood. Let it not be understood from this that had I  not accepted this premise, my conclusion would have been different. It is possible that even then I would have found a justification for accepting

 

 

Ruth‟s position, on the basis of a different reason, but I see no need to expand on this point.

A decision where there is no norm and no fault

20.          In the legal dispute between Ruth and Daniel Nahmani, two elements, which both exist in the overwhelming majority of legal disputes, are absent. One element is a recognized legal norm that regulates the subject of the dispute. The absence of a legal norm has made our decision difficult and provided ample opportunity for different opinions and reasonings. The second element whose absence is felt in this case is the existence of fault on the part of one of the parties. At first I feared that the absence of fault, together with the absence of a binding norm, would make it difficult for us to decide the dispute. But ultimately I am satisfied that the absence of the element of fault was a blessing. Thus we have been able to rule on the dispute itself instead of dealing with the persons in dispute.

21.          The absence of a legal norm — or at least the lack of consensus among the judges as to the existence of such a norm — is a rare phenomenon. Nonetheless, it is not an impossible phenomenon. Even when the court is called upon to decide a dispute of novel character, for which there is no established legal norm, it is not exempt from making a decision. Where there is a right, there is also a valid right to be granted relief. In such circumstances, the court faces the necessity of creating the legal norm on the basis of which it will decide the dispute. Usually it does not do this by means of creation ex nihilo. There are cases where existing arrangements that relate to a similar field may provide a norm that, mutatis mutandis, can be adapted to decide also the concrete dispute. Thus for instance, when the court was required to classify computer software, for the purpose of deciding whether its owner had a protected copyright, it held that software was equivalent to a literary creation (CC (TA) 3021/84 Apple Computer Inc. v. New-Cube Technologies Ltd [45]). Thus the court applied to a modern invention a legal norm based on legislation from the beginning of the century. In our case, too, technological development has preceded development of the law. But for deciding the matter before us, we did not find any recognized norm upon which we could build, even taking account of any necessary modifications. In such circumstances, there was no alternative to a decision based on a balancing between the conflicting rights. I personally believed that relying on a sense of justice alone is uncertain and therefore undesirable. In searching for a normative source, I resorted to the doctrine of rights. Indeed, had there existed a legal norm dealing with the matter in dispute we would have had to

 

 

decide the case accordingly, and the value analysis that we set out above would have been inapplicable. But in the absence of such a norm, I believe that the objective criterion that we created in our analysis establishes a proper basis for a just decision in the painful dispute between the spouses.

22.          The second element that is absent in our case is the element of fault. I do not believe that any blame can be levelled at Daniel Nahmani. At no stage were his actions tainted by bad faith. Admittedly he reversed his decision to bring children into the world together with his wife, but in the circumstances in which this was done, his withdrawal of his consent did not involve any improper behaviour. His refusal to cooperate with Ruth in continuing the procedure that they began together also did not derive from bad faith. When considering the matter from Daniel‟s viewpoint, the obvious conclusion is that justice is on his side. But justice is not on his side only. Justice is also on Ruth‟s side; and the justice on her side is greater. Indeed, Daniel cannot expect Ruth to give up her just desire to exercise her right merely because he is justified in having a right that conflicts with her right. But there was also no reason to expect that Daniel would regard the justice of Ruth‟s case as superior to his. There is also no fault on Ruth‟s side. She did not begin the fertilization procedure without Daniel‟s consent or against his will. On the contrary, at the beginning of the procedure Daniel gave her his blessing. She received his full cooperation, which derived from his consent and his desire to bring children into the world together with her. But the absence of fault in our case, unlike the absence of a norm, make the decision easier, rather than harder. I suppose that had I found that one of the parties had acted improperly towards the other, I would have tended to give this weight also in reaching my decision. Fortunately I am not required to take such considerations into account. Thus I can be more certain and confident that my conclusion, namely that the law is on Ruth‟s side in this dispute, is based solely on the objective balancing between their conflicting rights, as expressed in the circumstances of the concrete case.

Qualification of the decision

23.          My decision in the dispute between the Nahmani couple is based on a balance between Ruth‟s desire and right to be a mother and Daniel‟s desire and right not to be the father of the children that will develop from the fertilized ova. But the work of properly balancing between the spouses is not yet complete. Filling the lacuna justifies imposing a qualification on the implications of our decision.

 

 

Two assumptions underlie the balancing upon which the decision is based: first, that Ruth‟s genuine desire is to be a mother, and no more. Second, that both parties are acting in good faith. Both these assumptions will be proved wrong if and when Ruth turns to Daniel with financial demands. Had Ruth declared to us her intention to file such a claim, this might have been sufficient to lead to a contrary decision. But if she files such a claim, after giving birth to the child or the children, it will not be possible to turn the clock back and decide the dispute in Daniel‟s favour. As a solution to this dilemma, I agree with the proposal made by my colleague, Justice Goldberg, in paragraph 16 of his opinion, that we should make Ruth‟s use of the ova conditional upon her giving an undertaking not to demand any amount whatsoever from Daniel, for the children or for herself, and to indemnify Daniel for any payment that he shall be made liable to pay her, or to her children, as a result of an action filed against him notwithstanding the undertaking.

24.          My opinion, therefore, is that we should grant the petition, reverse the appeal judgment and reinstate the judgment of the District Court, together with the condition stated in paragraph 23 supra.

 

Justice T. Or

1.            Daniel and Ruth Nahmani were married in 1984. They had no children. Because of a hysterectomy she underwent, Ruth could not herself become pregnant. Against this background, the couple turned to the path of in-vitro fertilization under the Public Health (In-vitro Fertilization) Regulations (hereafter: the In-vitro Fertilization Regulations). The aim of the procedure was to fertilize Ruth‟s ova with Daniel‟s sperm, and to implant the fertilized ova in the womb of another woman („a surrogate mother‟). Ova were removed from Ruth‟s body. Eleven of these were fertilized with Daniel‟s sperm. The fertilized ova were frozen. They were stored in this state at Assuta hospital. The couple entered into a financial agreement with an institution in the United States, which assists in making an agreement with a surrogate mother and carrying out the various aspects of the implantation procedure and the pregnancy of the surrogate mother. No agreement was made with a surrogate mother. A surrogate mother had not yet been found. Before a surrogate was found and implantation took place, a dispute broke out between the couple. Daniel left the home. He established a new family. He and his new partner had a daughter. Ruth approached the hospital with a

 

 

request to receive the ova. Her request was refused. Therefore she began proceedings in the District Court.

The District Court granted her request. It ordered the hospital to allow Ruth use of the fertilized ova, in order to continue the implantation procedure in a surrogate mother. It ordered Daniel to refrain from interfering with the continuation of the procedure.

Daniel‟s appeal against the judgment (CA 5587/93*) was allowed, and the judgment was reversed. In this further hearing, we must decide whether to uphold the appeal judgment, or whether, as Ruth argues, we should change the result and reinstate the judgment of the District Court.

2.            This opinion is being written after most of the justices on the extended panel considering this case have expressed their opinions. Their opinions are before me. My basic position on this case has been expressed in the comprehensive, illuminating and profound opinions of my colleague Justice Strasberg-Cohen, both in the aforementioned appeal (CA 5587/93†) and in this further hearing. I agree with large parts of these opinions. I agree with the analysis of the constitutional rights made in these opinions. I also agree with the main points of the opinion of my colleague, Justice Zamir. Like my two colleagues, I believe that the law in this case is on Daniel‟s side. Like my two colleagues — and this is the main point in my opinion — I do not think that in the circumstances of this case the court is faced with a normative vacuum and that it must create law ex nihilo in order to solve the dispute between the parties. I also believe that the decision in this dispute should be based on a general norm, which is based on the unique nature of the issue under discussion. Like my two colleagues, I do not believe that this dispute should be decided on the basis of deciding the question which of the two litigants — Daniel or Ruth — will suffer greater anguish or harm depending on the results of this litigation. Like them, I also believe that before comparing the harm that each party is liable to suffer, and deciding accordingly whose case is more just, we must first consider whether Ruth has a cause of action in law against Daniel. My conclusion, like theirs, is that the answer to this is no. Notwithstanding this, my method is different, in certain ways, from the method of my colleagues. I will set out below the main points of my outlook on this matter.

 

 

 

*             IsrSC 49(1) 485; [1995-6] IsrLR 1.

†             Ibid.

 

 

3.            Several years ago, Daniel and Ruth started out on the path of in-vitro fertilization. This step was carried out by mutual consent. In my opinion, the key to solving the dispute before us will be found by considering the scope and content of the agreement between Daniel and Ruth. This agreement was not put in writing. It did not go into the fine details. It was based on the fabric of Daniel‟s and Ruth‟s life together. The couple did not need to translate it into a legal document. They did not express it as a defined set of mutual obligations and rights. They did not provide an arrangement for possible future events. As a married couple, life partners, it can be assumed that they saw no need for this.

Against this background the question arises whether the agreement between Daniel and Ruth is a binding agreement from the legal viewpoint. Justice Scott discusses the difficulty that arises in such situations in Layton v. Martin (1986) [57], in remarks cited in M. Parry‟s book, The Law Relating To Cohabitation, London, 1993, at page 234:

„In family or quasi-family situations there is always the question whether the parties intended to create a legally binding contract between them. The more general and less precise the language of the so-called contract, the more difficult it will be to infer that intention.‟

Notwithstanding these remarks, I believe that Ruth and Daniel intended to create a legally valid agreement. The consent between them did not remain a private one between them. It formed the basis for the contract made by Daniel and Ruth with third parties, such as the hospital that performed the fertilization, and the surrogacy institute in the United States. Moreover, vis-à- vis these parties this consent even received formal expression. Thus, for example, this consent was expressed in the forms that the couple signed at Assuta Hospital, where the fertilization was performed. It received similar expression in the Retainer Agreement that the couple signed with the Surrogacy Institute in the United States.

Despite this, in my opinion this consent is not a regular contractual consent. I agree with the position of my colleagues, Justices Strasberg-Cohen and Zamir, that we are dealing with a special type of consent. This conclusion is implied, in my opinion, by the context and the circumstances in which the consent was made. It derives from the special and emotional nature of the relationship between the parties as a married couple. This relationship, which I will discuss later, constitutes the basis of the consent and its purpose. In any case, and this is the main point, there is no doubt that the procedure that the

 

 

couple agreed to begin was based on this consent. Therefore, I base my opinion in this case on the content of the consent that was reached, without needing to define and classify, from the viewpoint of the legal classification, the special legal character of this consent.

4.            What, therefore, is the content of the consent? No direct evidence was brought as to the content of the consent. As stated, the consent was not put in writing. In such a situation, the court must try to derive the content of the consent from the circumstances of the case. This act of construction will be governed by the basic principles that apply to the construction of contracts (see section 61(b) of the Contracts (General Part) Law).

In trying to establish the intentions of the spouses, we must try to identify their intentions as reasonable people. In this way, we can identify the joint purpose of the consent, and deduce from it the content of the consent. Justice Barak discussed this in CA 154/80 Borchard Lines Limited, London v. Hydrobaton Ltd [36], when he said, at p. 223:

„… We must take account of the intentions that can be attributed to the parties, acting as reasonable people. The reason for this is that it can be assumed that, as long as the contrary is not proved, the intentions of the parties to the contract are the intentions that they would have had, had they acted as reasonable people in the circumstances of the case.‟

See also CA 554/83 Atta Textile Company Ltd v. Estate of Yitzhak Zolotolov [36], at p. 305; CA 275/83 Netanya Municipality v. Sahaf, Israeli Development Works Co. Ltd [37], at pp. 241-243.

This joint contractual purpose derives, inter alia, from the nature of the issue that is the subject of the consent, the character of the consent and its characteristics. As held in HCJ 846/93 Barak v. National Labour Court [38]:

„Similarly the purpose of the contract is comprised of an objective purpose, which reflects the aims and goals that the parties to the contract, as reasonable people, can be presumed to have wanted to realize. This is “the goal or purpose, which it is reasonable to assume that the parties, as reasonable persons, would have adopted in the circumstances of the case”. This purpose is naturally determined according to the substance of the matter regulated, the nature of the arrangement and its characteristics.‟

 

 

We can also learn of the content of the consent from the parties‟ behaviour after the consent was reached. „Such behaviour can indicate their intentions at the time of signing the agreement‟ (HCJ 932/91 Central Pension Fund of Federation Employees Ltd v. National Labour Court [39], at p. 437). Moreover, in the case before us, the consent is based mainly on the behaviour of the parties. In these circumstances, the court must „interpret the behaviour of the parties and give meaning to it‟ (CA 4956/90 Paz-Gas Marketing Co. Ltd v. Gazit Hadarom Ltd [40], at p. 42).

5.            Where do these rules lead to in this case? It seems to me that, from the circumstances of this case, it transpires that the intentions of the parties, as reasonable parties, was consent to cooperate towards realization of an in-vitro fertilization procedure. This consent is a framework consent. It is founded on the basic assumption that the marital relationship between the parties would continue. But, in my opinion, this consent does not include consent, ab initio, to all the stages and aspects of the fertilization procedure. This is a consent that is based on the knowledge and understanding that at each future stage of the in-vitro fertilization procedure, the joint consent and cooperation of both spouses would be required. In other words, according to this consent, each of the spouses knows and accepts that the continuation of the procedure is dependent on the ongoing consent of the couple to continue the procedure with all its stages.

This conclusion is based on the nature of the in-vitro fertilization procedure and the framework in which the parties acted and in which the agreement between them was made and implemented.

First, we are dealing with a lengthy procedure. The procedure is comprised of several stages: providing the sperm and ovum, fertilization of the ovum, locating and choosing the surrogate mother, carrying out the implantation (see regulation 2 of the In-vitro Fertilization Regulations). When the parties begin the procedure, there is more uncertainty than certainty. Many things remain open and uncertain. Thus, the parties do not know whether the in-vitro fertilization stage will succeed. Even in optimal conditions, the success rate at this stage is between 60% and 75% (see Appendix „B‟ of the Report of  the Professional Public Commission for Examining the Issue of In-vitro Fertilization, supra (hereafter: „the report of the Aloni Commission‟), at p. 114). They do not know if additional medical procedures will be required to facilitate such fertilization. Moreover, they do not know who will be the surrogate mother. They do not know how long the procedure of finding and choosing the surrogate mother will take. They also

 

 

do not know how many attempts will be required to achieve a pregnancy in the surrogate mother. What they should know is that the chances of pregnancy and having a child at this stage are far from certain. The rate of pregnancies per cycle of in-vitro fertilization treatment is only 15%. The rate of childbirth is only 12% (ibid., at p. 114). The rate of miscarriages for in- vitro fertilization is almost double that in a normal pregnancy (22%-26% as opposed to 12%-15%, ibid.). Even in optimal conditions — in which 3-4 embryos are implanted in the womb — the chance of a pregnancy for in-vitro fertilization is approximately one third (34%) (ibid., at p. 116).

Indeed, the surrogacy institute with which Ruth and Daniel made a contract retained for itself (through a doctor on its behalf) the power to rescind the surrogacy agreement, after it was signed, if the procedure did not succeed within a reasonable time. Clause 9 of the surrogacy agreement stipulated as follows:

„In the event that, in the opinion of the center‟s physician, the contemplated pregnancy has not occurred within a reasonable time, this agreement shall terminate by any party or the center‟s physician giving notice to all parties.‟

Therefore there exists, at the outset, great uncertainty with regard both to the success of the various stages of the procedure and the amount of time the procedure will take.

The in-vitro fertilization procedure is not only a lengthy procedure, but it is also a complex procedure. It is an expensive procedure from a financial perspective. The cost of surrogacy services is high, and may reach tens of thousands of dollars. In order to achieve success, in all respects, cooperation between the spouses is essential. Each of the spouses is dependent on the other for this purpose. The spouses need each other for the actual in-vitro fertilization. This is a biological dependence. They are dependent on one another in order to realize the procedure legally. The consent of each of them is required for the different stages of the procedure. Thus, for example, the consent of each of the spouses is required to enter into an agreement with the surrogate mother and the surrogacy institute. The spouses are dependent on one another for the technical realization of the procedure. They need to pool their joint resources in order to meet the financial burden needed. At each of the stages and critical junctures the consent of each of the spouses is required, and it is possible that they will have differences of opinion or disagree as to one matter or another that requires the consent of both of them. Therefore it is certain that the consent between them to undergo in-vitro fertilization was

 

 

accompanied by the knowledge and understanding of both of them that the in-vitro fertilization procedure could only reach its desired conclusion with the ongoing consent of both spouses, consent for each of the critical junctures along the long journey. Both spouses are dependent on one another in order to traverse this difficult procedure successfully.

This is compounded by another important matter. The consensual purpose is a joint purpose. At the heart of the consent we do not find the yearning of one of the spouses for children. The consent focuses on a joint aspiration of both spouses to realize the complete family unit that they wish to create. This unit is the essence of the consent. It is its backbone. The consent is based on this. From this it draws its existence.

All of these characteristics show, in my opinion, that in the absence of an express agreement to the contrary, the intentions of the parties at the beginning of the in-vitro fertilization procedure cannot be regarded as including consent ab initio to all its stages and elements. Such a consent is unsuited to the complexity of the procedure. It is unsuited to the uncertainty that surrounds it. It is also unsuited to the natural sensitivity and fragility of the relationship between the spouses, which constitutes the foundation of the consent between them. It is unsuited to the timetable anticipated by the agreement. Consequently, I do not believe that the intentions of the parties as reasonable people include such a consent. In my opinion, all we can find is the desire and consent of the spouses to cooperate in achieving their common goal. This agreement is a framework consent. It requires the cooperation of the parties at each stage of the procedure for its success, and it is dependent on it. It also requires the consent of each of the spouses for each stage of the procedure, consent which is not guaranteed in advance. It requires, in my opinion, the continued existence of the basic conditions for realizing the consent — the continued existence of their relationship as a couple.

6.            This conclusion as to the content of the consent that can be attributed to the parties as reasonable people, is not only based merely on the nature of the in-vitro fertilization procedure, and its substance as a procedure whereby the couple wish to extend the family unit. It also relies on the specific contexts in which Daniel and Ruth acted, contexts that were anticipated and known to them since the beginning of the procedure.

One aspect concerns the normative framework to which the parties subjected themselves when they began the in-vitro fertilization procedure. Daniel and Ruth knew that these procedures were governed by the In-vitro Fertilization Regulations. They acted in accordance with these regulations at

 

 

the beginning of the procedure. It can be assumed that the parties were aware of their content. Inter alia, these regulations require informed consent — of both spouses — for each stage of performing the in-vitro fertilization procedure (see regulation 14 of the In-vitro Fertilization Regulations). Within this framework, the regulations also require consent to the implantation stage, and I agree in this respect with the remarks of my colleague, Justice Zamir, in paragraph 8 of his opinion. This normative arrangement provides a strong indication of the content of the agreement reached by Ruth and Daniel. It indicates that it should not be said that the initial consent encompassed all the stages of the procedure, with all its obstacles. Upon their initial consent, knowing the requirements of the Regulations, they knew that also in the future the consent of each of them would be required, and they were prepared to begin the procedure in the knowledge that its continuation was dependent on the additional „informed‟ consents of both of them.

Another aspect concerns the manner in which the in-vitro fertilization procedure is realized by implanting the fertilized ova in the body of the surrogate mother. In order to carry out the procedure, Ruth and  Daniel entered into an agreement with a surrogacy institute in the United States. This agreement covered the financial aspects of their contract with the institute. The consent under this agreement is joint. The consent of each of the spouses is required for the proceeding. Thus, one of the paragraphs in the preamble of the agreement provides that:

„… The center is engaged in the practice of arranging surrogate agreements and administration of agreements for couples who are unable to bear their own children…‟ (emphasis supplied).

According to this, the two natural parents — Ruth and Daniel — are a party to this agreement. It calls them, jointly, the prospective parents. It is therefore natural that they are also the ones who are supposed — jointly — to choose the surrogate mother (clause 5):

„Prospective parents shall meet with and have the final decision as to the selection of any potential surrogate…‟.

This is also the case with regard to the agreement with the surrogate mother. As stated, no such agreement has yet been signed. No surrogate mother has yet been located. Notwithstanding, Ruth and Daniel were shown a draft of such an agreement by the surrogacy institute in the United States. They knew the contents of this agreement. This agreement clearly shows the need for the consent of each of the spouses to the implantation: both Ruth

 

 

and Daniel are parties to it, and to all its obligations. It indicates the basic requirement of the existence of a genuine relationship when consenting to the implantation. This can be seen from the preamble to the agreement:

„… are a married couple, living together… and are desirous of entering into the following agreement…‟ (emphasis supplied).

Although Ruth and Daniel were aware of the contents of this agreement, no claim has been heard that either of them had reservations about this content. Moreover, this agreement requires a high degree of involvement from each of them. The agreement imposes obligations on each of them. They both undertake to take upon themselves the legal and parental obligations with regard to the child that will be born (clause 3). They both undertake to undergo physical and psychological examinations for the purposes of the procedure (clauses 5 and 6). The both undertake to provide any assistance that may be needed for the procedure (clause 7). They both undertake to indemnify the surrogate mother for her losses and expenses (clause 18). Moreover, a breach by one of them makes the other liable (clause 27).

It seems to me that this mechanism, by means of which the parties wanted to carry out the fertilization procedure, can also help in determining the contents of their consent. It indicates that the parties knew that the consent of each of them would be required also at the implantation stage. It shows that they regarded the in-vitro fertilization procedure as a joint procedure, and that they knew that at the implantation stage the consent of each of them to all the conditions and details relating to this stage would be required.

The details of the agreement, as stated, and the need to determine a mechanism for the implantation with the consent of each spouse, also show that there is no basis for the finding that at the stage when the dispute broke out between the parties, Daniel is no longer in the picture, so to speak, and is no longer required to perform any further act (see, for example, the opinion of Justice Tal, at paragraph 4; the opinion of Justice Bach, at paragraph 5(e)). His consent is needed not only for the actual use of the fertilized ova, as required by the hospital where they are held, but also for choosing the surrogate mother and for determining the terms of the contract with her, and for determining the details relating to the agreement with the surrogacy institute.

I can add, in parenthesis, that in view of the importance ascribed by surrogacy institutions in the United States to the joint consent and liability of

 

 

parents entering into a surrogacy agreement, I doubt whether, in view of Daniel‟s opposition to the continuation of the in-vitro fertilization procedure, the institution with which Daniel and Ruth entered into a contract, or any other institution, will sign a surrogacy agreement with Ruth alone.

7.            Note that, as can be seen from the above description, this requirement for the consent of both spouses at each of the stages of the procedure is not a formal requirement. This is not an arbitrary conclusion, divorced from the reality of the in-vitro fertilization procedure. This requirement reflects the nature of the in-vitro fertilization procedure. It derives from the importance of the decisions that the parties must make along the way. The same is true of the fertilization. The couple must choose a medical institution where the fertilization will be performed. This choice may have implications for the outcome of the fertilization. It may affect its chances of success. It involves an important choice for carrying out the fertilization procedure. Is it conceivable that a decision of this kind will be made without the consent of one of them?

The situation is similar, and maybe even more complex, when we are dealing with the implantation stage. At this stage, the parties must make a series of important decisions. They must decide where to carry out the implantation. As with the fertilization, this is a decision that is important for the successful performance of the in-vitro fertilization procedure. They must make financial and economic decisions. As stated, entering into a surrogacy contract is an expensive matter. This is clear from the retainer agreement signed with the surrogacy institute. This agreement stated (in clause 16) that:

„The Center has advised prospective parents that surrogate parenting is a very expensive procedure and has many unknown implications.‟

We are speaking of large amounts, in tens of thousands of dollars. Even more important, we have seen that the couple must choose a surrogate mother who will carry their future children. This choice has many aspects that are not simple. The surrogate‟s age may be important. Her medical background may be of importance. So, too, may her social psychological background. We are speaking of a choice whose importance cannot be exaggerated. It may determine the fate of the whole procedure. We need only glance at the serious disputes that have arisen between prospective parents and surrogate mothers in order to understand just how important the correct choice is at this stage (see In re Baby M (1987) [56]). Can we ascribe to the parties, in the absence of an express and clear consent on this issue, ab initio consent on this issue? I

 

 

believe that the answer is no. The parties left this important matter completely open. They knew and understood that an additional special consent of both of them would be required for it.

8.            I reached this conclusion on the basis of the intentions of the parties as a reasonable couple, as it arises from the circumstances of the case and from the behaviour of the parties. I would point out that my conclusion is consistent with the law that governs this issue, in Israel and abroad. Thus the arrangement prescribed in the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law (hereafter — the Agreements Law) requires, as my colleague, Justice Zamir, says (in paragraph 10 of his opinion), the informed consent of the couple to the implantation. Indeed, this provision does not apply directly to the dispute before us. But it shows that there are strong grounds for the conclusion that the consent of both spouses is necessary also for the implantation stage.

The result whereby cooperation and consent of both spouses is required for each of the stages is also supported by another provision of the Agreements Law. The Law revolves around the surrogacy agreement. The agreements is between the prospective parents and the surrogate mother. The prospective parents are the couple who are entering into a contract with the surrogate mother. The agreement requires the approval of a statutory committee. Under section 5(c) of the law, this 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 my opinion, even this provision shows the legislator‟s policy with regard to the issue before us. It clarifies that the status of a consent — even one that is incorporated in an agreement that received the approval of a special statutory body — is not absolute until the implantation stage. That is the decisive stage. Until this stage, a change in circumstances may lead to a termination of the procedure. In my opinion, the breakdown of the relationship between the two spouses constitutes a significant change in the circumstances for this purpose. The relationship between the two spouses is a fundamental element of the surrogacy agreement. The prospective parents must be „a man and a woman who are spouses‟ (section 1 of the law). The pregnancy of the surrogate mother is done for the „prospective parents‟ (ibid.). The statutory arrangement assumes, therefore, a relationship between the spouses. The breakdown of the relationship before implantation of the

 

 

ovum in the surrogate mother constitutes a change of the circumstances or the facts that formed the basis for the decision of the approvals committee. It may, therefore, lead to a revocation of the approval of the surrogacy agreement and termination of the procedure.

9.            The law in other countries also supports this result. As set out extensively in the opinion of my colleague, Justice Strasberg-Cohen, in tha appeal (CA 5587/93)*, in other countries the effective consent of the spouse is required also for the implantation stage. Until this stage, he has the right to change his mind. In other countries, this is the solution that is proposed by official commissions that were appointed to consider this issue. Incidentally, this is also the approach contained in the report of the Aloni Commission that was appointed by the Minister of Health and the Minister of Justice in June 1991 to consider the issue. The Commission expressed the opinion, on page 36, that:

„… Fatherhood or motherhood should not be forced on a man or woman against their wishes, even if they gave their initial consent thereto.‟

10.          Up to this point, I have discussed my fundamental approach. To summarize, it is my opinion that the in-vitro fertilization procedure is a joint procedure. The intention of the spouses is to bring into the world a child of both of them, so that both of them will be able to raise him within the framework of the family unit. The procedure of in-vitro fertilization is a long one, there are many difficulties along the way, and the couple will in the future be required to make decisions on matters of the utmost importance. Only when both spouses want to carry out the procedure, with the understanding that this joint desire and consent will continue to exist, and only subject to the joint consent of both of them at all stages of the procedure is it possible to realize their ultimate expectations. At the start of the procedure, the spouses presume that they will both continue to have this desire and consent. This assumption was at the basis of the consent that they reached. But it also reflects an assumption that may prove false, and then one of the spouses will not be able to continue the procedure alone. Indeed, each of them expected that they would continue to cooperate with one another throughout the whole procedure.  But  each of  them also understood  and agreed, that only if there would be continuing cooperation and consent on the part of his spouse would the procedure continue and reach its conclusion.

 

 

*             IsrSC 49(1) 485; [1995-6] IsrLR 1.

 

 

When one of the spouses changes his mind before the implantation, there may, possibly, be grounds for the other to feel disappointed and aggrieved, but he does not have a cause of action in law to compel the other spouse to continue the procedure, in view of the contents of the consent between the spouses as aforesaid.

This view leads me to the result that Ruth needs Daniel‟s consent to carry out the implantation. Therefore, she cannot receive the fertilized ova into her possession for the purpose of the implantation that is opposed by Daniel. My conclusion is that, in the circumstances of the case and according to the consent of the parties themselves, Daniel was entitled not to give his consent to the continuation of the procedure. I believe that this result also reflects the proper law. This result gives proper expression to the character of the in-vitro fertilization procedure. It expresses in the proper degree the joint framework of this procedure.

For this reason, Daniel‟s unwillingness to continue the in-vitro fertilization procedure also is not tainted by bad faith. Since the entire procedure is based on the spousal relationship between Daniel and Ruth, when their spousal relationship is no longer intact, and in practice no longer exists, Daniel‟s unwillingness to continue the procedure is self-evident, because of the nature of the consent between the two, as explained above. In any case, bad faith should not be imputed to Daniel in carrying out the consent between him and Ruth, because he refuses to give his consent to the continuation of the procedure.

11.          I have not been persuaded that there is anything that justifies, in the circumstances of this case, a deviation from this result. I have not been persuaded that the parties agreed that the procedure would continue even if Ruth and Daniel ceased to be a couple. I have not been persuaded that Daniel made any representation that he agreed to the continuation of the procedure even if the relationship between the two would collapse. In any event, I have not been persuaded that there was any reliance, or reasonable reliance, by Ruth on such a representation. The procedure is a joint one. As such it requires, as explained above, the consent of each of the spouses at each of the stages.

12.          Indeed, Ruth‟s case arouses sympathy. Her distress is sincere and genuine. But this is insufficient to reverse the consent between the parties. It is insufficient to justify a retrospective change of the rules of the game which, in my opinion, the parties took upon themselves when they started out. It is also  insufficient  to  give  Ruth  a  constitutional  right,  which  requires  the

 

 

granting of relief against third parties for its realization. In this regard, I agree with the analysis in the decision of my colleague, Justice Strasberg-Cohen. I therefore do not agree with the result reached by the majority opinion in this proceeding. In my opinion, Ruth does not have any cause of action that requires the ova to be delivered to her for the purpose of continuing the procedure.

13.          Before concluding, I would like to make an additional remark. This case raises a difficulty. In cases of this sort, there is a temptation to try and adapt the result to the special set of circumstances under discussion, in order not to cause an injustice according to one viewpoint or another. I believe that the court has a duty to resist this temptation. It must ascertain the law and decide accordingly. Therefore, I have tried to ascertain what is the legal result required in all those cases where the couple agreed on a procedure of in-vitro fertilization without making any express stipulation as to the result if one of them is not prepared to continue the procedure. When I reached the conclusion that there is a legal solution to this problem, as I have sought to clarify above, this solution should apply in our case, even if its result is inconsistent with Ruth‟s expectations, and the situation in which she finds herself arouses sympathy.

In my opinion, the correct way of dealing with this kind of problem is not to create a special law intended to solve the particular distress of a specific litigant, even if it is sincere and genuine. This was discussed by Justice Netanyahu in CA 248/86 Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [41] at p. 558:

„A legal norm must be built on a correct logical legal analysis, while exercising legal policy considerations that will achieve the desired result in most cases. It cannot be determined according to its results in a particular case. Such a norm gives rise to the well-known saying that hard cases make bad law.‟

In a similar vein, see the remarks of Justice Witkon in CA 840/75 Jewish National Fund v. Tevel [42], at page 549; and also the remarks of Justice Y. Cohen in CA 555/71 Amsterdramer v. Moskovitz [43], at pp. 799-800.

I agree with these remarks.

 

 

Consequently, were my opinion accepted, the petition for a further hearing would be denied, and the judgment of the court in CA 5587/93* would be upheld.

 

Justice I. Zamir

On just law

1.            „Alas for me because of my Maker and alas for me because of my inclination.‟ „My Maker‟ is the law, for the court was only established, and only exists, by virtue of the law, and it knows no allegiance other than to the law. „My inclination‟ is justice, for the court wants, with all its soul and might, to do justice. Woe to the judge who administers law without justice, and woe to him if he administers justice without the law. Happy is the judge who administers the law with justice. Indeed, usually the law leads the judge to justice, but if the law and justice do not go hand in hand, the judge may bend the law in the direction of justice, in so far as possible, until they meet.

It happens to a judge that the law and justice struggle within him, each pulling in different directions, and he cannot reconcile one with the other. In such a case, no matter how difficult it is for him, he must not allow his

„inclination‟ to override his „Maker‟. This is the case because the oath of the judge, before it commands him to dispense just law, requires him to keep faith with the laws of the State. See the Basic Law: Administration of Justice, in section 6. Moreover, without law, ultimately there is no true justice.

Therefore, a judge should never jump from the facts to justice, as if there were no law between them. Justice has its place. But it must be based on a foundation of law.

2.            Indeed, there are matters that it is better to decide according to justice, or emotion, or values outside the law, and not according to the law. These often include family matters, such as the relationship between husband and wife, or matters of religious or other faith, and even political matters, such as agreements between parties. It would be best if these matters never came before the court, but were decided within the family, or between a person and his Rabbi, or at the ballot box on election day.

But even these matters may find their way to the court. If such a matter comes before the court, it has two options, according to the nature of the

 

 

 

*             IsrSC 49(1) 485; [1995-6] IsrLR 1.

 

 

case: first, to dismiss the matter in limine, without considering the matter on its merits; second, to consider and decide the matter on its merits.

The court is likely to dismiss the matter in limine if it is unsuited or unlikely to be resolved by the law. Such a case is the famous example of an invitation, for reasons of friendship, to dinner. The same is true of various intimate matters that are resolved between spouses by means of an understanding or consent that has no legal status. In such a case, the court will dismiss the plaintiff from the court, even if justice is clearly on his side, because he has no cause of action in law or because  the matter is  not justiciable.

But this is not necessarily the case. Even complex and emotional matters, in the personal sphere or in any other sphere, including the most intimate matters, may adopt a legal form. Then the court must consider the matter and decide it on the merits: a breach of promise of marriage, custody, education or adoption of children, etc.. When the court considers and decides such a matter, obviously it does not decide it as if it were a marriage counsellor, a religious teacher or a political leader. If it is compelled to decide such a matter, it must decide it as a court, i.e., by dispensing just law. First of all, there is law.

3.            This is also the position in the Nahmani case. There is no doubt that this case arouses problems and difficulties in the spheres of emotion, morality, philosophy, and other spheres outside the law. There is also no doubt that it would have been preferable if this case had been resolved by agreement between Daniel and Ruth, and even if they did not reach an agreement on the merits of the case, if they agreed to settle the dispute in another way, out of court. But this was not how matters developed, and the case came before the court.

Once the case reached the court, it was obliged to decide first if it was prepared to consider it on its merits. The fact that the matter is loaded with emotion and involves important and difficult questions that are outside the law is insufficient for dismissing it. The court is used to cases such as these. The crucial question is, whether the relationship between Ruth and Daniel is a legal relationship.

In principle, it is possible that a couple will agree to bring a child into the world, naturally or by another means, but the consent will not amount to an agreement in law. In such a case, should one of the spouses file an action in court against the other, claiming that he is not upholding the agreement, the

 

 

court will have to rule that the plaintiff has no cause of action in law or that the matter is not justiciable. The action is dismissed, even though it is possible that the plaintiff suffers an injustice, and it is possible that he may also have no redress out of court. But the court is not supposed, nor even is it able, to cure all ills.

But the court did not think this way in the Nahmani case. It agreed to consider the claim and to decide it on the merits. This implies that it thought that the matter is justiciable. If so, the court must decide it in accordance with a legal norm. It cannot say in the same breath that the matter is justiciable and that there is no legal norm for adjudicating it, and therefore it is possible, in the absence of any other choice, to resort to justice. This case must be decided, like every other justiciable case, according to the law, and justice must be done within the framework of the law.

If so, what is the law that applies in this case?

4.            It may be that there is no law, statute or precedent, which gives an express answer to the matter being considered by the court. But even in such a situation, the court does not stare blankly into a normative vacuum. The courtroom is full of legal norms. Even if there is no express norm that applies to the case under consideration, there is certainly an implied norm. The court must seek its path in order to reach this norm, and, if necessary, to adapt it or develop it as required. Jurisprudence guides it on its way and gives it tools in order to determine the law, and even to develop the law from within the law.

The main path is outlined in the Foundations of Justice Law. This path, according to section 1 of this law, is as follows:

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

The court is required to take this path, from legislation to precedent, and if it does not find an answer in either of these, it must go on to analogy, and if there too no answer is found, it must go on to the principles of liberty, justice, equity and peace of Jewish heritage. From a practical viewpoint, and maybe even from a theoretical viewpoint, it is inconceivable that the court will not find a legal norm somewhere along this path. In any case, the court is not entitled to say, before it has traversed the whole length of this path, that there is no legal norm in the matter under consideration, and therefore it is entitled to decide that matter according to justice.

 

 

It would not have been necessary to say this, since it is well-known, were it not to appear that it has almost been forgotten by some of the judges in the Nahmani case.

5.            In the Nahmani case, had the court followed the main path outlined in the Foundations of Justice Law, it could not have jumped straight to justice before it enquired properly and determined that there is no answer either in legislation or in precedent, or in analogy, or even in the principles of liberty, justice, equity and peace of Jewish heritage. But some of the judges did not take this path, nor did they stop at any of these points along the way, not even the last, which is Jewish heritage. Admittedly there were judges who mentioned some words of Jewish law, pointing in one direction or the other. All of these are the words of the living God. But they were not mentioned as legal principles that determine the case, but merely in order to derive inspiration, as if they were a scholarly opinion.

Is the conclusion that all along this path there is no legal norm that provides an answer to the Nahmani case, so that it is necessary to make a jump straight to justice? No. There is even no need to go as far along the path, in searching for a legal norm, as Jewish heritage, nor even as far as analogy. The Nahmani case abounds in  legal norms from the first step; regulations on one side and an agreement on the other; the right to be a parent against the right not to be a parent; reliance and estoppel; and more. This is the raw material that the court regularly uses to solve disputes and to construct its judgments. It should be used also in this case. This is the path and obligation of the court, before it reaches the question whether the solution that arises from the law also does justice.

Justice Strasberg-Cohen followed this path when she wrote the majority opinion at the appeal stage of the Nahmani case. I therefore agreed with her path, and together with her I reached the conclusion that the law — first of all, the law — sides with Daniel Nahmani.

I have now read the opinions in the further hearing, which have changed the majority opinion in the appeal into the minority opinion in this hearing. I have not been persuaded. First and foremost, I have not found in them any answers to the legal problems that arise in this case, and at any rate I have not found in them answers that are better than the answers given by Justice Strasberg-Cohen. I have also not been persuaded that justice tips the scales, notwithstanding the law, in favour of Ruth Nahmani. Therefore I remain on the path that I took and I stand by the result that I reached.

 

 

My path is close, but not identical, to the path of Justice Strasberg-Cohen.

I will present it briefly: first — the law; afterwards — justice.

On the law

6.            The legal path in this case is long and arduous. In order to facilitate our progress, I will first present the general direction of the path. Afterwards, I will present it in detail, stage by stage.

The fertilization procedure involving Ruth and Daniel was carried out by the hospital under the Public Health (in-vitro Fertilization) Regulations (hereafter — the Fertilization Regulations). Ruth asked to receive the fertilized ova from the hospital in order to continue the procedure and to implant them in a surrogate mother. But under the Regulations, the husband‟s consent to the fertilization is insufficient; his consent is also required for the implantation. Daniel notified the hospital that he is opposed to the implantation. Therefore the hospital refused to give the ova to Ruth. For lack of any other option, Ruth sued Daniel in court. The central question in the suit was whether Daniel originally agreed also that implantation would be carried out even if Daniel and Ruth were to separate from each other. The answer, in my opinion, is no. Another question is whether Daniel, even though he opposes the implantation, is estopped from arguing this. In my opinion, the answer to this question is also no. The result is that Ruth has no cause of action to force Daniel in court to give his consent to the implantation or to refrain from opposing the implantation. If so, under the law the court must dismiss Ruth‟s action against Daniel, and the hospital is not entitled to give Ruth the fertilized ova, unless and until Daniel agrees to this.

Now I will go into detail.

7.            The first step on the legal path leads to legislation. In-vitro fertilization is now regulated, in part, by the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law. But this law, which regulates in- vitro fertilization vis-à-vis a surrogate mother, did not yet exist when the dispute between Ruth and Daniel began, nor even when the matter came before the court that tried the dispute between them, whether in the District Court or in the appeal before this court. Nonetheless, this law is relevant also to the dispute between Ruth and Daniel, and the court should not ignore it. But everything has its proper place, and I should not begin at the end.

8.            About five years ago, when Ruth and Daniel began the fertility procedure, in-vitro fertilization was governed by the Fertilization Regulations.  These  regulations  do  not  regulate  the  relationship  between

 

 

spouses wishing to carry out in-vitro fertilization in a hospital, but the role of the hospital in carrying out such a fertilization, including the relationship between the hospital and the couple. Under regulation 2(a) of these regulations, in-vitro fertilization may be carried out „only in a recognized ward and pursuant to the provisions of these regulations‟. There is no dispute that the fertilization of Ruth‟s ova with Daniel‟s sperm was carried out by Assuta Hospital under the Fertilization Regulations.

Incidentally, it should be said that the Fertilization Regulations, in their original version, stated (in regulation 11) that a fertilized ovum may only be implanted in the woman who will be the child‟s mother. In other words, these regulations prohibited implantation of an ovum in a surrogate mother. But this court held that this provision was void. See HCJ 5087/94 [44]. This means that the Fertilization Regulations regulate in-vitro fertilization also for implantation in a surrogate mother.

Under the Fertilization Regulations, Ruth and Daniel could not  have begun the fertilization procedure at the hospital without their joint consent. The consent was duly given. But it is questionable whether under these regulations the consent is required only at the first stage of the procedure, which is the fertilization stage, or whether it is also required at the second stage, which is the implantation stage. This question is of critical importance in the Nahmani case, for it is clear that Daniel gave his consent to the fertilization, whereas he now opposes the implantation.

The question arose before the District Court that considered the Nahmani case. Daniel argued that under the regulations, his consent is required also for the implantation of the fertilized ova. The Attorney-General, who was summoned by the court to join the action as the party representing the public interest, supported Daniel‟s argument. But the District Court (Justice Ariel) held that both Daniel and the Attorney-General were mistaken: in its opinion, the regulations provide that for a married woman the husband‟s consent is only required for fertilization of the ovum, and no further consent of the husband is needed for implantation of the ovum. See OM (Hf) 599/92.*

I do not agree. Admittedly, under regulation 3 of the Fertilization Regulations, removal of the ovum may be done solely for the purpose of in- vitro fertilization and implantation after the fertilization. From  this it is possible to deduce that anyone who gave his consent to fertilization also agreed  to  implantation.  Notwithstanding,  the  regulations  do  not  merely

 

 

*             IsrDC 5754(1) 142, 153.

 

 

require consent to the fertilization itself at the start of the procedure. The procedure of having a child by in-vitro fertilization is so complex and sensitive that the regulations insist upon requiring informed and express consent of the husband at each stage of this procedure, including consent to implantation. Regulation 14 of the regulations states as follows:

„(a) Every act involved in in-vitro fertilization as stated in regulation 2 shall be performed only after the doctor in charge has explained to each of those involved the significance and the consequences that may follow from it, and has received informed consent of each of them separately.

(b)          Every act involved in in-vitro fertilization of a married woman shall be performed only after receiving the consent of her husband.

(c)           Consent under these regulations —

(1)          shall not be given for a specific person or for a specific matter;

(2)          shall be given in writing and in the presence of a doctor, provided that the consent of a married couple shall be given on one document.‟

It follows that under the regulations „every act‟ involving in-vitro fertilization „as stated in regulation 2‟ requires „informed consent‟ of the husband „on one document‟. And what is an act involving in-vitro fertilization as stated in regulation 2? Regulation 2(a) gives the following answer:

„A person may remove an ovum from a woman‟s body, fertilize it, freeze or implant a fertilized ovum in a woman‟s body only in a recognized ward and pursuant to the provisions of these regulations.‟

It follows then that in-vitro fertilization comprises several actions, including implantation, and each of these actions requires the husband‟s consent.

9.            If so, how did the District Court hold that the consent of the husband to the actual fertilization is sufficient, and there is no further need for his consent to the implantation? The District Court relied on clause 8(b)(3) of the regulations, which states:

 

 

„If the woman in whom the ovum is supposed to be implanted is divorced, and the ovum were fertilized with the sperm of her husband before her divorce — the ovum shall only be implanted in her after receiving the consent of her former husband.‟

The District Court made a negative inference from the positive one. It is only with regard to a divorced woman that regulation 8(b)(3) makes the express condition that the consent of the former husband is required. It follows, according to the District Court, that no such consent is required for a married woman. And this is the important point in this case: although Ruth and Daniel live separately, they are still married to one another.

But this is wrong. Regulation 14 requires the husband‟s consent for every act throughout the procedure. This is clear and simple. Nonetheless, it was still necessary to add regulation 8, which deals with the procedure for unmarried women: an unmarried woman (regulation 8(b)(1)), a widow (regulation 8(b)(2) and a divorcee (regulation 8(c)(3)). For a divorcee it was necessary to add regulation 8(b(3), and regulation 14 was insufficient, since regulation 14 requires the consent of the husband, whereas clause 8(b)(3) is intended to add the consent of the former husband.

The District Court presents the husband as if he disappears from the picture after fertilization: the husband has done his job; the husband is free to go. What business is it of his to interfere at the implantation stage and to try to prevent the continuation of the procedure? Not only this. The District Court also says that —

„There is a danger in the position that requires additional consent of  the husband  in  cases of  a dispute between them (including a dispute before divorce), as this would give preference to the husband and may lead to major discrimination against the wife…

The consent is required once, and cannot be changed according to this or that passing whim.‟

But under the regulations, the husband stays in the picture. This can be seen not only from regulation 14, which requires the husband‟s consent for every act, but also from regulation 9. This regulation states as follows:

„(a) An ovum, including a fertilized ovum, may be frozen for a period not exceeding five years.

 

 

(b) If a written request is received to extend the freezing period, signed by the woman from whose body it was taken and her husband, and approved by the signature of the doctor in charge, the hospital may extend the freezing period by another five years.‟

It is therefore clear that under the regulations, the husband‟s consent (under regulation 14(c) — written consent in the presence of a doctor) is required, for the purpose of continuing the procedure, five years after the ovum was frozen. It is required even for continuing the freezing. Is it reasonable to say that it is not needed for the implantation? It is required also when the couple is living together harmoniously. Is it reasonable to say that it is not needed when the couple are living apart and there is no peace between them? Just imagine: for five years after the freezing, the husband supposedly does not exist, is like a ghost, and the wife is entitled to take the ova from the hospital unilaterally in order to implant them in another woman at her choice. Time passes, and suddenly the husband is once again important, and it is even impossible to extend the freezing period without his consent! There is no logic in this. Indeed, in my opinion, the husband should not be said to have done his job when he gave his sperm for fertilizing the ovum, and now he is free to go. Such a statement is inconsistent with the Regulations, does not befit the idea of partnership in having children, and is unfair to the husband.

10.          The question whether the husband  must  give  his consent  to implantation was also answered, recently, in the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law. This law regulates the implantation of fertilized ova in a surrogate mother. In this respect the law concerns the case before us, because the fertilization of Ruth‟s ova with Daniel‟s sperm was done for the purpose of implanting the ova in a surrogate mother. The law was enacted only after the fertilization, and it cannot be applied retroactively to the fertilization that was carried out in this case. Nonetheless, the law now allows, for the first time, the implantation of fertilized ova in Israel. This is apparently a possibility from Ruth‟s perspective for various reasons, inter alia because the institute in the United States, with which Ruth and Daniel originally entered into a contract, requires the consent of both of them for an implantation. But the implantation in Israel, under this law, can only be performed (under section 7), inter alia, in accordance with a surrogacy agreement made and approved under this law. The law stipulates various requirements for such an agreement before it is approved. Inter alia, a „written agreement‟ must be made (under section 2)

 

 

between the surrogate mother and the prospective parents. In other words, the signature of the husband is required on the agreement, before the special approvals committee, of his own free will and after understanding the significance and the consequences of the consent (under section 5).

I am not making these remarks to say that, from a practical viewpoint, Ruth cannot carry out the implantation  in Israel under this law without Daniel‟s consent, but to show the policy of the statute, which is now the policy of the principal legislator and not merely of the subordinate legislator. According to this policy, the express and informed consent of the husband is required for the implantation, including the identity of the surrogate mother. It is inconsistent with the policy of the statute that Ruth can receive the fertilized ova and deliver them for implantation in a surrogate mother without Daniel‟s consent.

The court strives to create harmony in the legal system. This is a guiding principle in the interpretation of legislation. Interpretation tries to prevent a conflict between two statutes or between a statute and regulations. Therefore, if the new statute requires the husband‟s consent for implantation, it is not desirable to interpret the regulations (or to develop the law) in a way that makes the husband‟s consent unnecessary.

Incidentally, I would also like to raise the question whether, under the Surrogacy (Approval of Agreement and Status of the Child) Law, a woman may carry out in-vitro fertilization in Israel and then perform the implantation of the fertilized ova in a surrogate mother outside Israel, other than under the terms of the statute. Section 7 of the Law states that „In-vitro fertilization and implantation of a fertilized ovum shall be carried out only in a recognized ward and on the basis of a surrogacy agreement that was approved as stated‟. According to the language of the law, it appears that even the first stage of in- vitro fertilization should be performed only on the basis of an agreement under the law. And the law, as stated, provides various requirements for such an agreement: consent of the husband to performance of the implantation in a specific woman who is of the same faith as the prospective mother, provided that the agreement does not contain terms that harm the rights of the child that will be born, etc.. This leads to the question: is the prospective mother entitled to carry out in-vitro fertilization in Israel and afterwards, by means of implantation outside Israel, to bypass all the terms that the statute prescribes for the purpose of implantation? But this question was not argued before us, and therefore it should be left undecided. For the purposes of the case before us, it is sufficient to say once again that the new statute does not allow

 

 

implantation to be carried out without the informed consent of the husband to implantation in a specific woman.

11.          Assuta hospital was sued by Ruth to deliver to her the ova fertilized with Daniel‟s sperm for the purpose of implantation in a surrogate mother. However, as stated, the release of the ova from the hospital for implantation is, under the regulations, an act that required Daniel‟s consent. Without consent, the hospital was prohibited from delivering the ova to Ruth. Therefore it refused, and rightly so.

Moreover, the need for Daniel‟s consent to carry out implantation derives not only from the regulations, but also from private law. This is because the fertilized ova do not belong solely to Ruth nor solely to Daniel. After all, each of them gave of himself to the hospital to create the fertilized ova. The hospital received Ruth‟s ova and Daniel‟s sperm under an agreement between Daniel and Ruth on one side and the hospital on the other. Under this agreement, the hospital may not deliver the ova to one of them against the wishes of the other. Let us assume, for example, that Daniel pre-empted Ruth and contacted the hospital first to receive the ova for some reason, whether to transfer them for implantation unilaterally, or to destroy them, or for some other purpose. It is clear, in my opinion, that the hospital would not have been permitted, if only because of the tripartite agreement between Ruth, Daniel and the hospital, to deliver them to Daniel against Ruth‟s wishes.

In any case, whether under the regulations or under the agreement, Ruth is unable to receive the fertilized ova from the hospital without Daniel‟s consent, and Daniel objects. She has no choice: she must present to the hospital Daniel‟s consent or, alternatively, a judgment exempting her, or the hospital, from the need for consent. Consequently, Ruth filed the action against Daniel and against the hospital in the District Court. In practice the action is not against the hospital, since both the regulations and the agreement with the couple prevent it from delivering the ova without Daniel‟s consent, and therefore the hospital is in practice merely a formal defendant. For this reason, the action is not based on the Fertilization Regulations. These regulations lie in the background only as an explanation for the claim: it is they that forced Ruth to sue Daniel. The real claim is against Daniel, in order to establish that he consented, or to compel him to consent, and this action is not based on the Fertilization Regulations, but on the relationship between Ruth and Daniel: in the relationship between him and her, does Ruth have a cause of action against Daniel?

 

 

12.          First, does the right of parenthood give Ruth a cause of action against Daniel? Ruth has a right to be a parent. No one disputes this. The right to be a parent is a basic right. There is no dispute on this. But this is not enough. For the right to be a parent is, by its nature, a liberty, i.e., a negative right. Therefore, the right to be a parent is insufficient to support a court action of a wife against her husband, or against another man, for him to do an act in order to convert the right from theory into practice. The court may oblige a particular man to perform an act to realize the parenthood of a particular woman only if that man has a duty towards that woman: a statutory duty, an agreement, or a duty deriving from another legal source. It follows that in order to find Daniel liable towards Ruth, it is insufficient that Ruth has a right vis-à-vis society, but she also needs to have a cause of action against Daniel.

Indeed, it is an interesting and difficult question, how important is the right to be a parent, and is it more important than the right not to be a parent. But, in my opinion, it has no significance within the framework of the Ruth‟s claim against Daniel. For the purpose of this case we can assume that Ruth‟s right to be a parent is much more important than Daniel‟s right not to be a parent. This is still insufficient to impose a duty on Daniel to do an act that will allow Ruth to exercise her right of parenthood.

Imagine that A sues B for money in the name of the right to life. A will not succeed in the action, although the right to life is ten times more important than B‟s right to the money, unless he can prove that B has a duty in law to give A money.

Consequently, for Ruth to succeed in the action she filed in court, she needs to have a cause of action against Daniel. She does not have a cause of action founded in legislation, since there is no legislation that imposes on Daniel a duty to consent to implantation. Therefore the question is whether she has a cause of action against Daniel by virtue of an agreement.

13.          A preliminary question is whether an agreement between a husband and wife regarding implantation of fertilized ova in a surrogate mother is a legal agreement that can impose a legal duty on the husband. There is a view that agreements between spouses while they are living together are not legal agreements. Indeed, that may be so, but it is not necessarily so. It depends on the circumstances of each case. There is no doubt that business agreements between spouses can be contracts in all respects. And not only agreements of this sort. The law recognizes a contractual claim for breach of promise of marriage. Why, then, should it not recognize other agreements between spouses, according to the subject-matter and the circumstances of each case?

 

 

In this case, I believe that the circumstances show that the agreement made between Ruth and Daniel is a legal agreement. Regulation 14 of the Fertilization Regulations requires „informed consent‟ of each of the spouses,

„after the doctor in charge has explained to each of those involved the significance and the consequences that may follow from it‟, and it further states that the consent „shall be given in writing and in the presence of a doctor, provided that the consent of a married couple shall be given on one document‟. This, it can be said, is a strong consent, like a contract which statute requires to be in writing. Moreover, it is like a contract that must be signed before a notary. In any case, there is no doubt that this consent has a legal consequence in the field of the relationship between the spouses and the hospital: on the basis of this consent, the hospital may perform the fertilization. In my opinion, this consent also has a legal consequence in the field of the relationship between the spouses inter se. The spouses agreed between themselves to cooperate in the fertilization procedure already before they signed the document in the presence of the doctor. It may be that the consent between the spouses had, at this stage, not yet crystallized into a legal agreement. But it is clear to me that, at the latest, when the consent of the spouses found expression in the signature of both of them on one document, after they received from the doctor an explanation of the significance and the consequences that might result from the consent, a legal agreement was created between them. This agreement is a contract. It may be called, as Justice Strasberg-Cohen calls it, a weak contract. It may also be called, as I prefer, a special contract. Either way, the consent of Ruth and Daniel on the document creates a contract, not only between Ruth and Daniel and the hospital, but also, in my opinion, between Ruth and Daniel inter se. This is a contract that was signed after serious consideration, with a genuine commitment and formality that left no doubt as to the seriousness of the occasion: on the basis of the contract, each one of the parties undertook to undergo medical treatment and both of them jointly signed a preliminary agreement with the institute in the United States for carrying out the implantation in a surrogate mother. I see no reason why the mutual consent of Ruth and Daniel should not have legal force. If Daniel had retracted his consent after the ova were removed from Ruth, but before fertilization, would Ruth not have had the right to sue him for damages for the suffering he caused her?

14.          Our conclusion, therefore, is that there is no legal vacuum in the relationship  between  Ruth  and  Daniel.  Therefore  there  is  no  basis  for

 

 

following the path of Justice Tal, i.e., the court developing the law in order to create a legal norm in the relationship between Ruth and Daniel. The norm already exists, and it fills the vacuum: the agreement between them is the law. If so, how can the court force itself into this intimate sphere, and determine by itself legal rules that regulate the relationship between the spouses as the court sees fit, while ignoring the agreement, and maybe even contrary to the agreement between the spouses? The intimate nature of this sphere and the autonomy of the spouses require the relationship between them to be regulated, in so far as possible, in consent between them inter se, without the intervention of an external party, be he the legislator or the court. It is therefore preferable  to give legal validity to the  agreement between the spouses, than to determine for them an arrangement that ignores the agreement. Even if the agreement between the spouses lacks legal validity, this too is law, because it means that they wanted the relationship between them to be regulated outside the field of law. If so, why should the court come and impose its will on their will?

15.          Because the consent between Ruth and Daniel regarding the fertilization, as expressed in the document signed by both of them, created a legally valid agreement, the question is whether Ruth has a cause of action against Daniel by virtue of the agreement.

Daniel and Ruth agreed between themselves to cooperate in a procedure of in-vitro fertilization. Daniel doubtless agreed to fertilization of Ruth‟s ovum with his sperm. But, under regulation 14 of the Fertilization Regulations, this consent is not enough. The husband‟s consent is required for every act involved in the fertilization, including the implantation. Thus we must ask whether Daniel agreed also to the implantation?

The question whether consent to  a procedure of in-vitro fertilization, under the Fertilization Regulations, also includes consent to implantation depends on the circumstances of the case, including the language of the consent. In the normal case, it can be presumed that a husband‟s consent to in-vitro fertilization applies to all the acts involved in the fertilization, including the implantation, since this is the purpose of the  fertilization. Indeed, this is what happened in the case before us. There is no dispute that Daniel‟s consent, when it was given, and in the circumstances at the time, i.e., in the circumstances where Ruth and Daniel were living together, was not limited to the fertilization stage, but referred to the whole procedure, including the implantation stage.

 

 

Nonetheless, even consent to the whole procedure can be qualified. Indeed, this is Daniel‟s argument against Ruth: that his consent, even though it applied to the whole procedure, was qualified. And what is the qualification? That Daniel agrees to begin the procedure, and to continue it until it ends, only on the condition that he and Ruth continue to live together as one family. If, however, matters change and the family breaks up, the consent will automatically expire.

Such a condition can be included in an agreement in an express provision. Let us assume that such a condition was expressly stated in the agreement between the couple when they signed the consent to the fertilization. In such a case, if the condition was fulfilled after fertilization, and the husband gave notice that his consent has expired, the wife would have no cause of action against the husband, and the hospital would have no consent, as required under the regulations, for fertilization.

The agreement between Daniel and Ruth does not contain any such express condition. However, such a condition need not be express. It can also be implied. In order to determine whether there is an implied condition, we must interpret the agreement. The interpretation must be done pursuant to section 25 of the Contracts (General  Part) Law, in accordance  with the intentions of the parties, as is evident from the contract, and to the extent that it is not evident therefrom — from the circumstances. Here Justice Strasberg- Cohen and Justice Tal differ. Justice Strasberg-Cohen relies on statements of Ruth and Daniel written in the court record in order to determine that there was no consent between them with regard to the continuation of the procedure if and when they separated from one another. By contrast, Justice Tal says that we cannot know with certainty what Ruth and Daniel thought at the start of the procedure with regard to the possibility that they might separate before the procedure was completed. Therefore, he tries to establish the presumed intention of Ruth and Daniel, and is even prepared, alternatively, to give the agreement an imputed intention. Either way, he reaches the conclusion that the intention of the parties was that even in the event of separation, Daniel would not have a right to prevent the continuation of the procedure.

I disagree with this conclusion. In my opinion, human experience and common sense say that had we asked Daniel at the start of the procedure whether he would be prepared to continue and complete the procedure of having a child in all circumstances and without any conditions, and even were he to discover new facts or were new circumstances to occur, his

 

 

response would have been no. For it is possible to imagine  new circumstances in which having the child or raising the child would be very difficult, for the child or for the parents. For example, if we take an extreme example, it can be imagined that new facts might suddenly be discovered, which raise a real fear that the child who will be born will suffer from a serious genetic defect; or it is possible that one of the spouses may suddenly discover new details about the other spouse which, had they been known previously, would have prevented any relationship between them. Would the consent to fertilization, even in such cases, necessarily include, without any means of revocation, also consent to implantation? And is this so even if the consent to fertilization was obtained by fraud? But we do not need to go to extremes. Let us assume that before the procedure began, Daniel was asked as follows: if during the procedure, but before implantation of an ovum, a serious dispute will break out between you and Ruth, which will lead you to a complete separation and serious animosity, would you, even in such a situation, consent to implantation of the ovum, which would make you and Ruth joint parents of a child? In my opinion, Daniel‟s answer, as a reasonable person, would be no. And if he were asked before the start of the procedure as follows: assume that after you separate from Ruth, as a result of a serious dispute of this kind, you establish a new family for yourself and even have a child of your own with your new partner. Would you consent to implantation of the ovum, notwithstanding all this? Again, in my opinion, Daniel‟s answer would be: no and no.

Moreover, even if there remained a doubt about Daniel‟s answer, this is not enough to fulfil the requirement for consent, neither under the regulations nor even under the agreement. Under the agreement, consent is required for the implantation, even in the event that the spouses have separated, and possible consent does not constitute consent. According to the regulations,

„informed consent‟ is required for every act involved in the fertilization, including for the act of implantation, after the doctor in charge has explained to each of those concerned „the significance and consequences that might follow from it‟. A doubt is insufficient: informed consent is required. On the evidence, there is no basis for saying that Daniel gave „informed consent‟ at the start of the procedure for the act of implantation, after an explanation as required, with an understanding of the significance and the consequences that might follow from the consent, even in a situation of a separation between the spouses.

 

 

As such, there is no need even to consider what were Ruth‟s intentions at the start of the procedure with regard to the continuation of the procedure in the event of separation. Let us assume that she thought and she wanted the procedure to continue even in the event of separation. Let us go further and assume that she would not have agreed to begin the procedure had she thought that the procedure would be stopped in the event of separation. This does not change anything. This is so because the consent of one spouse is insufficient; the consent of the other spouse is also needed. This is the case under the Fertilization Regulations: the hospital may not carry out any act with the ova at the wife‟s request unless it also has the consent of the husband for that act. The same is true also for the purpose of the litigation in the court: for Ruth to succeed in her action against Daniel, the consent of both parties is required, as in any contract. In the absence of Daniel‟s consent to implantation, and as stated no such consent has been proven, not even according to the intentions of the parties, Ruth has no cause of action against Daniel. Without a cause of action, the action collapses. Therefore, under the law the court must dismiss Ruth‟s action against Daniel in so far as it relies on the agreement between them.

16.          From a legal viewpoint, Ruth is left with only one claim against Daniel: that he is estopped from arguing that he does not consent to the implantation. Admittedly, estoppel is usually used by the defendant and not by the plaintiff; it is a shield and not a sword. But estoppel has developed in several countries, so that it can be used, albeit rarely, also as a cause of action, and this may also be the case in Israel. If so, and at least for the purposes of the case, Ruth should not be denied the possibility of raising estoppel as a cause of action against Daniel, i.e., to claim that Daniel is liable, by virtue of estoppel, to give his consent to implantation notwithstanding the separation.

The claim of estoppel was examined both by Justice Strasberg-Cohen and Justice Tal. I agree with the opinion of Justice Strasbourg-Cohen rather than that of Justice Tal, and I will explain in brief.

The claim of estoppel is based on a representation. Someone who claims estoppel must prove that another person made a representation, that he reasonably relied on the representation, that he did an act on the basis of that representation, and as a result adversely changed his position. Did the elements of estoppel exist in the case before us? Ruth must prove that Daniel made a representation to her that the fertilization procedure, including the implantation, would continue even if they separated from each other. Has it

 

 

been proved that Daniel made such a representation? In my opinion, the circumstances and factors that lead to the conclusion that Daniel did not consent to the continuation of the procedure in the event of separation, also lead to the conclusion that no such representation existed. Indeed, Justice Strasberg-Cohen says, on the basis of her examination of the evidence, that no factual basis was laid before the court from which one could conclude that Daniel did or said something from which Ruth could have understood that separation would not affect the procedure. Moreover, there is not even a factual basis from which one could conclude that Ruth did what she did in reliance on a representation by Daniel, and that had she been aware of the possibility that separation would stop the fertilization procedure, she would not have begun the procedure at all. Indeed, it is most likely that Ruth and Daniel did not consider the question of the continuation of the procedure in the event of separation or, at least, did not consider it as a real possibility. If so, there was in fact no representation on one side nor any reliance on the other. In any event, the representation and the reliance were not properly proved, not even as a defence argument, and certainly not as a cause of action. The conclusion is, in my opinion, that estoppel, in the circumstances of this case, cannot replace the consent required under the law.

In conclusion, no matter how important Ruth‟s right to parenthood is, and no matter how much distress she will suffer, under the law Ruth has no cause of action against Daniel.

And what about justice?

On justice

17.          Greek mythology described justice as a goddess, standing on a pedestal, with her eyes covered. This description, even if it was relevant in those days, is not suitable in the present. I imagine justice as a person searching for the proper path, wandering around with open eyes. He stands before a thick forest of innumerable legal rules, through which there is a main road, but from which side roads, paths and narrow tracks branch off. He must pass through the forest in order to reach his destination: just law. In order to reach it, he is prepared to leave the main road, to seek another path and follow also narrow tracks. But he cannot take a shortcut straight to his destination, without passing through the forest.

In this case, I have not tried to take a shortcut. I have followed the main road, although it was arduous, and have reached this conclusion: between Ruth and Daniel, the law is on Daniel‟s side. I suppose that another path

 

 

could have been chosen among the paths of the law, and that perhaps a different result could have been reached by that path. However, the important point in my opinion is that the court must follow one of the paths of the law. I concede that had I seen that the path was leading me to a result of injustice, I would have stopped along the way and sought out another path, from among the abundance of legal rules, that might lead me to a just result. Moreover, even at the end of the path I am still ready and prepared to look and see whether I have reached an unjust result. For if so, I am prepared to retrace my steps and start the journey over again in an attempt to reach a more just result. But have I really, in the result that I have reached, not dispensed just law?

No-one has a monopoly on justice. It has been said that justice to one person is injustice to another. Justice Strasberg-Cohen shows how many forms and shades of justice there are. No less than the paths of the law. In law, at least, there are pre-established rules, and even if they are sometimes obscure and flexible, they contain a large degree of objectivity. Justice, on the other hand, is an open field, in which everyone can go in whichever direction he sees fit, with a subjective viewpoint, without road markings and without signs. The direction that seems right to me is different from the direction that seems right to my colleagues. Does this mean that they are correct?

About five hundred years ago, the Lord Chancellor of England wished to free himself of the inflexibility of the common law, which not infrequently resulted in injustice, and he chose a new approach: equity. He took it upon himself to decide each case according to his sense of justice. And what did they say of him? That justice depends on the length of the Chancellor‟s foot. Each foot is a different length. What judge is prepared to declare that his foot, and only his foot, has the right length?

Naturally, this does not mean that for this reason the court may ignore justice. On the contrary: the court must consider justice in every case. But it must weigh justice, as it were, in the scales of law. Only in this way can just law be carried out.

18.          Even when the court considers justice, in itself, it must place it on the scales, since justice itself contains various elements and even conflicting directions, and the question is what has greater weight, as a rule or in a particular case.

First, we must distinguish between general justice and individual justice. General justice states that the interpretation or application of a particular

 

 

legal rule in a specific way will not lead to a just result in a class of cases, and therefore a different interpretation or application should be preferred. Individual justice states that the interpretation or application of a legal rule in a particular way will cause injustice in the special circumstances of a specific case, and therefore another path should be chosen. But general justice and individual justice do not necessarily lead in the same direction. It is possible that the path leading to general justice will cause injustice in the individual case, and vice versa. In such a case, the question is which prevails, general justice or individual justice?

In my opinion, it is not proper for the court to do justice in the concrete case before it, before examining and determining what general justice demands in that case. It is only after this that the court can and should consider individual justice, which is the justice of that person whose case the court is required to decide, as opposed to general justice, which is the justice of many others who may be affected by the decision of the court. In general, when there is a conflict between the individual and the public that cannot be reconciled, the public prevails. One should follow the majority. It is not just to do justice in one case if as a result an injustice will be done in many cases. Naturally, this rule also has exceptions, according to the circumstances and considerations in each case. Notwithstanding, no matter what case it is, it is not proper, in my opinion, to decide in favour of individual justice without first ascertaining what general justice says.

19.          What does general justice say? When trying to arrive at general justice, we must take into account the values of society, including values outside the law. Justice is one of the values, and harmony is required between all the values. Among the values, we should mention, in this context, the principle that having children is a matter for the autonomy of the individual, or, to be more precise, of the couple. They, and no others, must act in this sphere with consent and with equality. This is a reason for preventing the forcing of the will of one spouse on the other spouse, or preferring the will of one over the will of the other, by means of a State authority. If matters have gone wrong and there is no longer any consent between the spouses, there is no longer any basis for continuing the process. That is also what has happened here: the relationship has come undone. The common will has split: his will against her will. Should the court intervene and say that her will takes precedence over his will? The court usually avoids intervening in intimate matters, and it leaves them to the couple to sort out on their own, for better or

 

 

for worse. This is the accepted policy. This is also the proper policy. Has the court now decided to depart from this policy?

It is for this and additional considerations that a widespread opinion has developed amongst bodies that have examined this topic throughout the world, whereby in-vitro fertilization should not be performed, and this includes implantation, without existing and continuing consent of the two spouses. As Justice Strasberg-Cohen says —

„In most enlightened countries there can be seen an unambiguous approach that requires the informed consent of the two spouses to performing the fertilization procedure at each stage. Because in-vitro fertilization is a complex procedure that is carried out in stages which may extend over a period of time, if the relationship between the spouses is disrupted and they quarrel about the fate of the fertilized ova, the general tendency is to demand the consent of both parties for the continuation of the procedure.‟*

Have these countries chosen the path of injustice? The same has happened also in Israel. The Minister of Health and the Minister Justice appointed (in July 1991) a public-professional commission to examine the topic of in-vitro fertilization. The members of the commission were diverse and very distinguished: it was chaired by (ret.) Justice Shaul Aloni, and among its members were Rabbi Yisrael Lau, who at the time held the office of Chief Rabbi of Tel-Aviv, and the top specialists in the fields of medicine, philosophy, sociology, etc.. In the Report of the Professional Public Commission for Examining the Issue of In-vitro Fertilization (July 1994) the commission unanimously said, on p. 36:

„The Commission was of the opinion that giving permission for fertilization should not be regarded as consent to implantation, and there must be consent of both spouses to the implantation, for two reasons. First, having children when there is a dispute should not be encouraged. Second, the involvement of the father in making the decision should be encouraged.

The Commission considered another option, that in the absence of joint consent the matter would be referred to a multi- disciplinary statutory committee, which would be authorized to

 

 

 

*             IsrSC 49(1) 485, at p. 503; [1995-6] IsrLR 1, at p. 20.

 

 

approve exceptions to the fundamental requirement of ongoing consent. Notwithstanding, the Commission had difficulty in conceiving of considerations that would justify departing from the aforesaid principle. 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… Therefore the commission recommends 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‟.

Did this Commission also choose the path of injustice? And it was not only the Commission. The legislator chose this path. The Fertilization Regulations require the informed consent of the husband to every act involved in the fertilization, including the implantation. And now we have statute, namely the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law, which says that there shall be no implantation without the informed consent of both spouses. Moreover, the Attorney- General, who was summoned by the court to submit arguments on behalf of the public, also expressed the opinion that implantation should not be performed without the consent of the prospective father. Are all of these perverting justice?

In my opinion, all those who require ongoing consent of both spouses as a condition for implantation, whether legislators or experts, are expressing the public interest, and therefore they reflect and serve general justice.

In summary, the legal result, whereby the law is on Daniel‟s side, is consistent with general justice.

20.          My fellow justices, who reached the opposite result, believe that this result is required by individual justice, i.e., by the special circumstances of the Nahmani case. But in my opinion, just as one can only arrive at justice by

 

 

way of the law, so too one can only arrive at individual justice by way of general justice. Individual justice does not exist in a vacuum. It must be considered against the law on one side, and general justice on the other. It is certainly possible that in a particular case, even if individual justice tends in one direction, the pan of the scales containing the law and general justice will tend in the opposite direction. In fact this is an everyday occurrence in every court.

In this case, I do not know for certain what individual justice in itself demands. But I do know this: individual justice for Ruth is not individual justice for Daniel. But am I able to weigh reliably one against the other and determine which weighs more? Indeed, there is no doubt that the medical treatment which Ruth underwent was much more difficult than the medical treatment that Daniel underwent. However, is the medical treatment that was carried out in the past the criterion that should decide the case, as opposed to, for example, the suffering of each party on an aggregate over time? But which of the parties will, on aggregate, suffer more? To this question I have no answer. At most, I can guess how I would feel and how much I would suffer were I in Daniel‟s position or in Ruth‟s position. But in doing so, I would not be doing individual justice, because I am not Daniel and I cannot know what he feels, and I am not Ruth and cannot know what she feels. In order to do individual justice, in a way that will compensate for personal suffering, I would need to enter into the hidden recesses of their personalities and the secrets of their souls. But I can not examine feelings and thoughts. Therefore I have no authoritative answer to the question which of them is more justified on the individual level.

In any event, even if I assume that individual justice tends more in Ruth‟s favour, I do not feel that the difference between Ruth‟s individual justice and Daniel‟s individual justice is so great that it should weigh the scales in favour of a result that is inconsistent with the law and even with general justice.

In principle, one should not depart from the main path of the law except in a case where it is clear that justice, in a proper balance between general justice and individual justice, requires us to follow a different path. This is not such a case.

Alas for me because of my Maker and alas for me because of my inclination? Not in this case. My Maker and my inclination do no conflict. I do not think that I am dispensing law whereas my colleagues, who have reached another result, are dispensing justice. I feel that I, according to my

 

 

approach, am dispensing just law. Therefore I agree wholeheartedly with the opinion of Justice Strasberg-Cohen that Ruth‟s petition should be denied.

 

 

 

 

 

President A. Barak

1.            I agree with the opinions of my colleagues, Justices Strasberg-Cohen, Zamir and Or. Like them, I too think that all decisions concerning the fertilized ova — as long as they are outside a woman‟s body — must be made with the joint consent of the spouses. In the absence of joint consent, there is no possibility at all of continuing the stages of the in-vitro fertilization procedure. This conclusion of mine reflects existing law. It is consistent with the requirements of justice. Law and justice go hand in hand. Underlying my opinion concerning law and justice there is a simple and basic proposition: parenthood is a singular and special status. It involves human existence. It involves duties and rights. It is built on a partnership. It is based on going hand in hand. It relies on love and mutual respect. When the partnership dissolves, when separation occurs, when the love and mutual respect disappear, the one and only basis that allows decisions with regard to the fertilized  ova disappears. Without  consent, there is no possibility of beginning the fertilization procedure. Without consent there is no possibility of continuing it. Indeed, there is no possibility of separating between the beginning of the procedure and its continuation. Each of its stages — in so far as it is done outside the woman‟s body — must have the consent of both parties. A unilateral action that continues the procedure of having children is not possible. There is no possibility of separating between one of the parties becoming a parent and the other party automatically becoming a parent. Indeed, we must remember: Ruth Nahmani is not merely asking to be a mother. Ruth Nahmani is asking to be the mother of the child of Daniel Nahmani. For this, the consent of Daniel Nahmani is needed. This consent is needed for the fertilization stage. This consent is needed — as long as the fertilized ovum is not in a woman‟s body — for every stage thereafter, because the parenthood of each of the parties — and the special status that it involves — ensues from the completion of all the stages.

2.            The conclusion that I have reached reflects, in my opinion, existing law. It is required from every possible legal perspective. From the constitutional viewpoint, of course, we recognize the constitutional liberty to be a parent or not to be a parent. This liberty derives from human dignity and the right to privacy. Therefore we recognize Ruth Nahmani‟s constitutional liberty to be a mother, just as we recognize Daniel Nahmani‟s constitutional liberty not to be a father. But Ruth Nahmani‟s constitutional liberty to be a mother does not lead to a constitutional right to be a mother to the child of

 

 

Daniel Nahmani. Therefore we do not have before us any conflict of the liberty to be a parent and the liberty not to be a parent. Just as it is inconceivable that — in the name of Ruth Nahmani‟s constitutional right to parenthood — we should impose a duty on Daniel Nahmani to deliver his sperm for the purposes of fertilization, so too it is inconceivable — in the name of Ruth Nahmani‟s constitutional right to parenthood — to impose a duty on Daniel Nahmani to deliver the fertilized ovum to a surrogate mother. Daniel‟s constitutional status with regard to his sperm is identical to Ruth‟s constitutional status with regard to the ovum. As long as the fertilized ovum is outside a woman‟s body, both of them have an identical constitutional status that requires the continuing consent of each of them. Consent in the past to one of the stages — such as fertilization of the ovum — cannot replace continuing consent, since the whole procedure is a continuing one, and it requires consent at every stage. Indeed, both from the biological viewpoint and from the constitutional viewpoint, there is no possibility of separating the various stages in the procedure of having children. They all require cooperation and consent. This conclusion is required also from the perspective of private law. Underlying the consent between the parties — whether we regard it as a contract, or whether we regard it as a non- contractual agreement, or whether we regard it as joint property or whether we regard it as a „legal phenomenon‟ of an unique kind — there is a basic premise of a joint life. When this basis is removed, the basis on which the relationship between the parties is removed. Had Daniel Nahmani been asked before beginning the fertilization procedure whether he would be prepared to continue it after separating from Ruth Nahmani, his reply would certainly have been no. This too, we may assume, would have been the reply of Ruth Nahmani. Admittedly, they did not consider this question, but the essence of the agreement (or the understanding) between them — an agreement to have a joint child — is based on this premise. This is the legitimate expectation of Ruth and Daniel Nahmani. This is the basis for any act with regard to the fertilized ova. This is the basis for their whole existence. This is the foundation of their parenthood. This is not a „one-family‟ parenthood. The sperm donor is not anonymous. This is joint parenthood in every respect. Indeed, in my opinion, should one of the parties waive ab initio the need for his consent at every stage of the procedure, this waiver would be contrary to public policy. Public policy requires that the procedure — which is an unique and intimate procedure, whose final outcome is the joint child of  the parties — should be born only as a result of joint consent „throughout the whole procedure‟.

 

 

3.            The need for the consent of each of the spouses at every stage is derived from the requirement of justice. Justice, in the context before us, means the realization of joint parenthood. There is no justice in forcing someone to be a parent against his will. Just as justice does not require one of the parties to a relationship to donate his genetic material in order to realize the desire of the other party for parenthood, so too justice does not demand that the only one of the parties should have control over the fertilized ovum. Justice demands equality in the power to make decisions concerning joint parenthood. This is the just decision in the circumstances of the case. Would justice be different if Ruth Nahmani had children of her own (from a previous marriage) and Daniel Nahmani had no children at all? Would justice be different if it transpires — as may very well be the case — that Ruth Nahmani has ova that can be fertilized by another male? Would justice be different if it transpired — and this is merely a hypothetical assumption — that additional ova were removed from Ruth Nahmani that have not yet been fertilized and they may be fertilized by another donor? And would justice be different if it transpired that Daniel Nahmani were seriously ill and the news that he would have a child and the need to care for it might cause him very serious harm? In my opinion, the answer to all these questions, and to many others, is that all these details do not affect the just solution. Justice is equality, and equality is giving a joint power of making decisions to the two parties. Let us assume, for example, that the roles were reversed, and that Daniel Nahmani was the one wanting to continue the fertilization procedure, and Ruth Nahmani was the one refusing to be the mother of their joint child. I suspect that were this the case that we were deciding, then Daniel Nahmani‟s application would be denied. We would say that motherhood should not be forced on a woman who does not want it; that motherhood is a relationship so intimate and natural that it should not be forced on a woman against her will; that just as a woman is entitled to make a decision with regard to the abortion of her child without her husband‟s consent, she is entitled to oppose the continuation of the fertilization procedure being carried out outside her body; that the cry of Ruth Nahmani — like the cry of our ancestress Rachel — „Give me children, else I die‟ (Genesis 30, 1 [8]) is no stronger than the cry of a woman „I cannot be the mother of Daniel‟s child, and if I will be, I will die‟; if we would indeed decide this way, this would indicate that in our deepest feelings we are not treating Daniel and Ruth equally and that justice is compromised. Indeed, I believe that it is not considerations of justice that support Ruth Nahmani‟s suit, but considerations of compassion. I accept that compassion and consideration of suffering are

 

 

important values that should be taken into account. But justice lies not in giving the power of making decisions to one spouse, but in recognizing the joint power of the spouses to decide the fate of the fertilized ovum. Having children is a matter too important, too experiential, too existential, to leave it, at any stage, to one party only. If we do not act accordingly, we will encounter situations that we will be unable to deal with normatively. What will we do, for example, if there is no consent as to the identity of the surrogate mother? What will we do if it transpires that there is a genetic defect — whether serious or not — and there is a recommendation not to continue the procedure of having the child for this reason? What will we do if it transpires that one of the spouses — say, Ruth Nahmani — is very ill to the extent that she cannot care for the child that will be born? What is the normative compass that will guide us? When will we consider the welfare of the child? Will we continue — and if so, to what stage — to give weight to Ruth Nahmani‟s expectations and the great suffering she has undergone in the past? I do not argue that these questions may not have proper answers. I am arguing that the just normative arrangement should be that the answer to all these questions lies in the joint will of the parties. This is the only will that started the procedure. This is the only will that can support its continuation. Without this will, and without a continuing partnership of the parties in the fateful decision that they made, there is no basis — from the viewpoint of justice — for continuing the procedure. Fertilization and creation ex nihilo is a procedure so existential, so natural, so great and powerful that only the continuing and day-to-day will of the parties can serve as a basis for it.

4.            I have discussed how, according to the law — the just law — continuing consent of each of the parties  is required for continuing the fertilization. Non-consent of one of the parties prevents the continuation of the procedure. Notwithstanding, non-consent — like every legal act — requires good faith. The court may determine that consent was given exists where the non-consent is not in good faith. Thus, for example, had it been proven to us that one of the parties — in this case Daniel Nahmani — wished to extort financial benefits as a condition for giving his consent, I would think that this could be regarded as bad faith. But in the case before us, is the non-consent of Daniel Nahmani not in good faith? In my opinion, the answer is — and so the trial court held — that Daniel Nahmani is acting in good faith. Good faith is an ethical objective concept. It is examined according to the conflicting values in the circumstances of the case. Daniel‟s non-consent should  be  examined  in  its  context.  We  are  dealing  with  an  intimate

 

 

relationship between the spouses. We are concerned with a relationship in which love, companionship, mutual respect, partnership and affection are an inseparable part. We are dealing with a relationship based on a continuing emotional bond. In these circumstances, the cooling of relations and severance of the emotional bond are part of the realities of life. Love and friendship cannot be attained by force. Mutual respect, cooperation and affection are emotional matters, which frequently are not governed by logic. Such is our life. This is the destiny that rules us. These are the risks of life. Every couple that marries, at every stage of their marriage, is aware of this possibility. The law provides various tools for solving such difficulties. A separation between spouses because of a rift between them is not a crime. The possibility of a rift occurring is an integral part of intimacy itself. Not giving consent because the feeling of love, companionship, mutual respect, partnership and affection has disappeared is not, in itself, bad faith. This is something that is done without any intention of harming the other party; this is something which is done without the aim of extorting something from the other party; this is something that happens between people who live together. This is the price of partnership in life. I am sorry for Ruth Nahmani, but just as Daniel Nahmani cannot be prevented from ending the relationship with her, and just as it cannot be said that for this reason alone he is acting in bad faith, he cannot be prevented — as part of ending the relationship — from refusing to give his consent to the continuation of the fertilization procedure, and it cannot be said that because of this he is not acting in good faith. Ending a relationship, the dying of love, are part of life itself, just like the creation of the relationship and igniting the spark of love.

5.            Before I conclude, I wish to point out that I have assumed that the fertilized ovum is not an „embryo‟; that it is at the „pre-embryonic‟ stage. As my colleague Justice Strasberg-Cohen, said, „We are not speaking of preserving life that has been created, but with the creation of life ex nihilo‟. We have therefore not considered at all the constitutional status of the embryo, and we have not considered the constitutional aspects from this perspective. The dilemma of life or no-life was not put before us. The only question that we have examined is the relationship between Ruth Nahmani‟s desire to be a mother of Daniel Nahmani‟s child, and Daniel Nahmani‟s opposition to this.

For these reasons, my opinion is that the petition should be denied.

 

 

Petition granted by majority opinion, President A. Barak and Justices T. Strasburg- Cohen, T. Or and I. Zamir dissenting.

28 Elul 5756

12 September 1996.

Safecom, Ltd. v. Raviv

Case/docket number: 
CA 7996/11
Date Decided: 
Monday, November 18, 2013
Decision Type: 
Appellate
Abstract: 

Facts: An appeal against the Haifa District Court's judgment dismissing the Appellants' claim against the Respondent for the infringement of its copyright in technical drawings. At trial, the Appellants argued that drawings used by the Respondent for the registration of a patent in the USA for a voltage backup system for cable systems (a product that competes with a product of the first Appellant (hereinafter referred to as "Safecom") infringe Safecom's copyright in the drawings of its products. There is no dispute that there was a previous business relationship between the Respondent and the Appellants, and the Respondent had access to the Appellants' drawings. The District Court held that Safecom's drawings did amount to a protected work, but in the instant case there had been no copying of Safecom's drawings, or a substantial part of them, and for that reason the claim was dismissed.

 

Held: The Supreme Court (per Justice Y. Danziger, Justices Z. Zylbertal and E. Rubinstein, concurring) granted the appeal and held:

 

The Court took a broad view of copyright law and stated that, under the precedents of this Court, copyright protection of a work requires that an original work is involved. This is established through the analysis of three subordinate elements – the origin criterion, the investment criterion, and the creativity criterion. The presence of just one element is not sufficient for the purpose of proving originality.

 

Another basic principle of copyright law is that the idea underlying a work will not be protected by copyright, and that protection is only afforded to the way in which the idea is expressed. This distinction between idea and expression in certain senses also overlaps the requirement of originality that underlies the copyright protection of works. This overlap is particularly relevant when functional works are involved.

 

In view of the distinction between idea and expression, the approach that has developed that states that when a particular idea can be expressed in only a single way, then a work expressing that idea will not be afforded protection. This approach has been called "the merger doctrine". When there is an absolute merger between the idea and its expression, and when there is only one way to express the idea, it is the accepted view that the work expressing that idea will not be granted copyright protection. However, opinions are divided on the question when there are just a few possibilities of expressing the idea. According to one approach, as held in the American case of Morrisey, copyright protection should not be granted in such a case, while according to another approach, the work will be granted copyright, but that copyright will only be infringed when there is absolute or almost absolute similarity between the works. This controversy is relevant in the instant case because the Respondent asserts that Safecom should have proven exact copying because its drawings constitute an idea that can only be expressed in limited ways. In the opinion of Justice Danziger, in order to decide this issue, reference may be made to the fundamental rule of copyright law presented above – the requirement of originality, in particular when the issue relates to functional works.

 

Functional works raise various difficulties at the stage of analyzing the requisite originality for copyright protection. However, once a functional work has met the originality requirement and the choice criterion, it is a protected work in all respects, substantial parts of which may not be copied.

 

According to the choice criterion, the intended function or purpose of the work should be ascertained, and an examination made as to whether the form of presenting that purpose – the expression – required that the creator choose from among several options that could have achieved the same purpose. When there is a solitary option to achieve that purpose, it is inappropriate to afford protection to that sole method of expression. However, when the creator has a choice among several options, copyright protection should not be denied to the chosen expression.

 

Even if only some of the elements that make up the functional work have passed the "choice filter", that does not prevent them from being work protected against copying. In the opinion of Justice Danziger, The only  consequence of a work being functional concerns the standard for the analysis of copying when the protected elements constitute an idea that can only be expressed in a limited number of ways..

In such a case, a higher threshold will be necessary to establish copying, and almost absolute similarity between the protected elements and the allegedly copied elements will be required in order to establish that substantial similarity.

 

Implementation of that approach in the instant case leads to the conclusion that certain elements of Safecom's drawings do constitute protected work.

 

The Court further held that whether Safecom's drawings in whole constitute a protected compilation, or whether some of the elements are protected separately as artistic work, the number of ways to give expression to a demonstration of the product's electrical process is limited. Nevertheless, even working on that assumption, it would appear from a comparison between Safecom's drawings and the respondent's drawings that 13 of the Respondent's drawings do amount to an identical (or at least almost identical) copy of the Safecom drawings. In this regard it was held, inter alia, that when substantial elements of the work do not gain copyright protection and remain in the public domain, then copying all those protected elements will attest to the copying of a substantial part of the work, a fortiori when there is absolute, or almost absolute, similarity. This is especially so since there is no dispute that the Respondent did have full access to Safecom's drawings. Since the Respondent chose to make exact use of Safecom's protected visual resources, he infringed its copyright in those elements.

 

The use that the Respondent made of the drawings does not amount to a permitted use. In this connection, Justice Danziger was of the opinion that the use of a work in accordance with the uses defined in chapter four of the new law as "permitted uses" does not constitute a contravention of the new law. Permitted use constitutes a right that is granted to the user to make certain types of use of a work (in view of the controversy in the case law in this respect, Justice Danziger is of the view that the time may have come for an extended bench to deliberate this issue). However, the Respondent’s use of Safecom's drawings and their presentation to the American Registrar of Patents for the purpose of the registration of a patent for a product that competes with Safecom's product, is not a permitted use under section 20 of the new law. That use also does not meet the standards that have been established for fair use, as defined in section 19 of the new law.

 

The case was remanded to the District Court for a decision upon the appropriate relief in respect of the infringements.

 

Justice E. Rubinstein, concurring, sought to add another criterion, that of common sense, namely the accumulation of all the overall facts before the court. When a work is involved, appearance is also acknowledged to be a significant parameter in intellectual property law. In the instant case, in preparing the file, when the bench looked at the drawings involved, the great similarity between the drawings was immediately conspicuous. Consequently, the foregoing result was obliged not only by common sense but also by the appearance. In conclusion, Justice Rubinstein refers to several of his  other opinions, in which he considered intellectual property rights in Jewish law.

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
concurrence
Full text of the opinion: 

In the Supreme Court

CA 7996/11

Sitting as a Court of Civil Appeals

 

 

 

Before:

Justice E. Rubinstein

Justice Y. Danziger

Justice Z. Zylbertal

 

 

 

The Appellants:

1. Safecom Ltd

2. David Zilberberg

 

v.

 

 

The Respondent:

Ofer Raviv

 

 

Appeal against the Haifa District Court's judgment of August 28, 2011 in CF 542-04-09, given by His Honor Judge Dr. A. Zarnakin

 

 

Date of session:

Cheshvan 6, 5774 (October 10, 2013)

 

 

On behalf of the Appellants:

Adv. Nahum Gabrieli

 

 

On behalf of the Respondent:

Adv. Tamir Afori

 

 

     

JUDGMENT

 

Justice Y. Danziger

 

This is an appeal of the judgment of the Haifa District Court (His Honor Judge Dr. A. Zarnakin) of August 28, 2011 in CF 542-09-09, dismissing the Appellants' claim against the Respondent for the infringement of copyright in their technical drawings.

 

Factual Background

 

1.         Appellant 1, Safecom Ltd (hereinafter: "Safecom"), develops and markets products for the electrical backup of cable TV broadcasting systems, and the Appellant 2, David Zilberberg (hereinafter: "Zilberberg") is its manager and one of its shareholders. Zilberberg became acquainted with the Respondent when the latter sought to market Safecom's products to a company for which he worked, and he also connected Zilberberg to an American company, Innovative Solutions 21, Inc. (hereinafter: "the American company"), which led to the marketing of Safecom products in the USA. On June 18, 2002, an agreement was made between Safecom and the American company according to which the American company would be the exclusive distributor of Safecom products (hereinafter: "the Agreement"). The Agreement provided that ownership of all copyright, patents and other intellectual property rights connected with the products, including graphics, sketches and models, that were developed by Safecom would be retained by it. The Respondent had no formal status in the American company, but he was involved in the technical matters associated with marketing Safecom's products in the USA, and, in that context, he also took part in the preparation of technical drawings of Safecom products. In May 2005, the Agreement was terminated by Safecom, and in 2008, it learned of the filing of a patent application in the USA by the Respondent together with the American company's president, which concerned a voltage backup system for cable systems. In view of Safecom's complaint that the drawings underlying the patent application infringed its copyright in the drawings of its products, it filed suit in the District Court. By consent of the Respondent, the court awarded a provisional injunction. An objection filed against the registration of the American patent registration was dismissed.

 

2.         Safecom asserted that the Respondent had copied 14 original drawings that Zilberberg had prepared as part of a presentation for the Safecom products, which was furnished to the Respondent in 2003, when the agreement was still in force. According to it, the drawings that Zilberberg prepared were protected by copyright and owned by it, while the Respondent's drawings were absolutely identical and had been copied "one to one" and, as such, constituted an infringement of its right of reproduction. In order to emphasize the copying, Safecom pleaded that its drawings contained a mistake in the presentation of the switch box, and that mistake had been copied by the Respondent.

 

3.         The Respondent, for his part, asserted that the claim was governed by American law because the alleged infringement had been committed in the USA, and since that law had not been proven, the claim should be dismissed. According to him, under American law the claim would be dismissed because of the applicable American rules of fair use. In regards the very infringement, the Respondent pleaded that since the act was governed by the Copyright Act, 1911 (hereinafter: "the Old Law") it was first necessary to prove that the alleged infringement also constituted an infringement under the Copyright Law, 5768-2007 (hereinafter:  "the New Law"). According to him, under section 21 of the New Law, the copying of a work that is deposited for public inspection constitutes permitted use and no infringement is therefore involved. As regards the alleged copying, the Respondent pleaded that there was no relevant similarity between the Safecom drawings and his drawings, either visual or substantial. According to him, there are approximately 32 elements in the patent application drawings, while in the presentation there are only 19. This is because of the difference between the technology used in order to manufacture Safecom's products and that presented in the patent application. The Respondent further pleaded that the similarity between the drawings lay in their common functionality in a manner that does not afford protection. The Respondent also pleaded that he was party to making the drawings and therefore had a right of ownership in the Safecom drawings, and that the Agreement did not apply to him because he was not an employee of the American company. The Respondent also filed a counterclaim, but since no appeal has been brought in respect of it, we need not refer to it here.

 

The District Court's Judgment

 

4.         The District Court first dismissed the Respondent's claim that the matter is governed by American law. The court held that the Respondent had received the presentation in Israel.  It was therefore reasonable to assume that the act of copying had also been performed in Israel, and it had not been proven otherwise. In any event, the court held that the Respondent did not dispute the court's jurisdiction to try the matter in accordance with domestic law when the provisional injunction application had been considered, and he was therefore estopped from pleading the same. As regards Israeli law, the court held that the Safecom drawings do indeed amount to a protected work, according to both the Old Law and the New Law. The court dismissed the Respondent's claim that the use he had made was permitted use under section 21 of the New Law since the section treats of  the use of works that have already been deposited for public inspection and not use which itself constitutes deposit for public inspection.

 

5.         As regards the alleged copying, the District Court first held that the Respondent was not a joint owner of the rights in Safecom's drawings, because, even if he was not one of the American company's formal officers, he did substantially function as such and the agreement should therefore be applied to him. The court nevertheless dismissed Safecom's claim that the Respondent had admitted copying the drawings. The court emphasized that the Respondent's claim with respect to the difference in the number of elements between Safecom's drawings and the drawings in the patent application had not been rebutted, and a visual similarity had therefore not been established. The court dismissed Safecom's claim with respect to copying the mistake in its drawings because, according to it, no mistake was in fact involved. Finally, the court held that because of the great functionality of the Safecom drawings, some similarity was obliged between drawings that sought to present a similar product, and Safecom's drawings, or a substantial part of them, had therefore not been copied.

 

            Hence, the appeal.

 

The Grounds of Appeal in Brief

 

6.         The Appellants – through their attorney, Adv. Nahum Gabrieli – argue that the District Court erred            when it held that there had been no copying in the instant case. According to them, they did not have to adduce direct evidence of copying the drawings because the law makes it possible to suffice with circumstantial evidence to prove copying. The Appellants assert that the access that the Respondent had to the drawings, which is not in dispute, together with the substantial similarity between their drawings and his, leads to the sole conclusion that there was copying. The Appellants emphasize the identical elements between their drawings and those of the Respondent that do not derive from the functional presentation of the products, like the same twists and turns in the lines that are shown on them. According to them, the Respondent himself admitted that there are many ways to draw the products concerned, and he even showed example drawings of similar systems that were different from the drawings in the instant case. Moreover, in principle it cannot be held that when functional technical drawings are involved, copying cannot necessarily be inferred. The Appellants add that the finding that the similarity between the drawings was not the result of copying is inconsistent with the relationship between the parties, as described above. Finally, the Appellants aver that the court was mistaken when it reviewed the substantial similarity on the basis of the number of elements appearing in each of the drawings, rather than a general impression of the substance of the part copied, which according to them, obliged the conclusion that there had been prohibited copying.

 

The Respondent's Reply in Brief

 

7.         The Respondent – through his attorney, Adv. Tamir Afori – argues that the District Court rightly distinguished between proving a visual similarity and establishing a substantial similarity. According to him, in the instant case there has not been copying, as a matter of fact, because even if it were established that he had access to Safecom's drawings, the court found, as a matter of fact, that there was no visual similarity between the works. According to him, in order to establish such a similarity, the Appellants should have produced an expert opinion insofar as the matter concerns a technical drawing. In any event, the Respondent asserts that there had been no copying of a substantial part that was original to the Appellants, and that the copying of parts of the work that are not original in any event does not amount to copying and to an infringement of any right of the work's owner. According to him, in the instant case works are involved, only parts of which are original, and it is necessary to carefully analyze whether the original parts that were copied constitute a substantial part of the Plaintiff's work. Since, in the instant case, functional works are involved, the respondent argues that only the identical copying of original parts should be regarded as an infringement of copyright. The Respondent emphasizes that after filtering out all the non-original parts of Safecom's drawings, what remains is at most a "copy" of curved lines that do not constitute a substantial part of the work.

 

8.         The Respondent adds that it was inappropriate to deny his rights in Safecom's drawings since he was a joint author of them because of the Agreement between Safecom and the American company to which he was not party, and it should therefore be held that he is a joint owner and joint author of the Safecom drawings. Furthermore, the Respondent asserts that it was inappropriate to hold that the law governing the infringement is Israeli law since the Appellants had not established that the infringement asserted by them was committed in Israel, and that burden rested with them. According to him, his agreeing to the award of a provisional injunction does not attest to his agreeing to conduct the principal case in accordance with Israeli law. Finally, the Respondent argues that even if he is not the owner of the Safecom drawings, he is still their joint author, and the use that he made of them is therefore a permitted use under section 27 of the New Law, which permits the author of an artistic work to make works that constitute a partial copying or derivative of it, even if he is not the owner of the right. Moreover, according to him, the use that he made of the drawings is also protected by virtue of section 20 of the New Law because it was done in legal administrative proceedings or, in the alternative, it was fair use under section 19 of the New Law.

 

9.         In the hearing before us an attempt was made to bring the parties to an overall understanding that would make the need for our ruling unnecessary, but that attempt was unsuccessful.

 

Discussion and Ruling

 

10.       This appeal raises questions at the very heart of copyright law, and that, essentially, address the foundations upon which the protection of works is based, and in particular, the matter of the author's originality; the distinction between idea and expression; and infringement of the right to copy the work. These questions are highlighted with regard to the protection of functional works, and they require elucidation and clarification. Having read the parties' summations and listened to their oral arguments in the hearing before us, I have reached the overall conclusion that the appeal should be allowed and the case should be remanded to the District Court in regard to the matter of relief. I shall also recommend that my colleagues do the same.

 

The Basis of the Protection of Works – Originality

 

11.       The requirement of originality has been recognized by this Court as a threshold for the existence of copyright in a work [for more on the originality requirement, see: Michael Birnhack, “The Requirement of Originality in Copyright Law and Cultural Control,” 2 Alei Mishpat 347, 352-355 (2002) (Hebrew) (hereinafter: "Birnhack")]. The development of the requirement in Israeli case law has been based on the provisions of the Old Law, despite the fact that the Hebrew version did not mention "originality", whereas the binding English version provides, in section 1, that copyright will be granted in respect of:

 

            "every original literary, dramatic, musical and artistic work…" [emphasis added  – YD].

 

            The requirement of originality was anchored in the New Law in section 4(a), which provides:

 

            "Copyright shall subsist in the following works:

            (1) original works that are literary works, artistic works, dramatic works or musical works, fixed in any form"  [emphasis added – YD].

 

12.       This Court reviewed the case law relating to the elements underlying the requirement of originality at length in CA 8485/08 FA Premier League Ltd v.  Israel Sports Betting Regulation Council (March 14, 2010) (hereinafter:  the Premier League case) [http://versa.cardozo.yu.edu/opinions/fa-premier-league-v-israel-sports-b.... It was held that the requirement of originality is analyzed on the basis of two main criteria – investment and creativity.

 

            In the scope of the investment criterion, the author must have invested certain labor in the work in order to gain the right to its rewards, similar to the theoretical basis for recognizing the right to "corporeal" property [see: the Premier League case, para. 26; CA 513/89 Interlego A/S v. Exin-Lines Bros SA, IsrSC 48(4) 133, 164 (1994) (hereinafter referred to as the Interlego case)]. This criterion is based on the labor approach and the theory of natural rights based on the teachings of the philosopher John Locke as theoretical justification for the grant of property rights generally and copyright in particular [for a broader discussion, see: Birnhack, pp. 373-375; Guy Pesach, “The Theoretical Basis for the Recognition of Copyright,” 31 Mishpatim 359, 386-391 (2001) (Hebrew) (hereinafter: "Pesach"); Justin Hughes, “The Philosophy of Intellectual Property,” 77 GEORGETOWN L.J. 287, 297-98, 302-10 (1988); Wendy J. Gordon, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,” 102 YALE L.J. 1533 (1992)].

 

            In the context of the creativity criterion, which is based on the rationale according to which the purpose of copyright law is to enrich the creative world and the range of expressions available to the public, the nature of the investment, independently of its quantity, must be considered in order to show that it contributes to that purpose [see: Premier League, para. 27; Interlego, pp. 164-165]. This approach is based on a more social concept of copyright but, nevertheless, also on a utilitarian-economic approach, according to which a balance should be made between the cost – the incentive to be given to the author in the form of the monopoly granted to him in respect of the use and control of his work -- and the benefit of safeguarding the public domain for future work [see: Pesach, pp. 361-374; William M. Landes & Richard A. Posner, “An Economic Analysis of Copyright Law,” 18 J. LEGAL STUD. 325 (1989)].

 

            I would add that, in my opinion, in the scope of the originality requirement three subordinate elements should be identified, and in addition to the investment criterion and the creativity criterion, the origin criterion should be analyzed. By this I mean a requirement that the work should originate in the author and that it should not be based on another work – or in the words of my colleague Justice E. Rubinstein "original, meaning independent" [see: CA 3422/03 Krone AG v. Inbar Reinforced Plastic, IsrSC59(4) 365, 378 (2005); CA 360/83 Strosky Ltd. v. Whitman Ice Cream Ltd., IsrSC 40(3) 340, 346 (1985) (hereinafter: the Strosky case). For further on originality as origin, see Birnhack, p. 355-372].

 

13.       This Court has also considered the question of the nature and quantity of the originality requirement's elements that suffice to realize it. In respect of the investment criterion, it has been held that all that needs to be proven is a minimal investment of some human resource [see: Interlego, p. 173; Premier League, para. 34]. On the other hand, a quantitative definition of the requisite creativity is somewhat more complex and it appears that this Court has not yet fashioned a single formula for its realization.  Nevertheless, the definition of the requisite creativity for the protection of a work has been delineated in case law by a process of elimination. Thus, it has been held that the creativity criterion does not impose a particularly high threshold for the author, and that slight and even worthless creativity might sometimes suffice [see: Interlego, p. 173; CA 23/81 Hirschco v. Orbach, IsrSC 42(3) 749, 759 (1988) (hereinafter: the Hirschco case); CA 2687/92 Geva v. Walt Disney Co., IsrSC 48(1) 251, 257 (1993) (hereinafter: the Geva case)]. It has also been held that the work need not be novel in comparison with existing works in the same sphere [see Strosky, p. 257; Geva, p. 257].

 

14.       Because of the lack of any cohesive definition of the creativity requirement, and because of the absence of any controversy with regard to the definition of the investment necessary for the protection of a work, the possibility has been raised that a substantial investment in a work can compensate for a lack of creativity in such a way as will meet the requirement of originality and establish protection for the work. However, that approach was rejected by this Court long ago in Interlego, in which the approach of American law was adopted, as expressed in the American Supreme Court's judgement in Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 US 340 (1991) (hereinafter: the Feist case), according to which mere investment is not sufficient for the copyright protection of a work [see: Interlego, p. 165, 169; Premier League, paras. 36-38].

 

15.       To sum up the foregoing, the case law laid down by this Court is that for the grant of copyright protection in respect of a work, it must be established that an original work is involved, three subsidiary elements being analyzed – the origin criterion, the investment criterion and the creativity criterion – the existence of only one element being insufficient for the purpose of establishing originality.

 

The Protected Part of the Work – The Idea/Expression Dichotomy

 

16.       Before I move on to discuss the originality required for the protection of functional works, I wish to consider another basic rule concerning the copyright protection of works – the distinction between idea and expression. A basic principle of copyright law is that the idea that underlies a work will not be protected by the right, and that the protection is afforded only to the way in which it is expressed. This rule is embodied in section 7B of the Copyright Ordinance, which governs the instant case, and was subsequently anchored in section 5 of the New Law, which provides:

 

            "Copyright in a work as provided in section 4 shall not extend to any of the following, but copyright shall apply to the way in which they are expressed:

 

            (1)       an idea …"

 

17.       This Court has consistently emphasized the said distinction in its case law [see, for example: CA 10242/08 Mutzafi v. Kabali, (October 10, 2012), para. 24 (hereinafter:  the Mutzafi case); CA 2173/94 Tele Event Ltd. v. Golden Channels & Co., IsrSC 55(5) 529, 544 (2001) (hereinafter: as the Tele Event case); Strosky, p. 346; CA 139/89 Harpaz v. Achituv IsrSC 44(4) 16, 19 (1990)]. This distinction is based on the concept that the grant of protection to mere ideas would frustrate one of the major purposes of copyright law – the encouragement of creation and leaving sufficient "raw material" in the public domain [see: Tony Greenman, Copyright, vol. I, 75 (second ed., 2008) (hereinafter:  "Greenman")]. The distinction between idea and expression, in the context of textbooks for example, has sometimes led to the conclusion that the author's right has been infringed because of the fact that the expression of the method of study created by him (which constitutes a mere idea) has been copied [see, for example: Hirschco], but also sometimes to the opposite conclusion that all that has been "copied" is the actual idea that underlies the work [see, for example: Mutzafi].

 

18.       The rule that an idea is not protected and only the way in which it is expressed is protected overlaps the rule that facts per se are not protected. This rule finds expression when compilation works are involved, and it has been held that such works will only be protected insofar as the choice and arrangement of the raw materials – which constitute unprotected facts – meet the requirement of originality (see: Interlego; CA 2790/93 Eisenman v. Kimron, IsrSC 54(3) 817 (2000); Tele Event]. This requirement is  expressed in section 4(b) of the New Law, which provides:

 

            "… originality of a compilation means the originality of the selection and arrangement of the works or of the data embodied therein".       

 

            However, in view of the rising status of the creativity requirement and the determination that investment does not suffice to prove originality, it has been held that, in certain cases, a "compilation work" will not be sufficiently original and will therefore not gain protection [see: Premier League, paras. 51-54]

 

19.       We can see that the distinction between idea and expression is of major importance in copyright law, and that, in certain senses, it also overlaps the requirement of originality that underlies the copyright protection of works. The overlap between these two basic principles of copyright law is particularly relevant when functional works are involved, as will be explained below.

 

The Merger Doctrine and Functional Works

 

20.       Having regard to the distinction between idea and expression, the concept has developed whereby, insofar as a particular idea can be expressed in only a single way, then protection will not be given to a work that constitutes that expression. This concept has been called the "merger doctrine". The merger doctrine has received little reference in the case law of this Court [see: Geva, p. 262; CA 2682/11 Petach Tikva Municipality v. Zissu (May 20, 2013), para. 49]. The doctrine originates in American law, and its application in modern case law is based on the judgement in Baker v. Selden, 101 US 99 (1880) (hereinafter: the Baker case). In the Baker case, consideration was given to whether a book that presents a new method of bookkeeping and also includes blank forms that make it possible to implement the method, grants its author an exclusive right to use the actual method. The American Supreme Court laid down a rule in that case for use in analyzing works, the only or main use of which is utilitarian. The Court in that case held that:

 

            "… where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art and given therewith to the public" [ibid., p. 103].

 

            The federal courts in the USA have relied on this statement in order to develop the merger doctrine. The best-known judgment, which most broadens that doctrine, is Morrisey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. Mass. 1967) (hereinafter: the Morrisey case). In that case, it was held that when a single idea has a very narrow range of possible expressions, a work that constitutes one of the expressions is not to be granted copyright protection (ibid., pp. 678-679)]. Numerous federal courts have supported the rule in Morrisey, but dissenting opinions have also been aired [see: Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.18[C] (2002) (hereinafter: Nimmer)].

 

21.       Baker and its development in case law have been strongly criticized [see: Nimmer, § 2.18[C]. Firstly, it has been argued that in Baker itself, the American Supreme Court restricted the rule cited above solely to the right to use the method or idea given expression in the work, and that the use of the expression in order to present the method will constitute an infringement of the copyright, or in the words of the American Supreme Court:

 

            " The use by another of the same methods of statement, whether in works or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of copyright" [ibid., p. 103].

 

            Secondly, it has been argued that the distinction between copying the expression for the purpose of using the method (or idea), compared with copying the expression for the purpose of showing the method (or idea) is artificial. It has therefore been proposed to determine that copying for the purpose of using the idea will also constitute copyright infringement, and that all that should be permitted is the use of the method or idea for functional needs [see: Nimmer, § 2.18[C]-[D]]. This proposal is based on the understanding that copyright does not preclude reliance upon a work that constitutes a certain expression of an idea and presents a particular method in order to turn the method into a product. Such protection is only granted by patent law. For the purpose of demonstration, let us assume that a company manufactures a particular electrical product that is not per se protected by copyright. For the purpose of manufacture, the company produces drawings that constitute a protected work (as detailed at length below). In view of the proposition presented above, a competing company will not be able to copy the drawings, but assuming that the product itself is not protected by a patent or design, the competing company will be able to manufacture the product on the basis of the drawings without infringing copyright. I would immediately say that I accept this latter distinction, and in my opinion, it should be adopted.

 

22.       Despite the criticism that has been presented, it does appear that when there is a complete merger between the idea and its expression, and when there is only one way to express the idea, a consensus does exist that the work that gives expression to that idea will not gain copyright protection [see: Greenman, p. 83; Nimmer § 2.18[C][2]; Paul Goldstein, Copyright § 2.3.2 1 (1989)]. However, opinions are divided on the question when there are just a few possibilities of expressing the idea. According to one approach, as held in Morrisey, in such a case, copyright protection should also not be granted, but according to another approach, the work will be granted copyright, but it will only be infringed when there is absolute or almost absolute similarity between the works [see: Greenman, p. 83; Geva, p. 262]. This controversy is relevant, because, in the instant case, it is asserted by the Respondent that Safecom should have proven exact copying because its drawings constitute an idea that can only be expressed in limited ways (para. 12 of the Respondent's summations). In order to decide this controversy, in my opinion, reference may be made to the fundamental rule of copyright law presented above – the requirement of originality.

 

23.       Issues concerning the merger doctrine arise in many cases in respect of certain types of work. Thus, in the modern era, the question arises in respect of computer programs [see: Greenman, p. 81]. In addition, it has been asserted that the courts in the USA are expanding the application of the doctrine to visual works [for more on this, see: Michael D. Murray, “Copyright, Originality and the End of the Scenes a  Faire and Merger Doctrines for Visual Works,” 58 BAYLOR L. REV. 779 (2006)]. Another area in which the work, by its nature, raises issues concerning the merger doctrine is that of functional works. The instant case involves a functional work that is also a visual work. In fact, the merger doctrine can be well understood not only on the basis of the distinction between idea and expression, or to be more accurate, the merger between them, but also on the basis of the originality requirement, in particular insofar as it concerns functional works.

 

24.       In Interlego, President M. Shamgar considered at length the difficulties that the requirement of originality raises as regards functional works. One of President Shamgar's most important findings in this respect was that, in principle, a work is not to be denied copyright protection merely because it is functional [ibid., p. 160]. Nevertheless, President Shamgar held that in respect of these works the Old Law applies a filter in addition to the requirement of originality, which he called "the artistry criterion" [ibid., p. 173]. I would immediately explain that President Shamgar based the reference to that criterion on section 35(1) of the Old Law, which defines artistic work as works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art, and engravings and photographs [emphasis added – YD]. In the instant case, Safecom's drawings meet the exact definition of a "drawing" as an artistic work in accordance with section 35(1) of the Old Law, and on the face of it, the artistry criterion therefore does not apply to them directly. However, in my opinion, inspiration may be drawn from that criterion in order to interpret the application of the merger doctrine to Safecom's drawings, and to analyze their originality as a functional work.

 

25.       In Interlego, the difficulty that functional works pose for the requirement of originality was described in a way that very much brings to mind the principles of the merger doctrine. In President Shamgar's words:

 

            "When the form is dictated by the function, namely when the function limits the possible forms in which the product can be designed, then there is no justification for granting copyright to the form that is a product of functional-artistic judgement, since the protection that is given protects the function, not the author's original choice of the specific form. This is a circumstance in which the product's form is determined because of its functional task" (ibid., p. 177) (emphasis original – YD).

 

In fact, the words "function" and "form" can be substituted for the words "idea" and "expression". In order to resolve this problem, President Shamgar proposed six possible criteria for identifying the "artistry" of a work: the choice criterion; the author's intention criterion; the public acceptance criterion; the public's willingness to pay criterion; the minimal aesthetic standard criterion; and the art for art's sake criterion (ibid., p. 179). After a detailed discussion, President Shamgar proposed the "choice criterion" as the test appropriate to the examination of whether or not a work's expression derives solely from its functionality. He defined the criterion as follows:

 

            "The choice criterion: one of the characteristics of art is that it reflects the ability to express an idea in a variety of ways. As far as we are concerned here, this is a very broad criterion since it will be fulfilled whenever the creator of the functional product has the ability to choose between several options (ibid., p. 179).

 

            And following:

 

                        "It appears that in view of the purposes of copyright as indicated, and in light of the principles for the solution as formulated, the choice criterion should be regarded as a proper one in the context of examining the final product. That is to say, as long as the form obtained is one of several alternatives. The alternatives should be effective. An effective alternative is one that not only performs the functional task of the product but also meets the limited options of form existing in respect of future works deriving from the connection between function and form. There should be alternatives which, in addition to the functional task, meet the restriction of form that derives from the product's functional task or in other words, there should be several alternatives that all meet the restrictions of form that derive from the functional task" (ibid., p. 181).

 

26.       Applying the choice criterion can be of help in determining the proper protection of work regarding which it is asserted that its great functionality limits the ways for expressing the idea it represents. According to the choice criterion, the function or purpose for which the work is intended should be sought and an examination made as to whether the form of presenting that purpose – the expression – is accompanied by the author's choice from among several options that could achieve the same purpose. The application of this criterion might certainly lead to different conclusions with regard to different elements of the work. One can think of a functional work, some of the elements of which constitute essential expression of the purpose for which it has been created and therefore do not require the author to choose from alternatives when creating them, while at the same time, other elements are not dictated by its purpose, and it is clear that the author had a large range of possible choices with respect to the mode of expression. In view of this, one can again enquire into the controversy existing with regard to the relevance of the merger doctrine. As aforesaid, in my opinion when there is a solitary option for the expression of a particular idea, it is inappropriate to grant protection to that solitary mode of expression. However, when there are several possible expressions of a particular idea, even if they are very few, then in my opinion, having regard to the choice criterion, the author does have a choice among those possible expressions, and it is therefore inappropriate to deny copyright protection to the expression chosen. Nevertheless, I am willing to accept the approach that in such cases, when the number of options is very limited, then in order to prove copyright infringement, it will be necessary to apply the copying criteria strictly, and require that the work that is alleged to be an "infringing work" be almost absolutely the same as the protected work [see: Geva, p. 262; Strosky, p. 357; Greenman,  p. 83].

 

Copying a Functional Work

 

27.       The question of the criteria for copying in copyright law is an elusive one. Nevertheless, in the early 1970s, this Court laid down standards for the test in CA 559/69 Almagor v. Godik, IsrSC 24(1) 825 (1970) (hereinafter:  the Almagor case). The standards that were laid down in Almagor are still in use and were recently summed up by Justice Y. Amit in Mutzafi as follows:

 

            "(–)     It has to be proven that the defendant copied real and substantial parts of the plaintiff's work, the quality rather than the quantity being decisive.

            (–)       Copying can be inferred when the defendant had access to the plaintiff's work and the similarity between the works is of such an extent that it is unreasonable to suppose that it is the hand of chance.

            (–)       The accumulation of points of similarity is of importance. The more there are, the greater the concern that copying is involved.

            (–)       The question whether the similarity between the two works is sufficient to determine that copying of a real and substantial part is involved is one of fact and degree. The answer to the question should be given not on the basis of a mechanical comparison of a number of words or lines that are similar in the particular works, but in accordance with the judge's impression of the works as a whole" (ibid., para. 26).

 

28. Do these standards change when the protected work is a functional one? In my opinion, that question should be answered in the negative. As I have described above, functional works raise various difficulties at the stage of analyzing the requisite originality for the purpose of recognizing them as copyrighted works. However, once a functional work has passed the originality requirement stage and the choice criterion, it is a protected work in all respects, and substantial parts of it may not be copied. In this respect, even if only some of the elements that make up the functional work have passed the "choice filter", that does not affect their being work protected against copying.

          The only consequence of a work being functional concerns the standard for the analysis of copying when the protected elements constitute an idea that can only be expressed in a limited number of ways.. In such a case, a higher threshold will be necessary to establish copying, and almost absolute similarity between the protected elements and the allegedly copied elements will be required in order to establish that substantial similarity.

 

 

Were Safecom's Drawings Copied?

 

29.       Having considered the elements necessary to establish the protection of a work and prove its protection when the emphasis is on functional works, I shall now analyze whether, in the instant circumstances, Safecom's drawings amount to protected works, and whether the use that the Respondent made of them amounted to copying in infringement of the copyright.

 

30.       Firstly, it should be noted that drawings do generally meet the definition of an artistic work under section 35(1) of the Old Law, and, in any event, the Respondent does not assert that Safecom's drawings do not fall within the scope of the works to which protection is granted. Consequently, an analysis has to be made of whether the drawings meet the requirement of originality and, in such event, because they are functional works, whether they also meet the choice criterion. It is not without reason that it is said that a picture is worth a thousand words, and I shall therefore first present one of the parties' drawings as they appear in the comparative table that the Appellants filed (Exhibit 1 of their exhibits).

 

*  On the left – the Safecom drawing; on the right – the respondent's drawing

 

            The Safecom drawings portray an electrical product whose purpose is to provide electrical backup when there is a malfunction. The drawings show an illustration/photograph of the product with boxes at its sides in which there is text that expresses some electrical function, each of the drawings showing – on the product and between it and the boxes – lines and arrows that describe the electrical function that the drawing seeks to describe by visual expression. I would first state that I accept the Respondent's argument that the boxes, per se, like the text within them, do not amount to protected works. I also accept his argument that his drawings show a photograph of a product that is different from Safecom's, and that it is therefore not a copy. Nevertheless, that does not suffice as regards the question of the drawings' originality and the question of copying.

 

31.       It should first be noted that even if each of the elements of the Safecom drawings does not, per se, amount to an original work, that does not negate the possibility that the combination of the elements into a single visual work does amount to a compilation that affords protection to the way in which the elements are arranged, as opposed to the protection of each element individually [see: Greenman, pp. 119-124]. Nevertheless, even without finding that the Safecom drawings amount to an original compilation, in my opinion it can be found that they do constitute a sufficiently original artistic work.

 

32.       From looking at Safecom's drawings there appears to be no doubt that their purpose is to demonstrate the electrical process and the functions performed by the product that it manufactures. For the purpose of that demonstration, there is no doubt that it is necessary to use predefined expressions, such as the text that describes common electrical functions and such as showing the actual product to which the text relates. Together with that, Safecom's drawings also include lines and arrows that demonstrate the flow process described in the drawing. From looking at the drawings, it appears that this demonstration, which has a functional task, can be expressed in a large number of ways that can achieve the purpose, while Safecom chose a particular means of expression according to which the lines and arrows would be of a certain length and certain thickness, taking a winding course appropriate to the way in which it chose to position the product and the text boxes on the drawing. It is my opinion that Safecom's said choice affords it copyright protection in respect to the particular visual element that seeks to "correspond" with those elements that do not amount to a protected work.

 

33.       Having found that some of the elements of Safecom's drawings do amount to copyrightable artistic work, it remains to determine whether the Respondent's drawings constitute a reproduction of its drawings. I stated above that when a functional work is involved, insofar as there is a limited number of ways in which to express the underlying idea, it will be necessary to show that the work that is allegedly an infringement is almost completely the same as the protected elements in the functional work. I am prepared to assume, for the purpose of the discussion, that whether Safecom's drawings in whole constitute a protected compilation, or whether some of the elements are protected separately as an artistic work, the number of ways to give expression to a demonstration of the product's electrical process is limited. Nevertheless, even working on that assumption, from a comparison between Safecom's drawings and the respondent's drawings it appears that as regards the drawings marked Fig. 2 to Fig. 13, and Fig. 15 and Fig. 16 (Exhibit 1 of the Appellants' exhibits), the Respondent did make an identical (or at least almost identical) copy of the protected elements of the Safecom drawings in the form of the lines that describe the flow process.

 

34.       The Respondent asserts in this regard that filtering out the photograph of the product that was not copied and the elements that are not protected in the form of the boxes and the text on them, "at most what are left are… certain curved lines that describe the connections between the parts of the system. Curved lines in a drawing are not a 'substantial part' of the work. Real de minimus is involved" (para. 14 of the Respondent's summations). I cannot accept that argument. The fact that certain elements of the work are not copyrighted, whether because they are unprotected works, mere ideas or a complete merger between idea and expression, leaves those elements in the public domain and thereby permits their free use by anyone so desirous. However, when other elements of the work are copyrighted, it cannot be said that the fact that other elements of the work are not protected makes copying them insubstantial. Such a finding would negate the very protection of those elements, and that cannot be accepted. In my opinion, specifically when substantial elements of the work do not gain copyright protection and remain in the public domain, then copying all those protected elements will attest to the copying of a substantial part of the work, a fortiori when there is absolute, or almost absolute, similarity [on the substantiveness of the reproduction having regard to the amount of the copying, see Mutzafi, para. 91). This is especially so since there is no dispute that the Respondent did have full access to Safecom's drawings. It should be borne in mind that the Respondent could have made use of those unprotected elements of Safecom's drawings and added different visual descriptions to them that demonstrate the functionality of the drawings, and he could also have arranged the elements of the drawing differently, which would have achieved the functional purpose as well. Since the Respondent made exact use of Safecom's protected visual resources, he infringed its copyright in those elements.  Justice's Netanyahu's statement in Strosky is apt in this regard:

 

            "A general inverse relationship equation may be appropriate inasmuch as the less originality and intellectual effort in the work, the more exact the copying that is needed for its copyright infringement. According to this equation, it can be said that the originality and effort in the sign are modest, while the copy is almost exact. That suffices for infringement" (ibid., p. 357).

 

Permitted Uses

 

35.       Having found that the Respondent did infringe Safecom's copyright in its drawings, it remains to discuss the Respondent's arguments that his actions and the drawings that he made constitute permitted use according to the New Law and therefore do not amount to infringement. The Respondent bases his arguments on section 78(c) of the New Law, according to which an act that does not constitute an infringement of copyright in accordance with that Law will not constitute an infringement of copyright under the Old Law, despite its application in the circumstances. In view of that argument, it should first be determined whether the use of the work, in accordance with the uses that are defined in chapter four of the New Law as "permitted uses", constitutes copyright infringement. In my opinion, the answer to that is in the negative. In CA 5097/11 Telran Communications (1986) Ltd v. Charlton Ltd. (September 2, 2013) (hereinafter referred to as "Telran"), my colleague Justice Z. Zylbertal expressed the opinion that use in accordance with the uses defined in chapter four of the New Law cannot amount to a contravention of that law (ibid., paras. 28-30). That opinion is based both on the wording of the Law and on the perception that there are certain uses that, according to the purposes underlying copyright, amount to a right of the user and not merely a defense against contravention of the Law [for further, see Niva Elkin-Koren, “Users' Rights,” in Michael Birnhack & Guy Pesach, eds., Copyright (2009) 327 (Hebrew)]. I accept this position both as regards the finding that permitted use, as defined in chapter four of the New Law, does not constitute a contravention of the law, and as regards the finding that permitted use in fact constitutes a right that is granted to the user to make certain types of use of a work. I am conscious of the fact that this position is contrary to the holding of Deputy President E. Rivlin in CA 9183/09 Football Association Premier League Ltd. v. Anonymous (May 13, 2012) (hereinafter: the Anonymous case), para. 18 of his opinion, and in view of the existing disagreement, the time may have come for an extended bench to address this issue.

 

36.       Having found that permitted use does not amount to a contravention of the New Law, consideration should be given to the types of permitted use that are asserted by the Respondent in the instant case.

 

            Firstly, the argument Respondent raises avers that his use of Safecom's drawings is permitted use under section 20 of the New Law, which permits the use of a work in legal administrative proceedings to the extent justified having regard to the purpose of the use. I cannot accept that argument. I am prepared to assume for the purpose of the discussion that using the work for the purpose of presenting it to the registrar of patents in a particular country does constitute use in legal administrative proceedings, despite the fact that such a finding is not free of difficulties. However, the main element of this permitted use is the extent of the use, having regard to its purpose. In the instant case, the purpose of using Safecom's drawings and presenting them to the American Registrar of Patents in the patent registration application was the registration of a patent in respect of a product that competes with the one that Safecom markets. My opinion is that such use by a direct competitor, using the copyrighted work for the purpose of direct competition with the owner of the work, cannot amount to permitted use under section 20 of the New Law.

 

37.       Secondly, the respondent raises an argument that the use that he made of Safecom's drawings amounts to fair use, as defined in section 19 of the New Law. Section 19(a) of the New Law comprises an open list of types of use of protected works that will be permitted and fair. Section 19 (b) of the New Law enumerates four non-exclusive factors that are to be considered in order to determine whether a particular use amounts to fair use, including:

 

            "(1) the purpose and nature of the use;

            (2) the nature of the work of which use is made;

            (3) the extent of the use, qualitatively and quantitatively, in relation to the work as a whole;

            (4) the effect of the use on the value of the work and its potential market".

 

            This Court has held that "these are not essential or cumulative factors but a non-exhaustive list of parameters that might indicate the fairness of a particular use that is made of a protected work" [Anonymous, para. 19 of the opinion of Deputy President Rivlin].

 

            The four subordinate criteria listed in section 19(b) of the New Law are based on the subordinate criteria that have been laid down in the American Copyright Act [see: 17 USC § 107]. Empirical research that has been conducted attests that although the fourth subordinate criterion – the effect on the potential market – is most often mentioned as the decisive factor regarding the fairness of use, the first subordinate criterion – the purpose and nature of the use – does in fact have the most marked effect on the decision, the most influential factors being the commerciality and transformativeness of the use [see: Barton Beebe, “An Empirical Study of US Copyright Fair Use Opinions,” 1978-2005, 156 U. PENN L. REV., 549 (2008); Neil Weinstock Netanel, “Making Sense of Fair Use,” 15 LEWIS & CLARK L. REV. 715 (2011)]. It appears that these factors were also the most influential in this Court's ruling in Anonymous [ibid., para. 20].

 

            In the instant case, it appears that the use that the Respondent made of Safecom's drawings did not meet the standard of fair use. Thus, in the scope of the first subordinate criterion, it is clear that the Respondent's use was commercial because its whole purpose was to bring about the registration of a patent in respect of his product that competes with Safecom's product. Moreover, on analyzing the question of transformative use, it does not appear that the Respondent's use of the Safecom drawings led to the creation of a new expression, different from the original expression embodied in them. As regards the third subordinate criterion – the extent of the use – I have already found above that the Respondent made an exact, or almost exact, copy of Safecom's drawings, and the extent of the use is therefore full. Finally, having regard to the fourth subordinate criterion, it is clear that since the product marketed by the respondent directly competes with Safecom's product, there is no doubt that the use affects the potential market for Safecom's drawings.

 

            Incidentally, I would mention that I cannot accept the Respondent's argument that the American Patent Office has expressed its opinion that the use of a protected work for the purpose of a patent application amounts to fair use. From studying the opinion (which was annexed as Appendix J to the Respondent's volume of supporting documents), it appears that the American Patent Office means that the use of protected works that the Office itself makes in its relationship with those filing patent applications amounts to fair use [see: United States Patent and Trademark Office, USPTO Position on Fair Use of Copies of NPL Made in Patient Examination (January 19, 2012)].

 

38.       Thirdly, the Respondent contends that the use that he made of Safecom's drawings is permitted in accordance with section 27 of the New Law. Section 27 of the New Law provides:

 

            "Making a new artistic work which comprises a partial copying of an earlier work, or a derivative work from an earlier work, as well as any use of the said new work, are permitted to the author of the said earlier artistic work even where said author is not the owner of the copyright in the earlier artistic work, provided the new work does not repeat  the  essence  of  the  earlier  work  or  constitute  an  imitation thereof".

 

            In order to fall within the scope of the section, the Respondent must show that he was at least a joint author of the Safecom drawings. The District Court found that the Respondent had waived his rights in the drawings in favor of Safecom in the scope of the Agreement. The Respondent argues in this connection that even if he had waived his rights in the drawings, as regards the New Law he is still the first joint author of them. In my opinion, there is no need to rule on this issue because even if the respondent is a joint author of Safecom's drawings, section 27 of the New Law does not work in his favor in this case because the use that he made of Safecom's drawings amounts to an absolute, or almost absolute, copy of them. It cannot, therefore, be said that "partial copying" of Safecom's drawings, or a work deriving from them, is involved, and it can easily be found that the Respondent's drawings "repeat  the  essence  of  the  earlier  work  or  constitute  an  imitation thereof".

 

39.       Before concluding, I shall briefly consider the Respondent's argument concerning the law governing this case. According to the Respondent, copyright law is naturally territorial, as is the application of the Old Law. Since Safecom's drawings were copied in the USA, the Respondent asserts that the law governing the case is American law, which was not proven by the Appellants, and the appeal should therefore be dismissed. The District Court considered the Respondent's said argument and held that the drawings were not only copied in the context of filing the patent, but that the Respondent had received the presentation containing Safecom's drawings in Israel and copied them on the computer at his home in Israel. Consequently, the District Court held that Israeli law could be applied to the case. Those findings of the District Court are findings of fact, in which I have not found it appropriate to intervene at the stage of appeal. I would merely state that even were it appropriate to find that this case is governed by American law, that would not necessarily lead to the dismissal of the appeal in the absence of proof of the foreign law. This is particularly so when a sphere is involved that is regulated by numerous international conventions, which lead to relatively great conformity among the different state laws [see, for example: CA 169/94 Werner v. Amorim, IsrSC 50(3) 119, 124 (1996); CA 1227/97 Red Rock Quarry and Stone Works Ltd. v. Ibrahim IsrSC 53(3) 247, 259 (1999); CA 7687/04 Sasson v. Sasson (February 16, 2005), para. 10].

 

40.       In conclusion, I would recommend to my colleagues that we find that certain elements of Safecom's drawings amount to protected work, that 13 of the Respondent's drawings amount to an absolute, or almost absolute, copy of Safecom's drawings, and that the use that the Respondent made of the drawings does not amount to permitted use. I would also recommend to my colleagues that we remand the case to the District Court for ruling on the appropriate relief in respect of those infringements, and that the Respondent pay the Appellants' costs in the amount of NIS 40,000.

 

 

 

Justice Z. Zylbertal

 

            I concur.

 

 

 

Justice E. Rubinstein

 

A.        I concur in the illuminating opinion of my colleague, Justice Danziger.

 

B.        My colleague gave thorough consideration to a broad picture of copyright law, with regard to originality as a condition for the protection of a work, the protection of the way in which an idea is expressed, as opposed to the idea itself, and the criteria concerning works of a functional character, which is a complex matter in itself.

 

C.        I would like to add another criterion to all these – the common sense criterion, which might sound too broad because it can be said that common sense should guide us in every case, and on the other hand it is not necessarily the same for everyone in individual matters. However, by saying "common sense" in the instant case, I mean the accumulation of all the overall facts before the court.  When a work is involved, appearance or the sight of the eyes ("better is the sight of the eyes than the wandering of the desire", Ecclesiastes 6:9) is also acknowledged to be a significant parameter in intellectual property law (and see: CA 3422/03 Krone v. Inbar, IsrSC 59(4) 365, in respect of drawings as well. See also, inter alia, CA 7125/98 Mipromal v. Kalil, IsrSC 57(3) 702, 710 et seq.). Incidentally, the expression "the criterion of common sense" (in a slightly different sense) can be found in case law. See the statement by then Justice Grunis in ALA 5454/02 Taam Teva v. Ambrosia, IsrSC 57(2) 438, 453 (2005) citing this criterion per the learned commentator Seligson (Trademarks and Similar Law, (5733), 80-81 (Hebrew)) as regards the comparison of a conceptual message. And in the instant case, in preparing the file, when we – the bench – inspected the drawings involved, in our eyes there was a great similarity that was immediately conspicuous. Consequently, as I see it, the result that we have reached was required not only by common sense but also by the sight of our own eyes.

 

D.        Intellectual property law does, indeed, in many cases involve subtle nuances in respect of which it is frequently difficult to separate the wheat from the chaff, and much has been written about the difficulties of litigation in this sphere (see: D. Freiman, Patents (second printing, 2008) 7); but in my opinion, the case before us is not one of the difficult ones and anyone looking at the drawings that my colleague presented in his opinion (para. 30) needs no arcane language and can take them at face value, almost like the well-known definition by US Supreme Court Justice Potter Stewart concerning pornography, who said that it is perhaps difficult to define but "I know it when I see it".

 

E.         As aforesaid, I concur with my colleague's review, together with his cataloguing and arrangement of the matter.

 

F.         Before concluding, I would mention that Jewish law, especially in its modern embodiment, but even long ago, has considered the matter of intellectual property rights; see my opinion in CA 9191/03 V&S Spirt Aktiebolag v. Absolute Shoes, IsrSC 58(6) 869, 888-892, which also discusses (at p. 890, para. 18(3)) the Jewish law foundations of enforcement in intellectual property matters, and I would here emphasize the approaches of Jewish law that concern a another’s craftsmanship, trespass and theft, and more; in Krone, supra (at p. 379), I also considered the matter of a graphic pattern (or drawings) as a cause of action in Jewish law, and also see my opinion in ALA 7774/09 Weinberg v. Weisshof (2012) paras. 9 to 12 and the authorities cited there.

 

 

 

            Decided as stated in the opinion of Justice Y. Danziger.

 

Given this 15th day of Kislev 5774 (November 18, 2013)

 

 

 

Justice

Justice

Justice

 

 

 

 

 

            

Rosenbaum v. Zeger

Case/docket number: 
C.A. 248/53
Date Decided: 
Monday, April 4, 1955
Decision Type: 
Appellate
Abstract: 

In September 1950, the appellant lent to the respondents for a period of two years the sum of I.L. 800.- secured by a mortgage on land and a building registered in the Land Registry. To ensure the return of a sum equivalent to the amount lent, and having regard to a possible fall in the value of the Israel pound, it was provided by clause 9 of the mortgage deed that, if at the time of payment the value of the land and building had risen, the lender should receive on repayment an addition to the sum of I.L. 800.- representing the change in value.

           

When the time for repayment of the loan arrived the value of the property had risen owing to a fall in the value of the Israel pound and the respondents offered to repay the sum of I.L. 800.- but refused to pay the additional sum provided for. They sought a declaration in the District Court that they were entitled to redeem the mortgage and have the registration money removed from the Land Registry upon payment of I.L. 800.- and expenses. The respondents contended (a) that clause 9 of the mortgage deed was illegal, being contrary to Ottoman legislation regarding a maximum rate of interest that might lawfully be charged and (b) that clause 9 was unenforceable as being contrary to public policy, in that it encouraged inflation. On the basis of these two contentions the court made a declaration in favour of the respondents and the appellant appealed.

           

Held, allowing the appeal, that clause 9 of the mortgage deed was not contrary to the Ottoman legislation. A clause in a mortgage deed calling upon the mortgagor to pay in Israel pounds a higher sum than that lent, if at the time of redemption the value of the land and building, subject to the mortgage, had risen because of a fall in the value of the Israel pound, is not contrary to the Ottoman legislation regarding interest and there is nothing contrary to public policy in such a clause.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

C. A. 248/53

           

ELSIE ROSENBAUM

 v.

ASHER AND HAYA ZEGER

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[April 4, 1955]

Before Silberg J., Goitein J., and Berinson J.

 

 

Contract - Loan -Mortgage deed - "Value clause" - Condition for repayment of additional sum as pledge against inflation - Not against public policy - Ottoman Law - Additional sum payable not excessive interest - Jewish Law - English and American Law.

 

                In September 1950, the appellant lent to the respondents for a period of two years the sum of I.L. 800.- secured by a mortgage on land and a building registered in the Land Registry. To ensure the return of a sum equivalent to the amount lent, and having regard to a possible fall in the value of the Israel pound, it was provided by clause 9 of the mortgage deed that, if at the time of payment the value of the land and building had risen, the lender should receive on repayment an addition to the sum of I.L. 800.- representing the change in value.

           

            When the time for repayment of the loan arrived the value of the property had risen owing to a fall in the value of the Israel pound and the respondents offered to repay the sum of I.L. 800.- but refused to pay the additional sum provided for. They sought a declaration in the District Court that they were entitled to redeem the mortgage and have the registration money removed from the Land Registry upon payment of I.L. 800.- and expenses. The respondents contended (a) that clause 9 of the mortgage deed was illegal, being contrary to Ottoman legislation regarding a maximum rate of interest that might lawfully be charged and (b) that clause 9 was unenforceable as being contrary to public policy, in that it encouraged inflation. On the basis of these two contentions the court made a declaration in favour of the respondents and the appellant appealed.

           

            Held, allowing the appeal, that clause 9 of the mortgage deed was not contrary to the Ottoman legislation. A clause in a mortgage deed calling upon the mortgagor to pay in Israel pounds a higher sum than that lent, if at the time of redemption the value of the land and building, subject to the mortgage, had risen because of a fall in the value of the Israel pound, is not contrary to the Ottoman legislation regarding interest and there is nothing contrary to public policy in such a clause.

           

Palestine case referred to:

 

(l) C.A. 475/44 - Estate of the late Habib E. Salem represented by the Executors, Jamil Salem and Others v. Hanna Asfour and Adeeb Jeadeh, Trustees in Bankruptcy of Eugenic Hallasso; (1945), 12 P.L.R. 339.

 

English cases referred to:

 

(2)        Feist v. Société Intercommunalé Belge d'Electricité: (1934) A.C. 161.

(3)        Lomax (H. M.Inspector of Taxes) v. Peter Dixon & Co., Ltd.; (1943) 2 All E.R. 255.

 

American cases referred to:

 

(4)        Bates v. United States; (1939). 108 F. 2d 407.

(5)        Norman v. Baltimore & Ohio Railway Co.; (1934), 55 S. Ct. Rep. 407.

(6)        Die Deutsche Bank Filiale Nürnberg Humphrey; (1926), 47 S. Ct. Rep. 166.

  1. Gale v. Grannis; (1857), 9 Ind. 140, American Digest, Vol. 47, 2124.
  2. Garvin v. Linton; (1896), 62 Ark. 370, American Digest, Vol. 47, 2111.

(9)        Beckwith v. Windsor Manufacturing Co., (1842), 14 Conn. 594, American Digest, Vol. 47, 2112.

(10)      Bade v. Kierst; (1887), 10 N.Y. St. Rep. 705, American Digest, Vol. 47, p. 2113.

(11)      Hamilton v. Moore; (1846), 26 Tenn. 35, American Digest, Vol. 47, 2113.

(12)      In Re Mansfield Steel Corp.; (1929), 30 2d Fed. Rep. 832.

 

Orgler for the appellant.

Barak for the respondents.

 

 SILBERG J. The appeal before us concerns a matter of money, that is to say, a question of money as money. We have been called upon to define the nature of depreciated currency and to determine the significance of a "value clause" contained in the terms of a loan - whether or not it is contrary to the law concerning interest.

 

2. The facts of the case, which are clear and not in dispute (the action concerning their legal significance only), are as follows:

 

A. At the end of September, 1950, when the respondents needed money to complete the construction of a house on their plot in Ramat Izhak, the appellant lent them I.L. 800.- for two years, and to secure the repayment of the loan, a mortgage was registered in her favour on the plot and on the building under construction.

 

B. Clause 7 of the mortgage deed provided that the loan was to bear interest at the rate of 9 per cent per annum, of which a part was payable in advance and the remainder in equal quarterly installments, which were subsequently paid. However, the parties added one more condition, which is the pivot round which the present appeal revolves. This condition is set out in clause 9 of the deed, which reads as follows:

 

            "If the value of the mortgaged property is at the time of repayment higher than its value at the time of registration of the mortgage, the lender (the appellant) shall be entitled to demand that the borrowers (the respondents) pay to her in addition to the amount of the loan, such part of the excess value as corresponds to the proportion between the amount of the mortgage and the present value of the mortgaged property. For the purpose of this clause, the parties agree that the present value of the mortgaged property (i.e. of the land, the building and the trees), if it were free from tenants and the building wholly completed in accordance with the approved plan, would be I.L. 4,500.- ... Nothing contained in this clause or in any other provision of the mortgage deed shall give the borrowers the right to pay off the debt by paying an amount of less than I.L. 800.- plus interest and the other amounts due to the lender."

 

   This clause, a "value clause" in technical language, was inserted  in the terms of the mortgage in order to protect the lender against such depreciation of the Israel pound as might occur during the validity of the mortgage. It is not in dispute that the increase in the value of the property referred to in clause 9, means "an increase brought about by a decrease", that is to say, such an increase in the value of the property as would of necessity result from a decrease in the value of the currency. The representative of the appellant has declared before us, too, that his client is not trying to benefit by any increase in the price of the property, other than such an increase as is the expression and exact counterpart of a decrease in the value of the currency.

  

C. When the date of maturity of the mortgage arrived, the appellant was invited by the respondents to appear at the Land Registry Office for its redemption. They offered to pay the appellant the nominal amount of the mortgage, i.e. I.L. 800.-, saying they were not bound to add anything whatsoever, even if the value of the mortgaged property had increased as a result of a depreciation of the Israel pound. The appellant refused, in reliance on clause 9 of the mortgage and contended that the value of the mortgaged property had indeed increased.

 

D. The respondents thereupon applied to the District Court of Tel Aviv for a judgment declaring that they owed the appellant the amount of I.L. 800.- only. Their contention was, and is, that the condition laid down in clause 9 is of no legal validity, a) because it requires the borrowers to pay interest in excess of the permitted rate (that is, a plea of 'excessive interest'), and b) because a condition of this kind is contrary to public order being a serious inflationary factor prejudicial to the country's economy. The learned judge accepted both parts of the submission and granted the respondents the declaration prayed. It is against that judgment that the appellant appeals to us.

 

3. I will say at once that the second part of the above submission does not commend itself to me at all. Matters of public order are, as is well known, limited to a well known list of matters, and any addition to those is scarcely considered possible in these days (see Halsbury, Hailsham edition, Vol. VII, p. 154; 12 English and Empire Digest. 242 paragraph 19791): "Judges are more to be trusted as interpreters of the law than as expounders of what is called public policy"). Moreover, experts have not yet decided that the linking of loans to value clauses constitutes an inflationary factor harmful to the State, and even if the experts of other nations had so decided, I would still not be sure that such a general rule applies also to the peculiar economic conditions prevailing in the State of Israel. If, for instance, it should appear that the authorisation of such transactions is likely to attract foreign investors to this country, I should not hesitate to say that it is actually beneficial to the State.

 

4. It thus remains for us to deal with one remaining question: whether having regard to the interest (9 per cent per annum) payable under clause 7 of the deed, the stipulation in clause 9 is or is not one for excessive interest.

 

            This is a legal question, and we have to consider and decide it with reference to the legal provisions as to interest in force in this country.

 

5. The following are the three Laws dealing with the permitted rate of interest:

a) the Ottoman Code of Civil Procedure of 1879 (Article 112);

b) the Ottoman Law Concerning Interest of 1887 (Articles 1 and 3);

c) the Usurious Loans Ordinance, 1934 (sections 2 and 3).

 

Article 112 of the Ottoman Code of Civil Procedure provides:

 

            ''If the contract be for the payment of a sum of money, and there be delay in making such payment, damages may be awarded at the rate of 1 per cent per month on the principal amount, and the creditor shall not be required to prove that he has suffered any loss."

 

            Some eight years later, the Ottoman legislator reduced the permitted rate of interest, fixing it at 9 per cent per annum, and this has been the "legal" rate of interest to this day. The relevant provisions of the Ottoman Law Concerning Interest are:

      

''1. With effect from the date of promulgation of this law. the maximum rate of interest for all ordinary and commercial credits shall be 9 per cent per annum.

 

3.If it be proved that a creditor and debtor have in a deed of contract agreed to a rate of interest higher than the legal rate, whether this be explicit in the deed or whether the excess be included in the principal amount, the rate shall be reduced to 9 per cent per annum."

 

            Sections 2 and 3 of the Usurious Loans Ordinance, 1934, grant the courts power to re-examine the transaction between the borrower and the lender in order to find out whether it does not involve any obligation to pay interest in excess of the legal rate.

           

            We thus see that a maximum rate of interest - 9 per cent per annum - is in force in this country, but this does not bring us any nearer to the solution of our problem. For the question of interest to us in this appeal is whether an increase in the quantity of pounds intended to compensate for their qualitative decline, constitutes an "additional payment" within the meaning of our law of interest.

           

            It is regrettable and somewhat surprising that the two learned counsel who have very ably presented their arguments before us should not have succeeded in discovering a single judgment, either in Israel or abroad, that deals directly with this question, i.e., which examines the validity of the condition in question or of a similar condition (such as a "gold clause", a "dollar clause" etc.) from the point of view of the payment of excessive interest which it might involve. I do not rely for authority or support on the famous judgment of the House of Lords in Feist v. Société Intercommunale Belge ďElectricité (2), or on the case of Estate Salem v. Trustees of Halllaso (1), which follows the same lines in coming to a decision. In both cases, the validity of the gold (or dollar) clause was not attacked because of the interest transaction involved - not in the Feist case, for there has been no maximum legal rate of interest in England for a hundred years, and not in Salem's case, for the representatives of the parties did not raise the problem of interest at all. The principle known as the "Feist construction" merely imports that a gold (or dollar) clause does not lay down the "how", but the "how much", not a "mode of payment", but a "measure of liability", and the clause therefore was held to be neither invalid nor unlawful by reason of a departure from the gold standard or a contravention of the law forbidding the trade in foreign currency. Even this was not really an innovation, for the International Court at the Hague, in the case of the Serbian Loans, had already decided:

 

   "The treatment of the gold clause as indicating a mere modality of payment, without reference to a gold standard of value, would be not to construe but to destroy it."

  

   (Case of Serbian Loans, Permanent Court of International Justice, Series A, Collection of Judgments, 1928-1929; Judgment No. 14, p. 32, cited in Feist's case, ibid.pp. 173-174).

 

            In the case before us, however, the question is whether the larger amount payable as a result of the increase of the value of the mortgaged property constitutes a prohibited addition of interest, and on this question the two judgments I have referred to do not help.

           

            This question is by no means an easy one. The difficulty lies in the changes that have occured, in the course of history, in the attitude of peoples and nations in the matter of interest and usury, both from a purely ethical and from an economic and practical point of view. To avoid terminological confusion, I shall use the word "usury" (in Hebrew: neshekh) in the sense of prohibited or excessive interest. (For the Talmudical definition of the term see Baba Metzia in the chapter on usury, 60 b, Mishna u-G'mara ibid.; and comp. Maimonides, fourth chapter of the Rules Concerning Borrower and Lender, rule 1). A Swiss scholar has pointed out: -

           

            "The ethical nature of the concept of usury renders it impossible to formulate permanent and definite criteria of what constitutes a usurious transaction. As long as freedom of contract remains the cornerstone of economic organization, it is not the economist but the legislator who must decide at what point a voluntary economic transaction constitutes an abuse of economic freedom and thus an act of usury. Transactions which were condemned in the Middle Ages as usurious became recognized in subsequent centuries as normal economic practices, while usages which were outlawed and punished in one country were at the same time freely permitted in another. Moreover in certain periods the moral views of the legislative bodies were identical with those of the majority of the people, while at other times there was a wide divergence in this respect, so that usages which were officially outlawed were nevertheless sanctioned in economic life. Thus while concepts such as price, wage, interest, are economic categories transcending time, usury is a historical category" understood only in the light of the moral and legal norms prevailing in a particular period."

(Edgar Salin, Usury, Encyclopaedia of Social Sciences, Vol. 15, p. 194).

  

            Unfortunately, however, purely ethical considerations do not give us a key to the solution of the specific question to be considered by us, and, as stated, we have not found a clear legal norm either in the Israel statute-book nor in the local jurisprudence. We shall therefore have to rely on analogy or on the accumulated experience of other legal systems, making due allowance - where necessary - for differences of time and place.

           

6. Nearer to the case before us are judgments given, in Enlgand and in the United States of America, in matters relating to the payment of income-tax. I begin with the well-known judgment of the English Court of Appeal in Lomax v. Dixon & Co. Ltd. (3).

 

            The facts of that case were as follows:

           

            A Finnish company owed an English company amounts arising out of various loans, which added up in the course of time to a total debt of £ 319,600. These amounts were payable on demand. As the Finnish company was unable to pay the whole of the debt at once, an arrangement was made between the two companies, as a result of which the Finnish company gave the English company 680 bills for £ 500 each, or £ 340,000 in toto, i.e. for £ 20,400 more than the original amount of the debt. That is to say, the bills were issued as the usual expression is, at a 6 per cent discount. It was stipulated that the bills should bear interest at the rate of 1 per cent above the lowest rate of discount of the Bank of Finland for that year, but in any case not more than 10 per cent per annum. It was also stipulated that if in any year the net income of the Finnish company should reach a certain amount, each bill due for payment should be redeemed at a 20 per cent "premium". The maturities of the 680 bills were fixed as follows: the first 100 were to be paid several days after the date of the arrangement. and the remainder. in equal instalments, in the course of twenty years. It was proved that in laying down the above terms of payment, the English company had in mind "the element of risk which might arise through trouble between Finland and Russia", on which the learned judge remarks in his judgment (p. 258) that -

 

   "In view of the manner in which that apprehension has justified itself, (meaning the Russo-Finnish War which broke out seven years later) it can scarcely be suggested that .. .the appellants were taking excessive precautions by insisting on the notes being issued at a discount and redeemable at a premium."

  

            The question facing the court in that case was whether that ''discount" of the bills - i.e. the difference between the original amount of the debt and the principal of the bills - and the "premium" to be paid in the event indicated were "income" chargeable with tax under the income-tax laws in force in England.

           

            The court decided that the discount and premium were not subject to income-tax, the reason - put shortly - being that the said arrangement was not an interest transaction but a capital transaction, designed to insure the company against the risk it was taking in agreeing that payment, instead of being immediate, be spread over a period of twenty years. This is what was said by Lord Greene, Master of the Rolls:

           

"...there can be no general rule that any sum which a lender receives over and above the amount which he lends ought to be treated as income. Each case must, in my opinion, depend on its own facts and evidence dehors the contract must always be admissible in order to explain what the contract itself usually disregards, namely, the quality which ought to be attributed to the sum in question." (ibid., p. 260)

 

Further on, the learned judge says:

 

            ''I can find no ground for distinguishing the present case from that of an ordinary issue of debentures by a trading company. If at the date of the agreement the appellants had lent to the Finnish company £ 319,600 to be secured by an issue of notes at 94 repayable over 20 years at 120 and bearing interest at a rate fixed by reference to bank rate in the usual way, the revenue authorities would not have claimed tax on the discount or the premium. The element of capital risk was quite obviously a serious one and the parties were entitled to express it in the form of capital rather than in the form of interest if they bona fide so chose. It is said, however, that there is a difference between the case of a security issued for a present loan and that of a security issued to cover an existing loan. This argument found favour with MacNaghten J., but, with all respect to him, I cannot follow it. The parties to the transaction,  faced with an existing debt which the Finnish company was obviously not in a position to repay there and then, did what in effect amounted to writing down the capital value of the debt which by the terms of the agreement was now to be repaid over a long period of years bearing interest in the meantime at a normal commercial rate. I can see no difference between writing down the capital value of an existing debt and writing down the capital value of a new debt, which is what is done where a company makes an ordinary issue of debentures at a discount or repayable at a premium. Moreover, it is quite common for a company to issue debentures as security for an existing loan..." (ibid., p. 261).

 

            At the end of the judgment, the learned judge sums up the principles resulting from his analysis of the problem, as follows:

           

            "It may be convenient to sum up my conclusions in a few propositions. (i) Where a loan is made at or above such a reasonable commercial rate of interest as is applicable to a reasonably sound security, there is no presumption that a 'discount' at which the loan is made or a premium at which it is payable is in the nature of interest. (ii) The true nature of the 'discount' or the premium (as the case may be) is to be ascertained from all the circumstances of the case... (iii) In deciding the true nature of the 'discount' or premium, in so far as it is not conclusively determined by the contract, the following matters together with any other relevant circumstances are important to be considered, viz., the term of the loan, the rate of interest expressly stipulated for, the nature of the capital risk, the extent to which, if at all, the parties expressly took or may reasonably be supposed to have taken the capital risk into account in fixing the terms of the contract." (Ibid p. 262 and 263).

 

            With reference to these principles, the Court of Appeal decided that the "discount" and premium were not interest and thus not income, and were therefore exempt from income tax, as the Income Tax Commissioners had already decided previously.

           

            This is the rule established in the Lomax case (3), and we cannot ignore it in considering and deciding the question before us. Nor did the learned judge of the District Court overlook this English judgment, but, with all respect, he did not interpret it correctly. It may be noted in his favour that he was misled by the headnote to the case. The moral to be drawn is, if I may amend the well-known warning of Ecclesiastes : "And more than of these, my son, beware of the headings and summaries of the law reporters". In the passage quoted literally by the learned judge, the editor says:

           

            "Interest on a loan is properly speaking payable for the use of the money or as a recompense to the lender for being kept out of his money. A payment or recompense made to the lender because there is a risk that the money lent or some part of it may never be repaid is a consideration of a different kind and is, in fact, a provision for capital depreciation. It seems to be clear that interest properly so called is taxable, whereas a provision against capital depreciation is not taxable."

  

            Thereafter the learned judge of the lower court quotes a message from the judgment itself, which says:

           

            "A good example of the difficulty is to be found in the contracts of loan which used to be made on a gold basis when the currency had left or was expected to leave the gold standard. In such contracts the amount to be repaid was fixed by reference to the price of gold ruling at the repayment date and, if the currency depreciated in terms of gold. there was a corresponding increase in the7 amount of sterling to be repaid at the maturity of the loan. It could scarcely be suggested that this excess ought to be treated as income when the whole object of the contract was to ensure that the lender should not suffer a capital loss due to the depreciation of the currency."

 

            The learned judge combines these two passages into a stick with which to beat the ratio decidendi of the Lomax judgment (3). In his opinion, the English judges erred by confusing "depreciation" and "devaluation":

           

            "While the former term denotes the loss in purchasing power, either on the money market or on the commodity market or on both, 'devaluation' is a legislative act designed to alter the relation between the currency and the monetary cover and to create a new, stable position  until it is again altered by the legislator...

            "Obviously there can be no question with us of devaluation. True, the relation between the Israel pound and foreign currency has been changed several times. We have fixed all kinds of rates for the purchase and sale of currency by the Treasury from or to local residents in connection with foreign trade transactions. But our currency is not linked to any monetary cover. It depends on the economic strength of the Israeli population and of Diaspora  Jewry...

 

            "It therefore seems to me that I cannot be guided by the Lomax judgment in considering whether the benefit in question comes, or does not come, under the heading "interest" ..." (p. 5 of the judgment of the District Court).

  

            I dissociate myself, with respect, from the conclusion at which the learned judge arrived in the last paragraph of the above passage. The differentiation between devaluation and depreciation is quite correct, and no one will quarrel with it (see Nussbaum, Money in the Law, 1950, p. 172); but I do not agree with the conclusion drawn by the learned judge. For what is the relevance of this difference, and in what way does it reveal an error into which the English judges have allegedly fallen? The decision given in the Lomax case (3) is not essentially concerned with either devaluation or depreciation; it is built Entirely upon one idea, namely that the object of the lenders was not to earn profits, but to safeguard the principal; they merely wished to forestall the danger that hung over their heads in view of the likelihood of a Russo-Finnish war breaking out - as in fact it did - during the long period that had to be allowed for the redemption of the bills. I am not defending the headnote to the case. That is indeed wrong and misleading. But there is neither a misconception nor a slip of the pen in the judgment itself. The example given by Lord Greene, namely the insertion of a gold clause in loan contracts made after, or immediately before, the abandonment of the standard, merely illustrates and puts in concrete form the difficulty we sometimes encounter when trying to discover the true meaning of a contract. This is shown by the opening words of the passage I have quoted. Nor is this the only example given by the noble lord, as anyone who reads the text of the judgment, from the last paragraph on p. 258 to the last paragraph but one on the following page, will clearly see.

 

          In short: the Lomax decision does not depend at all on the correctness of the distinction between the concepts "devaluation" and "depreciation", and the learned judge, therefore, was not right in refusing for this reason, and for this reason alone, to apply that decision to the case under consideration.

         

7. The Lomax case deals with a question relating to income-tax, and the rule established by it directly is that a payment intended to compensate for or avert a loss of principal is not interest chargeable with income-tax. If it is correct - as I think it is - that the concept of interest referred to in income-tax laws is identical with the concept of interest dealt with by our interest laws, than the Lomax decision would also appear to solve the question before us.

 

8. Another judgment on tax matters that is relevant to our case was given in 1939 by the Federal Circuit Court in Bates v. United States (4). In one respect, the Bates case is nearer to our case than the Lomax case, for in it, too, the issue hinges on the law concerning the increase and decrease of the value of the currency; but otherwise it is much farther removed, since it has nothing whatever to do with the question of interest.

 

          The matter occurred in 1935, about a year after the American dollar had been officially devalued by 40 per cent by a proclamation of President Roosevelt. dated January 31, 1934. In that year, Bates sold for 175,482 dollars securities which he had bought in the years 1931-1933 for 134,464 dollars, thus realizing a nominal profit of approximately 40,000 dollars. The officials in charge of income-tax or, more exactly, the officials in charge of the tax levied in America on capital profits of this kind, demanded from him tax on that profit, and the matter came before the District Court. Bates' contention was - in a nutshell - as follows: To determine the amount of the profit obtained, one had to compare the selling price of the securities with their purchase price; and as the present, devalued dollar was no longer the "full" dollar that had existed before 1934, there was no common basis for the drawing of the comparison, other than the real, gold value of the two currencies. If that was so, he had made no profit at all on the transaction, for taken at their gold value, the 175,000 dollars which he had received for the securities in 1935 were certainly not worth more than the 135,000 dollars which he had paid for them in the years 1931-1933.

 

            The Circuit Court rejected this contention relying upon the judgments given by the Supreme Court of the United States in Norman v. Baltimore and Ohio Railway Co. (5), and in Die Deutsche Bank Filiale Nürnberg v. Humphrey (6).

           

            After analysing these judgments, and after concluding from them the "equivalence, dollar for dollar, of cost and selling price money" - this is one aspect of what is known in technical literature as "the nominalistic principle" - the District Court refutes Bates' contention saying that since gold coins had ceased to be legal tender, and one was not permitted to possess them but had to surrender them to the Treasury and to receive for them dollar bills, the value of which corresponded to the gold value of the devalued dollar, it followed that the law regarded the dollars invested by Bates in the purchase of the securities as actually equivalent, dollar for dollar, to the dollars he had received at the time of their sale; and that being so, there was a common basis for drawing a comparison between the purchase price and the sales price, and the calculation of profit was to be made, quite simply, by deducting the number of dollars paid in the past to the seller of the securities from the number of dollars now received from the purchaser.

 

            After further pursuing this line of reasoning, the court concludes as follows:

         

            "The following hypothetical situation suggested by defendant illustrates the difficulty of plaintiff's position If the taxpayer (i.e. Bates) had borrowed the dollars ($ 134,464.01) necessary to buy the securities in question in 1933 and prior years and had not discharged his obligation until after he had sold the securities in 1935 the taxpayer could have used $ 134,464.01 to discharge his obligation and would have had the excess of $ 41,018.85. And it is clear, as a matter of law, that his creditor who received the taxpayer's promise to pay at a time prior to the changing of the gold content of the dollar would have been required to accept in discharge of the obligation $ 134,464.01 of the so-called "new money", although the obligation represented what the plaintiff calls "cost money".(Ibid., p. 410.)

 

            These are most trenchant remarks, which require no comment. The question arises whether this example does not by itself invalidate the arguments advanced here by the appellant. We only have to substitute "the appellant" for "Bates", "I.L. 800.-" for "134,464.01 dollars" and to add the further hypothetical assumption that the value of the Israel pound decreased between the years 1950 and 1952 by fifty per cent and that the value of the mortgaged property thus increased in the same proportion, in order to arrive at the conclusion that the appellant, who - according to our hypothetical example - borrowed the I.L. 800.- in 1950 from somebody else, has made a "net" profit of I.L. 400.- And if, for the purposes of the capital profits tax laws in force in America, Bates' 40,000 dollars were regarded as profits chargeable with tax, why should not the appellant's I.L. 400.- be regarded as "interest" within the meaning of our interest laws?

           

            This question was put by us, during the proceedings, to counsel for the appellant, and his reply was: It should not. If the appellant had borrowed the amount of the loan from somebody else and had not yet repaid it, the amount in dispute would quite possibly be regarded as interest. But as it was, she did not borrow money from anyone, but expended the amount out of her own pocket. which means that no profit has accrued to her from the "increase" of the amount of the mortgage.

           

            This answer is not satisfactory at all. It is impossible to make the decision dependent on whether the mortgagee lent his own money or money he had previously borrowed from another person. Supposing a man who on the day the loan was given had both money of his own and money he had borrowed that day from another person - will the court in such a case start investigating whether the money given on loan was of the first or of the second "kind", and will the outcome of the case depend on this ? Certainly not.

 

            However, there is another answer to the above question, an answer which counsel for the appellant has himself touched upon, in a different context, while presenting his arguments before us. That answer is : interest is not the same thing as profit, and the fact that a certain sum is regarded as profit for purposes of tax, does not force us to invest it with the character of interest (the reverse is true: where there is no profit, there is no interest). When the State imposes taxes on the profit or income of its citizens, it cannot ignore, or more exactly, it cannot completely ignore, the nominalistic concept of currency, that is to say : it cannot disregard the concept (which is artificial, of course, from a factual point of view) that a dollar is always a dollar and a pound always a pound, in spite of the fall they have undergone on the international money market or on the domestic commodity market. For if it did, the entire tax system of the State would collapse, and the government budget with it - see Nussbaum loc cit., end of the first paragraph - and in time of inflation, for instance, there would be hardly any taxable profits, for the bulk of the profits would be ascribed to the depreciation of the national currency. Depreciation of the currency is a national calamity, through which everybody suffers, including, of course, the taxpayer who, for instance, in this country, pays land betterment tax on the nominal increase of the value of the property.

           

            However, the line of thought will be a different one, and the test will be quite another, if we examine profit from the point of view of the interest character attributable to it. Here we have to ask ourselves what the lender intended: to obtain something in addition to what he had or merely to preserve what he had. As to this question - the question what it is that the lender had - we do not necessarily have to use the artificial standard of the nominalistic principle, but may also take into account the diminution which has occurred in the actual, real value of the currency. The real value of I.L. 800.- which the appellant lent the respondents was at that time 800: 4500 (eight hundred four-thousand-five-hundredths) of the value of the mortgaged property. And the only purpose of clause 9 was to keep the value of her money at the same ratio. She could have achieved this also in a different manner: by investing the amount of the loan in the purchase of a part of the property in question or some other property, from the respondents themselves or from somebody else, and if she adopted the course she did, this does not testify to a desire on her part to enrich herself by usurious prohibited interest.

 

9. That the matter of usury depends on the intention of the parties is a principle expressly accepted by American jurisprudence, as appears from the following judgments quoted in the American Digest:

 

            "Usury is mainly a question of intent." (Gale v. Grannis  (7).)

           

            "A usurious agreement cannot be implied against theintent of the parties, as there must be a corrupt intent to take more than lawful interest to constitute usury.” (Bade v. Kierst (10).)

           

            "Usury is a question of intention, to be made out by proof of facts, and not an inference of law, to be drawn from the inequality of the currency loaned and that stipulated to be repaid for it." (Hamilton v. Moore (11).)

           

            There are it is true certain judgments which somewhat minimize the importance of intention, but the overwhelming majority strictly adhere to the intention theory. Additional support for it may be found in a much more recent American judgment, the well known judgment given in 1929 in In Re Mansfield Steel Corp. (12).

           

            I am not insisting that we, too, in this country, should go mainly by the intention, but the idea expressed in this matter in American jurisprudence may itself give us a certain orientation in groping our way through the dark maze of interest and usury. Let us not forget that the States of the U.S.A. make up an overwhelming majority of the states in the world which have a legal rate of interest - in the whole of Europe, if I am not mistaken, there are only two or three such states - and that they may be presumed to have knowledge, experience and understanding of life's necessities in this legal field. Now if intention is the main consideration, or even only one of the main considerations, the matter is not so simple, and the general character of the transaction must be very carefully considered.

 

10. The richest experience in matters relating to interest can be found in the sources of Jewish law. This is one of the most interesting and most developed branches in the whole of Jewish law. On the one hand, there is a strict and fundamental prohibition of anything that smacks of interest, a deep detestation - the heritage of generations - of the type and trade of the moneylender (moneylenders are men who "deny the fundamentals" of Judaism, they "make a mockery of the Law and a fool of Moses", and they are mentioned in the same breath as pig-breeders-Palestinian Talmud, Baba Metzia, end of the chapter concerning usury; Berakhot 55a, and elsewhere). On the other hand, people felt the necessity of taking into account the demands of everyday life, the need for a certain amount of relaxation, since the economic necessity of credit cannot be altogether dispensed with. And lastly, or as a result of these two, the need to lay down legal concepts, patterns and forms, so as to determine exactly the borderline between the lawful and the unlawful. If we add to this the fact that during and after the Middle Ages the lending of money was a special trade which, as is generally known, several historical factors compelled the Jew (and particularly the Jew) to engage in, then we shall not be at all surprised at the thorough work done in this legal field by scholars of earlier and later ages. Interesting problems arose, interesting ideas and rules came to the fore, and although Jewish law does not bind our courts in these matters, a study of this law may broaden our outlook and help us to see matters in their true perspective.

 

11. Interest was defined with admirable conciseness and accuracy by Rav Nahman, a Babylonian scholar who lived at the end of the Third and beginning of the Fourth Century of the Common Era: -

 

"The principle of interest is that a payment in consideration of waiting is prohibited." (Baba Metzia, 63b)

 

            Interest is a "payment for waiting", that is to say: the sum paid to the lender for waiting for the repayment of the money which is temporarily in the possession of the borrower. Any payment due to the lender for anything else, for any other service, and any monetary transaction not constituting repayment of the money lent is not interest within the meaning of the above definition. Hence some monetary transactions were permitted, their lawfulness being based on the idea that the profit receivable by the person providing the money is, as to its legal form, a profit on a sale, or the enjoyment of the proceeds of something disposed of which had belonged to that person, or the like (see the passage concerning the sale of a field, Baba Metzia, 65b-66b; Tosefoth, Baba Metzia, 64b, the passage beginning with the word "v'lo"; Maimonides, 6th Chapter of the Rules Concerning Borrower and Lender, Rule 6; ibid., Rule 8, etc.). A "payment for waiting" is forbidden only if it goes direct from the borrower to the lender, but not if it is given to the lender by a third person. The lender is therefore permitted to accept from the borrower, at a discount, bills which the borrower has received from another. From the strictly legal point of view this is considered as a purchase of bills, and not a loan of money, although when looked at from the economic point of view there is no difference here between them: -

 

"There are things which are like interest, but which are permitted. A person may buy the bills of another person without scruples, and a person may give another person a denarius in order that he may lend somebody a hundred denarii, for the Torah forbids only such interest as goes from the borrower to the lender."

           

            (Maimonides, fifth chapter of the Rules Concerning Borrower and Lender, rule 14. Source: Baba Metzia, 69b, Palestinian Talmud, Baba Metzia, the chapter concerning usury, and Tosefta, Baba Metzia, chapter 4; but compare Maggid Mishne le-ha-Rambam, ibid., and Tur Shulhan Aruh, Yore Dea, 160(7), which makes several reservations with regard to the above rules).

  

            These and similar rules helped to keep the Biblical prohibition of interest within reasonable bounds and to prevent it from becoming a curse rather than a blessing, a disturbing rather than a regulating factor, in the progressing economic life of successive generations.

           

12. But this was not enough to overcome one great difficulty attending precisely the ordinary loan - the actual monetary loan. I refer to the fluctuations in the value of the currency, such as were experienced even in those early days. We know this because the prohibition of interest in Jewish law applies not only to interest fixed in advance (ribbit ketzutza) but also to the interests not so fixed (avak ribbit), which latter is forbidden not by the Bible, but by the Rabbinical authorities (Baba Metzia, 61b). In fact, any profit actually and directly accruing to the lender from the borrower, in connection with and in consideration of the loan, is interest and forbidden even if at the time the loan was given it was not yet certain that this profit would accrue.

 

            The question was raised whether it was permissible to borrow "a denarius for a denarius" or whether it was to be feared that the denarii might have increased in value by the date of repayment, so that the lender would receive more than he had lent, which would be interest. And if the denarii in fact increased in value between the date of a loan and the date of repayment, was the lender entitled to claim the whole of the number of denarii he had lent, or did he have to deduct the number of coins proportionate to the increase in value?

           

            The answer given by the Talmudical authorities is most original and worthy of note: everything depends on the nature of the denarius concerned. There is a denarius which is mere coin ("tab'a"), that is to say, a legal, official means of payment with which all commodities can be bought and which is not susceptible of an increase (or decrease) in value, because its apparent rise in value is spurious, a mere reflex of a fall in the price of commodities ("perot") brought about by other causes; it follows that the prohibition of interest does not apply to it when it is given on loan on a denarius-for-denarius basis. But there is a denarius which is not mere coin which buys, but a commodity which is bought or bartered, and if its value increases or is likely to increase, then this is an actual increase in value, which must be taken into account in the matter of the prohibition of interest. It was decided that a silver denarius was mere coin - being generally current more than any other coin - and that, therefore, it was permitted to lend it even on a denarius-for-denarius basis, and it is not apprehended that any interest might be involved. But a gold denarius is, according to most of the authorities, a commodity, and therefore it is prohibited to lend it for fear that its value might subsequently increase and the lender thus receive interest: for the lending of commodities on a measure-for-measure basis is forbidden in principle in Jewish law as "interest not fixed in advance" (Baba Metzia, first item on the chapter concerning gold, 44b-45a).

           

"For a silver denarius is coin in every respect, and not susceptible to an increase or decrease in value .. .therefore one cannot say that a silver denarius has anything at all to do with interest, and so it is permitted. As for the gold denarius, however, since it is, in contrast to silver, like commodities and movables, it is subject to a rise or fall in value. Thus, a gold denarius may be worth ten silver denarii at the date of the loan, and ten and a half denarii at the date of repayment. There is thus an element of interest in it" (Nimmukei Yosef Commentary to Rif Izhak Alfasi, ibid.).

 

            "It is forbidden to borrow on a 'measure-for-measure' basis, and a corresponding prohibition applies to everything else except coin... a gold denarius is to be treated as a commodity, it being forbidden to borrow a gold denarius for a gold denarius, for fear that one that is worth twenty-four silver denarii at the date of the loan may be worth twenty-five at the time of repayment; but it is permitted to borrow a silver denarius for a silver denarius, and so to borrow all other coins, that is, if they are current coin..." (Tur Shulhan Aruh, Yore Dea, 162(1). For the interpretation of the words "all other coin" see Beit Yosef, ibid., and the Responsa of R. Yom Tov Tzahalon, 33.)

 

Concerning the intrinsic, qualitative difference between coin and commodities - we find in one of the early authors: -

           

            "For in each of the different kinds of things in the world you find differences in value arising from the nature of the things themselves - their taste or smell or appearance - .. .except in the case of coin, the usefulness of which lies entirely in its monetary function, its purchasing power, and if so, what does its rise or fall, its thickness or thinness, matter?" (R. Avraham Ben David, quoted in "Shitta Mekubbetzet", Baba Metzia, at the beginning of the chapter concerning usury.)

 

            These remarks, written in the thirteenth century, surprise by the modernity of the conception reflected in them; they contain, in a single sentence, the theory of "money as a medium of exchange", which was to gain wide currency in the technical literature of the twentieth century (see Nussbaum, ibid., p. 11, notes 43 and 44). Their meaning is as follows: currency is a means of purchase, the value of which is imparted to it from without, by the laws of the State to fix its value or purchasing power, while commodities carry their value within themselves, as a result of the enjoyment derived from their natural use.

 

            The distinction between coin and commodities runs like a golden thread through the whole of rabbinical literature concerned with the lending of money, and is a main consideration in deciding the various questions connected with the law of interest. The idea remained unchanged, or almost unchanged, but its practical application underwent considerable changes, due to the shifting of the boundary-line between "mere coin" and commodities, as we shall see later. Every change in the value of the currency by order of a ruler, and every reduction of its content or weight for purposes of taxation or as a result of war, rebellion and the like, immediately brought with it a spate of inquiries to leading scholars as to how to deal with the debt when occasion arose, and according to which value, the old or the new, it was to be paid on maturity. There was in these cases not only a clash of interests between the lender and the borrower, but also an inner conflict in the lender himself if he was an honest man. For interest is forbidden by Jewish law both to the borrower and to the lender (Baba Metzia 75b, 6la and all the authorities). It is forbidden not only to take interest, but also to give it. The borrower thus found himself between Scylla and Charybdis, and his choice was a very delicate one: if he gave more than what was due, he infringed the prohibition of interest, and if he gave less, he brought himself under the prohibition of larceny. ("Let the teacher of righteousness teach him what the mode of payment should be, so that it may not involve either interest or larceny", Responsa Darhei Noam, Yore Dea, 24). This, too, is one of the reasons for the large number of questions asked with regard to this legal issue.

            An apt description of the situation, both as regards the law and the factual background, is contained in one of the responsa of the Rivash, who taught in Spain and Algiers at the end of the fourteenth and the beginning of the fifteenth century.

           

"Reuven owes Levi seven thousand - secured by a mortgage on certain lands - on two promissory notes made out in the old currency, when King Don Enrique introduced a new currency, which was not worth one quarter of the earlier currency. He did so because otherwise he would not have been able to pay his troops. He ordered that this currency be accepted throughout his kingdom like the earlier currency. But years later when his rule had become established and he saw that this currency (i.e. the new one) had caused great damage and loss throughout his kingdom and that commodities had become much dearer owing to this currency, he declared it invalid."

 

            The story goes on to tell how Reuven, who "had access to the king's court and perceived the king's desire and intention to declare that currency invalid", deposited with a trustee of the (rabbinical) court six thousand in the bad currency "in order that it might be given to Levi if he surrendered the notes". The sages of Seville decided that this payment was a good payment. Levi disputed this decision, and the matter was brought before the Rivash for final determination. Here is his decision: -

           

            "Decision: A valid award of the Court of the Holy Community of Seville (may the Lord preserve it) is final, and far be it from me to doubt and question its rulings ...because 'the law of the State binds Jews living in it.' The king ordered expressly that every person must accept the new, debased currency at the rate of the previous one, and that debts could be paid in it; we have here an instance of the principle that the law of the State is the law binding on Jews living in it. It is not a case of extortion on the part of the king, because the matter of the currency is one of royal prerogative. The king has the right by virtue of his being king, to deal with the currency at his pleasure and to fix a specific value for it. He may raise and lower its value at his pleasure. And if sometimes, as need arises - just as he imposes taxes in order to lodge and pay his army - he greatly depreciates the currency, who can call him to account for it? ..." (Responsa of the Rivash, 197.)

 

            Of course, in the decision of the Rivash the question of interest did not arise, because the lender in question, Levi, received new, debased currency instead of the old, good currency which he had lent Reuven. The question there was whether Reuven was not robbing his creditor by depositing the debased currency, and the answer was no, on the ground that "the law of the State binds Jews living in it" - i.e. the law of King Enrique, which recognised what is known today as the "nominalistic principle" in matters of currency, was the law which bound the parties to the transaction. But what would have been the law if the injured party had not been the lender Levi, but the borrower Reuven? Let us picture the following: the same Reuven borrowed the seven thousand from Levi in the period of the debased currency, and before the time of payment came - and for exactly the same economic reasons as were indicated by the Rivash - i.e. because "commodities had become much dearer owing to that currency" - the same King Enrique invalidated that currency and replaced it by a new currency, worth more than the old, and decreed that all borrowers in the State must pay in the new, good currency. Would, in this case, the rule of the State, which is the "nominalistic principle", have overridden the prohibition of interest, just as in the case of the Rivash it superseded the prohibition of larceny? The rule known to us that coin may be borrowed for coin (except gold coin and the like) would not have provided a simple solution to the problem, for here, ex hypothesi, we have to do, not with an imaginary or "reflected" increase of the value of an existing currency, but with the replacement of an existing currency by a new one, for the definite purpose of "bringing down the prices of commodities", as aforesaid, and this new currency, of course, involved an actual addition of value in comparison with the previous currency.

 

            The above question was thus not before the Rivash but, as we know, the words of the Torah are sparing in one place and plentiful in another, and so we find an answer in the decision of other authorities. A great many responsa have been written concerning the relation between an increase in the value of the currency and interest; the very names of the coins mentioned in them - doros, cordanos, mejidis, venetsianus, perahim, groshosh, hatikhot, levanim, reichsthaler, zehuvim, zolotash and the like - testify to the width of the field covered, both in space and time, and it is easy to understand that no uniformity of language and content can be expected in all the authors concerned. Nevertheless, in spite of the great variety of the opinions expressed, when reviewing the decisions given on this question - namely whether an increase in the value of the currency (otherwise than through an increase in weight) prevents the lender, by reason of the prohibition of interest, from receiving from the borrower the whole of the quantity of coins he lent him - three main groups emerge before us.

 

 13. The first group holds that a law of the State, which in this instance is the "nominalistic principle", is binding and when it puts an end to the inequality between the different values of all kinds of coin, it automatically clears that transaction of the stigma of interest. Thus and only thus - I think - must the use of that rule be here conceived, for otherwise it will not be understandable (and this objection has in fact been raised in the sources) how the law of the State can permit what is otherwise prohibited.

 

"...and all the more: how are debts to be paid where

it is a question of the law of the State? It is clear that the law of the State is the law that binds and that there is no question of interest in this case" (Responsa Sh'vut Yaakov,II, Choshen Mishpat 175).

 

"...If the king decrees that every lender be repaid in the other coin, then some say that the principle of the law of the State is the binding law, then the transaction is clearly permitted ...and that there is neither larceny nor interest involved..." (Beit Yosef, to Tur there Dea, 165,in the name of the authorities).

 

            "As for your question concerning the change of the currency in our country, in relation to the payment of debts, I am surprised at that question, for it is agreed that the law of the State is the law that binds" (Responsa Chatam Sofer, part "Choshen Mishpat", 58).

 

            Another group likewise permits the acceptance of coin increased in value, though not with reference to the law of the State, but for specific talmudic reasons derived from the law of interest itself, or for no special reason at all, from a desire to make things easier, in deference to common practice, or the like

           

            "...If it has been expressly stipulated that the same coin as has been lent shall be repaid, then the same coin must be repaid even if it has increased in value by more than one fifth and even if commodities have become cheaper in consequence, and this will not involve the pay­ment of interest." (Sh'vut Yaakov, loc. cit., in another part of the responsum.)

 

"In our opinion, all coins forever have a fixed value, and it is therefore permitted to borrow all of them on a Iike-for-like basis (gold for gold and copper for copper); although a change may have taken place and the value may have risen or fallen, one will pay back the same coin as one has borrowed; and as no interest is involved, one has to pay back the same coin." (Chazon Ish, Choshen Mishpat, 16(9).)

           

            There are many more decisions permitting the borrowing of a coin for a coin not only in the case of the silver denarius - which is an actual coin - and permitting the lender to get back all the coins he has lent even if their value has increased between the date of the loan and the date of repayment. A long list of such decisions will be found in the Responsa Chikrei Lev, part "Choshen Mishpat", 154.

           

            On the other hand, there is another group, representing a minority opinion, which prohibits the lending of a coin for a coin and the receipt of coin increased in value (i.e. of the same quantity of it), because "the Gemara does not permit a coin for a coin unless no profit at all accrues to the lender."

           

14. For the sake of accuracy and completeness, I would mention here the well-known fact that at the beginning of the seventeenth century and later a number of dispensations (haskamot) were granted by Jewish communities with a view to reaching, in the event of an increase or decrease in the value of the currency, a compromise between the lender and the borrower by splitting the difference or "loss" between them in equal shares; but the object of these dispensations was to divide in an equitable manner the loss caused by law to one of the parties, and not to alter or abrogate the prohibition of interest. The concern was to avoid the "larceny", not the interest, for the frequent changes in the value of weight of the coin brought disorder into the economic life of the masses and also endangered the internal peace of the community.

 

            In 1691, the Governor of Egypt "declared invalid the clipped and debased mejidis and introduced new mejidis, which were good both as to the silver and the weight", and an immediate consequence of this measure was utter confusion among Egyptian Jewry .. .Such were the dangers that threatened the life of the communities. It was to obviate them that in several countries (but apparently not in Egypt) the above-mentioned dispensation and permits were issued. They did not change the law of interest itself; the half-of-the-difference paid to the lender in the case of an increase in the value of the currency was permitted by law and did not give rise to scruples with regard to interest, for the reasons set out above.

 

15. We have come to the end of our survey of Jewish law. Let us now see to what conclusion it leads with regard to the question before us. It seems to me that an exact analysis of the principles disclosed will show that clause 9 of the mortgage deed, the value clause, would not in Jewish law have been regarded as a stipulation for interest. To make this clear, we have to translate the case into Jewish legal language. What did the appellant do? She wished to insure herself against depreciation of the Israel currency, a process which would entail a proportionate rise in the prices of all commodities in the State. This means: she ensured to herself the right to receive, at the time of repayment, the same quantity of commodities as she would have been able to buy with her money at the time the loan was given. Her actual wealth - in commodities - would not thereby increase; what would increase was only the number of coins she was to receive, and such an increase, despite the "law-of-the-State" rule of the "nominalistic principle", is not in Jewish law regarded as interest, although, but for that stipulation, the debt due to her could have been redeemed with a lesser number of coins. We have seen that the law-of-the-State rule, with the nominalistic principle arising from it, may level out, in legal respect, the difference between the two values and thereby -- in the case of an increase in value - neutralize the prohibition of interest. But it is not realistic at all - and we have not found any hint to this effect in the sources - that by reason of this principle the depreciated currency should be regarded as actually equivalent to the previous currency, and that because of this fiction any purely quantitative addition to the number of coins originally given to the borrower should be regarded as prohibited interest. We have seen that principle at work as a "neutralizer" of interest, but we have not found it in the role of a "catalyst" of interest. In all the talmudical and rabbinical discussions concerning the rise and fall of the value of the currency, a great deal of attention is given to the question whether this rise and fall of the value is inherent in the currency, so that the latter, when increasing in value, produces the cheapening and multiplication of the commodities, or whether the increase and decrease is inherent in the commodities, that is to say, is due to some economic cause extraneous to the imaginary increase of the value of the currency, so that no benefit accrues to the lender by a mere increase of that value. It follows that the correct test of interest in Jewish law is whether or not the lender is actually enriched - in commodities - by the added quantity of coins. There may be actual enrichment without the transaction being forbidden as involving interest - for various legal reasons peculiar to the law concerning interest - but there cannot be the opposite, namely that the transaction is forbidden as involving interest without the lender being enriched.

 

Conclusive proof of this may be found, on careful study, in the aforementioned dispensations granted by the said communities. Under these dispensations, the difference in value was to be divided between the lender and the borrower, both in the event of a rise of the value of the coin lent and in the event of decrease thereof. If the groshosh, e.g., at the time of the grant of the loan stood at 120 levanim, and at the time of repayment had dropped to 100, the borrower had to pay the lender 110 levanim, i.e. one depreciated grush plus 10 levanim. These dispensations were accepted and followed even by those authorities who recognised in principle the "principle of the law-of-the State is binding", according to which the borrower may by right repay the debt in depreciated currency without adding anything. This shows clearly that the half-of-the-difference paid to the lender by virtue of the permit, i.e. the 10 additional levanim which the lender receives besides the grush repaid to him, is not prohibited interest according to Jewish law. For those dispensations, as I have already observed, were designed merely for an equitable distribution of the loss and were not intended to change - nor, perhaps, capable of changing - the law of interest itself. Now what is the reason for permitting the addition? Here - in contrast to the opposite case of the increase in value of the currency - the reason is that the addition does not enrich the lender in comparison with his position at the time the loan was granted. And this is the law with regard to the case before us.

 

16. To sum up, we have seen that English jurisprudence does not  regard as interest the additional amount paid in respect of a risk to the principal of the loan; we have seen from American jurisprudence that the intention of the parties is the main thing and that, to constitute usury (prohibited interest), there must be a corrupt intent to get more than the legal interest (it may be assumed that in the transaction entered into by the present appellant there was no "corrupt intent"); lastly. we have seen that even Jewish law, which is very strict with regard to interest and which deals with the problem of interest more strictly than any legal system at any time and in any country, finds no fault with the stipulation of a value clause. In view of all this, it is unlikely that the Ottoman legislator would have wished to go farther than all the others, and I therefore think that the condition laid down in clause 9 of the mortgage deed does not constitute a stipulation for interest prohibited by the laws of this country.

 

17. One brief concluding remark. We have not been asked here to express our opinion as to the economic aspect of the problem: whether or not the linking of loans to value clauses is economically desirable. Let others decide this. But at the same time, we should not blind ourselves to reality. The linking of loans - especially long-term ones - to value clauses is of everyday occurrence, both in the private and in the cooperative sector, and nobody seems to object. This is one of those cases where people should be allowed to make their economic arrangements without interference; certainly this matter does not come under the heading of prohibited interest.

 

          In my opinion the appeal should be allowed and the declaration issued by the District Court set aside.

         

GOITEIN J. I concur.

 

BERINSON J. I concur.

 

Appeal allowed.

Judgment given on April 4, 1955.

 

1 ) See In re Mirams (1891) 1 Q.B. 595.

Full opinion: 

New Zealand Insurance Company v. Yuval

Case/docket number: 
C.A. 118/51
Date Decided: 
Thursday, June 4, 1953
Decision Type: 
Appellate
Abstract: 

The plaintiff, a Haifa merchant, insured with the defendant, a company having its head office apparently in New Zealand and a branch in London, a consignment of 100 watches despatched to him from Paris. The policy, made in Haifa and mentioning the London branch, was in English and contained a "lost-or-not-lost" clause. In fact the watches had been sent from Paris twenty days before the issue of the policy, but this fact was not disclosed to the underwriters. The consignment was stolen while in transit in France, and only seven watches were recovered. It was impossible to determine whether the theft had been committed before or after the date of the policy. The District Court gave judgment against the defendants for the value of 93 watches, holding that the information relating to the prior despatch of the watches had not been withheld by fraud on the plaintiff's part, and that there was no duty on him to volunteer it.

 

                Held, allowing an appeal and remitting the case to the District Court for further consideration:

               

                1. The question what was the law applicable to the contract, being one of conflict of laws to which no local law extended or applied, must be determined in accordance with the English common law by virtue of Article 46 of the Palestine Order in Council, 1922.1)

               

                2. Quaere, whether the English law rule is that in the absence of an agreement to the contrary a contract of marine insurance is governed by the law of the place where the underwriter carries on his business.

               

                Spurrier v. G.F. La Cloche 1902 A.C. 446 and

                Greer v. Poole (1879) 5 Q.B.D. 272 considered.

               

                3. There was no evidence before the court to prove either what was the country in which the underwriter carried on business or, assuming it to be England, what the provisions of the English law were. As distinct from a case in which English common law is applicable under Article 46, it is necessary to prove such law by expert evidence when it is to be applied as a foreign law.

 

                4. In the absence of evidence, it must be presumed that the law of the defendant's place of business is identical with the local law.

 

                5. A question of marine insurance is comprehensively answered by the Ottoman Maritime Code, 1863, and there is no occasion to turn to English law under Article 46. On the contrary, the Code must be interpreted in the light of the French law from which it was derived.

               

                6. By Article 193 of the Ottoman Mercantile Code 1) a contract of insurance will be cancelled in the event of the non-disclosure of a fact which, had it been known to him, would have prevented any ordinary, reasonable underwriter from consenting to the conditions included in the policy.

               

                Accordingly:

               

(a)          The question does not depend upon whether the assured knew or did not know of the loss of the watches, or whether he acted fraudulently or not.

 

(b) The "lost-or-not-lost" clause proved that the mere fact that the watches had already been despatched at the date of policy could not have affected the underwriters' estimate of the risk insured.

 

(c)           The question whether the non-disclosure of the fact that the watches were already in transit for twenty days at the time when the insurance was applied for affected the validity of the contract depended upon whether that period was so long in reference to the circumstances that an ordinary, reasonable underwriter would regard it as increasing the risk he had underwritten. That question should be answered by the District Court.

 

                Case remitted accordingly.

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

 

C.A. 118/51

 

 

NEW ZEALAND INSURANCE CO. LTD. AND ANOTHER

v.

IZHAK YOUVAL (SALZMAN)

 

 

In the Supreme Court sitting as a Court of Civil Appeal.

[June 4, 1953]

Before: Silberg J., Assaf J., and Landau J.

 

 

 

Conflict of Laws - Palestine Order in Council, 1922, Article 46 - English law to be applied - English law, when applied as foreign law and not by virtue of Article 46, to be proved by experts - Principle of identity of laws - Contract of marine insurance - Ottoman Maritime Code, 1863, s. 193.

 

                The plaintiff, a Haifa merchant, insured with the defendant, a company having its head office apparently in New Zealand and a branch in London, a consignment of 100 watches despatched to him from Paris. The policy, made in Haifa and mentioning the London branch, was in English and contained a "lost-or-not-lost" clause. In fact the watches had been sent from Paris twenty days before the issue of the policy, but this fact was not disclosed to the underwriters. The consignment was stolen while in transit in France, and only seven watches were recovered. It was impossible to determine whether the theft had been committed before or after the date of the policy. The District Court gave judgment against the defendants for the value of 93 watches, holding that the information relating to the prior despatch of the watches had not been withheld by fraud on the plaintiff's part, and that there was no duty on him to volunteer it.

 

                Held, allowing an appeal and remitting the case to the District Court for further consideration:

               

                1. The question what was the law applicable to the contract, being one of conflict of laws to which no local law extended or applied, must be determined in accordance with the English common law by virtue of Article 46 of the Palestine Order in Council, 1922.1)

               

                2. Quaere, whether the English law rule is that in the absence of an agreement to the contrary a contract of marine insurance is governed by the law of the place where the underwriter carries on his business.

               

                Spurrier v. G.F. La Cloche 1902 A.C. 446 and

                Greer v. Poole (1879) 5 Q.B.D. 272 considered.

               

                3. There was no evidence before the court to prove either what was the country in which the underwriter carried on business or, assuming it to be England, what the provisions of the English law were. As distinct from a case in which English common law is applicable under Article 46, it is necessary to prove such law by expert evidence when it is to be applied as a foreign law.

 

                4. In the absence of evidence, it must be presumed that the law of the defendant's place of business is identical with the local law.

 

                5. A question of marine insurance is comprehensively answered by the Ottoman Maritime Code, 1863, and there is no occasion to turn to English law under Article 46. On the contrary, the Code must be interpreted in the light of the French law from which it was derived.

               

                6. By Article 193 of the Ottoman Mercantile Code 1) a contract of insurance will be cancelled in the event of the non-disclosure of a fact which, had it been known to him, would have prevented any ordinary, reasonable underwriter from consenting to the conditions included in the policy.

               

                Accordingly:

               

(a)          The question does not depend upon whether the assured knew or did not know of the loss of the watches, or whether he acted fraudulently or not.

 

(b) The "lost-or-not-lost" clause proved that the mere fact that the watches had already been despatched at the date of policy could not have affected the underwriters' estimate of the risk insured.

 

(c)           The question whether the non-disclosure of the fact that the watches were already in transit for twenty days at the time when the insurance was applied for affected the validity of the contract depended upon whether that period was so long in reference to the circumstances that an ordinary, reasonable underwriter would regard it as increasing the risk he had underwritten. That question should be answered by the District Court.

 

                Case remitted accordingly.

 

Palestine cases referred to :

(1)          C.A. 123/41 - Gustav Weil v. Barclays Bank (D.C. & O.), Haifa Branch; (1941) 2 S.C.J. 354.

(2)          C.A. 259/41 - Leopold Baef v. The Palestine Building Syndicate, Ltd.; (1942) 1 S.C.J. 82.

(3)          C.A. 73/43 - L. v. L; (1943) 1 A.L.C. 245.

 

Israel cases referred to:

(4)          C.A. 37/48 - Bank Hapoalim Ltd. v. Ya'acov Kravtsov; (1948/9) 1 P. 44.

(5)          C.A. 130/50 - Amal Ltd. v. Yehoshua Shindler; (1952) 6 P.D. 710.

(6)          C.A. 37/49 - Gila Cohen Rapoport v. Sara Paldwrowski; (1950) 4 P.D. 645.

(7)          C.A. 51/49 - Yosef Yazdi and Others v. Rivka Yazdi; (1950) 4 P.D. 762.

(8)          C.A. 167/47 - Binyamin Minkowitz v Zalnan Fishtsner & Others; (1948/49) 1 P. 49.

(9)          C.A. 65/49 - Moshe Freisler v Fritz Weiss; (1951) 5 P.D. 878.

 

English cases referred to :

(10)        Spurrier and Another v. G.F. La Cloche; (1902) A.C. 446.

(11)        Greer v. Poole and Others; (1880) 5 Q.B.D. 272.

 

Solomon for the appellant.

Meridor for the respondent.

 

                SILBERG J. This appeal concerns marine insurance and the question that has been raised before us is :what is the position in law of an assured who keeps silent and does not disclose to the insurance company that the goods have already been sent from the place of despatch, that they have been lost en route, and that it is not known whether such loss occurred before the contract was made or thereafter. The difficulties of this case are increased by the fact that the policy contained the well known "lost-or-not-lost" clause and that it did not restrict the insurance to future risks only.

               

2. The material facts are set out below, and particular importance must be attached to the relevant dates :

 

                (a) In 1947 the plaintiff Mr. Izhak Youval (Salzman), began business as an importer of watches. His method of operation was to send gold ingots to Prance for the purpose of being worked and mounted, and filled by the Lanco Company into watches which be later re-imported into Palestine as finished goods. One of these orders was carried out in the middle of March, 1947. It concerned some 250-300 watches which were to be sent from France to Haifa in small batches. At the same time the plaintiff informed the Lanco Company that he had opened a bankers' credit in its favour in connection with this order. Several months passed and after a great deal of correspondence the company at last telegraphed to the plaintiff on June 20, 1947, that it was about to send him 100 watches and requested him to have them insured. And indeed after seven days - that is on June 27th, 1947 - the watches were despatched from a Post Office in Paris. The company then wrote to the plaintiff to that effect in a letter which had left Paris on July 5th and which reached the plaintiff between the 10th and 12th but not later than the 15th of the same month. On receipt of the letter the plaintiff transferred by telegram to the Lanco Company the cost-price of the watches in accordance with the bill which was attached to the letter. On the 16th of July, Mr. Israel Salzman - the son of the plaintiff and the manager of his business - went to the office of Hamisrad Hameouhad Leahrayout Ltd., the agents of the appellant, the New Zealand Insurance Co. Ltd. There he spoke to Mr. Frankel, the clerk in charge and requested him to insure 100 gold watches against loss and damage for up to 800 Palestine Pounds from the Post Office in Paris to Rehov Herzl, Haifa. Frankel agreed, Salzman paid the premium and the next day, that is on July 17, 1947, an insurance policy on behalf of the New Zealand Insurance Company was issued as requested and delivered to the plaintiff. At the time when Salzman requested the insurance to be effected he did not inform Frankel that the watches had already been sent from Paris; on the other hand he was not asked by Frankel whether the watches had already been sent or not. I shall deal with this point further in the course of this judgment.

 

                (b) Several months passed but the goods failed to reach their destination. The plaintiff inquired as to the meaning of this. The company tried to put him at his ease and investigations were made in France until finally - in February 1948 - it appeared that the watches had been stolen on the way and had disappeared, and that only seven of them had been recovered in Marseilles. From a letter which the plaintiff received towards the end of 1949 from the French Railways we learn that the person who stole the watches was found and arrested on or about July 26, 1947 but - as the Company adds regretfully - "the thief did not indicate the exact date on which the theft was committed."

               

                (c) The plaintiff applied to the agents of the Insurance Company and asked to be indemnified in respect of the damage (which according to the policy was payable in Haifa). The agents refused, their only ground being :

               

                "There is no evidence that the goods which were insured were still in existence when you requested the insurance to be made. It is obvious that a contract of           insurance can be made only in respect of existing goods and not on goods that are non-existent. Consequently we have to reject the claim."

 

                Because of this refusal the plaintiff lodged a claim before the District Court, Haifa, against the New Zealand Insurance Co. Ltd. and (alternatively) against the Hamisrad Hameouhad Leahrayout Ltd., and asked for judgment against them in respect of the damage in the sum of L.P. 8.- for each of the 93 watches that had been stolen and not recovered or the sum of L.P. 744.-in all, together with interest and costs. In paragraph 5 of the statement of claim the plaintiff writes :

               

                "5. The loss of the said 93 watches took place subsequent to July 17, 1947. Alternatively, the plaintiff claims that even if it should appear that the said watches were lost between June 27, 1947, and July 17, 1947, the first defendant is liable for the damage."

               

                The defendants' main defence, as set out in paragraphs 5 and 6 of their statement of defence, was as follows:-

               

"5. The date of validity of the said policy was from July 17, 1947, in respect of the said goods provided that the said goods were at that time in transit through the post from France to 44, Rehov Herzl, Haifa.

6. According to the plaintiff, the goods were sent by post from France on June 27, 1947. The defendant was not liable for any loss to the goods during the period between June 27, 1947 and July 17, 1947. lf the goods were lost then their loss took place before the date of the policy and no liability lay on the defendant in respect of goods that were not in transit in the post before the policy came into force."

 

In addition to the above, the defendants added a vague and laconic plea in their statement of defence. Paragraph 7 reads as follows:

 

"7. The insurance policy does not cover the case in question.''

 

                No explanation was given as to why or wherefore. To the simple reader this sentence is nothing but a mere abstract and a more concentrated resume of the pleadings set out in paragraphs 5 and 6 of the statement of defence which I have set out.

               

                (d) From the letter of Hamisrad Hameouhad Leahrayout Ltd. rejecting the claim and from the statement of defence of the defendants, it is clear that, at the begining, the dispute centred on one small point. It was confined to the question whether the insurance company was or was not liable for loss which had taken place before the insurance policy was issued. But during the trial in the District Court and as a result of the evidence produced by each side, the area of dispute was widened considerably - with the consent it would seem of both parties - and the defence of the defendants began to be concentrated on another point. Put very shortly it was this : that because young Salzman, when effecting the insurance, was silent about the goods having already been sent from the place of despatch and did not disclose this fact to the insurers, the Company was not liable to pay for the damage even if the goods were lost after the issue of the policy. From the point of view of the trial this change of front was legitimate and I am not prepared to consider it per se as being fatal to the defence. (Compare Bank Hapoalim Ltd. v Ya'acov Kraftsov (4), Amal Ltd. v. Yehoshua Shindler (5), and there is no difference in this connection between a cause of action and a ground of defence). But the lateness of the plea is an indication of the fact that the defendants themselves did not attach much importance to Mr. Salzman's failure to disclose the date of despatch of the watches. And the learned judge would do well, when the case is remitted to him, in the light of the directions at the end of this judgment, to give this point due consideration and the necessary weight, taking into account all the other factors.

 

                (e) The learned judge did not accept the pleas of the defendants and gave judgment against the New Zealand Insurance Co. for the amount claimed. He struck out the claim against the second defendants (Hamisrad Hameouhad Leahrayout) as it was entered alternatively - "only in the event of it appearing that the second defendant was authorised to act in the name of the first defendant in the said matter", (see paragraph 6 of the Statement of Claim) - and it appeared that the Company was in fact entitled to act in the name of the first defendant. The question which the learned judge put to himself in the fact instance was - did Mr. Salzman know on July 16, 1947, or did he not know that the goods were lost ? And he held that Mr. Salzman did not know of the loss of the goods. Salzman had not been asked by Frankel if the goods had been dispatched from Paris or not, and - in the opinion of the learned judge - Salzman was under no obligation on his own initiative to mention the date of despatch of the goods. The policy contained the clause 'lost or not lost' and the company was also liable for loss which had occurred before the contract was signed. It followed from these findings - and the learned judge gave judgment to that effect - that the company could not escape the liability it had undertaken towards the plaintiff. And it is against this judgment that the appellants are now appealing. Both parties are agreed that the insurance in question is marine insurance and has to be interpreted according to the general rules that apply to this particular branch of insurance.

 

3. Before I deal with the legal liability of the insurance company arising out of the policy I should like to mention a preliminary point which I regret to say was not sufficiently considered during the hearing. The question is : which law applies in order to discover where legal liability lies? The choice here is between the Ottoman Commercial Code - which was introduced locally by statute and which was based on the French Commercial Code - and the marine insurance rules of the English common law, or even perhaps - as we shall see further on - between these laws and both the common law and the statutory law of the foreign country to which the insurance company belongs. We listened to many ingenious arguments from counsel for the appellants, Mr. Solomon, but almost all of them were based on the well known rules of the English common law and only incidentally and en passant did he touch on some sections of the Ottoman Code. Mr. Meridor, on the other hand, was more cautious and more comprehensive but he too founded interesting arguments on the principles of the common law applicable in the English law of marine insurance. It seems to me with all respect, that both learned counsel have failed somewhat to give sufficient importance to the basic problem. They dealt with it - I would almost say - with reticence and this is a pity for without doubt they could easily have made a valuable contribution to the solution of this important question. In any case and whatever may be the result of this "reticence" of theirs, we are most grateful to both counsel for the wide range of their arguments, for they have thereby shown us interesting points of similarity and enabled us to examine and consider the differences - if any - of the various systems of law in their approach to the problem before us.

 

4. The question therefore is which law governs marine insurance in this case? And this question has two aspects.

                (a) In view of the fact that there are clear provisions in the local Ottoman mercantile law - that is to say, the Commercial Code, on this very subject, may we apply the English common law rules respecting insurance?

               

                (b) Considering that the contract in question is an insurance contract written in a foreign language, made with a foreign company whose place of domicile is in a foreign country (New Zealand or England) are we not bound in this case to apply the "national" law of the company, that is to say, the law in force in its "place of business"?

               

5. We shall first deal with the second question which is the more difficult of the two. For the answer to it can help us in solving the first problem. This is the question relating to private international law, and for its solution we must turn to the English Common Law. That is because on this subject there is no local law - apart from some rules in connection with personal status - and here Article 46 of the Palestine Order in Council automatically applies. Under this Article we are obliged in the absence of a local law, to apply the principles recognised by the English common law.

 

                But when we come to examine the English legal literature which deals with this branch of the subject we come across a special - almost peculiar - rule regarding the law that applies to such policies of insurance. The most forceful expression of the rule is found in the well known book on Private International Law by Wolff, second edition, p. 486, where it is said :-

               

                "Insurance contracts, except for contracts for re-insurance between companies, will in case of doubt be governed by the law of the insurer's place of business. The same is probably true of most other kinds of contracts that are concluded under typical conditions set up by great industrial, commercial, or railway companies, contracts 'where one will predominates, dictating its law not to single individuals but to an undetermined collectivity and leaving to those who want to enter into an engagement nothing more than unreservedly to accept the terms of the contract, to adhere to them' ...Such mass contracts, concluded under identical conditions ...can maintain their uniformity only if they are all governed by the same law, and there is a strong inference that this is the law of the place of the enterprise."

 

                A statement of much wisdom and weight ! But I am very doubtful if it truly and correctly sets out the position as it is in English law. The quotation in the above statement is taken from the French book of Saleilles, "De la declaration de la Volonte", and it certainly cannot be considered as an authority binding on our courts.

               

                Of greater weight is another authority which is cited by Wolff - that is the case of Spurrier v. G.F. La Cloche (10). But on examining the judgment itself we see that Wolff's opinion as it was expressed by him was not adopted by the English judges but that they made it subject to several qualifications which blunt its edge and deprive it of its potential sting.

               

                For what were the facts in that case? A resident of Jersey (one of the Channel Islands belonging to Britain) insured his stamp collection against loss and fire with an English company. The policy was in English and not French which is the language of this English island - and it was signed in Jersey by the agents of the company. The policy contained a condition to the effect that all disputes between the company and the assured regarding liability to pay for any damage or the amount or extent involved had to be submitted to arbitration in accordance with the Arbitration Act 1889, or any other amending act and that a decision of the arbitrators was a condition precedent to any claim for damages being made against the company unless the company admitted liability to pay the amount claimed. This condition precedent is illegal according to the laws of Jersey - because it restricted the jurisdiction of the courts - but valid according to English law. The question arose whether this was an "English contract" which had to be interpreted according to English law or a "Jersey contract" which had to be interpreted according to Jersey law ? The answer was that the contract was English. And this is what Lord Lindley said in his speech in that case :-

 

                "Their lordships are of opinion that, although this policy was made in Jersey, and any money payable under it would have to be paid to the assured in Jersey, the nature of the transaction, the language in which the policy is expressed, and the terms of the agreement and of the conditions, all show that the contract between the parties is an English contract and that wherever sued upon its interpretation and effect ought, as a matter of law, to be governed by English and not by Jersey law. The intention of the parties is too plain to be mistaken; the contract to pay out of the funds of the company is of itself very significant; and the reference to the English Arbitration Acts shews that the arbitration proceedings were to be conducted according to English law and no other." (Ibid., p. 450).

 

And the plaintiff's claim was dismissed in consequence.

 

                We see here something which very often happens in English judgments because of the well known reluctance of English judges to create "dangerous" precedents. The decision was based not on one but on many facts, so that the ratio decidendi of the judgment is in effect the result of all the facts taken together. We do not know what their lordships would have decided if the policy had been drawn up in the language commonly used in Jersey nor if the policy had not mentioned the English statutes although the language of the policy was English. As an authority, therefore, this judgment is meagre indeed and it cannot support the aside and sweeping generalisation as expressed above by Wolff in his book. It should also be noticed that the question in that case concerned the validity of a condition specified expressly in the body of the policy whereas Wolff's opinion, if correct, would mean that in connection with the whole problem of liability ensuing from the contract, one would be obliged as a matter of course to apply the "national" law of the policy - and for this proposition this English case is certainly no authority.

 

6. A similar rule to that propounded by Wolff is found in Dicey's book where Wolff is quoted (in one of the notes) as authority for it and an English judgment given in 1880 is cited in further support. I refer to Dicey's Conflict of Laws, sixth edition, p. 674 :

 

                "Rule 149 - A marine insurance policy issued by an underwriter carrying on business in England is governed by English law, except in so far as the policy stipulates that it be construed or applied in whole or in part according to the law of a foreign country."

 

As a comment on this rule it is said :

 

                "This Rule is an application of the general principle that in the absence of an agreement to the contrary, a contract of marine insurance in governed by the law of the country in which the underwriter carries on his business."

 

Immediately after this it is added:

 

                "This will, as a rule, also be the lex loci contractus and the lex loci solutionis."

               

                It is said here "as a rule", that is to say, not always. This means that in the opinion of Dicey the rule will also apply in the case where the lex loci contractus is different from the law of the country where the underwriter carries on his business. But what is the authority for this? We do not have to search long for it because the author himself tells us whence it comes. He directs as to a judgment given in Greer v Poole (11), and (in comment 1) says, citing the words of Lush L.J. :

               

                "It is no doubt competent to an underwriter on an English policy to stipulate, if he thinks fit, that such policy shall be construed and applied in whole or in part according to the law of any foreign state, as if it had been made in and by a subject of the foreign state, ...but, except when it is so stipulated, the policy must be construed according to our law, and without regard to the nationality of the vessel." (ibid. p. 674).

 

                Again we are bound to be not a little disappointed when we examine the original judgment and inquire into the facts as they appear from the pleadings and the judgment itself. An English merchant insured with an English firm of underwriters certain goods which were on a French ship proceeding from Lagos to Marseilles. The ship whilst on the high seas was involved in a collision which caused it, but not its cargo, damage and was towed to Gibraltar for examination and repairs. The owner of the ship, for lack of funds mortgaged both ship and cargo with a certain money lender to obtain the money necessary. The ship was repaired and proceeded to Marseilles. The money lender claimed back the loan and the owner of the cargo - the English merchant above mentioned - had to pay from his own pocket some money to release the goods from the money lender. The question arose whether the English underwriters were liable to pay these costs. The problem was this - was the loss a 'loss by perils of the seas' and therefore also included in the insurance covered by the policy, or was it not such a loss and therefore not covered by that policy? This is a question of law which is dealt with by both French and English law - only the French answer is positive and the English - negative. The question therefore is which law applies in this case? And the answer of the English court was that English law applied - because as appears in our citation 'the policy must be construed according to our law without regard to the nationality of the vessel', and the underwriters were consequently not liable to pay for this damage.

               

                Does this judgment support the sweeping statement that all English marine insurance policies even if effected abroad are to be interpreted according to English law? This does not seem to me to be the case. In all the facts mentioned in that case both by counsel for the parties and by the judge, there was not even the slightest hint that the insurance contract in question was made outside England. Had this been the case there would have been no doubt that counsel for the merchant-plaintiff would have pointed it out. Further the words which Lush J. used in parenthesis - "as if it had been made in a foreign state" - indicate that the policy was not effected in a foreign country. We are entitled therefore to presume that all the "factors" in that case were English: the merchant who was insured, the underwriters who effected the insurance, their place of business and the place where the contract was made - all except the ship, which had French nationality. The choice in that case therefore was not between the law of the place of business of the underwriters on the one hand, and the law of the place where the contract was made on the other, but between the law of the place where both the underwriters had their business and the contract was made, on the one hand, and the law of the country to which only the ship carrying the cargo belonged, on the other. Placed with this uneven choice there was no room for hesitation, and so the court ruled in favour of English law. In any case, one cannot take this judgment as authority - and perhaps Dicey himself did not mean - that an English policy will always be interpreted according to English law even if the contract of insurance was effected outside England.

 

6. But - and this is the last point which is decisive here - even if we were to adopt the method of Wolff and Dicey in solving this problem and be ready to accept all the consequences involved in it, we would still not be able to answer the question before us. This is simply because we do not know two facts - I repeat, two facts: (a) Where is the place of business of this company - is it in London or New Zealand? (b) What is the national law of the place of business of this company? Even if we were to suppose - and this would be highly arbitrary on our part - that as far as the assured in Palestine was concerned ''the place of the company's business" was its London branch, the name of which appeared at the bottom of the policy, we still do not know as a matter of law what is the law on marine insurance which is in force in England as well as what legislation on the subject has been enacted there at least since the year 1906. We have to be careful not to be confused by, and to avoid the mistake of relying purely on, outward similarities. If by following the rule proposed by .Wolff and Dicey, we have to ascertain the law which is in force in England on the subject, this will not be the English common law which, through article 46 of the Order in Council, has become our "own" local law, but the English law as a foreign law consisting of both common law as well as statutes.  This law we have to apply by reason of the principles of Private International Law because of the "foreign quality" of the company in the same way as we would have had to apply American law, for example, had "the place of business" of the company been in New York. This English law as a "foreign law" and especially the statutory part of it, cannot be considered as "a notorious fact that requires no proof." Even though it is "English" it has to be proved like all foreign law by evidence of experts and not by reference to text books. For the content of a foreign law is a question of fact and not a question of law (See Weil v. Barclays Bank (1); Baer v. The Palestine Building Syndicate, (2); L. v. L., (3); and no judge may decide what the foreign law is from personal knowledge except on the most simple points where proof by experts is manifestly unnecessary (See Dicey, ibid. p. 868). The problem here is certainly not one that can be considered as simple as this. Possibly, as regards English law, the position was different on this point when Palestine was a British Mandated territory. But now that Israel is an independent State there is no justification for this difference. We therefore cannot apply in this case foreign marine insurance law unless this law has been proved before the court below and this has not been done. And because this law has not been proved and as a matter of law we do not know what it is - indeed we do not even know where to look for it, whether in New Zealand or England - we will have to fill the void by adopting the well known fiction of Private International Law which is known as the principle of "identity of laws". As is well known, according to this principle the court must presume - generally speaking - that the foreign law which has not been proved is identical with the local law respecting the matter in question. (Dicey, ibid. Rule 194 pp. 866-867; Rapaport v. Paldwrowski (6); Yazdi v. Yazdi (7). We thus in effect return by a round about way to the local law which must apply, although formally we do so by introducing it in the garb of "foreign law".

 

7. Consequently whether the view of Wolff and Dicey is correct or not, in the appeal in this case at any rate, we must apply the local law because the "national law" of the policy, which is different from it, has not been properly proved.

 

8. We therefore come back to the first question : what is in first this local law? Is it local law in the narrow sense, that is to say, the Ottoman Law of Marine Insurance, or does it also include the recognised principles of the English common law which have become part of the "local law" in its widest sense through the directive of Article 46 of the Palestine Order in Council, as it has been interpreted? It seems to me that as far as this question is concerned there is no doubt whatsoever. Following precedents from the days of the Mandate, this court has ruled that the courts of this country are not required to apply the English common law "in respect of any legal problem requiring solution if the question can find some kind of answer in parallel provisions of the law of Palestine even though it is incomplete and faulty", Minkowitz v. Fishtner (8). And how much more so is this the case when the legal problem, as the one before us, has been provided for in the local law by a statute which is neither incomplete nor faulty? The main question to be answered in this appeal is what is the effect and consequence of silence on the part of the assured concerning the first that the goods had already been despatched? And this question of silence on the part of the assured is answered fully and exhaustively in a special section of a local statute - that is to say, section 193 of the Ottoman Maritime Code, 1863, which is in force in this country by virtue of the first part of Article 46 of the Palestine Order in Council. As is well known, this Ottoman Law adopted most of the principles of the corresponding French law (Second Book, Chapters 1-14 of the French Maritime Law 1807), and most of its sections were copied word for word. On this subject therefore French law is one of the sources of our own law and we can refer to it - without resorting to the evidence of experts - in order to clarify terms common to both. On the other hand, because of the very close similarity between the two laws, it is particularly important to notice those few instances where the text of the Ottoman law differs from that of the French law. (Compare the judgment of Agranat J. in Freisler v. Weiss (9).)

 

9. When we come to compare article 198 of the Ottoman Maritime Code with Article 848 of the French Commercial Code from which it was copied we notice at once just such a difference. This article of the Ottoman Code is different in that it has a further provision and contains half of a long paragraph which does not appear in Article 848 of the French Code.

 

                The relative articles of these two laws read as follows:

               

Article 848 du Code de Commerce (in French):

                "Toute réticence, toute fausse déclaration de la part de l'assuré, toute différence entre le contrat d'assurance et le connaissement qui diminueraient l'opinion de risque ou en changeraient le sujet, annullent l'assurance..."

               

Article 193 du Code de Commerce Maritime (Ottoman) :

                "Rend le contrat nul pour l'assureur, toute reticence, toute fausse déclaration de la part de l'assuré, toute différence entre le contrat d'assurance et le connaissement, qui diminueraient l'opinion du risque, ou en changeraient le sujet, et qui serait de nature à empêcher le contrat ou en modifier les conditions, si l'assureur eut été avert du véritable état des choses..."

               

                In translation the articles read as follows:-

               

Article 848 of the French Commercial Code:

               

                "Any silence, false declaration on the part of the assured (or) any difference between the policy of insurance and the bill of lading that is likely to diminish the assessment of the risk or to change the subject matter, cancels the insurance..."

               

Article 193 of the Ottoman Maritime Code:

                "The contract will be cancelled as far as the assured is concerned by reason of any silence, false declaration on the part of the assured, (or) any difference between the policy of insurance and the bill of lading that is likely to diminish the assessment of risk or to change the subject matter and which by its nature would have prevented the agreement being concluded of would have called for different conditions if the undertwriter had been informed of the true state of the facts..."

               

                This translation needs amplification because it lacks something - as happens in all translations - that something which is lost when the text of a passage is transmitted from one language to another. It is not necessary that the reticence, the declaration etc. should actually diminish the assessment of the risk. It is sufficient for them to appear as being "likely" to. This is in my opinion the nearest word that conveys in translation the meaning of the original language used by the authors of these two laws.

               

                Let us now compare the language of these articles. The words at the end of Article 193 of the Ottoman Code, which I have quoted in italics, do not appear at all in Article 848 of the French Code, as we have already noticed. And it is not for nothing that these words were added. It means - and one cannot escape from this conclusion - that the Turkish legislator was unwilling to invalidate an insurance policy by reason of silence, for example, except where not only would the silence, that is to say the non-disclosure of a fact, be likely to diminish the assessment of the risk, but where also the opposite, that is to say where the disclosure of the fact would "by its very nature" have prevented the conclusion of the agreement or changed its terms.

               

10. And one may well ask what is the meaning and significance of this additional condition? Logically speaking it is not certain that it would follow automatically from the very change in the assessment of the risk. For if the silence of the assured as regards the real facts have the effect on the underwriter of diminishing in his view the amount of the risk, then surely the opposite, that is disclosure of the real facts, must have the effect of increasing in his view the amount of the risk and his reaction would no doubt be either to refuse to insure because it would not pay him to do so or to change the terms in his favour by asking for a higher premium etc. The underwriter knows the terms of his policy well and presumably would not neglect his interests. And if so, how has the Ottoman legislator helped in this by amending Article 348 and what further provision has he added to the previous single condition it contained? On the other hand we cannot possibly ignore the clause that has been added and certainly this was not done just to make it look more attractive. We must, therefore, do our utmost to give the language some sort of practical significance and the only question is what and how?

 

11. It seems to me that our dilemma can be solved only in one way, that is by putting special emphasis on the words "which by its nature would" which appear in the clause that was added by the Ottoman legislator - either to introduce something new or to increase the emphasis, so as to remove doubts and avoid mistakes. What emerges is that the criterion must be objective and general and not individual and personal (that is to say taking into consideration the special mentality of a particular under-writer). The fact which the assured did not disclose should be of such a nature that had it been disclosed it would have prevented any reasonable underwriter from consenting to the conditions which had been agreed upon. This is the objective quality which if present makes a policy null and void even if the assured had no intention of deceiving. For "dolus" is not necessary to render a policy void on the ground of silence on the part of the assured, as a contract can be avoided on this ground even if the assured acted in good faith. According to the well known commentators Ripert, Lyon-Caén and Dalloz (Ripert, Précis de Droit Maritime, 6-ème éd. paragraph 594); Lyon-Caèn, Traité de Droit Commercial, 5-ème éd. paragraph 1447; Dalloz, Code de Commerce, Article 348) this is the position in French law. And on this point, at least, the French opinion is sufficient legal authority as to the way the term, as used in the Ottoman Law, should be interpreted because the whole conception of silence was copied by the Ottoman legislator from French law.

 

                The importance of the innovation or the emphasis in Article 193 becomes much clearer when this objective quality is absent. That is to say where even though the knowledge of the fact, which the assured had not disclosed, was most likely to increase the measure of the risk in the view of this particular under-writer, and so naturally either prevent the conclusion of the contract or cause a change in its terms, yet it was not a fact which by its very nature, generally and objectively speaking, was likely to have any influence on an ordinary reasonable under-writer. In such a case - this is the effect of Article 193 - the silence per se would not be a ground for cancelling the contract of insurance and only when other factors are added, such as, for example, an intention to deceive, will it become void or voidable in accordance with the accepted rules of the general law of contract. This is the only interpretation - so it seems to me - which it is possible to give to what has been added to Article 193 by the Ottoman legislator. Without it it is impossible to find any justification for the addition of this second qualification.

               

12 Having investigated the legal background of the problem, let as now consider the grounds of the appeal in the light of the above principles. We need deal, in my view, only with the following three points raised by the appellant.

               

                (a) That the learned judge was wrong in making the verdict depend on whether Salzman knew or did not know of the loss of the watches at the time when he applied for the insurance policy;

               

                (b) that the bare fact that the watches had already been despatched from Paris at the time when the insurance policy was applied for was important in itself as it was likely to have an influence on the assessment of the risk and that it was the duty of Mr. Salzman to inform Mr. Frankel of it even assuming that he (Salzman) did not know or even suspect that the goods had been lost;

               

                (c) the appellant's third point, pleaded in the alternative, was that even if the watches had not been lost before the 16th of July, the day when the policy was applied for, they had already been on the way for some 20 days and that therefore Mr. Salzman was in duty bound to disclose this fact to Mr. Frankel because this long delay alone would have increased the amount of the risk in the view of Frankel and would certainly have caused him to refuse to issue the policy as he expressly testified before the court.

               

13. With regard to the first point, I am of the opinion that counsel for the appellant is correct. As I have already pointed out under the conditions specified in Article 193, the cancellation of the contract because of the silence of the assured does not depend on the intention of the assured to defraud. The contract is cancelled as a matter of course even if the assured did not know or did not suspect that the goods had been lost. The learned judge was wrong therefore in his approach when he held that the deciding factor was whether the assured knew or did not know of the loss of the said goods.

 

14. On the other band I am not prepared to accept the second contention of counsel for the appellants. As Mr. Meridor rightly points out, the answer to this contention is contained in one of the terms of the policy itself. For as will be remembered the policy includes the "lost or not lost" clause. "lost or not lost" in this case means on the way from Paris to Haifa - for the basic purpose of the insurance was to cover the loss that might occur during the transit of the watches from the post in Paris to Haifa. The defendants too in their defence (paragraph 5) speak of the validity of the policy in connection with the transit of the watches from France to Haifa. Hence the language of the defence clearly indicates the possibility that the goods had already left Paris and that even so the underwriter agreed to take the risk on himself. Consequently, therefore, he cannot complain and say that the non-disclosure of this fact increased his estimate of the risk. In the circumstances the underwriter should have been more cautious in his assessment of the whole risk which he was taking on himself. A hint, and also authority for this, can be found by comparing the language of Articles 210 and 212 (second paragraph) of the Ottoman law to which Mr. Meridor has drawn our attention. It is very possible that the position in English law is different as counsel for the appellants claims, and it is also possible that it is exactly the same as counsel for the respondents maintains. In any case, for the reasons given above, English law does not apply here.

 

15. As regards the third point, whether it is correct or not depends on the answer to another question which the learned judge, because of his approach to the problem, did not find necessary to give - although he had enough evidence before him to enable him to decide one way or the other.

 

                In paragraph 11 of this judgment I explained the criterion that is given in Article 193 for annulling a contract of marine insurance on the ground of the silence of the assured. This criterion is objective and the question which the court has to put to itself is shortly this : Was knowledge of the fact which the assured had not disclosed likely to increase the assessment of the risk in the view of any reasonable underwriter and so naturally to prevent him from consenting to the conditions which had been agreed upon, or not ? In the context of the facts of this case, the question would be this: Was knowledge of the despatch of the watches from Paris some 19-20 days previously likely to increase the assessment of the risk in the view of a reasonable underwriter - and not just Mr. Frankel - when this ordinary underwriter was prepared to issue a "lost or not lost" policy and to accept responsibility also for past losses? The answer to this obviously depends on the answer to the question, what is the period of time which such a consignment usually takes to arrive at Haifa from Paris, and whether a delay of some 20 days on the way was likely or not to arouse suspicion in the mind of an ordinary underwriter that it had been lost. The learned judge could have decided that point as he had before him evidence from both parties. But he did not consider it necessary to do so as he had held the defendants liable by reason of the criterion he had chosen, as explained above. This is, in my opinion, the only question which is still left open and on the answer to it would depend the fate of the claim. As we cannot decide this point in this court the case will have to be remitted to the District Court for a decision to be given there in the light of the evidence it had brought before it.

               

                I am of the opinion therefore that the appeal must be allowed, that the judgment of the District Court be set aside and the case remitted to it for completion, subject to the following directions.

               

                That the learned judge who heard the case should decide on the evidence which he had before him - without receiving further evidence - whether the delay of 19-20 days in the months June-July 1947, whilst these watches were on the way from Paris to Haifa, was unusual or not. Should the learned judge, after hearing the parties, hold on the evidence before him, that the defendants had succeeded in proving that this delay was unusual he should give judgment in their favour. Should he hold otherwise - he should give judgment in favour of the plaintiff.

 

ASSAF, J.: I concur.

 

LANDAU, J.: I concur.

 

Appeal allowed, judgment of the District Court set aside, and case remitted.

Judgment given on June 4, 1953.

 

Amir v. The Great Rabbinical Court in Jerusalem

Case/docket number: 
HCJ 8638/03
Date Decided: 
Thursday, April 6, 2006
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

 

The Supreme Court, sitting as the High Court of Justice, granted the petition and held (per Her Honor Justice A. Procaccia, with the concurrence of His Honor Vice President (Ret.) M. Cheshin and His Honor S. Joubran) that –

 

The High Court of Justice's intervention in religious court decisions is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal.  The subject matter of the petition justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it.

 

The Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom, and it has only those jurisdictional powers that the state law has given it.

 

The original powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built of exclusive powers by virtue of the law and powers that are parallel to the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The case law has recognized the existence of the judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the law, and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past.

 

Is the Rabbinical Court vested with jurisdiction to decide a dispute by virtue of the parties' agreement, where such jurisdiction is not in the scope of the statute that empowers the Rabbinical Court or within the ancillary powers that are vested in it? The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement, irrespective of the provisions the Rabbinical Courts Jurisdiction Law; the other, agreement intended to empower the Court to deliberate and decide on a dispute as an arbitrator. A court's jurisdiction is vested by law and it has no power to derive it from the parties' agreement except were the law itself has seen fit to recognize such agreement in certain circumstances as the source of jurisdiction. A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to deliberate and adjudicate a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. The Rabbinical Court does not have power to hear and decide a matter that is not one of those that is within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their agreement to its jurisdiction. According to the same way of thinking, the Rabbinical Court has no power to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter which by its nature is not within its legal jurisdiction.

 

Is the respondent's answer against the petitioner within the bounds of the Rabbinical Court's subject matter jurisdiction? The respondent's cause of action is the enforcement of a contractual indemnity provision concerning property in the divorce agreement that obtained the force of a judgement of the Rabbinical Court, further to which the parties' divorce was completed. The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce in accordance with the Rabbinical Courts Jurisdiction Law does not apply because the subject of the claim is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is not involved. Nor is it a matter "connected with a divorce suit". The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce award, based on a divorce agreement. The Rabbinical Court does not have jurisdiction either by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. Subject matter jurisdiction under section 9 is limited solely to the matters mentioned in it – matters of "personal status" as defined in the Palestine Orders in Council or the Succession Ordinance. In a dispute that does not relate to those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court. The Rabbinical Court therefore has no original jurisdiction to hear the respondent's claim.

 

The Rabbinical Court does not have "ancillary" inherent jurisdiction to try the respondent's claim. In the instant case, the Rabbinical Court's ancillary jurisdiction, insofar as it relates to setting aside a divorce award by reason of a defect in making the divorce agreement, that might have given the Rabbinical Court ancillary jurisdiction to try its revocation, is of no relevance. Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after making the divorce award that justifies setting aside the divorce agreement and the divorce award since the respondent's claim is for the specific performance and enforcement of the divorce agreement. Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction. The second respondent finally and unconditionally adjudicated herein and awarded the force of judgement to the divorce agreement. A property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law.

 

Nor does the Rabbinical Court have jurisdiction to hear the matter by virtue of the doctrine of "continuing jurisdiction". Continuing jurisdiction is vested where an instance has tried a particular matter in the past and in special circumstances need has arisen to set aside or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based.  The claim seeks to enforce the agreement and has no place in the continuing jurisdiction vested in the Rabbinical Court.

 

The Rabbinical Court does not have ancillary jurisdiction to try the new cause arising further to the divorce agreement in order to interpret the agreement. Having completed and exhausted its power to rule on the matter of divorce, it no longer has ancillary power to interpret the divorce agreement or the divorce award. Moreover, in the instant case no question of interpreting the divorce agreement has arisen and a claim for its enforcement has been brought instead.

 

A rabbinical court cannot be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. In the instant case, it also appears from the divorce agreement that its contents cannot be construed as an arbitration clause, equal to "an arbitration agreement" between the parties. The power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. The condition precedent for arbitration is the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement.

 

By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification provision in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the first and second respondents are void.

 

 

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

In the Supreme Court

Sitting As the High Court of Justice                                             HCJ 8638/03

 

Before:

His Honor, Vice President (Ret.) M. Cheshin

Her Honor, Justice A. Procaccia

His Honor, Justice S. Joubran

 

 

 

 

 

 

 

 

The Petitioner:

Sima Amir

 

 

 

 

v.

 

 

 

The Respondents:

1. The Great Rabbinical Court in Jerusalem

 

2. The Regional Rabbinical Court in Jerusalem

 

 

3. Yoseph Amir

 

 

 

 

 

 

 

On Behalf of the Petitioner:

Adv. Michael Korinaldi

 

 

 

 

On Behalf of the Third Respondent:

Adv. Nechama Segal

 

 

 

 

On Behalf Of the Rabbinical Courts System:

Adv. S. Jacoby

 

 

 

 

 

JUDGEMENT

 

Justice A. Procaccia

 

1.         This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

 

2.         The petition concerns the petitioner's motion to vacate the decisions of the Great Rabbinical Court in Jerusalem – the first respondent – of May 4 and June 9, 2003, which dismissed the petitioner's appeal against the judgment of the Regional Rabbinical Court of Jerusalem – the second respondent – of May 27, 2002, and its decisions of March 5, 2001 and June 18, 2002.

 

Background and Proceedings

 

3.         The petitioner and the third respondent (hereinafter: “the respondent") were married in 1980 and have three children. Their relationship became unstable and they motioned the Regional Rabbinical Court of Jerusalem in 1992 in order to arrange for divorce proceedings. As part of that proceeding, the couple requested the Regional Rabbinical Court to approve a divorce agreement that they had made. In the agreement, the couple agreed on the act of divorce, the custody and support of the children, and various financial and property arrangements, as follows: the three children would be in the custody of the wife until reaching the age of 18 (clause 3); the husband would pay child support in the sum of NIS 1,000 per month for all three of the children until they reach the age of 18; the sum of the child support as set in the agreement would not be increased, and in exchange, the husband would transfer his share of the couple’s apartment to the wife, including his share of the apartment’s contents and the gold objects, ownership of which would all be transferred to the wife (clauses 4(a) and (b)); the husband also undertook to discharge the balance of the mortgage loan each month (clause 6(c)). The agreement also included a condition whereby the wife undertook not to sue the husband in any court for an increase in child support, either directly or indirectly, and if the husband were sued, the wife would compensate him in such a way that he would receive half of the apartment, half of its contents and half of the gold (clauses 4 and 5 the agreement). Taking out a stay of exit order inhibiting the husband's departure from the country would also be deemed a breach of the agreement and lead to the same result (clause 13). In order to secure the wife's obligation in accordance with the agreement, a cautionary note would be registered against the apartment, pursuant whereto one half of the apartment would be transferred into the husband's name if he were sued to increase child support. The relevant provisions of the agreement are as follows:

 

                        "4.       Child Support

 

                                    (e)       For the avoidance of doubt and without prejudice to the generality of the aforegoing, child support under the agreement shall unequivocally cover all the children's needs without exception… until the children reach the age of 18.

 

                                    The mother undertakes not to sue the father in any legal instance for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest), and if the husband is sued, the wife shall compensate him and he shall receive one half of the apartment, one half of its contents and one half of the gold. The obligation is in perpetuity.

 

                                    …

 

                        5.         Indemnification

 

                                    (a)       The mother undertakes and takes it upon herself not to sue the father in any legal instance whatsoever for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest).

 

                                    (b)       If, contrary to the abovementioned, the father is sued for an increase in child support and/or satisfaction of any of the children's needs, whether the lawsuit is brought by the mother and/or the mother in the name of the children or by an entity, authority, institution and/or anyone who now and/or in future has an interest, beyond what the father has undertaken in this agreement, then the mother undertakes to transfer one half of the apartment into the father's name and one half of its contents and one half of the gold. The obligation is in perpetuity.

 

                                    (c)       To secure the wife's obligations in this agreement, a cautionary note shall be registered, pursuant whereto one half of the apartment shall be transferred into the husband's name if the husband is sued to increase child support…"

 

            The agreement also includes a provision with regard to the exclusivity of the Rabbinical Court's jurisdiction in the event of a dispute between them after the divorce, in the following terms:

 

                        "9.       Cancellation of Mutual Claims And/or Complaints

 

                        …

 

                        10.       …

 

                        11.       If after the divorce, differences arise between the couple, they undertake to file the lawsuit solely in the Rabbinical Courts.

 

                        12.       …

 

                        13.       The wife undertakes not to take out a stay of exit order preventing the husband's departure from the country, and taking out such an order shall constitute a breach of this agreement, and the husband shall be entitled to obtain one half of the value of the apartment, of the contents and of the gold.

 

                        …"

 

            The divorce agreement was given the effect of judgement by the Rabbinical Court, and on May 26, 1992 the couple was divorced.

 

4.         About five years later, in June 1997, the couple's children (through the petitioner) filed a child support motion against the respondent in the Jerusalem Family Court (FC 10330/97). The motion was mainly intended to increase the child support upon which the couple had agreed in the Rabbinical Court to NIS 6,700. This was, inter alia, due to the petitioner's claim that the respondent was not paying the mortgage payments as undertaken by him in the divorce agreement. In the answer of defense, the respondent defended the claim on its merits. According to him, he was living off a general disability pension of NIS 1,200 per month, from which he was paying child support. The Family Court (per Judge N. Mimon) held in its judgement that the children's monthly support should be increased to a total of NIS 2,000 for both minor children together, and the sum of NIS 500 for the other child until his enlistment to the IDF; with respect to the minors, it was further held that from the time they reached the age of 18 until they completed their service in the IDF, the child support for them would be reduced by NIS 700, and upon completion of their military service the liability for their support will be terminated; if they do not enlist, the liability for them would be terminated when they reach the age of 18. With regard to the other child, upon his enlistment to the IDF and until his discharge, support of NIS 300 would be payable for him.

 

            On September 20, 1997, about three months after the motion to increase child support was filed in the civil court, the respondent filed a motion in the Regional Rabbinical Court of Jerusalem "for a declaratory judgement and specific performance" of the divorce agreement. In the motion, he pleaded that the petitioner had breached the divorce agreement several times and in several different aspects, as follows:

 

                        "8        (a)       The defendant (the petitioner – AP) filed a motion to increase child support in the name of the minors before this Honorable Court on February 28, 1993 – a motion that was dismissed by the Court

 

                                    (b)       The defendant filed another motion on November 6, 1994 and at the end of that motion the wife again applied for an increase in child support.

 

                                    (c)       The defendant motioned for a stay of exit order that was cancelled on July 21, 1997.

 

                        9.         (a)       The defendant went further, and when she saw that her motions were being dismissed by the Honorable Rabbinical Court, she  filed a motion to increase the child support in the name of the minors in FC 10330/97 in the Jerusalem Family Court.…

 

                                    (b)       As part of the motion in Family Court, the wife applied for a stay of exit order that the Court approved.

 

                                    (c)       Moreover, at about the time she filed the motion, the defendant filed a motion for a stay of exit order on July 22, 1997, after the previous order inhibiting departure from the country had been set aside, and the Chief Execution Officer approved it".

 

            He pleaded that the wife had therefore breached clauses 5 and 13 of the divorce agreement. On the basis thereof, the respondent sued the wife for one half of the apartment and its contents and one half of the gold.

 

5.         After filing his motion to the Regional Rabbinical Court, the respondent traveled abroad for more than two years and abandoned his motion. After returning to Israel, he renewed the motion in the Rabbinical Court. The petitioner pleaded in her defense, that the subject of the motion was " breach of a divorce agreement" and according to the law laid down in HCJ 6103/93 Sima Levy v. The Great Rabbinical Court in Jerusalem, PD 48(4) 591 (hereinafter: "Sima Levy Case") the Rabbinical Court did not have jurisdiction to adjudicate the motion. As for the merits of the motion, the petitioner argued that the respondent had come to court with unclean hands because he had breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The Regional Rabbinical Court, in its decision of February 25, 2001, referred the issue of jurisdiction raised by the petitioner to the Rabbinical Courts' then legal counsel on rabbinical jurisdiction, Adv. E. Roth, for his opinion.

 

            During the same month (February 2001) the petitioner filed a lawsuit in the Jerusalem Family Court against the respondent for "declaratory judgement as to the revocation of the indemnity provision in the divorce agreement" (FC 10331/97). This was based, inter alia, on the argument that the respondent breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The petitioner further requested that the Court declare the revocation of clauses 11 and 13 of the divorce agreement, pleading that they were "contrary to public policy and the law". The respondent argued in his defense that the claim should be summarily dismissed due to the proceedings conducted on the same issues in the Rabbinical Court.

 

            On March 4, 2001, and before the Family Court had awarded its decision on the respondent's motion for the summary dismissal of the petitioner's claim, the opinion of the legal counsel on rabbinical jurisdiction, Adv. Roth, was filed in the Rabbinical Court. In his opinion, with reference to clause 5(b) of the divorce agreement, the Rabbinical Court did not have jurisdiction to adjudicate the respondent's motion after the divorce. Nevertheless, he believed that clause 11 of the divorce agreement could be treated as an arbitration clause in accordance with the Arbitration Law, 5728-1968 (hereinafter: "the Arbitration Law"). By virtue of the rules of arbitration, the Rabbinical Court is empowered to adjudicate the suit as an arbitrator in accordance with the rules and restraints governing an arbitrator. He further added that, in his opinion, it was unnecessary for the couple to sign an arbitration deed, since clause 11 of the divorce agreement constituted an arbitration deed in all respects.

 

            Following the opinion of the legal counsel, Adv. Roth, the Regional Rabbinical Court decided on March 5, 2001 that it was vested with jurisdiction to adjudicate the respondent's suit "since in the Court's opinion clause 11 constitutes an arbitration deed".

 

            On May 14, 2002, and before the Regional Rabbinical Court's judgement had been awarded in the respondent's suit, the Family Court awarded its decision in the respondent's motion for the summary dismissal of the petitioner's suit. It reviewed the question of the Rabbinical Court's jurisdiction to try the respondent's claim, whether as a court empowered by virtue of statute or as an arbitrator, but it decided to stay the award of its decision on jurisdiction on the ground that:

 

                        "Mutual respect of legal instances requires that after a decision has been awarded by the Rabbinical Court holding that it has jurisdiction to adjudicate the suit that has been filed with it as an arbitrator, the award of a decision on jurisdiction should be stayed until the proceedings in respect of jurisdiction have been exhausted by the plaintiff, who will perhaps wish to act by applying on appeal to the Great Rabbinical Court or by applying to the High Court of Justice to clarify whether her position with regard to jurisdiction will be allowed, or even by motioning to vacate an arbitral judgment as provided in section 24 of the Arbitration Law…"

 

            On May 27, 2002, the Regional Rabbinical Court awarded its judgement in the respondent's motion. The court was divided in its opinion between the three judges, and the decision was made, in the words of the judgement, in accordance with –

 

                        "the third opinion, which was the decisive one of the three, since there are several doubts regarding the interpretation of the agreement, and there is a doubt as to whether it constitutes a breach according to Halachic authorities and the circumstances. Therefore, the case should be decided according to the law, and if the apartment has already been transferred into the wife's name, it is not possible to take away her ownership of the apartment because of a doubt, and of course the wife is liable to comply with all of the obligations in the divorce agreement.... If the apartment has not yet been transferred, it is not possible to order the plaintiff ... to transfer his share of the apartment into the wife's name ....

If the plaintiff has already signed a power of attorney and delivered it to the wife, it would appear that the wife cannot be precluded from exercising the power of attorney in order to transfer the plaintiff's share of the apartment into the wife's name…. On the other hand, if the husband still needs to sign transfer documents and the like, he should not be made to help transfer the dwelling into the wife's name in any way whatsoever….

With regards to the gold objects that the wife has received, it would also appear that she cannot be made to return them to the husband because they are in her possession and in this way her possession is valid…"

 

            As mentioned above, according to the Rabbinical Court's decision of March 5, 2001 it decided the respondent's suit as an arbitrator, but on June 18, 2002 it awarded another decision that was headed "Clarification", according to which:

 

                        "The Rabbinical Court makes it clear that it was the Rabbinical Court that approved the agreement and that there was an undertaking that all matters involved in the agreement would be tried solely by the Rabbinical Court. Therefore, since both parties undertook in the agreement, and the Rabbinical Court also approved the agreement, the Rabbinical Court consequently has jurisdiction to hear and adjudicate the matter, and the Rabbinical Court awarded the judgement by virtue of its jurisdiction, and there was no need for the Rabbinical Court to adjudicate the same as arbitrator, and although the Rabbinical Court could also adjudicate the matter as an arbitrator, the Rabbinical Court also had jurisdiction to try the matter as an adjudicating court in accordance with the aforegoing".

 

6.         The petitioner appealed to the Great Rabbinical Court against the Regional Rabbinical Court's judgement of May 27, 2002. Her main plea in the appeal was that the Regional Rabbinical Court did not have jurisdiction to adjudicate the respondent's suit, either as a competent court by virtue of the law or as an arbitrator, and its judgement is therefore void. As to the actual merits, she argued that the Regional Rabbinical Court had made an error "of judgement" and "disregarded facts" by not giving proper weight to the fact that it was the respondent who was in breach of the divorce agreement by not making the mortgage payments as he had undertaken in the divorce agreement. Consequently, on that ground too, on the merits of the case, the Regional Rabbinical Court's judgement should be vacated. The respondent also appealed to the Great Rabbinical Court against the said judgement.

 

            The Great Rabbinical Court, in its decision of May 4, 2003, dismissed the petitioner's appeal with respect to jurisdiction and held that the interpretation of the divorce agreement indicated that it concerned the couple's agreement for "property in consideration for child support". That interpretation affects the substance of the complaint that the respondent filed to the Rabbinical Court, and it demonstrates that it is a suit to revoke the divorce agreement as opposed to a motion for the enforcement of an indemnity provision. That being the case, the Rabbinical Court had jurisdiction to adjudicate the respondent's motion by virtue of its original (primary) authority because "indemnification was not involved, but property and child support and the connection between them, and those matters of property division and child support are certainly matters of personal status that are governed by section 9 of the Rabbinical Courts Jurisdiction Law". The Rabbinical Court was also vested with original (primary) jurisdiction to adjudicate the suit in view of clause 11 of the divorce agreement, which provides that if differences arise between the petitioner and the respondent after the divorce, the two undertake to file the motion solely to the Rabbinical Courts. The Rabbinical Court mentions that at the hearing, the respondent also pleaded avoidance of the Get and the divorce because according to him the Get had been given by mistake. Consequently, on that ground too, the Rabbinical Court had original (primary) jurisdiction to adjudicate the claim. According to the Rabbinical Court, it also had jurisdiction by virtue of its "continuing" jurisdiction, because the respondent was "applying expressly for the revocation of the property arrangement as a result of a change in circumstances concerning child support". Finally, the Great Rabbinical Court held that the jurisdiction to adjudicate the respondent's suit was vested in the Regional Rabbinical Court, when "the jurisdiction is the essential jurisdiction vested in the Rabbinical Court, rather than jurisdiction by virtue of the Arbitration Law". The Great Rabbinical Court adjourned the deliberation on the appeal itself to a later date.

 

            On June 9, 2003 the Great Rabbinical Court awarded another decision, this time with regard to the respondent's appeal against the Regional Rabbinical Court's judgement. In its decision, the Great Rabbinical Court ordered the matter to be remitted to the Regional Rabbinical Court for it to try the argument, which had not been tried in the Regional Rabbinical Court, that the petitioner had breached the divorce agreement by suing for increased child support in the Regional Rabbinical Court in 1993.

 

The Petition

 

7.         In her petition before us, the petitioner seeks to set aside the decisions of the Great Rabbinical Court and the Regional Rabbinical Court, according to which the Rabbinical Court had jurisdiction to adjudicate the respondent's motion, both as original (primary) jurisdiction and by virtue of an arbitration clause.

 

            This Court issued an order nisi in the petition.

 

The Parties' Arguments

 

8.         The petitioner's essential argument in her petition herein is that the Rabbinical Court lacks jurisdiction to adjudicate the property dispute that has arisen between her and the respondent in respect of the divorce agreement that was made between them. According to her, the Rabbinical Courts are not vested with original (primary) jurisdiction to adjudicate the suit. Moreover, they do not have continuing jurisdiction to hear the respondent's suit. The respondent's motion to obtain one half of the property, which was transferred to the wife, is based on the cause of enforcing an indemnity provision in the divorce agreement. This cause is based on a plea of breach, if one occurred, after the divorce agreement was made and the judgement of the Rabbinical Court giving it force and effect was awarded, and after the couple had been duly divorced. A subsequent breach of the divorce agreement in respect of property after the parties' divorce cannot be bound in retrospect with the divorce agreement and the judgment that materialized in the past. From the divorce and onwards, motions that relate to the breach of the divorce agreement are not a part of matters of personal status. The Rabbinical Court therefore lacks jurisdiction to adjudicate them, and jurisdiction in respect of them is vested in the civil court. Moreover, it was argued that the respondent himself breached the divorce agreement by not paying the mortgage payments as he had undertaken to do in the divorce agreement. His breach of the agreement has civil-financial character, which also demonstrates that his suit after the divorce is subject to the jurisdiction of the civil, rather than religious, court. The petitioner further pleads that clause 11 of the divorce agreement does not amount to an arbitration clause and does not purport to establish an agreement for arbitration. Instead, its wording and contents merely demonstrate its determination, by agreement of the parties, to which court the couple's motions after the divorce should be filed. This agreement, per se, does not vest jurisdiction in the Rabbinical Court. In view of all of this, and based on other grounds too, upon which we shall not focus, the Rabbinical Courts' decisions on jurisdiction are void.

 

9.         The respondent's position in his petition is that the Rabbinical Court is vested with jurisdiction to adjudicate the suit he filed to it. In this respect, he relies on the provision of the divorce agreement, according to which the parties expressly agreed to vest the Rabbinical Court with jurisdiction to try any future dispute between them concerning the agreement. He pleads that, according to case law, a matter that can be bound from the outset with the divorce suit, such as property matters, and it was agreed in the divorce arrangement to vest jurisdiction in the Rabbinical Court in respect to them, is also within its jurisdiction after the divorce. He further asserted that the meaning of the cause of the action that he filed was the revocation of a conditional undertaking given under the agreement, as opposed to the enforcement of a contractual indemnification arrangement. That is to say that the respondent entered into a conditional undertaking to transfer property to the petitioner in consideration for the child support being set in a binding amount and not being increased, and for motions not to be brought in this matter. Since that condition had not been fulfilled, the property undertaking that he had given is void. A contractual indemnification provision is not to be treated in the same way as a conditional property undertaking, with regard to which the Rabbinical Court has continuing jurisdiction even after the divorce. Alternatively, it is argued, the Rabbinical Court has jurisdiction to entertain the respondent's suit according to the law of arbitration, by virtue of clause 11 of the divorce agreement, which constitutes an arbitration agreement, even if the word "arbitration" is not mentioned in it.

 

Judgment

 

10.       This Court's intervention in the decisions of religious courts is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal (sections 15(c) and (d)(4) of the Basic Law: the Judiciary; HCJ 323/81 Vilozni v. The Great Rabbinical Court, PD 36(2) 733; HCJ 1689/90 E'asi v. The Sharia Court, PD 45(5) 148, 154-155; HCJ 1842/92 Blaugrund v. The Great Rabbinical Court PD 46(3) 423, 438; HCJ 5182/93 Levy v. The Rehovot Regional Court PD 48(3) 1, 6-8).

 

            The subject matter of the petition herein justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it for the reasons explained below.

 

The Question

 

11.       The couple signed a divorce agreement containing property and child support arrangements. In the scope of the property arrangements, they agreed to limit and not increase child support. They added a condition according to which if motions to increase child support were filed by the wife, directly or indirectly, or if she took out stay of exit orders, these actions would have certain property consequences. The parties further agreed that if differences arose between the couple after the divorce, they undertook to conduct the claims solely in the Rabbinical Courts. Indeed, after the divorce, disputes did arise between the parties following motions to increase child support that were brought against the husband, and stay of exit orders were taken out. Further thereto, the husband filed a suit in the Rabbinical Court claiming a breach of the divorce agreement by the wife and requesting to receive one half of the property because of that breach. In those circumstances, after the couple's divorce, is the Rabbinical Court vested with jurisdiction to adjudicate the husband's property suit, which is based on an alleged breach of the divorce agreement by the wife? Or is the exclusive jurisdiction to deliberate and adjudicate that claim vested in the civil court?

 

            The subsidiary questions that are to be decided can be divided into two:

 

            First is whether the Rabbinical Court has jurisdiction by virtue of the law to adjudicate a property claim based on a breach of the divorce agreement after the divorce has been completed, by virtue of one of the following:

 

            (a)       Original-primary jurisdiction by virtue of statute to hear and adjudicate issues pertaining to the divorce;

 

            (b)       the Court's "ancillary" jurisdiction to adjudicate matters connected with the divorce after its completion, as interpreted and expanded by case law.

 

            The Second is whether the Rabbinical Court has jurisdiction to decide a property claim based on the breach of a divorce agreement by virtue of the parties' agreement, and what legal significance is to be given to this agreement.

 

            We shall consider these questions.

 

The Starting Point

 

12.       The starting point underlying the analysis of the Rabbinical Court's scope of jurisdiction is based on several fundamental assumptions:

 

            First, the Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom. As such a state judicial instance, the bounds of the Rabbinical Court's powers are defined and fashioned in accordance with the state law.

 

            Second, every state judicial instance, including the religious court, has merely those jurisdictions that the state law has granted it; it is the statute that established it, and it is the one that defined its powers and assigned them to it. In doing so, the statute assumed, as part of the basic concept of democratic government, that in the granting of judicial powers also lay judicial limitations. Anything that has not been granted to the judicial instance is outside and beyond its power, and it must not surpass its acknowledged boundaries and into areas that have not been entrusted to it and go beyond its responsibility. That is the principle of legality that characterises the structure of democratic government, upon which rests the perception of the status of the government authorities, including the courts. It is on the basis of this principle that the realm of jurisdiction that is vested in the state judicial instances, of which the Rabbinical Courts form part, extends.

 

            Third, the definition of the judicial powers of the various different courts, including the Rabbinical Courts, derives from statute, and statute is subject to interpretation by case law. The case law's interpretation of the extent of the powers vested in the judicial instance is intertwined with the provisions of the statute as the primary source of the power vested in the judicial instance, and it is intended to serve its purpose. In reviewing the boundaries of the religious court's power we shall therefore assume that the religious court is vested with the powers that have been granted to it by the statute, as they have been interpreted by case law, and it has only what the law has given it. As the Court stated (per Justice Landau) in HCJ 26/51 Menashe v. The Chairman and Members of the Rabbinical Court in Jerusalem, PD 5 714, 719:

 

                        "The Rabbinical Courts of our country exist in accordance with the general law, which determines their place in the state courts system, and the questions relating to the spheres of their jurisdiction should generally be resolved in accordance with the same principles as govern other courts".

 

            This is what distinguishes Rabbinical Courts from arbitrators, internal tribunals and voluntary tribunals, which are not established by virtue of statute but mainly by virtue of contract or regulations, and the scope of their jurisdiction is determined pursuant thereto. These entities are essentially governed by the principles of the private law that creates them and they are not part of the country's state judicial system.

 

            As Justice Zamir stated in HCJ 3269/95 Yosef Katz v. The Jerusalem Regional Rabbinical Court, PD 50(4) 590, 602:

 

                        "The Rabbinical Court is established by virtue of statute and its jurisdiction derives from the statute. Its budget comes from the State Treasury and its judges receive salaries like state employees; it sits in judgement beneath the symbol of the State and it writes its judgements on State paper; the orders that it issues speak in the name of the State and are enforced by the State. The Rabbinical Court is not a private entity but a state institution. It is therefore subject to public law and review by the High Court of Justice. Amongst other things, the Rabbinical Court is obliged to respect and observe the fundamental principle that governs every government agency, namely the principle of legality. According to that principle, the Rabbinical Court has nothing other than the power granted to it in accordance with the statute" (emphasis added).

 

            In this respect Justice Cheshin stated in the Sima Levy Case (ibid, p. 616):

 

                        "The legal system takes a grave view of a judicial entity acting beyond the bounds set for it by the law; hence, the case law holds that a lack of subject matter jurisdiction plea stands out and the court will consider it at any stage of the litigation, even where a party first raises it on appeal".

 

            (See also HCJ 816/98 Eminoff v. Eltalaff, PD 52(2) 769, 796-7; HCJ 512/81 The Hebrew University Archaeology Institute v. The Minister of Education, PD 35(4) 533, 543-4; HCJ 30/76, MF 150/76 Siho v. The Karaite Jewish Community Religious Court, PD 31(1) 15, 17-18.)

 

            The state judicial system, and its various different courts, both civil and religious, is built on common norms that govern all its agencies. Thus, for example, it has been held in the past that the fundamental principles that govern civil judges also apply to rabbinical judges. The rabbinical judge, like the civil judge, is part of the judicial authority and in his position he is subject to the same basic rules as obligate any judicial officer:

 

                        "He is not an arbitrator between parties who voluntarily apply to him. He operates by virtue of state law and his authority extends over the whole public with all its diversity, opinions and views. Like a civil judge, a rabbinical judge enjoys independence in matters of judgement. The laws concerning conditions of service, immunity, appointment, discipline and the like that govern the rabbinical judge are very similar to those that govern a civil judge. Like the civil judge, so too the rabbinical judge must, by his action, ensure the public's trust in his judgement. The public is not only the religious public. The rabbinical judge deals with the whole people and he must by his conduct ensure the trust of the whole people, both secular and religious". (Per Justice Barak in HCJ 732/84 MK Tzaban v. The Minister of Religious Affairs, PD 40(4) 141, para. 16.)

 

            In this context, case law has also drawn a clear distinction between a person's fitness as a rabbinical judge of the Israeli Rabbinical Court and his fitness as a community rabbi. On enactment of the Dayanim (rabbinical judges) Law a clear separation was created between judicial and rabbinic functions, and a mix between the two in judicial work is no longer consistent with the concept of state law. In the words of the Minister of Religious Affairs Warhaftig, when he presented the Dayanim Law draft on first reading in the Knesset, as cited in the Tzaban Case:

 

                        "With the establishment of the State of Israel we adopted this course. We distinguished between those functions and separated between rabbis and rabbinical judges" (Knesset Proceedings Session 5457, 1954, p. 2182).

 

 

 

            As Justice Goldberg added on this subject in the Tzaban Case:

 

                        "The main power of the Rabbinate rests in its traditional authority over those who come 'to seek God', whilst the rabbinical judges' authority when sitting in judgement does not depend on the wishes of the litigants but is enforced in the context of the judicial system prescribed for it by the legislature. In this sphere, the rabbinical judges perform the function of 'judging the people', with its varied opinions and views".

 

 

            The religious function of the rabbinical judge as rabbi is not intertwined with the judicial function that he performs as a rabbinical judge and is separate from it. The Rabbinical Court cannot therefore rely on its religious power in order to assume jurisdiction in a matter that exceeds its powers and authorities in accordance with state law (Schiffman, Family Law in Israel, 5755, Vol. I, p. 42).

 

            Against this background there is difficulty with the argument that is sometimes made that the Rabbinical Court might perform a dual function: on the one hand, a state judicial function imposed upon it by virtue of state law, and on the other hand, a religious court in monetary matters by virtue of the parties' agreement. Like any public entity that performs a function in accordance with the law, so the Rabbinical Courts, which operate by virtue of statute must also discharge the responsibility owed by them by virtue of statute and decide the matters entrusted to them. As part of the state judicial system, they possess only the jurisdiction that the statute has placed in their hands. That is the essence of the principle of legality that underlies public administration and the judicial system (Katz Case, ibid, p. 607); hence, even if Jewish law and tradition permit a Rabbinical Court to adjudicate and decide disputes in a certain manner, that does not suffice to authorize it to do so because "the Rabbinical Court, as a state institution, must act within the authority vested in it by state law" (Katz Case, ibid, p. 607). To the same extent, a civil court, which is part of the judicial authority, may not assume an authority or function that does not derive from state law (Tzaban Case, ibid, p. 152).

 

            It is against this background that we shall examine the question of the Rabbinical Court's jurisdiction to decide the respondent's property suit against the petitioner based on a breach of the divorce agreement, and the relief deriving therefrom. A comprehensive analysis of the issue of jurisdiction in a similar context can be found in the judgement of Justice Cheshin in the Sima Levy Case and it will guide and direct us.

 

The Rabbinical Court's Original – Primary Jurisdiction

 

13.       The original primary powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built on two tiers: exclusive powers by virtue of the statute; and parallel powers of the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The exclusive powers comprise matters of marriage and divorce, as well as matters that are duly bound up in the motion for divorce, including wife and child support. Parallel jurisdiction that is vested by agreement relates to matters of personal status in accordance with article 51 of the Palestine Orders in Council and the Succession Ordinance. The relevant provisions are as follows:

 

                        "1.       Jurisdiction in matters of marriage and divorce

 

                        Matters of marriage and divorce of Jews in Israel, nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts.

 

                        …

 

                        3.         Jurisdiction in matters incidental to divorce

 

                        Where a suit for divorce between Jews has been filed in a rabbinical court, whether by the wife or by the husband, a rabbinical court shall have exclusive jurisdiction in any matter connected with such suit, including support for the wife and for the children of the couple.

 

                        …

 

9.         Jurisdiction by consent

 

In matters of personal status of Jews, as specified in article 51 of the Palestine Orders in Council, 1922 to 1947, or in the Succession Ordinance, in which a rabbinical court does not have exclusive jurisdiction under this Law, a rabbinical court shall have jurisdiction after all parties concerned have expressed their consent thereto."

 

The Rabbinical Court's powers – both the exclusive ones (marriage, divorce and matters bound with divorce) and the jurisdiction in accordance with the parties' agreement in matters of personal status – are original-primary powers by virtue of the statute to hear and rule on the matters that fall within the scope of those powers.

 

Power Ancillary to Original Jurisdiction

14.       The Case law has recognized the existence of a judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the statute and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past. Such is, for example, the jurisdiction of the civil and religious courts to vacate a judgement awarded by them that is based on an agreement between the parties, in the making of which there has been a defect. Such a material defect might lead to the revocation of the agreement and therefore also to revocation of the judgment that rests upon it, and the instance empowered to decide its revocation is the one that rendered the judgment (HCJ 124/59 Glaubhardt v. The Haifa Regional Rabbinical Court, PD 13 1490; CA 151/87 Artzi Investment Co. v. Rachmani PD 43(3) 489, 498-500). Additional expression of such ancillary jurisdiction occurs when there is a material change in the circumstances of the matter, that has occurred after the award of judgement by consent, which makes its continued performance unjust (Sima Levy Case, ibid, pp. 605-6; CA 442/83 Kam v. Kam PD 38(1) 767, 771; CA 116/82 Livnat v. Tolidano PD 39(2) 729, 732; CA 219/87 Rachmani v. Shemesh Hadar, Building Company Ltd et al. PD 43(3) 489, 498-500). The recognition of this ancillary jurisdiction is intended to bring about a proper balance between the judgment’s finality on the one hand, and the interest not to leave in effect a judgment, the enforcement of which has become extremely unjust due to a change in circumstances. Inherent jurisdiction is also vested in the judicial instance, including the Rabbinical Court, to retain jurisdiction in respect of a matter that is pending before it until the proceedings have been completed. So long as final judgement has not been awarded, jurisdiction continues until the judicial court has completed its work. Once a final, unconditional judgment has been awarded, the work is completed (Sima Levy Case, p. 607; CA 420/54 Ariel v. Leibovitz PD 9 1337; ALA 2919/01 Daniel Oshrovitz v. Yael Lipa (Fried) PD 55(5) 592; J. Zussman, The Civil Procedure (seventh edition, 5755) 550).

One of the expressions of ancillary jurisdiction relates to the existence of the Rabbinical Court's "continuing jurisdiction", the essence of which is that, under certain conditions, where the Rabbinical Court has in the past heard a particular matter, its continuing jurisdiction to hear it again will be recognized. The continuing jurisdiction also derives from the inherent power of the judicial instance. Its basic purpose is to give expression to the duty of mutual respect and the need for harmony between judicial instances where there is parallel jurisdiction between them, and in order to avoid parties running from one judicial instance to another. It has nevertheless already been explained that continuing jurisdiction is not intended to undermine or derogate from the original powers vested in the judicial instances in accordance with statute. Its purpose is essentially "to vest power to vacate or modify an earlier decision due to a change that has occurred in the circumstances upon which the first decision was based" (per Justice Cheshin in the Sima Levy Case, ibid, p. 608, 610). Such are matters of child support and custody, which by their nature are subject to material changes of circumstance, and the original judicial instance therefore has inherent jurisdiction to reconsider them when the appropriate conditions arise.

It should be made clear that no inherent power has been recognized for a civil or religious court to exercise its original authority again in order to interpret a judgement awarded by it. Hence, a Rabbinical Court that has granted a divorce does not have inherent jurisdiction to interpret the divorce agreement and the judgement that awarded it force and effect (Sima Levy Case, ibid, pp. 612-13).

These are the characteristics of the original jurisdiction that is vested in the Rabbinical Court in accordance with the statute, alongside its ancillary powers that are sparingly exercised in special circumstances by virtue of its inherent jurisdiction, in order to complete the judicial act and make it a complete and just deed.

We shall now examine the question of whether the Rabbinical Court has jurisdiction to adjudicate a dispute by virtue of the parties' agreement, where such jurisdiction is not set in the statute empowering the Rabbinical Courts, and is not within the scope of the ancillary jurisdiction vested in it.

The Rabbinical Court's Jurisdiction by Virtue of the Parties' Agreement

15.       The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement to grant the Court jurisdiction in a particular case, regardless of the provisions the Rabbinical Courts Jurisdiction Law; second, agreement intended to empower the Court to hear and rule on a dispute as an arbitrator. Can such agreement by the parties vest power in the Court that is not granted to it by the empowering statute or embodied in its ancillary powers?

The Israeli state judicial system and the various different judicial instances, derive their powers from statute. It is the statute that establishes them, it is what delineates the bounds of their activity and it is what defines the sphere of their subject matter and territorial jurisdiction. This is also the case in respect to the civil judicial instances; and so it is with respect to the special judicial systems, including the courts of Israel's different religious communities. These include the Rabbinical Courts in Israel.

By defining the powers of the various different judicial instances in Israel, the statute intended not only to delineate the function and responsibility of the system and its various different arms. It also sought, at the same time, to deny the power of a judicial instance to hear and adjudicate a matter which it was not charged with by the statute and which is not within its inherent jurisdiction. The definition of the judicial instances' powers has a dual dimension, both positive and negative: it constitutes a source of power and responsibility on the one hand, while denying the exercise of authority and power that have not been so conferred; the judicial instance has only what the statute that established it has vested in it, and insofar as it has been made responsible to adjudicate disputes within the scope of the power vested in it, it is under a duty that derives from the statute and the concept of democratic government not to try or adjudicate a matter that is beyond its statutory power.

A preliminary and mandatory condition for the satisfactory activity of any judicial system is a clear and exhaustive definition of the framework of powers and the apportionment of functions that rest with its various different instances. Without an exhaustive and specific definition of powers the systemic structure, built in accordance with the statute, is blurred and the stability of its functioning is not secured. The harmony necessary in the area of operation of the different judicial arms and the relationship between them is impaired; the allocation of professional, administrative and budgetary resources to the different instances is disrupted, and direct harm might occur to the efficacy of the judicial system and the level of judicial performance. The uniqueness of the responsibility owed by the judge, which requires the existence of a clear framework of authority, alongside which is the responsibility and duty to rule, becomes blurry. Thus, recognizing the power of a judicial instance to adjudicate matters, the power and responsibility for which have not been legally transferred to it, might materially disrupt the internal balance required in the structure of the judicial system and severely undermine its standing and performance.

A consequence of the aforegoing is that the power of a judicial instance, as such, be it civil or religious, is acquired by law and it has no power to be derived from the parties' agreement, except where the statute itself has seen fit to recognize such agreement in certain circumstances as a source of the power to adjudicate. Thus, for example, with regard to the effect of the parties' agreement, the law has distinguished between the apportionment of subject matter jurisdiction and territorial jurisdiction between judicial instances. It is willing to acknowledge, in certain conditions, the parties' agreement as a valid source for changing the territorial jurisdiction that has been prescribed. Section 5 of the Civil Procedure Regulations, 5744-1984 provides that when an agreement between parties as to the place of jurisdiction exists, the lawsuit will be filed to the court in that area of jurisdiction. The relative flexibility regarding territorial jurisdiction, and the willingness to recognize the parties' agreement as the source of such jurisdiction, stems solely from the statute and derives its power from its provisions. That is not the case in respect of subject matter jurisdiction. Generally, the law does not recognize that the parties' agreement has power to depart from the rules of subject matter jurisdiction, as crafted by state legislation.

A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to hear and rule a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. In general, a judicial instance is not supposed to adjudicate a matter that is referred to it as arbitrator. However, in certain circumstances, the law has expressly recognized the power of a civil instance to adjudicate a dispute in departure from the ordinary rules of procedure. Thus, for example, in the area of small claims, section 65 of the Courts Law (Consolidated Version), 5744-1984 provides that if a lawsuit has been filed in the small claims court, the judge may, with the parties’ consent, try the claim as arbitrator, and the provisions of the Arbitration Law will govern the matter, with certain restrictions; in addition, a court hearing a civil matter has been empowered, with the parties’ consent, to decide a matter before it by way of settlement (section 79A of the Courts Law) or to refer a matter, with the parties' consent, to arbitration or conciliation (sections 79B and 79C of the Courts Law). The said authorities are all vested in the court by virtue of statute. They assume that the subject of the dispute is within the subject matter jurisdiction of the court hearing the case and they give it special procedural means that are intended to facilitate and expedite the process of deciding the dispute and bringing about a just result. The various judicial instances have not been generally empowered by law to hear and decide matters that are not included in the scope of their subject matter jurisdiction by virtue of the parties' agreement, either as arbitrators or otherwise. Since such authority has not been conferred to them, it is, ipso facto, denied and does not exist.

The Rabbinical Courts are an integral part of the Israeli judicial system. They were established by virtue of the Rabbinical Courts Jurisdiction Law and they derive their power and authorities from the state statute. They have nothing other than what is vested in them by the statute, and they are subject to the set of powers of the statute in their judicial work, as interpreted over the years by case law. Along those lines, this Court has held in the Katz Case that the Rabbinical Court is not empowered to issue a Letter of Refusal in monetary matters that is intended to compel a party to submit to the Rabbinical Court's jurisdiction by ostracizing and disgracing the recalcitrant party; and in HCJ 2222/99 Gabai v The Great Rabbinical Court PD 54(5) 401, the opinion was expressed that the Rabbinical Court lacks legal authority to issue a forced settlement decision, without the parties' consent, thus forcing a judgment on the parties without determining facts on the basis of evidence, if it is unable to decide in accordance with the law.

It emerges from this that the parties' agreement as such cannot, per se, grant jurisdiction to the Rabbinical Court, unless, it has been recognized by the law as a primary source of authority. Thus, the parties' agreement has been recognized as a source of the Rabbinical Court's jurisdiction pursuant to section 9 the Rabbinical Courts Jurisdiction Law, in matters of personal status of Jews pursuant to article 51 of the Palestine Orders in Council or according to the Succession Ordinance, which are within the parallel jurisdiction of the Rabbinical Court and the civil instance. Nevertheless, the Rabbinical Court does not have power to hear and decide a matter that is not of the kind found within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their consent to its jurisdiction. Such agreement does not derive from a legally recognized source of authority in the law and it cannot, per se, vest jurisdiction in a state judicial instance.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Agreement

16.       According to the same line of reasoning, the Rabbinical Court has no power and authority to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter, which by its nature is not within its legal jurisdiction. The Court has not been vested with jurisdiction by law to decide disputes as an arbitrator and the parties' agreement cannot vest it with such power.

The issue of the Rabbinical Court's jurisdiction to arbitrate financial and other matters that go beyond the powers granted to it in accordance with the Rabbinical Courts Jurisdiction Law has caused consternation and confusion over the years. It appears that, in reality, the Rabbinical Court assumes the role of arbitrating matters that are beyond the scope of its subject matter jurisdiction (Katz Case, ibid, pp. 606-8; CA 376/62 Bachar v. Bachar, PD 17(2) 881, 882, 885; CA 688/70 Doar v. Hamami, PD 25(2) 396, 399; M. Alon, Jewish Law – History, Sources and Principles, third edition, vol. III, 5748, 1529). Justice Barak considered the inherent difficulty of a state judicial instance's need to adjudicate a dispute by arbitration where it was not empowered to do so by law, saying:

"The first possible argument is that the motion to the Rabbinical Court is like that to an arbitrator and embodied in the Arbitration Law, 5728-1968. That possibility – which has used in practice and can be encored as a year-long custom - raises serious problems in principle. Thus, for example, it can be asked whether it is proper for a judicial entity, whose powers are prescribed by law, to assume additional judicial powers, by being empowered as an arbitrator. Is it conceivable that parties would motion the magistrate’s court to try a pecuniary claim, that is outside its jurisdiction, as an arbitrator? From the state's point of view, is it justifiable to use judicial time and tools (whether of the civil or religious courts) for matters outside the jurisdiction that the law has granted the judicial authorities? Is there no fear that the public be confused as to which decisions the judicial instance has awarded as the government and those that it has awarded as arbitrator?"

(HCJ 3023/90 Jane Doe (a minor) v. The Rehovot Regional Rabbinical Court PD 45(3) 808, 813-14; see also S. Ottolenghi, Arbitration, Law and Procedure (fourth edition, 5765) 167-8; Schiffman, ibid, vol. I, 37.)

In HCJ 2174/24 Kahati v. The Great Rabbinical Court, PD 50(2) 214, this Court (per Justice Dorner) once again referred to the practice, adopted from time to time by the Rabbinical Courts, of deciding disputes as arbitrators in matters that are not within their jurisdiction. It expressed skepticism with respect to the validity of the practice. However, as in the previous case, it again left this question open without making any conclusive ruling, since such a ruling was not necessary in that case (cf. Aminoff, ibid, pp. 792-3).

17.       There is indeed an inherent difficulty in recognizing the Rabbinical Court's power to decide a dispute in a matter on which it has not been given jurisdiction by law (cf. Ottolenghi, Dispute Resolution by Alternative Means, Israeli Law Yearbook, 5752-5753, p. 535, 550-1). In the past, the Mandate government empowered the Rabbinical Courts to act as arbitrators by means of section 10(d) of the Israel Knesset Regulations of 1927, but upon the establishment of the State, the “Israel Knesset”, within its meaning under the Mandate, ceased to exist and it was held that those Regulations no longer had any force or effect (Crim. App. 427/64 Yair v. The State of Israel PD 19(3) 402; HCJ 3269/95, ibid, p. 622-3; Schiffman, ibid, p. 39). It cannot therefore be argued that the said section might serve as the source of the Rabbinical Courts' power as arbitrators. Moreover, upon enactment of the Arbitration Law, it was proposed that an arbitration decision made by a religious court when ruling as an arbitrator would in all respects, except with regard to the appeal, be treated as a judgement of the court sitting in accordance with its jurisdiction prescribed by statute, and that the award would not require confirmation under the Arbitration Law. That proposal was not accepted (Knesset Proceedings 5728, pp. 2966-7).

It is indeed difficult to settle the governing perception that views the judicial system as an arm of government, which derives its power and authority from statute, while acknowledging the possibility that the selfsame system can acquire other subject matter authorities deriving merely from the parties' agreement that do not originate from the empowering law. The Israeli Rabbinical Courts, that are part of the Israeli judicial system, integrate with the said perception and, like the other judicial instances, operate in accordance with the principle of legality of the arms of government (see the dissenting opinion of Justice Tal in the Katz Case, distinguishing between the power of religious courts as a state authority and the power they have, in his opinion, by virtue of Jewish law, which is not connected with state law).

18.       Apart from the essential difficulty inherent in the judicial decision of the Rabbinical Court as an arbitrator, which is not consistent with the principle of legality of the government authorities, other difficulties arise from the said procedural practice. The practice blurs the spheres of the Court's own activity in respect of the procedural basis upon which its decision rests: is it a decision within the scope of the Court's state power that is subject to review by the High Court of Justice in accordance with section 15 of the Basic Law: the Judiciary, or is it an extra-statutory power that is built on a different foundation originating from the parties' agreement and subject to review by a different judicial instance, like the District Court, in accordance with the Arbitration Law (cf. Jane Doe Case, ibid, para. 7)? In more than a few cases the parties might misunderstand the nature of their agreement to vest jurisdiction in the Rabbinical Court as they do not always understand the meaning and implications of their consent. Moreover, usually, in the course of such adjudication, strict attention is not paid to enquiring into the existence of an arbitration agreement or the application of the Arbitration Law and the rules pursuant thereto, such, for example, the mechanism for the confirmation and revocation of an arbitral award and the role of the District Court as the competent instance in accordance with the Arbitration Law (Ottolenghi, ibid, p. 168; Dichovski, The Standing of a Rabbinical Court Dealing with Property Law As Arbitrator, The Jewish Law Yearbook 16-17 (5750-5751) 527; MF 268/88 Delrahim v. Delrahim, DCJ 49(3) 428; SC 2329/99 Kfir v. Kfir, PD 55(2) 518, para. 5). An arbitral judgment made by the Rabbinical Court frequently does not undergo confirmation or revocation proceedings in the District Court as required by the Arbitration Law for the purpose of its execution, and the Rabbinical Court has no power to confirm an arbitral judgment (Kahati, ibid, p. 220; HCJ 5289/00 Mograbi v. The Great Rabbinical Court, Takdin Elyon 2000(2) 581; Kfir Case, ibid, para. 5). Furthermore, a situation in which the District Court, by virtue of the Arbitration Law, might oversee the Rabbinical Court's decisions as an arbitrator might harm the proper balance between the instances and aggravate the tension between the civil and religious judicial arms (A. Porat, The Rabbinical Court As Arbitrator, Kiriat Mishpat II (5762) 503, 521-4; Dichovski Case, ibid, p. 529).

The Rabbinical Court, purporting to act as an arbitrator between the parties, still operates under cover, and with the characteristics, of its state role. To that end it makes use of the court's physical and organizational system, which is financed by the state; it adjudicates disputes as an arbitrator in the scope of the court calendar, as part of its ordinary work; the overall services, the organizational and professional arrangement and the government budget are also used by it in that function, which by its nature does not have a state character. The time that it should devote to matters of personal status in its official capacity is partly assigned by it to a different judicial function that is not for the state, despite appearing to carry the state seal in the eyes of the public at large, who finds it difficult to distinguish between the judicial function and the extra-statutory function performed by the Court. This intermingling of functions is inconsistent with the principle of legality and a correct definition of the functions and powers of a state judicial instance (Katz Case, ibid, p. 608; Schiffman, ibid, pp. 37-8).

19.       Mention ought to be made to the approach of Prof. Shochatman in his paper entitled The Rabbinical Courts' Jurisdiction in Matters Other Than Personal Status (Bar Ilan University Yearbook on Humanities and Judaism, vols. 28-29 (5761) p. 437, p. 449 et seq.). As he sees it, the Rabbinical Court might acquire jurisdiction by virtue of the parties' agreement in matters outside its jurisdiction in accordance with the Rabbinical Courts Jurisdiction Law by virtue of section 15(d)(4) of the Basic Law: the Judiciary, thereby acquiring jurisdiction as an arbitrator. According to that Law, which defines the High Court of Justice's power to review religious courts, the question of a religious court's jurisdiction can only be referred to this instance when it was raised at the first opportunity. The author infers from this that where there is prior agreement between the parties to vest subject matter jurisdiction in the religious court, a party who has so agreed may not later dispute jurisdiction. By virtue of that preclusion the religious court acquires subject matter jurisdiction, and the High Court of Justice is itself precluded from intervening therein. According to this approach, such an agreement vests subject matter jurisdiction and is not limited solely to matters of personal status. It might encompass numerous spheres that are beyond the subject matter jurisdiction of the religious court, as defined in the Rabbinical Courts Jurisdiction Law.

I cannot agree with this position. The interpretation expressed by Prof. Shochatman assumes that it is possible to recognize the existence of subject matter jurisdiction of an Israel state judicial instance by means of the parties' consent, combined with the doctrine of preclusion and estoppel that prevents someone who has agreed to jurisdiction from later disputing it. That approach is fundamentally inconsistent with the principle of legality that obligates judicial instances, including the religious courts. It is not consistent with the starting point whereby subject matter jurisdiction is vested in a judicial instance by a positive arrangement, and its existence is not to be inferred by an indirect interpretation of provisions of law concerning estoppel and preclusion. The Rabbinical Court's powers are granted to it by virtue of the Rabbinical Courts Jurisdiction Law and they cannot be added to by an indirect interpretation of statutory provisions, the purpose of which is not the vesting of power. Moreover, it has already been held (in Sima Levy Case, ibid, p. 618-19) that the element of preclusion emerging from section 15(d)(4) of the Basic Law: the Judiciary was not intended to vest in the Rabbinical Court subject matter jurisdiction that is not vested in it by virtue of the Rabbinical Courts Jurisdiction Law. The said preclusion is based on the assumption that the matter being adjudicated by the Rabbinical Court is of the type that are within the parallel jurisdiction of the civil court and Rabbinical Court, and regarding the latter, jurisdiction is conclusively consummated if both parties have agreed to it. In those circumstances, and only in them, a party's prior agreement or silence, or subsequent denial of jurisdiction, might lead to preclusion with respect to a lack of jurisdiction argument in the High Court of Justice - that and nothing more. An interpretation that takes the doctrine of preclusion out of context, and assumes the existence of a potentially unlimited Rabbinical Court subject matter jurisdiction, the final consummation of which is dependent only upon the parties' agreement, is directly opposed to the principle of legality, upon which the concept of democratic government is based. It is inconsistent with the subject matter jurisdictions vested by statute in the arms of government, including the judicial system.

Alternative Decision-Making Systems

20.       The need of various different circles in the religious world to entertain alternative systems for the resolution of disputes is proper and recognized. Indeed, alternative rabbinical judicial systems that are not associated with the state rabbinical judicial system, which decide disputes between litigants in the community, are recognized. They can be granted powers to act as arbitrators by agreement of the parties. The need of different communities for alternative dispute resolution systems specific to them can be met by reference to internal arbitration frameworks that are not part of the state judicial system, within which disputes can be settled by virtue of the parties' agreement. This alternative course to litigation in the state judicial instances can be developed and strengthened in accordance with the different needs and preferences of the communities. This was considered by Justice Zamir in the Katz Case (ibid, p. 606), who stated:

"As is known, there are still observant Jews who prefer to litigate in matters of property according to religious law before a religious court rather than the state court. The state's law does not preclude that, if both parties to the dispute so desire, and it is even willing to give the force of arbitration to such litigation, if the litigants fulfil the provisions of the Arbitration Law. Indeed, in practice, such courts exist in various communities around Israel, not by virtue of state law or as official institutions but as private entities. That is, for example, the case of the rabbinical court of the Edah Chareidis [the Haredi Community] in Jerusalem. However… in these cases we are not dealing with a private entity but a state court, and the law applies to it just as any other of the state's courts. Like any court, in fact, like any government agency, the Rabbinical Court is also subject to the principle of legality, meaning that it has nothing other than what was granted to it by the law… In this respect, the Rabbinical Court in Jerusalem is distinguished from the rabbinical court of the Edah Chareidis in Jerusalem. The Israeli Rabbinical Court, which has jurisdiction in accordance with the Basic Law: the Judiciary, is not like one of the rabbinical courts of the Jewish communities in the Diaspora. Unlike them, it has the power and authority of a government institution. So too, unlike them, it is also subject to the restrictions that apply to any government institution".

Consensual Resolution – Looking to the Future and to the Past

21.       The scope of the Rabbinical Courts' subject matter jurisdiction to decide a dispute by virtue of the parties' agreement outside the framework of the law looks to the past and the future. It calls into question the validity of the Court's rulings based on the parties' agreement outside the scope of the statute, not merely henceforth, looking to the future, but also with respect to the past. The outlook to the future seeks to find a binding definition of the limits of the Rabbinical Court's jurisdiction and to strictly observe those limits hereafter. However, the outlook to the past calls into question the binding legal validity of the Rabbinical Court's decisions that have been made over the years by virtue of the parties' agreement as aforesaid. That issue is far from simple; there is no need to decide it here, and it will wait until its time comes.

From the General to the Particular

22.       Let us return to the respondent's suit against the petitioner in the Rabbinical Court and examine whether it is within the subject matter jurisdiction of the Rabbinical Court; the test of jurisdiction depends on the nature of the cause of action, and whether the cause falls within the jurisdiction of the Rabbinical Court.

The Cause of Action – Enforcement of a Contractual Indemnity Clause

23.       The respondent's cause of action in the Rabbinical Court is the enforcement of a contractual clause concerning property, which is contained in the divorce agreement that was made between the couple for the purpose of the divorce proceedings. It provided that if the respondent were sued for an increase in child support and the satisfaction of any of the children's needs or if a stay of exit order was granted at the initiative of the wife, then the petitioner would compensate him, in the language of clause 4(e) of the agreement, with half the property. That provision is also mentioned in clause 5 of the agreement, which is headed "Indemnification", and according to the substance of the provision, and also its location and wording, it is an indemnity clause. The respondent sues for the enforcement of a property condition for his indemnification due to a breach of contract by the wife, and he gave expression thereto by heading his claim as one for "specific performance". That is to say, we have here a property claim for the enforcement of the contractual indemnity clause in a divorce agreement that received the effect of a judgement of the Rabbinical Court and further to which the parties' divorce was completed.

The Rabbinical Court's Jurisdiction to Adjudicate a Property Claim for the Breach of a Contractual Indemnity Clause in a Divorce Agreement after the Parties' Divorce

Does the respondent's suit, according to its cause, fall within the scope of one of the sources of the Rabbinical Court's jurisdiction? Because of the great similarity between the instant matter and the case of Sima Levy, we shall draw guidance and direction from that case.

 

 

Original – Primary Jurisdiction

24.       The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce, as provided in section 1 of the Rabbinical Courts Jurisdiction Law, does not apply in the instant case because the subject of the suit is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is, no longer involved. Nor is it a matter "connected with a divorce suit", including support for the wife and children, within the meaning of section 3 of the Law. After divorce, a property claim in respect of the breach of an indemnity clause is not connected with the divorce suit, which has ended and no longer exists. The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce judgment, based on a divorce agreement. The cause is based on the breach of a divorce agreement after the award of the divorce and completion of the couple's divorce, and such a new cause is naturally not to be bound up with the matters that were in the past connected with the divorce suit.

With regard to the property cause of action, which surrounds the breach of an indemnity clause of a divorce agreement, the Rabbinical Court does not have jurisdiction by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council and the Succession Ordinance. Section 9 of the Rabbinical Courts Jurisdiction Law raises the question of whether jurisdiction can be vested in the Rabbinical Court by consent in a matter included in its parallel jurisdiction after completion of the divorce, or whether its jurisdiction pursuant to that provision is limited solely to matters within its parallel subject matter jurisdiction that arise in connection with, and until, the divorce and its completion, but not afterwards. Whatever the answer to this question, it is in any event clear that the subject matter jurisdiction pursuant to section 9 is limited solely to the matters mentioned therein, that is, matters of "personal status" as defined in the Palestine Orders in Council and the Succession Ordinance. In a dispute that is not within the bounds of those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court (Schiffman, ibid, vol. I, p. 37; Jane Doe Case, ibid, p. 812). The power of the parties' stipulation is restricted solely to the matters defined by the statute (MF 358/89 Zalotti v. Zalotti PD 43(4) 41, 42; Porat, ibid, p. 510).

Clause 11 of the divorce agreement in this matter looks to the future, and provides that if differences arise between the couple after the divorce, then they undertake to bring their claims solely in the Rabbinical Courts. That agreement is effective only to vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law in respect of matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. A property claim for the enforcement of a contractual indemnity clause in a divorce agreement is not a matter of personal status within the meaning of the Palestine Orders in Council or the Succession Ordinance, and thus, the parties' contractual agreement in respect of such a dispute cannot vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law.

The Rabbinical Court therefore does not have original jurisdiction to adjudicate the respondent's claim.

"Ancillary" Inherent Jurisdiction

25.       Does the Rabbinical Court have "ancillary" inherent jurisdiction to adjudicate the respondent's claim? The answer is in the negative.

            In the instant case, the Rabbinical Court's ancillary jurisdiction is irrelevant insofar as it relates to the revocation of a divorce award because of a defect in the making of the divorce agreement. It is not a defect of fraud, mistake, deceit, duress or similar that occurred in the making of the agreement and that might have given the Rabbinical Court ancillary jurisdiction to consider its revocation.

            Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after granting the divorce judgment that allegedly justifies revoking the divorce agreement and the divorce judgment in order to achieve a just result. On the contrary, the respondent's suit is for the specific performance and enforcement of the divorce agreement, not its revocation. Although, in the Great Rabbinical Court, the respondent pleaded that his suit was to revoke the divorce agreement because, according to him, the Get had been given by mistake (the Great Rabbinical Court's decision of May 4, 2003). These arguments were made as an "embellishment" at a late stage of the trial and do not reflect the real cause of action; the motion to revoke the divorce agreement and the act of divorce is inconsistent with the respondent's claim in his suit to compensate him with half the property (the apartment, the contents and the gold), which is nothing other than a claim for the enforcement of the divorce agreement (cf. CA 105/83 Menashe v. Menashe PD 38(4) 635; Yadin, The Contracts (Remedies for Breach of Contract) Law 5731-1970, Second Edition, 5739, p. 44).

            Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction in this case. The Regional Rabbinical Court had granted a final and unconditional judgment and awarded the effect of judgement to the divorce agreement. Indeed, the divorce agreement does contain an indemnification provision, which by its nature looks to the future, but this fact cannot transform a judgement that gave effect to a divorce agreement into a judgment that is not final, leaving the Rabbinical Court with jurisdiction that has not yet been exhausted to continue adjudicating with respect to the divorce agreement's future performance in this property matter. A financial-property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law (see Sima Levy Case, pp. 607-608; CA 468/85 Dondushanski v. Don PD 40(2) 609; D. Bar Ofir, Execution - Proceedings and Law (Sixth Edition, 2005, pp. 164-5)).

            Nor has the Rabbinical Court acquired jurisdiction to hear this matter by virtue of the doctrine of "continuing jurisdiction". It should be kept in mind, that continuing jurisdiction is vested where an instance has tried a particular matter in the past and, in special circumstances, a need has arisen to vacate or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based such, for example, in matters of child support and custody. The instant case is fundamentally different. The motion does not seek to modify or revoke the divorce agreement made between the parties. On the contrary, it seeks to enforce the agreement, and such a claim has no place within the continuing jurisdiction vested in the Rabbinical Court. A decision on property matters is a final one and not a matter for continuing jurisdiction, as the Court stated in Sima Levy (Justice Cheshin, ibid, p. 611):

                        "As distinct from decisions concerning the payment of support or child custody – which by their nature are not final and the doctrine of continuing jurisdiction applies to them – a decision on a property matter is in principle a final one" (emphasis added).

            The property aspect of the divorce agreement, including the indemnification clause, and the divorce judgment that gave it effect, are therefore not within the Rabbinical Court's continuing jurisdiction.

            And finally, the Rabbinical Court does not have ancillary jurisdiction to adjudicate the new cause that arose following the divorce agreement in order to interpret the agreement. Firstly, the Rabbinical Court, having completed and exhausted its power to rule on the matter of divorce, no longer has ancillary power to interpret the divorce agreement or the divorce judgment (cf. HCJ 897/78 Yigal v. The National Labour Court, PD 33(2) 6, 7; CA 5403/90 The State of Israel v. RAM Revhiat Ibrahim PD 46(3) 459). Moreover, in the instant case, the question of the agreement’s interpretation hasn’t risen as such, but a claim for its enforcement has been brought instead. Hence, the Rabbinical Court does not have ancillary jurisdiction in this respect either.

            In conclusion: the Rabbinical Court does not have primary original jurisdiction, or ancillary inherent jurisdiction, to adjudicate a property claim for enforcement of a contractual indemnification clause in a divorce agreement that has given the effect of judgement, once the couple's divorce has been completed.

The Rabbinical Court's Jurisdiction by Virtue of Consent

26.       As can be recalled, clause 11 of the divorce agreement provides that differences between the couple after the divorce are to be adjudicated solely in the Rabbinical Courts. The couple's agreement as such cannot vest the Rabbinical Court with jurisdiction where there is no legal source for it. The agreement in this case concerns something that is not a matter of personal status according to section 9 of the Rabbinical Courts Jurisdiction Law, and it was therefore given for this purpose outside the scope of the law, and is ineffective.

            Indeed,

                        "where the subject of the litigation is not within the jurisdiction of a particular judicial entity, no agreement in the world has power to grant the entity jurisdiction that the statute has not given it; it is the statute that gives and it is the statute that takes away" (Sima Levy, p. 617).

            The Regional Rabbinical Court's decision of June 18, 2002 and the Great Rabbinical Court's decision of May 4, 2003, according to which the Rabbinical Courts have jurisdiction in principle to try the claim by virtue of the law, are inconsistent with its provisions.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Arrangement

27.       It was further argued that clause 11 of the divorce agreement is an arbitration provision that vests the Rabbinical Court with power as an arbitrator to adjudicate the respondent's claim of a breach of the agreement's indemnification provision. Although not strictly necessary, we have considered the question in principle of whether a Rabbinical Court can be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. We have answered that question in the negative and the answer is applicable to the case herein.

            In the instant case, the conclusion that the Rabbinical Court lacks jurisdiction to try the matter as an arbitrator is also reinforced by another reason. Studying the contents of clause 11 of the divorce agreement shows that it cannot be construed as an arbitration clause, equal to an "arbitration agreement" between the parties. It is well known that the power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. Without an arbitration agreement, no arbitration arises. An "arbitration agreement", according to the Arbitration Law, is "a written agreement (between parties) to refer to arbitration a dispute that arises between them in the future, whether an arbitrator is named in the agreement or not" (section 1 of the Arbitration Law). The condition precedent for arbitration is therefore the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement (ALA 4928/92 Aziz Ezra Haj v. Tel Mond Local Council PD 47(5) 94; Ottolenghi, ibid, pp 9-41).

            In this case, the parties undertook to refer any disputes arising between them after the divorce solely to the Rabbinical Courts. No intention can be inferred from that agreement to refer such disputes to the Rabbinical Court qua arbitrator. In Jane Doe (para. 6 of Justice Barak's opinion), as in the case herein, the couple mistakenly believed that their consent to the Rabbinical Court's adjudicating disputes connected with the divorce agreement could vest it with power to decide as a state judicial instance, rather than as an arbitrator. Indeed, the wording and contents of clause 11 of the divorce agreement do not demonstrate the parties' intention to treat it as an arbitration clause purporting to empower the Rabbinical Court to act as arbitrator. Consequently, even if we assumed that the Rabbinical Court could be empowered to act as an arbitrator in matters in which it has no original or ancillary jurisdiction by virtue of the law, there is still no effective arbitration agreement, as pleaded.

A Note before Closing

28.       The issue of the Rabbinical Court's power to adjudicate by virtue of the parties' agreement, outside the scope of the law, has arisen in earlier contexts in the past, and although different opinions have been expressed in such respect by the courts, no binding decision has been necessary in connection therewith. This absence of a ruling has permitted the continuation of a procedural practice that is inconsistent with the organizational structure of the courts and the division of powers between them in accordance with state law. This custom has enabled a judicial practice that is inconsistent with the principle of the administration's legality and the legality of the judicial system. The time has come to move from the stage of expressing an opinion to the stage of making a ruling, which is necessary to ensure the proper function of the judicial system within the scope of its powers, and thereby to protect the basic foundation that defines the boundaries of its activity based on the principle of legality and the rule of law. This will not harm, in a any way, the need and ability of various social groups to entertain alternative resolution systems outside the state judicial instances, based on the principles of arbitration regulated by law or on the basis of other agreed and recognized rules of procedure. However, at the same time, it is necessary to safeguard, and protect against blurring the boundaries between the state judicial systems and alternative resolution systems that are built on the parties' agreement, in order to protect the proper operation of the different arms of the judicial system and the public's confidence in the way in which its powers are exercised and its judgments.

Conclusion

29.       By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification clause in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the Regional Rabbinical Court and the Great Rabbinical Court in the respondent's claim are void. The result is that the order nisi that has been awarded should be made absolute. The respondent shall bear the petitioner's professional fees in the sum of NIS 12,000.

 

Vice President (Ret.) M. Cheshin

 

            I concur.

 

Justice S. Joubran

            I concur.

Therefore, held as stated in the opinion of Justice Procaccia.

Awarded today, this eighth day of Nissan, 5766 (April 6, 2006).

 

___________________

___________________

___________________

Vice President (Ret.)

Justice

Justice

 

Bar-On v. Knesset

Case/docket number: 
HCJ 4908/10
Date Decided: 
Thursday, April 7, 2011
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

Is it possible to circumvent a constitutional principle enshrined in a temporary provision set to remain in effect only for the duration of the current government’s administration term?

 

Background: on June 22, 2010 Basic Law: The State Budget (Special Provisions) (Temporary Provisions) (Amendment) (hereinafter: “Basic Law Temporary Provision” or “the Law”) was passed to set the budget for years 2011 and 2012, as a biannual budget in one statute. Basic Law Temporary Provision is a continuation of a previous Basic Law that established, also in a temporary provision, that the state budget for years 2009 and 2010 would be a biannual budget (hereinafter: the original temporary provision). Basic Law Temporary Provision, like the original temporary provision, revises the provisions established in sections 3(a)(2), 3(b)(1) and 3A of Basic Law: The State Economy according to which the state budget is to be set for one year only. The Petitioners ask the Court to pronounce Basic Law Temporary Provision void, or alternatively to strike it down. The parties’ arguments raise two primary questions. First, whether Basic Law Temporary Provision is indeed a basic law for all intents and purposes? Does using a temporary provision infringe the validity or status of the Law and a basic law? And assuming that Basic Law Temporary Provision is indeed a basic law, should it be struck down for changing the balance of powers between the Knesset and the Government in the process of approving the state budget?

 

The High Court of Justice (by President Beinisch, with an expanded panel of seven justices) denied the petition for the following reasons:

 

The formal test: the use of the term “basic law” and the fact that the year of its legislation is not noted in the title were adopted in the case law as a test for identifying basic laws. However, the argument that the formal test was overly simplistic and that a substantive test or a combined test designed to identify a basic law were in order has been raised more than once. Still, even this proposal has both advantages and disadvantages. In this petition, there is no need to determine the issue of how to identify a basic law. Moreover, both applying the formal test and applying the combined test lead to the conclusion that Basic Law Temporary Provision is a basic law.

 

Does using a temporary provision infringe the validity or status of the Law as a basic law? As a general rule, “it is highly doubtful whether the motivations for enacting a basic law – even were it possible to argued they are improper – may themselves constitute a legal flaw warranting judicial review.” Therefore, even were the motivation for enacting the Law, as the petitioners argue, the coalition’s desire to avoid needing to approve the Budget Law once a year, this reason in itself does not call for judicial review, particularly where the requested remedy is declaring a basic law void. On a separate level, there is the question whether the mere fact that the Law was enacted as a temporary provision constitutes an “abuse of power” of the constitutive authority, in a way that infringes the validity of Basic Law Temporary Provision as a basic law.

 

In an ideal situation, where there is a regulated and rigid mechanism for changing and amending the constitution, it is doubtful whether changing the constitution by way of a temporary provision would be possible. However under the current state of the law, in the absence of a Basic Law: The Legislation, the restrictions on legislative procedures or the amendments of basic laws are limited, and in order to enact a basic law in Israel there is no need for special procedures in the Knesset. Under these circumstances, it can not be summarily determined that a basic law can never be changed by way of a temporary provision and it cannot be said that the mere fact that the basic law was enacted by way of a temporary provision inherently voids it or puts it in a lower legislative status than a regular statute, as the Petitioners argue.

 

However, in can also not be said that this practice is free of difficulties. Setting a temporary legislative arrangement does indeed harm the status of basic laws and should be done sparingly, if at all. In certain cases, which cannot be detailed or determined in advance, it is possible that enacting a basic law by way of a temporary provision may amount to an “abuse of power” of the title “basic law” in a way that would justify judicial intervention in the basic law’s legislation. In examining each case, we must consider, among others, the existence of extreme circumstances that justify making a temporary arrangement rather than a permanent one, the subject matter regulated by the basic law, and the measure of the temporary basic law’s infringement upon principles of governance and other basic rights.

 

Having said all this, the Knesset would do better to refrain from using temporary provisions to amend constitutional instructions in the future. In any event, as long as no path was established for legislating, changing, and amending basic laws, such a legislative procedure must be reserved for extreme, uncommon and unique circumstances, in light of the status of basic laws.

 

Other arguments regarding the reasonability of the basic law and the majority with which it was passed in the different readings in the Knesset were similarly rejected. Without taking any position on the advantages or disadvantages of a system of biannual budgeting, considerations of the Law’s reasonability are not among the considerations that warrant the Court’s intervention in basic laws. Arguments that the Law should have been passed by a majority of 61 Knesset Members in all three readings are also unsubstantiated, as section 36A of Basic Law: the Knesset is not protected. Any change to it, therefore, does not require a special majority. The argument that Basic Law Temporary Provision explicitly or implicitly changes section 24 of Basic Law: The Knesset, and thus the Knesset must have enacted it with a special majority, must also be rejected. Section 34 is not a general section that defines when the Knesset can be dispersed, but rather a section the addresses the Knesset’s authority to decide to disperse – a decision that may be made by a statute passed by a majority of Knesset Members. Therefore, moving to a biannual budget cannot be considered an implicit change to section 34 of Basic Law: The Knesset.

 

Additionally, the argument that the Law must be struck down because it changes the balance of powers between the Knesset and the Government in the process of approving the budget was also rejected. This argument puts up for discussion the doctrine of the non-constitutional constitutional amendment – the Court’s authority to void a Basic Law because it infringes the basic principles of our legal system. This doctrine was discussed at length in foreign legal systems and it is also mentioned in several obiter dicta of this Court’s jurisprudence, but it has yet to be used in Israel. Indeed, there are several basic principles that may not be altered, which are at the foundation of our existence as a society and as a state, any harm to which may raise hard question of authority, including doubts as to whether they alter the constitution or establish a new constitution. However, in this case, and without determining the question of the application or the scope of the application of the non-constitutional constitutional amendment doctrine in Israel, the harm caused to the Knesset as a result of the move to a biannual budget does not amount to a harm to the over-arching principles of our system in a way that justifies voiding the basic law under the non-constitutional constitutional amendment – regardless of the scope of its application in Israel.

 

Finally, the High Court of Justice called for completing the legislative project and enshrining the procedures for enacting basic laws and their amendment through Basic Law: The Legislation. 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
majority opinion
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

 HCJ 4908/10

1. MK Ronnie Bar-On

2. Kadimah Party

v.

1. Israel Knesset

2. Speaker of the Knesset

3. Knesset Finance Committee

4. Joint Committee of the Finance Committee and the Law and Constitution Committee for deliberation of the Economic Efficiency and State Budget for the Years 2009 and 2010 Bill

5.  Chairman of the Finance Committee

6.  Chairman of the Law and Constitution Committee

7.  Government of Israel

8.  Prime Minister of Israel

9.  Minister of Finance

 

The Supreme Court sitting as the High Court of Justice

[January 11, 2011]

Before President D. Beinisch, Vice President E. Rivlin, Justices A. Grunis, M. Naor, E. Arbel, E. Rubinstein, U. Vogelman

 

 

Israeli legislation cited:

Basic Law: Freedom of Occupation

Basic Law: The Government (old and new)

Basic Law: Human Dignity and Liberty

Basic Law: Israel Lands

Basic Law: Jerusalem the Capital of Israel

Basic Law: The Judiciary

Basic Law: The Knesset

Basic Law: The Military

Basic Law: The  President of the State

Basic Law: The State Budget (Special Provisions) (Temporary Provision) (Amendment)

Basic Law: The State Comptroller

Basic Law: The State Economy

Basic Law: The State Economy (Bills and Reservations Involving Budgetary Expenditures) (Temporary Provision) 2002,

Basic Law (Temporary Provision)

Budget Law 2012

Elections to the Eighth Knesset and to Local Government (Temporary Provision) Law 1974

Law of Return, 1950

 

Foreign legislation cited:

Basic Law for the Federal Republic of Germany, art. 79(d)

Constitution of the Republic of Turkey, art. 4

 

Israeli Supreme Court cases cited:

[1]        CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village  [1995] IsrSC 49(2) 221.

[2]        HCJ 5160/99 Movement for Quality Government in Israel v. Law and Constitution Committee  [1999] IsrSC 53(4) 92.

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

[4]        HCJ 142/89 La’Or Movement  - One Heart and One Spirit v. Central Elections Committee for the Sixteenth Knesset [1990] IsrSC 44(3) 529.

[5]        CA 733/95 Arpel Aluminium Ltd. v. Klil Industries Ltd. [1997] IsrSC 51(3) 577.

[6]        HCJ 4676/94 Mitral Ltd. v. Israeli Knesset [1996] IsrSC 50(5)  15.

[7]        HCJ 6427/02 Movement for Quality Government in Israel v. Israel Knesset (not yet reported, 11.5.2006).

[8]        HCJ 4124/00 Yekutieli  v. Minister for Religious Affairs (not yet reported, 14.6.2010).

[9]        HCJ 1438/98 Conservative Movement v. Minister for Religious Affairs [1999] IsrSC 53(5) 337. 

 

 

For the petitioners — E. Rosovsky, E Burstein

For respondents 1-6  — E. Yinon, G. Blai

For respondents 7-9 — D. Briskman, Y. Bart

 

Petition to the Supreme Court sitting as the High Court of Justice for an Order Nisi 

 

JUDGMENT

 

 

President D. Beinisch

1. On 22.6.2010, Basic Law: State Budget (Special Provisions) (Temporary Provision) (Amendment) (hereinafter: the Law or Basic Law (Temporary Provision)) passed its second and third readings in the Knesset. Basic Law (Temporary Provision) provides that the state budget for the years 2011 and 2012 will be a biennial one, enacted in a single law. Basic Law (Temporary Provision) is the continuation of an earlier basic law that stated, also as a temporary provision, that the state budget for the years 2009 and 2010 would be a biennial one (hereinafter: Original Temporary Provision). Basic Law (Temporary Provision), like the Original Temporary Provision, changes the provisions of ss. 3(a)(2), 3(b)(1) and 3A of Basic Law: The State Economy, whereby the state budget is to be set for a single year only.

2.    The background to the enactment of the said basic laws, as emerges from the pleadings of the parties, lies in the unfolding of events after the resignation of the then Prime Minister, Ehud Olmert. On 11.2.2009, general elections were held, and a new government was sworn in on 31.3.2009. Parallel to these events, the global economy was experiencing an economic crisis, one whose ramifications for the Israeli economy could not be assessed. These events made it impossible to approve the 2009 budget before the second half of the year, and the budget was based on that of the year 2008. On 5.4.2009 the Government decided to submit to the Knesset for approval a biennial budget for the years 2009 and 2010 by way of a temporary provision. The Explanatory Notes to the Bill stated that due to the unique situation that had arisen as a result of the delay in approving the state budget for the year 2009, and the negative impact of the global crisis on Israel, it was proposed to introduce a special arrangement, one that would apply to the state budget for the years 2009 and 2010.

3.    The introduction of a biennial budget proved to be a successful experiment, as evident from the pleadings of the respondents and from the protocols of the discussions in the Joint Committee of the Finance Committee and the Law and Constitution Committee (hereinafter: the Joint Committee or the Committee). Senior officials in the Treasury were therefore of the opinion that the possibility of transitioning to a system of biennial budgets on a permanent basis should be considered. For this purpose, it was proposed to conduct a trial, for an additional two years, in which the budget would be biennial. Accordingly, a proposal was submitted to amend the Original Temporary Provision to make it applicable to the budget for the years 2011 and 2012 as well. In the Explanatory Notes to the Memorandum of the Basic Law (Temporary Provision) Bill it was noted that following the implementation of the biennial budget, the Government became aware of the advantages of this system of budgeting, leading it to think about changing the budgetary system in Israel. The Memorandum to the Bill lists the advantages of a biennial budget, together with the disadvantages of this system. For example, the creation of greater certainty for the government and the economy, and the freeing up of management resources in order to make long term plans comes up against the difficulty of predicting state income for a period of two years, which requires special professional experience. It was therefore proposed –

‘To conduct a full examination of the application of the biennial system by way of a trial in the years 2011 and 2012, as a temporary provision of the Basic Law, for two main reasons:

1.  In the absence of recognized experience in other states, most of the learning will be done in “real time”, while implementing the first full biennial budget, as proposed.

2.  In the course of the biennial budgetary period it will be necessary to examine the ability to devise a biennial budget and to act upon it, primarily from the perspective of dealing with the difficulties involved in devising a biennial forecast, as well as the need to adapt the provisions of the law, including the adaptations of the Basic Law, according to the experience that has accumulated.’

In the Memorandum to the Bill it was also mentioned that –

‘In view of the significance of the process of fixing the budget from the point of view of the regime, society and the economy, it is important that the process of consolidating a permanent arrangement of this matter and its enactment be done in a wise, orderly fashion, on the basis of the maximum amount of information that has accumulated, and accompanied by an appropriate public investigation. This is also taking into consideration the fact that amendment of basic laws ought to be done in moderation’ (Memorandum to Basic Law: The State Economy (Special Provisions) (Temporary Provision) (Amendment) pp. 4-5).

4.    On 17.3.2010 the Bill was discussed in the plenum of the Knesset and passed its first reading, and on 22.6.2010 it passed its second and third readings.  A few days later, MK Ronnie Bar-On and the Kadimah Party (hereinafter: the petitioners) filed the present petition. The petition raised three main questions in relation to Basic Law (Temporary Provision): first, can the principle stated in Basic Law: The State Economy, whereby the Knesset determines, annually, the priorities of the state in the process of approving the budget, be changed by means of a temporary provision which endures for the duration of the term of office of the present government? Second, is it possible, by means of a temporary provision with limited application, to nullify the constitutional principle whereby if the approval of the Knesset for the budget is not forthcoming once a year, the Knesset will be dissolved and new elections will be held? Third, is it possible to disturb the constitutional balance between the legislature and the executive branch by means of a temporary provision and without obtaining a majority of 61 Members of Knesset at each of the legislative stages?

5.    The petition was first heard before three justices. At the end of the hearing, which was held on 4.10.2010, an order nisi was issued, with the agreement of the respondents, ordering them to appear and to show cause why the Court should not order as follows: that Basic Law (Temporary Provision) is void or alternatively that it should be voided; and that the Israeli Knesset acted ultra vires when it approved the amendment of the Basic Law by means of Basic Law (Temporary Provision) and with a majority of less than 61 Members of Knesset in the first and second readings. It was further decided that the panel of justices should be expanded. Accordingly on 11.1.2011 the Court held a second hearing with an expanded panel of seven justices.

In both the written and the oral pleadings the parties raised serious constitutional questions. A significant number of these questions have not yet been considered or decided in Israeli law. These questions relate, either directly or indirectly, to the status of the basic laws and to the way in which it is possible to refashion constitutional arrangements in Israel. The arguments of the parties also highlight the inherent difficulties in Israel’s constitutional system due to there being no Basic Law: Legislation, and in view of the fact that the formal requirements for amending most of the basic laws are few. Let us mention at this early stage that we believe it is possible at this time to leave some of the questions for future consideration. Although difficulty arises from the arguments of the petitioners, we are not convinced that the present case justifies unprecedented intervention in the legislation of the Knesset in its function as a constituent authority. At the same time, we find it appropriate to outline several principles regarding the legislation and the amendment of basic laws in Israel, in order to lay out a partial roadmap for the Knesset in the absence of Basic Law: Legislation.

Pleadings of the Parties

6.    The petitioners have asked the Court to declare that Basic Law (Temporary Provision) is invalid, or alternatively, to strike it down. According to the argument, Basic Law (Temporary Provision) came about due to considerations connected to the survival of the Government, which sought to take advantage of its parliamentary majority in order to change basic principles of governance. The petitioners argue that approval of the Budget Law on an annual basis is considered a cornerstone of democratic policy, and it is the central tool in the hands of a parliament for overseeing the work of the government and the priorities that it sets. Basic Law (Temporary Provision) detracts from the capacity for oversight by the Knesset, and in fact, it is designed to weaken the Knesset vis-à-vis the government. Basic Law (Temporary Provision), so it is argued, is contrary to the longstanding trend to increase oversight of the government by the Knesset, inter alia by regulation of the specific times at which the government must present the budget to the Knesset plenum. The petitioners add that weakening the power of the Knesset has real practical significance, which manifests itself in preventing the possibility of dissolving the Knesset and toppling the government in the event that the budget is not passed. The petitioners argue that whereas for the purpose of toppling the government by means of a no confidence vote, the opposition must enlist a majority of at least 61 Members of Knesset, for the purpose of dissolving the Knesset and holding new elections by way of non-approval of the State budget, a majority of only 60 Members of Knesset is required. According to the petitioners, this is a very powerful tool, which can bring about a change in the leadership of the State, and it is available to the Knesset only once a year. Basic Law (Temporary Provision) confines the use of this tool to once every two years, in a manner that is detrimental to the intricate web of power and relations between the government and the Knesset.

Regarding the substance of the amendment to the Basic Law, the petitioners argue that in practice, this legislation suffers from lack of reasonability, for two main reasons. First, so goes their argument, it will not allow for effective oversight of the government by the Knesset, due to the amount of information that will be presented to the Members of Knesset in the case of a biennial budget, particularly if it comes together with a broad Omnibus Law of Arrangements in the State Economy, forestalling any possibility of studying the material in the period of time allocated for approval of the budget legislation. Secondly, the petitioners believe that advance approval of the budget for a period of two years requires that accurate predictions of state expenditures and costs be drawn up – a mission that according to them is impossible, especially in the Israeli reality. In addition, the petitioners stress that if the next state budget is not approved on the due date, then by law, the Budget Law for the year 2013 will be derived from the Budget Law of 2012, so that in fact, it is possible that the biennial budget law will actually become a triennial one.

The petitioners also challenge the fact that a basic law was amended by way of a temporary provision. They argue that the attempt to legislate a basic law in a temporary provision stands in clear contradiction to the case law of this Court, whereby basic laws are laws of an “eternal” nature that were designed to constitute chapters of the future constitution of the State of Israel. Therefore, it is argued, basic laws cannot be temporary laws, enacted ad hoc with the aim of serving the temporary political needs of a given majority at a particular time. It was further argued that Basic Law (Temporary Provision) does not merit being considered a basic law – both by virtue of a formal criterion and by virtue of a criterion of substance. According to the petitioners, the fact that the name of the Law mentions  the years during which the temporary provision is intended to apply detracts from its validity as a basic law under the formal criterion, and the fact that the Law lacks an  element of “eternity” detracts from its validity under the substantial criterion. Finally, the petitioners claim that the very process of enactment of Basic Law (Temporary Provision) was defective in that it was not passed with a majority of 61 MKs at each reading. The petitioners argue that this majority is required in view of the fact that Basic Law (Temporary Provision) limits the possibility of Members of Knesset dissolving the government and the Knesset through non-approval of the budget to only once every two years; for this reason, it constitutes an implicit change to s. 34 of Basic Law: The Knesset, which determines when the Knesset is permitted to dissolve itself prior to the end of its term; this, they argue, is an entrenched section.

Arguments of the Respondents

7.    Respondents 1-6 (hereinafter: the Knesset) submitted their response to the petition on 16.8.2010, and their reply after the order nisi was issued, on 5.12.2010. In the response it was argued that even if Basic Law (Temporary Provision) “raises not inconsiderable difficulties with respect to damage to the parliamentary oversight of the Government and the balance of power between the Knesset and the Government,” these arguments still do not justify the intervention of this Court. The Knesset further argued that although there is no disagreement that laying down a norm concerning a biennial budget law in the framework of a temporary provision “raises an inherent conceptual difficulty”, this does not make of Basic Law (Temporary Provision) a “regular” or “inferior” law relative to other basic laws.

The Knesset’s reply cited at length the discussions that were held in the Finance Committee and the Joint Committee. It was also pointed out that most of the arguments raised in the petition were also raised in these Committees, whether by members of the Committee or by people who appeared before it, or by the legal advisors, including the Legal Advisor to the Knesset, the Legal Advisor to the Finance Committee, the Legal Advisor to the Ministry of Finance and the head of the Public Law Division of the Department for Legal Advice and Legislation in the Ministry of Justice. All the legal advisors referred to the difficulties raised by the Bill, including the difficulty inherent in amending a basic law by way of a temporary provision. The position of the Legal Advisor to the Knesset, as expressed before the Joint Committee, was that although “there is no dispute that a basic law and a temporary provision are contradictory things”, nevertheless, as long as the Knesset has not yet enacted Basic Law: Legislation, which is intended to regulate the process of legislation in Israel, the Knesset Rules of Procedure are the sole normative source for legislative procedure in the Knesset, and these do not make any provision regarding the enactment of basic laws or their amendment.

In the Knesset’s reply it was further argued that the petitioners’ contention that Basic Law (Temporary Provision) is not in fact a basic law, and that its normative status is inferior to that of a “regular” basic law, should be dismissed. According to the approach of the Knesset, the accepted criterion in Israel for identifying a basic law is that of form. Under this criterion, conferring the title “Basic Law” on the law and not mentioning the year of its enactment are sufficient to transform a piece of legislation from a “regular” law into a basic law. It was also argued that review of the contents of basic laws is permissible only in exceptional, extreme cases of detriment to the meta-principles of our legal system, and that the Knesset is competent to change the balance between the different authorities.

8.    In their response, respondents 7-9 (hereinafter: the State) described the circumstances that led to the enactment of the Basic Law as a temporary provision, and principally, wanting to allow for a trial period in which the transition to a biennial budget as a permanent arrangement would be examined. According to the argument, the representatives of the Ministry of Finance believed that it was more appropriate to make a change in the basic laws that would expire automatically after two years than to make a permanent change in the basic laws – which, after a trial period – may prove to have been unnecessary. According to the approach of the State, opting for the enactment of a temporary provision that expires automatically after two years allows for the preservation of the stability of the basic laws and prevents their frequent amendment.

The State rejected the petitioners’ argument that the normative status of a temporary provision – whether enacted in the framework of a regular law or a basic law – is inferior to that of a regular law or a basic law. According to the State, because the process of legislating a “regular” basic law and a basic law by way of temporary provision is the same, the Knesset is competent to choose the way in which to legislate, and there is no room for intervention in this discretion. In effect, it was argued, in the past the Knesset occasionally employed the legislative technique of temporary provisions in primary legislation, including basic laws. For example, Basic Law: The State Economy (Bills and Reservations Involving Budgetary Expenditures) (Temporary Provision) 2002, stated that for a trial period of one year, a budgetary law would be passed by the Knesset only with the support of at least 50 MKs. After a year, this arrangement became embedded, with several changes, in the provisions of s. 3C of Basic Law: The State Economy. The State also referred to several laws that were enacted by way of temporary provisions which regulated important matters with far-reaching ramifications, including the electoral system in Israel and deferral of military service for full-time Talmudic Academy students.

The State further argued that Basic Law (Temporary Provision) is a basic law for all intents and purposes, by virtue of both the formal criterion and the substantive one, and the fact that it was enacted by way of a temporary provision cannot affect its normative status.  Furthermore, the State also held that in view of the “stable and unchanging” status of the basic laws, it is preferable that in appropriate circumstances, changes to the basic laws be effected by means of temporary provisions and not by means of “regular” basic laws. The State also dismissed the argument whereby Basic Law (Temporary Provision) changes the provision of s. 36A of Basic Law: The Knesset, or changes the balance of power between the branches of government. According to this argument, the purpose of the above section is not to express no confidence in the government, but to express no confidence solely in the budget proposal. The State contends that even if in practice, the result of expressing no confidence in the budget proposal is dissolution of the Knesset, Basic Law (Temporary Provision) cannot be viewed as containing any substantive change of the balance of power between the government and the Knesset. The State does indeed agree that “the power given to the Knesset to approve the budget is  [ ] a ‘sacrosanct’ power”, but, according to its approach, “there is nothing ‘sacrosanct’ about the Knesset using this power annually.” The State further argued that even if Basic Law (Temporary Provision) may have the effect of changing the balance of power between the authorities, it is within the power of the Knesset to make changes to this balance of power. This change, so goes the argument, does not need to be passed with a majority of at least 61 Members of Knesset in each of the readings, as argued by the petitioners, in view of the fact that s. 36A is not an entrenched section. Similarly, there would be no requirement for such a majority even if the argument of the petitioners, whereby Basic Law (Temporary Provision) implicitly changes the provision of s. 34 of Basic Law: The Knesset, were accepted, for neither is the said s. 34 entrenched. The State also dismissed all the other arguments of the petitioners regarding the motives of the Members of Parliament in enacting Basic Law (Temporary Provision), regarding the concern about expanding the Arrangements Law and regarding the unreasonableness of the Basic Law. These arguments, contends the State, are not acceptable on their merits and in any case they are not arguments by virtue of which it would be justified to strike down a basic law.

Deliberations

9.    The arguments of the parties raise two major questions. First, is Basic Law (Temporary Provision) indeed a basic law for all intents and purposes? Determination of this question, naturally, impacts on the validity of the amendment to Basic Law: The State Economy and on the extent of intervention of the Court in the arrangement laid down in Basic Law (Temporary Provision). Examination of this question necessitates a discussion of two secondary questions. The first relates to the manner of identification of the outcome of the activity of the Knesset as a constituent authority. Is the criterion for the identification of a law as a basic law one of form, one of substance, or a combination of the two? The second question relates to the fact that the amendment of Basic Law: The State Economy is for a set, predetermined period of time. Is the use of a temporary provision detrimental to the validity or the status of the Law as a basic law? The second central question – on the assumption that Basic Law (Temporary Provision) is indeed a basic law – is whether it is in order to nullify it because it changes the balance of power between the Knesset and the government in the budgetary approval process?

We will begin with the first question.

Are we Dealing with a Basic Law?

10.  As is known, basic laws in Israel are the outcome of that historical compromise reached by the constituent assembly – the “Harari decision” of 13 June, 1950 – whereby the Law and Constitution Committee was charged with preparing a draft constitution for the State, “that would be built chapter by chapter in a manner such that each chapter would constitute a basic law in itself” (D.K. 5, 1743 (1950)). Over the years, several basic laws were enacted, the hope that they would eventually be united in a whole constitution, and the conception was accepted whereby in enacting the basic laws, the Knesset was acting as a constituent authority (see the majority opinion in CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village  [1995] IsrSC 49(2) 221, which was accepted against the minority opinion of Justice M. Cheshin).

It is this constitutional structure, in which the same body – the Knesset – acts as both the constituent and the legislative authority that creates a need to identify the characteristics of the legislative outcomes and determine whether a law that is produced by the Knesset belongs with those legislative acts that have a meta-legal normative status or whether it belongs to the family of “regular” laws. Over the course of the years, this identification was made on the basis of a formal criterion, both by the various Israeli parliaments and by this Court. And thus, all those laws that bore the title “Basic Law” without mention of the year of enactment in the title, were considered to be basic laws that are part of the nascent constitution of the State. Accordingly, over the years twelve basic law were enacted: Basic Law: The Knesset; Basic Law: Israel Lands; Basic Law: The President of the State; Basic Law: The Government (old and new); Basic Law: The State Economy; Basic Law: The Military; Basic Law: Jerusalem the Capital of Israel; Basic Law: The Judiciary; Basic Law: The State Comptroller; Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation.

11.  The formal criterion received further support in the ruling in Bank Mizrahi v. Migdal [1]. In the majority opinion the formal criterion was determined to be that by which basic laws are identified. Justice Barak, with whom the majority concurred, stated in his written opinion (at p. 403):

‘When does a norm that is created [by the Knesset] have constitutional status, and when is it said that the norm is a “regular” law? In my opinion, the answer is that the Knesset uses its constituent authority … when it gives this external expression in the name of the norm and views it as a “basic law” (without indicating the year of enactment).’

Underlying the decision to adopt the formal criterion was the assumption that a simple criterion was needed for identifying basic laws, so that problems and uncertainty would not arise with respect to laws whose normative status was meta-legal. As President Barak pointed out: “This formalistic criterion – use of the term ‘basic law’ – is easy to apply. It grants security and certainty” (ibid., p. 406; and see also ibid., at p. 394: “The reply of the constituent authority doctrine to the distinction between an act of constitution and an act of legislation is simple and clear, for it uses a simple, formalistic criterion”). And indeed, the formal criterion made – and still makes – it possible to classify those legislative acts that constitute part of the state constitution in a class of their own. The formal criterion also enables the Knesset to know in good time when it is acting as a constituent authority, to “enter into” that commitment that is necessary for basic legislation and to “don” its constituent authority hat prior to debating a bill that is destined to become part of the constitution of the state.

12.   The argument has been raised more than once that the formal criterion is too simplistic (see, e.g., Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, Vol. 1: Basic Principles (6th ed., 2005) 96 (Hebrew) (hereinafter: Rubinstein & Medina); see also Aharon Barak, “The Constitutional Revolution: Protected Human Rights”  Mishpat Umimshal 1 (1992), 9, 19 (Hebrew) (hereinafter: Barak, Constitutional Revolution); Ariel Bendor, “The Legal Status of   Basic Laws” in Aharon Barak and Haim Berenson, eds., Justice Berenson Book, vol. 2 (2000), 119, 140-142 (Hebrew) (hereinafter: Bendor). President Barak himself, in his book on constitutional interpretation, raised the argument that in the formal criterion there is no reference to the substance of the legislation (see: Aharon Barak, Legal Interpretation,  Vol. 3: Constitutional Interpretation (1995), 46 (Hebrew) (hereinafter: Barak, Constitutional Interpretation). This being so, provisions that regulate subjects which, from the point of view of their substance, are suitable for inclusion in the constitution, but do not bear the title “Basic Law”, will not be considered part of the constitution. Amongst the regular laws that ought to be endowed, according to the argument, with constitutional status, it is accepted to mention the Law of Return, 1950 (see, e.g. the words of MK Bar-Yehuda, who in presenting (to the Second Knesset) Basic Law: The Knesset – which is the first basic law to have been enacted – points out that during the term of the Second Knesset, “several laws that are clearly in the nature of basic laws, even if not in form, have been enacted; it is sufficient to mention the Law of Return and the Law of Judges (D.K. 15, 57 (5714)). On the other hand, some provisions find their way into the state constitution, despite their questionable suitability for inclusion therein (see, for example, Prof. Itzhak Zamir’s critique of Basic Law: The Knesset, which “spreads over 46 sections, bloated with minute details which ought to have been laid down in a regular law”: Itzhak Zamir, “Basic Laws on the Way to a Constitution”, Introduction to Amnon Rubinstein and Raanan Har-Zahav, “Basic Law: The Knesset”, Commentary to the Basic Laws, (I. Zamir ed., 1992), 11, 13-14 – hereinafter: Zamir). Therefore, the argument is often heard that the substantive criterion should be applied alongside the formal criterion, in such a way that inclusion of the words “basic law” in the title of a law will constitute a preliminary condition, but not a sufficient one, for recognition of the law as a basic law (see: Rubinstein & Medina, p. 96).

13.   This proposal to institute a combined criterion for identification of basic laws has both advantages and disadvantages. On the one hand                                                                                                                                                                                                                                                                                   it allows for an extensive examination of a piece of legislation that is destined to become part of the constitution of the State. The substantive criterion or the combined criterion helps to overcome the problematic nature of the formal criterion, and it ensures that the title “basic law” will not be misused in order to entrench arrangements that are not suited, from the point of view of their substance, to be part of the constitution. On the other hand, recourse to a substantive criterion or some kind of combined criterion is not without its problems. First and foremost, it involves a degree of uncertainty with respect to existing and future legislation regarding the question of whether it constitutes part of the constitution. There is another real difficulty inherent in the substantive criterion, which, in the words of President Barak, “touches on the very relations between the constituent authority (of the Knesset) and the judicial authority (of the court)” (Bank Mizrahi v. Migdal [1], at p. 406), in whose hands will be placed the power to decide whether a statute is suitable, from the perspective of its substance, for inclusion in the constitution.

14.   The question of whether a combined criterion should be applied in Israel is a complex one which I believe can be left for future consideration and which need not be resolved in the framework of the present petition. Indeed, there is merit to the argument that there are some laws which, from the point of view of their substance, ought to be included in the constitution. Similarly, there is merit to the argument that there are sections and provisions in the basic laws in relation to which it is doubtful whether they are of the type of provision that merits inclusion in the constitution. At the same time, this fact alone does not necessarily lead to the conclusion that there is call for departing from the criterion that was accepted to date. There is no dispute that the use of the formal criterion requires self-restraint on the part of the legislature, which has the central authority to determine a priori, which legislative acts will be endowed with constitutional status. The formal criterion supposes that the legislature will not misuse its constituent power by attaching the title “basic law” to legislation that is not worthy of being part of the constitution. A review of the enactment of the basic laws from 1958 till the present shows that there was no such misuse (see also Barak, Constitutional Interpretation, p. 46 n. 51; Bendor, “The Legal Status of Basic Laws”, p. 143). The constitutional history of Israel shows that the Knesset used the term “basic law” in cases in which it was clear to the Knesset and to its members that they were operating within the framework of their competence as a constituent authority that is preparing to enact a chapter in the future constitution of the state. This conclusion emerges from an examination of the protocols of the debates in the plenum when draft bills for the enactment of basic laws were submitted for their first, second or third readings: the Members of Knesset specifically mention the fact that the proposed basic law is part of the constitution of the state (inter alia see: D.K. 15, 57 (1954); D.K. 36, 963 (1963); D.K. 74, 4002 (1975)). To this must be added that even from the relatively small number of basic laws we learn that the enactment of basic laws was not taken for granted, but was considered to be the act of the constituent authority in determining the highest norm of the state.

15.   Furthermore, it is not necessary to decide on the question of the criterion for identifying basic laws in the present case, since recourse to the combined criterion too, leads to the conclusion that Basic Law (Temporary Provision) is a basic law. By virtue of the terms of the formal criterion, the title of Basic Law (Temporary Provision) includes the words “basic law”, and the year of its enactment is not mentioned. The petitioners argued that the fact that the title of the Law includes the years of its application is equivalent to mention of the year of enactment. This argument is not convincing. Mention of the period of application of a basic law is not analogous to mention of the year of its enactment, and it cannot detract from the validity of the Law under the formal criterion. Under the substantive criterion too, the conclusion of the petitioners that the status of Basic Law (Temporary Provision) is that of “legislation that is even inferior to a regular law” is unfounded, even if it is agreed that the Law gives rise to not inconsiderable difficulties. The material dealt with by the law – the state budget – is material that has been regulated in Basic Law: The State Economy, and recognized as an area that constitutes part of the basic laws in Israel. Basic Law (Temporary Provision) changes the constitutional arrangement pertaining to the state budget, in its determination that the budget for the years 2011-2012 will be set as a biennial budget instead of an annual one. For this reason, too, it cannot be said that the Law, from the perspective of its contents, is unsuitable for inclusion in our basic laws.

For all these reasons, I am of the opinion that in the circumstances of the case before us it is not necessary to decide on the question of the application of a combined criterion for identifying basic laws, which raises, as we have said, complex issues regarding both the characterization of legislation as basic legislation and the division of authority between the legislature and the judiciary.

16.   A separate question is whether in the case before us there was misuse of the title “Basic Law”. The petitioners argued at length that it is not possible to override a constitutional principle that is anchored in basic laws by means of a temporary provision whose period of application is determined solely for the duration of the term of the present government. According to this argument, the Israeli Government wishes to exploit its parliamentary majority in order to change the rules of the parliamentary game, “abusing the automatic majority that the present government enjoys in the elected parliament, in order to change a basic law in a temporary and tendentious manner – only until the end of the term of this present government” (petition of 3.6.2010, pp. 2-3). The petitioners further argued that “It was not considerations of the good of the parliamentary regime or the good of democracy that the architects of the Law had in mind, but rather, considerations of convenience and the survival of the government (even at the expense of basic principles)” (ibid., p. 3). According to the petitioners, if the Members of Knesset had wished to conduct a “real” experiment in operating a biennial budget, they should have decided that the biennial budget would apply from the next Knesset onwards.

17.   Let it be said first that as a rule, “it is very doubtful whether motives for the enactment of a basic law – even if it may be argued that they are not worthy – are liable, per se, to constitute a juridical flaw that constitutes cause for judicial review” (HCJ 5160/99 Movement for Quality Government in Israel v. Law and Constitution Committee  [1999] IsrSC 53(4) 92, 96). Even were I prepared to assume that the motivation for enacting this Law, as claimed by the petitioners, is the desire of the Coalition to avoid the need to approve the budget annually, this reason alone, cannot justify judicial review; particularly where the relief sought is an order nullifying the Basic Law. A separate question is whether the very fact that the Law was enacted by way of a temporary provision constitutes “misuse” of constituent authority, thereby affecting the validity of Basic Law (Temporary Provision) as a basic law. The petitioners’ approach, as described at length in the introduction, is that the attempt to define a temporary provision as a basic law is a “contradiction in terms that leads to a degradation of the enactment of basic laws and of the status of the Knesset as a constituent authority” (reply of the petitioners to the response of the respondents dated 4.1.2011, p. 11). According to this argument, there is no conceptual and theoretical possibility of establishing a temporary provision in a basic law, and therefore, it is totally without force.

The respondents, and particularly respondents 1-6, did not deny the conceptual difficulty in establishing a basic law whose period of application was defined in advance and limited in time. The legal advisor to the Knesset, who was invited to the deliberations of the Joint Committee, also gave his professional opinion to the Committee to the effect that this involves an inherent, inbuilt problem. However, according to respondents 1-6, as long as the procedures for the enactment of basic laws have not been set in the framework of Basic Law: Legislation, it is possible for the Knesset to change a basic law by means of another basic law, even if it is a temporary provision. Respondents 7-9 added that indeed, as a rule, the provisions in basic laws are not time-bound, but in suitable circumstances the Knesset has the authority to make temporary provisions even in basic laws; and, on their approach, there is “no contradiction between a piece of legislation being a basic law, and it being a temporary provision.” Moreover, the State also argued that in certain cases, it is possible that “in view of the stable and unchanging status of the basic laws, there is a certain preference for making changes to them, when the continued validity of the changes is doubtful, by means of basic laws that are temporary provisions” (Response to the petition on behalf of respondents 7-9 of 20.9.2010, p. 16).

Does the Fact that the Basic Law was Enacted by Way of a Temporary Provision Affect its Validity?

18.   The question of whether a basic law may be enacted by way of a temporary provision has already arisen in the Knesset. See Movement for Quality Government in Israel v. Law and Constitution Committee [2], in which Amendment no. 9 of Basic Law: The Government, which cancelled the limit that had been set in that Basic Law on the number of members of the government, was reviewed. It is noteworthy that in the deliberations in the Law and Constitution Committee on this proposed Law, the position of the then Attorney General, E. Rubinstein, was presented, whereby alongside the interest in the stability of the constitutional structure, and the need to avoid, insofar as possible, frequent changes to basic laws, it cannot be stated that there is any legal bar to enacting a basic law as a temporary provision. Furthermore, the Knesset already changed a basic law by means of another basic law that was set in a temporary provision (see: Basic Law: The State Economy (Bills and Reservations Involving Budgetary Expenditures) (Temporary Provision) 2002), but this matter has not been considered by this Court in the past.

19.   The possibility of enacting a constitutional provision whose beginning and end are predetermined for a set period of time brings to light a series of difficulties in Israeli Constitutional law. It should be recalled that the constitutional structure in Israel is special and it is not complete. Indeed, it is indisputable that the constitutional enterprise in the State of Israel has progressed significantly since the enactment of the first Basic Law in 1958, but this enterprise has not yet been completed (see, e.g., Aharon Barak, A Judge in a Democratic Society (2004), 79). For this reason, our constitution is lacking many characteristics that are normal in states which have a completed constitution. Thus, for example, some basic rights are not protected in basic legislation. Some of the provisions that appear in the basic laws are entrenched, whereas others may be changed by a regular majority. Some of the provisions are formulated in ceremonious, general and brief language whereas some of the provisions are too detailed and convoluted (see: Zamir, Basic Laws on the Way to a Constitution). Some of the basic laws regulate subjects which by their nature were destined to become part of a future constitution, whereas some of them regulate subjects that are not, generally, included in those constitutions of other countries with which we are familiar. Some of the major subjects in constitutions of other countries are not regulated in Israel in basic laws at all, and a question arises as to their constitutional status (see the opinion of President Barak in United Mizrahi Bank Ltd. v. Migdal [1], at pp. 402-403). This is the constitution “Israeli-style”. To a considerable extent, it is a constitution that is still in the process of consolidation.

20.   There is a glaring lacuna in our constitutional regime insofar as the manner of enactment of basic laws is concerned. In view of the fact that Basic Law: Legislation has not yet been enacted, there is as yet no blueprint for amending and changing the constitution; for the majority required for amending the constitution; and for the possibility, if at all, of amending the constitution or amending it in a temporary manner. As a result, the Rules of the Knesset are the central mechanism that applies to the procedures for the enactment of the basic laws, and they do not include a special provision that differentiates between the procedure for enactment of “regular” laws and the procedure for enactment of basic laws. For this reason, basic laws can be enacted by any majority in the Knesset; and basic laws may be changed – unless they are specially entrenched – by any majority as long as the amending law is a basic law. In practice, an examination of the history of the amendments to our basic laws reveals that the basic laws were amended or changed a great number of times (seem e.g., Ariel Bendor, “Flaws in the Enactment of Basic Laws”, Mishpat Umimshal 2 (1995), 443, 444-445 (Hebrew)); much more often than amendments to constitutions in other democratic states (the American Constitution, for example, has been amended 18 times (and in total, 27 amendments) over the 227 years of its existence; the Dutch Constitution, which was passed in 1814, has been amended 24 times; the French Constitution has been amended 8 times since it was passed in 1958. On constitutional amendments in general, see: European Commission for Democracy Through Law (Venice Commission) Report on Constitutional Amendment (2010)).

 21.  The ease with which Israel’s basic laws can be changed detracts from their status. The major characteristic of a constitution – a characteristic that is part of the basic definition of a constitution and also part of the advantages inherent in the existence of a constitution – is its stability. A constitution is intended to withstand frequent changes, and to stand firm in the face of changes in the political composition of the regime and in the face of various social changes. A constitution serves as a normative yardstick for society. It is the complex process of amending the constitution that allows this yardstick to stand firm and unwavering even in the face of a tumultuous society and a changing regime. In Israel this is not the situation. Most of our basic laws are not entrenched, and they can therefore be changed by the Knesset with a regular majority by means of regular enactment procedures. This constitutional reality derives to a great extent from the fact that our constitution is coming into being chapter by chapter, and not in a one-time constituent act subsequent to which every change requires a rigid, and special, process. The basic laws in Israel were enacted over a long period of time. They were not enacted as part of the constituent document of the establishment of the State, nor even in a time of revolution, war, or as a reaction to some other radical change in society or of the regime (see, e.g., Jon Elster, “Forces and Mechanisms in the Constitution Making Process”, 45 Duke L.J.  (1995), 364).

22.   At the same time, it may be said that the basic laws have taken root  in our juridical culture and in the political and public tradition as part of the constitution of the State. To a not inconsiderable degree, the strength of a constitution and of a proper constitutional regime is tested by the ability of the constitution to serve as a normative yardstick for the legislature, the executive, the judiciary and for individual citizens. The greatness of a constitution lies in its success in directing the behavior of individuals and of the state authorities, and in limiting the legislator’s ability to upset constitutional arrangements. As such, the answer to the question of whether the basic laws “have become rooted” in our constitutional tradition is not dependent only on the judicial review undertaken by this Court, but it is also – and even especially – evident in those cases in which the matter does not come to court because the elements involved in the legislative processes, as well as the executive, have internalized the accepted rules of play of the constitutional regime.

23.   In Israel, the superiority of the basic laws and their meta-legal normative status find expression both in the judicial review of regular legislation exercised by this Court and in the legislative procedures in the Knesset in recent decades. In practice, the question of the relationship of a proposed law to the existing basic laws has become one that is inseparable from the procedures for examining proposed laws. The directive of the Attorney General even states that “when a proposed law is submitted on behalf of the government for discussion by the government or by a ministerial committee, attached to it will be an opinion … on the question of the validity of the proposed law in light of the basic laws” (The relevant part of the Directive appears in Amnon Rubinstein’s article, “The Knesset and the Human Rights Basic Laws”, Mishpat Umimshal 5 (2000), 339, 352-3 (n. 9) (Hebrew)). A constitutional examination of proposed laws in light of the basic laws is conducted at each stage of the legislative process by the staff of the legal advisor to the Knesset (see ibid., p. 352). The deliberations in the Knesset plenum and in the various Knesset committees also indicate that the Members of Knesset are aware of the constitutional status of the basic laws and of the legislative constraints that derive from the superiority of the basic laws. This is evident, as will be discussed at length below, in the present case as well. The constitutional awareness that expresses itself in the process of examining the compatibility of the proposed legislation with the basic laws is a necessary process in every properly-functioning constitutional state, particularly so in the special circumstances of the constitutional law in Israel, which demand a great deal of self-restraint on the part of the Knesset in order to preserve the status of the basic laws and the stability of the arrangements they embody. Alongside this self-restraint, there is also a need for  judicial review by the Court aimed at ensuring that legislation, acts and decisions of the authorities and other public bodies do not change the basic laws or detract from them, but rather that they comport with the conditions established in the basic laws themselves and in the case law of this Court.

24.   Where does Basic Law (Temporary Provision) fit into the constitutional tapestry that we have described? Does self-restraint on the part of the Knesset mean that there is no room for changing basic laws for short, defined periods of time? It appears that no one would argue that a temporary provision contradicts the basic idea whereby the provisions of the constitution are fixed, and some would say even eternal. As stated, at the basis of a constitution stands the will to ensure stable principles, social identity and common values that are not easily changed, in order that they endure beyond that which is temporary and passing. The amendment of a constitution by way of a temporary provision assumes that it is possible to revoke a constitutional principle for a limited time. Is this unlawful?

In an ideal state of affairs, in which there exists a regulated and rigid mechanism for changing and amending the constitution, it is doubtful whether amendment of the constitution by way of a temporary provision would be possible. See, for example, the ruling of the Constitutional Court in the Czech Republic from September 2010: 2009/09/10 – PL. US 27/09 (for an English translation of the decision, see:  http://www.usoud.cz/en/decisions/?tx_ttnews%5Btt_news%5D=468&cHash=44785c32dd4c4d1466ba00318b1d7bd5) in which the constitutional court struck down a constitutional act that shortened the term of office of the sitting Chamber of Deputies and led to early elections. The reason for this nullification was that the one-off provision was incompatible with the eternity clause fixed in the Constitution. It is doubtful whether this rigid approach would be suited to the basic constitutional conception in Israel. In any case, according to the present situation in Israel, the rigid approach in relation to the legislative processes does not have a suitable framework. As stated, in the absence of Basic Law: Legislation, the restrictions on the procedures for legislation or amendment of the basic laws are few, and in order to enact a basic law in Israel there is no need for special procedures in the Knesset. In these circumstances, it cannot be said that the very fact that the basic law was enacted by way of a temporary provision fundamentally disqualifies it or  places it on a normative rung that is lower than a regular law, as the petitioners contend. At the same time, it may also not be said that this practice is problem-free. Setting  a temporary constitutional arrangement indeed denigrates the status of the basic laws, and it should be done only sparingly, if at all. In certain circumstances, which cannot be determined in advance, it is possible that the enactment of a basic law as a temporary provision may amount to “misuse” of the title “basic law”. In considering each case on its merits, attention must be paid, inter alia, to the existence of exceptional circumstances that justify the making of a temporary arrangement rather than a permanent one; the subject being regulated by the basic law must be examined; and an assessment must be made of the extent of damage wrought by the temporary basic law on the principles of the regime and other basic rights. It is important to note that application of these criteria to an examination of the constitutionality of a temporary provision is linked, by its very nature, to the question of the applicability of a substantive criterion for the identification of basic laws. At the same time, this question can also stand as an independent one. As stated, in certain, exceptional circumstances, the very recourse to a temporary provision may justify intervention in the basic legislation.

25. From the discussions in the Joint Committee it transpires that the decision to enact the Basic Law under discussion by way of a temporary provision derived from the professional position of senior Treasury officials, who felt that they do not have the tools to determine that the advantages of the biennial budget are greater than its disadvantages without conducting an actual “experiment”. The Treasury officials therefore sought to avoid a permanent amendment to the basic laws until after a “pilot” had been conducted, following which the Ministry would formulate a recommendation as to whether there should be a transition to a permanent biennial budget (see the protocol of the Joint Committee of the Finance Committee and the Law and Constitution Committee, 11.5.2010).

The problems involved in enacting a basic law by way of a temporary provision did not escape the Members of Knesset. The members of the Joint Committee devoted several discussions to the subject, and sought to ascertain the legality and the constitutionality of the draft law before them. As part of this effort, two legal opinions were submitted for review by the members of the Committee, and four legal advisers appeared before the Committee. The Committee also allowed the petitioner, MK Ronnie Bar-On, to address it at length. MK Bar-On laid out in detail the main arguments that were raised in the present petition. Inter alia, MK Bar-On spoke about the alleged harm to the balance between the powers, and about the central role of the Knesset in its oversight of the government in the process of approving the budget. MK Bar-On also mentioned his position that enactment of the amendment to Basic Law: The State Economy by way of a temporary provision constitutes misuse of the Basic Law for the purpose of obtaining a short-term political goal (Protocol of the Joint Committee, 11.5.2010, pp. 5-20). In two written opinions submitted by the legal adviser to the Finance Committee, the legal adviser pointed out that “it is a commonplace that basic laws and temporary provisions are contradictory concepts, and they are not compatible”, and it was also mentioned that a change to a basic law must be done in a basic law, and that determining the state budget is a constitutional norm. It was further pointed out in the written opinion that “the enactment of the biennial budget law is reserved for exceptional circumstances and ought not to be turned into the norm barring such circumstances without a comprehensive discussion of the basic values of our system”; and that transitioning to a biennial budgetary regime is liable to upset the balance between the executive branch and the legislative branch with respect to approval of the budget. In the wake of these opinions, and in the wake of what was said in the Committee, the members of the Joint Committee invited the legal advisor of the Treasury to its sessions, and asked for the professional opinion of the Ministry of Justice regarding the enactment of the Law by way of a temporary provision. Advocate J. Baris, the legal advisor to the Ministry of Finance, gave his opinion:

‘This matter [of determining an arrangement by way of a temporary provision],  it must be stated clearly, is a matter that is very exceptional and one that must be avoided insofar as possible. This is not a trivial matter … At the same time, it must be understood that this question, more than being a legal question is one of constitutional policy. In other words, does the Knesset as a constituent authority, as a matter of policy for determining constitutional arrangements, believe that this matter justifies a temporary provision or not … The starting point is that today, from a professional point of view, from the point of view of the matters that arise, there are advantages that resulted from the partial attempt that was made at an almost biennial budget … as opposed to the advantages, there are concerns … and the concerns are great and therefore from a professional perspective we are in a situation in which the clear professional recommendation is not to move over to a permanent provision for a biennial budget’ (Protocol of the Joint Committee, 11.5.2010, pp. 43-44).

Adv. Baris added that according to the Ministry of Finance, the present Temporary Provision is exceptional against the background of the accepted temporary provisions in Israeli law. Adv. Baris stated as follows:

‘In our legislation there are two types of temporary provision from a conceptual point of view. There are temporary provisions that stem from a temporary need, when I make a temporary provision in view of that need and it provides a response for that temporary need. There are temporary provisions that begin as a trial and a test … in general there is sometimes a need to conduct a trial, we go into something and we don’t yet know how it will work out, and you want to test the matter.

Now I want to be more accurate and to say that we are on the seam of these two types of temporary provisions. The temporary provision of last year (the original temporary provision) was of the type  of a clear temporary need … we saw the particular advantages of this partial attempt, and then we are at the transition to a temporary provision of the second type where you say that we do not have an annual budget so let’s experiment. I do not know whether in a basic law … you would say that we will move over from situation A to situation B as an experiment, but if you are already in situation B and you say, should we go back to situation A or extend by two additional years in order to make the experiment possible, this is our situation  and this is a coming together of circumstances according to which we believe that there are circumstances in which it is possible to propose a draft basic law as a temporary provision … in these circumstances we have reached the conclusion that it is precisely respect for the basic law that [lies] in the temporary provision. If we were to make a temporary provision in a basic law where there is a possibility that in two years or whenever we will have to submit to the Knesset a repealing provision because the concerns proved to be overriding or to be founded or to be real in the general balance and to justify a return to the annual budget, to submit a counter amendment is less seemly than in these circumstances to say that we are extending the temporary provision that began due to the special circumstances of the period in which we can for the first time truly examine the biennial budget (ibid., pp. 44, 45-46).

Adv. Eyal Zandberg, Head of the Public Law Section of the Advice and Legislation Department of the Ministry of Justice, pointed out to the Committee that several options for changing the Basic Law were available to the Government; one of these was the option that was chosen – that is, the enactment of a temporary provision for two years. Like Adv. Baris, Adv. Zandberg too pointed out that this track is not problem free, although it is possible from a legal standpoint. According to Adv. Zandberg:

‘… from a legal standpoint, from the point of view of the idea, the problem, and this is the problem here and I admit that there is a problem. I do not think that it disqualifies the proposal, but there is a problem, it cannot be ignored,  with a temporary provision in a basic law … We asked and we were convinced that there is no desire here to protect the current government, there were professional explanations why this arrangement is required for two years, and for two years only …. Hence the conclusion was … that it cannot be said to the Government that it is not within its authority to submit a bill that amends a basic law and establishes, in circumstances as I have described, this arrangement as a temporary arrangement for a specific period of time that is actually intended to allow the State as a whole, not only the Government, to try this out … and we did not think it correct to say that such an amendment to a basic law amounts to an illegal amendment. What is more, it must be said, that not every text that bears the title “basic law” legitimizes what is written beneath the title. This is not our position – let this be clear. I do not think that it may be argued that the contents of the basic law are in themselves unsuited to a basic law, according to their substance, and the difficulty is a conceptual one, how is it that a basic law, a segment of the law [should be “constitution”, D.B.], a permanent arrangement – how can the foundation stones be temporary? How can those walls of stone be built as plasterboard, which may easily be cut? This is a difficulty, but this is the explanation that we found for our professional legal opinion’ (Protocol of the Joint Committee of the Finance Committee and the Law and Constitution Committee from the discussion of the Economic Efficiency and the State Budget for the years 2009-2010, 31.5.10 p. 3).’

26. After hearing these opinions, the legal advisor of the Knesset, Adv. Eyal Yinon, was also invited to appear. Like the legal advisors who presented their views to the Joint Committee before him, the legal advisor to the Knesset, too, explained to the members of the Committee the complexity of the issue facing them. Adv. Yinon said that “it is clear that the biennial budget is a constitutional matter, a matter pertaining to the regime”, in that it is the type of provision that appears in constitutions throughout the world and in basic laws in Israel. Adv. Yinon further stated that “no one disputes that basic laws and temporary provisions are contradictions in terms”, but, in his view –

‘Due to the absence of a legislative arrangement of the issue of amendment of basic laws, it is difficult to argue that the proposed amendment is not constitutional or is not compatible with the basic values of the system. But of course the MKs must understand that their assent to an amendment of this type, beyond detracting from the ability of the Knesset to oversee the government … also contains an erosion of the status of the basic laws and of the protection that the Knesset is supposed to afford to the basic constitutional principles of our regime’ (Protocol of the session of the Joint Committee relating to the Economic Efficiency and State Budget Law for 2009-2010, 15.6.2010, pp. 5-6).

The members of the Joint Committee were persuaded that it is possible to enact that Basic Law as a temporary provision, but in order to address the difficulties that arose from the Bill, including the concern about weakening the Knesset’s power of oversight of the government, the Joint Committee made several changes to the proposal. The framework of the biennial budget was retained, but it was determined that the government will be obliged to submit the budgetary plan within 90 days prior to the commencement of the 2012 fiscal year; a section relating to a budget of adjustments for the fiscal year 2012 was introduced, designed to allow flexibility in the mode of execution of the budget in the course of implementing the biennial budget; a duty was imposed on the Minister of Finance to report to the Joint Committee within 120 days from the beginning of the 2012 fiscal year  regarding his position on the transition to a biennial budget on a permanent basis; the Knesset Finance Committee was authorized to determine the date for submission of the budgetary laws to the Knesset under s. 3(b)(1) of Basic Law: The State Economy. It is noteworthy that this last amendment was a permanent amendment and not a temporary provision.

27.   We have cited at length what was said in the Joint Committee because in our view, the professional and detailed discussion in the Joint Committee indicates that the enactment of the Basic Law by way of a temporary provision was a conscious decision; in the process of enactment there was a serious discussion and the question of the possibility of enacting the Basic Law as a temporary provision was duly considered. This fact must be taken into account when the constitutionality of the Law is being considered, for it can demonstrate that the Knesset acted with the understanding that it was applying its constituent authority while relating to the complexity this involved.

28.   The entire array of circumstances in the present case – including the identification of Basic Law (Temporary Provision) as a basic law under both the formal and the combined criteria; the material it regulates; and the combination of circumstances that led to the decision to introduce a biennial budget for two years – leads to the conclusion that even if we identify substantial difficulties in temporary enactment or amendment of basic laws, a determination that Basic Law (Temporary Provision) is void is unwarranted. As emerges from the deliberations in the Knesset, it was the special circumstances that gave rise to the wish to attempt to implement a biennial budget that lay at the basis of the decision to introduce a temporary change to Basic Law: The State Economy. As pointed out by Adv. Baris, the Ministry of Finance refused to draw up a permanent amendment, because it was not possible, from a professional point of view, to support a permanent transition to a biennial budget. Were it not for the economic crisis and the unexpected elections that led to the approval of a biennial budget for the years 2009-2010, it is doubtful whether the senior Treasury officials would have proposed conducting such an “experiment”. However, in the circumstances that unfolded, it was decided to examine the advantages of the budget and to study the ability of the Treasury to correctly assess the forecast of expenses and income of the State for a period of two years. We will further mention that even had we thought that additional considerations underlay the legislation before us, this too would not have been enough to constitute cause for intervention in the legislation, and certainly not in basic legislation (see para. 17 above).

29.   In summary: We are of the opinion that Basic Law (Temporary Provision) is a basic law for all intents and purposes. In the circumstances of the case before us, there is nothing in the use of a temporary provision in itself that would justify a determination that the basic law is void or that it should be struck down. At the same time, it would be better if in the future, the Knesset would avoid resorting to temporary provisions for amending constitutional provisions. In any case, as long as the framework for the enactment, amendment and change of a basic law has not been determined, a legislative procedure of this kind should be reserved for exceptional, extreme and special cases, due to the status of the basic laws. In this context, the words of Justice D. Levin are apt:

‘Amendment of a constitution should not be done as a matter of routine; a constitution and the constitutional values it embodies should never bend and change with every passing wind. The stability of the law, and a fortiori, of the constitution, are a value in themselves. Therefore, the legislature should consider this before passing a law, for a law, and a fortiori a constitution, are intended to lay down norms and principles that must guide the citizen’s conduct through the days and the years to come’ (United Mizrahi Bank Ltd. v. Migdal [1], p. 456).

30.   The additional arguments that were raised by the petitioners concerning the reasonability of the Basic Law and the majority by which it was passed in the various readings in the Knesset must also be dismissed. Without taking any position on the advantages or disadvantages of a biennial budgetary system, considerations regarding the reasonability of the Basic Law are not among those considerations that justify the intervention of this Court in basic legislation. Arguments whereby the Law should have been passed by a majority of 61 MKs in the three readings are also not founded, for s. 36A of Basic Law: The Knesset is not an entrenched section. Its amendment, therefore, does not require a special majority. The argument whereby Basic Law (Temporary Provision) explicitly or implicitly changes s. 34 of Basic Law: The Knesset, and therefore the Knesset should have passed it with a special majority, must also be dismissed. We accept the State’s position and that of the Knesset whereby s. 34 is not a general section that defines when the Knesset is dissolved, but rather a section that deals with the possibility of the Knesset deciding on its own dissolution – a decision that can be made by a law that is enacted by a majority of Members of Knesset. Consequently, the transition to a biennial budget should not be viewed as  an implicit change of s. 34 of Basic Law: The Knesset.

The Doctrine of the Unconstitutional Constitutional Amendment

31.   Having determined that Basic Law (Temporary Provision) is indeed a basic law, let us now address another central argument raised by the petitioners in the petition – although they would appear to have abandoned it in the course of the oral pleadings – that concerns the possibility of the Court nullifying Basic Law (Temporary Provision) because it contradicts fundamental values of our legal system. This issue, which in comparative legal literature is termed “the unconstitutional constitutional amendment”, deals with judicial review of a constitutional amendment made by the constituent authority.

According to this argument, Basic Law (Temporary Provision) upsets the constitutional balance between the legislative authority and the executive authority, and violates the constitutional principle under which if Knesset approval of the budget is not secured once a year, both the government and the Knesset are dissolved (in accordance with s. 36A of Basic Law: The Knesset). The petitioners cited many legal sources and extra-legal sources as the basis for their argument to the effect that approval of the budget in a democratic state in general, and in the State of Israel in particular, has special significance. In approving the state budget, so argue the petitioners, the Knesset gives concrete expression to its sovereignty and superiority vis-à-vis the government; and in the period of approval of the state budget, the government is under the review of the Knesset, and conducts debates with the Knesset concerning the priorities of the state (see, inter alia: Chen Freidberg and Reuven Chazan, Knesset Oversight of the Government (Israel Democracy Institute, 2009) pp. 33-34 (Hebrew)). Basic Law (Temporary Provision), it is argued, weakens the Knesset and detracts from its ability to oversee the work of the government, its mode of operation and the priorities that it sets. This, according to the petitioners, justifies the intervention of this Court by way of nullification of a basic law, since “approval of the Budget Law on an annual basis is considered one of the foundation stones of a democratic state the world over, and in Israel in particular” (Petition of 30.6.2010, p. 3). Moreover, the petitioners argued that the Basic Law violates another fundamental principle – the ability to bring about the dissolution of the Knesset and new elections by means of only 60 Members of Knesset, if the state budget is not approved within three months of the beginning of the fiscal year.

32. The doctrine of the unconstitutional constitutional amendment has been discussed at length in foreign legal systems (for a comparative review of this issue see: Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative Study (2008); and see: Aharon Barak, “The Unconstitutional Constitutional Amendment” (forthcoming, Bach Book) (Hebrew)). At its base, the doctrine of the unconstitutional constitutional amendment addresses the question of whether the courts have the authority to examine the constitutionality of amendments to the constitution. The answer to this question is directly connected to the nature and the character of the constitution in the framework of which the constitutional amendment is examined. Accordingly, there are states whose constitutions include “eternity clauses” – constitutional provisions that cannot be amended (see, e.g., art. 4 of the Constitution of the Republic of Turkey; art. 79(d) of Basic Law for the Federal Republic of Germany). In a number of states, courts have struck down amendments to the constitution on the basis of eternity clauses. There are states, such as India, in which the constitution does not include an eternity clause, but despite that the court has struck down amendments to the constitution for the reason that they were injurious to “the basic structure of the constitution” (for a review of the decisions of the Indian Supreme Court, see Gözler, pp. 88-95). In both situations – cases based on eternity clauses and those in which there was no such clause – the courts that were prepared to subject constitutional amendments to judicial review did so where the constitutional amendment breached or changed a fundamental, basic meta-principle of the constitution and the regime in the relevant state (such as the republican structure and the secular regime in Turkey. See also the abovementioned ruling of the Czech Constitutional Court, which nullified the law for bringing forward the elections based, inter alia, on an eternity clause in the Constitution according to which “any changes in the essential requirements for a democratic state governed by the rule of law are impermissible.” For further examples, see Gözler, ibid.).

33.   This doctrine, which recognizes “eternal” meta-principles in some form or other, has also been mentioned several times in obiter dicta in the case law of this Court, but it has not yet been applied (see: EA 1/65 Yardur v. Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365, 389-390, per Justice Y. Sussman; HCJ 142/89 La’Or Movement  - One Heart and One Spirit v. Central Elections Committee for the Sixteenth Knessset [1990] IsrSC 44(3) 529, 551-554, per [then] Justice A. Barak; Bank Mizrahi v. Migdal [1], pp. 394, 546, per President A. Barak and Justice M. Cheshin; CA 733/95 Arpel Aluminium Ltd. v. Klil Industries Ltd. [1997] IsrSC 51(3) 577, 629-630, per Justice M. Cheshin; HCJ 4676/94 Mitral Ltd. v. Israeli Knesset [1996] IsrSC 50(5)  15, 28, per President A. Barak; Movement for Quality Government v. Law and Constitution Committee [2], p. 96, per Justice D. Dorner; HCJ 6427/02 Movement for Quality Government in Israel v. Israel Knesset (not yet reported, 11.5.2006), per President A. Barak, para. 74; per Deputy President (ret.) M. Cheshin, para. 11). In Israel, in view of the fact that a complete constitution – including, in that framework, the procedures for enacting and amending the basic laws – has not yet been established, the doctrine takes on special meaning. In these circumstances, the question of whether the court in Israeli is competent to strike down basic legislation because it contradicts meta-principles of our system is a complicated one that reaches to the very root of the legitimacy of the constituent authority instituting constitutional arrangements that change the nature of the basic laws, and to the core of the competence of the Court to exercise judicial review of the outcome of the acts of the Knesset as a constitutive body. At the same time, the courts in Israel have recognized the existence of principles that are irrevocable. Our basic laws, too, have laid down a central constitutional principle, the ability to change which is doubtful, relating to the Jewish and democratic nature of the State. When the constitution of the State will be complete, the question of the inclusion of eternity clauses that express the meta-principles of the regime and society in Israel will come up for discussion. In this context, President A. Barak made the following observation in his article on this subject:

‘With the conclusion of the enterprise of basic laws and its ratification by the people, and with the introduction of a new complete constitution, there will be room for making a decision concerning the unconstitutional constitutional amendment. It may be that the constitution itself will solve this problem explicitly; it may be that it will contain eternity clauses that can help provide a solution to the question; the constitutional text may have nothing to say on this issue and the Supreme Court will be required to make a decision on whether to adopt the doctrine of the basic structure of the constitution or some similar doctrine or to reject them; it is possible that amendment of the law will be so difficult and complicated that the question will not even come up for discussion.

Does this mean that at the present stage of constitutional development in Israel, there is no call to consider the place of the question of unconstitutional constitutional amendment?  Indeed, in the comprehensive, complete sense of this doctrine in comparative law, it has no place in Israel. This is because the concept of constitutional “amendment” is in itself problematic in Israel. The constitutional enterprise is an enterprise in the making. The mission is not yet complete. The “complete” is yet to be completed, and in any case the constitutional amendment has not yet ripened. Nevertheless, in Israel there is a process of  establishing basic laws. At times, a basic law is enacted in an area in which there was previously no basic law; at times, an amendment to an existing basic law comes about by way of enacting an amending basic law. Against this background, the following question may be raised in Israel: are there constraints on the power of the Knesset, as a constituent authority, in its determination of the substantive contents of the basic laws, such that we can talk about an unconstitutional basic law? In this regard is there a difference between an area which has already been addressed in basic laws and needs amendment and between an area in which no basic law has yet been established?

In my opinion, there is room for an approach according to which the constituent power of the Knesset is not absolute. This is so regarding the establishment of a new basic law and regarding the amendment of an existing basic law. In both cases the Knesset, as a constituent authority … must act within the framework of the basic principles and basic values of our constitutional structure … The Knesset was not given authority to harm the “democratic core, and the minimum requirements for the character of the state as democratic.” Similarly, it was not authorized to harm the core of Israel as a Jewish state and the minimum requirements for this aspect of its character’ (Barak, Unconstitutional Constitutional Amendment)

 

34.   Indeed, I too believe that there are basic principles standing at the very basis of our existence as a society and a state, the breach of which would raise difficult questions of authority, including doubts as to whether at issue is a change in the constitution or the establishment of a new constitution. In such a case – and it would be best were it never to occur – the Court will be called upon to decide whether the Knesset has overstepped its constituent authority and violated the basic foundations of the state as a Jewish and democratic state. The case before us is not such a case. True, the relationship between the government and the Knesset in the process of approving a state budget is undoubtedly a very important relationship that expresses the principle of separation of powers. There is also no dispute that Knesset oversight of the government is an integral part of the principle of separation of powers. But does the requirement that the approval of the Knesset be obtained once every two years instead of annually constitute, for example, a negation of the democratic or Jewish character of the State? Does a decision to adopt a biennial budget for two years constitute a breach of the fundamental principles of the regime, as expressed in the Declaration of Independence? The answer is negative. Even if there is a detraction from the authority of the Knesset when it is asked to approve the budget once every two years instead of annually, the Members of Knesset have the option of choosing to change the period of the budget. To this must also be added the special positon of the Budget Law on the scale of constitutional norms (see: HCJ 4124/00 Yekutieli  v. Minister for Religious Affairs (not yet reported, 14.6.2010); HCJ 1438/98 Conservative Movement v. Minister for Religious Affairs [1999] IsrSC 53(5) 337). Hence, the damage caused to the Knesset as a result of the transition to a biennial budget does not amount to damage to the meta-principles of our system in a way that would justify the nullification of the basic law by virtue of the doctrine of the unconstitutional constitutional amendment – whatever be the scope of its application in Israel. In the circumstances of the present case it is not necessary for us to decide on this question.

 

35.   In conclusion: for all the reasons elucidated above, I propose to my colleagues to deny the petition. Basic Law (Temporary Provision) is indeed a basic law, and the harm that it allegedly harbors is not of the type that justifies the intervention of the Court in basic legislation, even if the Law was enacted in a manner which it would have been better to avoid. As stated, we leave pending the question of the possibility of applying a substantive criterion for identifying basic laws, and we do not think that we ought to decide on the question of the application, or the scope of application, of the doctrine of the unconstitutional constitutional amendment in Israel. Determination of these two issues is not necessary in the case at hand, and we hope that we will not require it in the future.

36.   Apropos of the above discussion we would point out that above all, the present petition is an indication of the need to complete the constitutional enterprise and to entrench the procedures for enacting and changing basic laws through the mechanism of Basic Law: Legislation (see, in this context, the various Basic Law: Legislation Bills that have been submitted to the Knesset; see, for example, Basic Law: Legislation Bill, H.H. 5761 2988 and the earlier draft laws  mentioned in the Explanatory Notes. See also Dan Meridor, “Major Principles in Basic Law: Legislation Bill” Mishpat Umimshal  1 (1992), 387 (Hebrew)).  The fact that the procedure for changing basic laws is liable to have significant ramifications for the constitutional regime cannot be ignored. The manner in which basic laws may be changed and the degree of rigidity of the procedure have a direct impact on the status of the basic laws, on the stability of the arrangements they prescribe, and on the extent of the power of an accidental majority to change the political, social and value-related identity of the State of Israel (see also, on the argument that the procedure for amendment affects the nature of the regime that the constitution establishes, Avichai Dorfman, “The Theory of the Rule of Constitutional Change” Mishpat Umimshal 10 (2007), 429 (Hebrew)). As stated, there have been several attempts in the past to formulate draft laws to regulate the procedures of enactment of basic laws. These bills did not develop into a fully-fledged comprehensive basic law. It would seem that today, ten decades after the enactment of the first basic law, the time has come to do so.

 

Justice U. Vogelman

I concur.

 

Justice M. Naor

1.     I concur in the opinion of the President.

2.     The question that is central to this petition, as emerges from the discussion that took place before us in the hearing on 11.1.2011, is whether the fact that the Basic Law was changed by way of a temporary provision is a reason for striking down the Law. In my opinion too, this must be answered in the negative. My colleague the President emphasized the need to complete the legislative enterprise and to entrench the procedures for enacting basic laws and their amendment by means of Basic Law: Legislation. In the present legal situation, however, it cannot be ruled categorically that a basic law may never be changed by way of a temporary provision. All appear to agree that there are exceptional situations in which there is no avoiding a change in this manner. An example of this may be found in the provisions of the law that postponed to a small extent the date of elections to the Knesset and the Local Authorities due to the 1973 Yom Kippur War, thereby extending the term of the sitting Knesset. The Law to which we are referring is the Elections to the Eighth Knesset and to Local Government (Temporary Provision) Law, 1974, the provisions of which apply notwithstanding the provisions of Basic Law: The Knesset (s. 10). This temporary provision was at the time dictated by reality.

 

3.     Indeed, creditable constitutional arrangements must leave a narrow opening at least for changing basic laws by way of temporary provisions, due to what the legal advisor to the Ministry of Finance, Adv. Baris, in the section cited by the President, called “the needs of the hour”. The matter at hand is not one of “the needs of the hour”, but the present constitutional structure in Israel does not rule out the amendment of a basic law by way of a temporary provision that is a basic law. I agree with my colleague that determining a temporary constitutional arrangement detracts from the status of the basic laws, and it should be done sparingly.

 

4.     The present case touches upon the fabric of the relations between the legislative and the executive authorities. This is not a matter of a violation of human rights, nor, in my view, of a breach of the fundamental principles of the regime. The determination that a budget will be an annual one (as opposed to a biennial one) is not, in my opinion, a fundamental constitutional principle. I can understand the objection of the petitioner, who feels that the amendment was intended to achieve a political end, even though an examination of the legislative history does not evince this. However, like the President I do not find cause for the intervention of the High Court of Justice regarding the constitutionality of the Law only because the Basic Law was amended by way of a temporary provision.

 

Justice E. Rubinstein

1.     This case, even if outcome is denial of the petition, highlights, in my opinion, a resounding systemic failure – to instill in the Israeli people, and even sadder, in its parliamentary representatives, a constitutional awareness. The fact that the constitutional texts – basic laws – are “as clay in the potter’s hands; he expands it at will and contracts it at will”, in the words of the prayer recited in the Synagogue on the Eve of Yom Kippur , is sad evidence of this. We live in ongoing eras of, on the one hand, “quasi-constitution” – basic laws, including constitutional judicial review within the bounds of Bank Mizrahi v. Migdal [1] and the subsequent rulings, and on the other hand, a degradation of the basic laws as if they were a “request program”. The question facing us is whether it is possible, by way of judicial action, to achieve greater respect for the constitutional text? The answer is not clear.

2.     The specific issue at hand is in my mind a two-fold one. One is whether a basic law may be changed by way of a temporary provision. The second, continuing from this, is the slippery slope of the degradation of the constitutional dignity of a basic law.

3.     On the juridical plane it is hard to state categorically that a law cannot be changed by way of a temporary provision absent Basic Law: Legislation, and even more so prior to completion of the constitution. The reply of the Knesset quotes from my letter of 19.7.99 – when I was serving as the Attorney General – to the chairman of the Law and Constitution Committee of the Knesset which was discussing the attempt of the Government to change Basic Law: The Government so as to remove the limitation that then existed in the Basic Law on the number of ministers. The proposal seemed problematic from a legal perspective, and I expressed my reservation in view of the constitutional entrenchment in the existing Basic Law of the number of ministers; my reservation also related to “the interest in the stability of the constitutional structure and the need to refrain, insofar as possible, from frequent changes in the basic laws …”. I added, however, that “to the extent that this is done in accordance with the provisions of the relevant Basic Law, I cannot say that there is a legal bar to this.” In view of the problematic nature of the matter, and in order to achieve a balance between what the Government wants and the needs it has presented on the one hand, and wanting to refrain from fixing the extension for a long period on the other, the Ministry of Justice suggested –  and the Government agreed – that the proposal be entrenched in a temporary provision for the term of that Knesset. In another letter to the Chairman of the Committee dated 21.7.99, I pointed out that for the sake of lessening the problem, I had raised the possibility of a temporary provision, and that it could indeed be argued that –

‘It is preferable and dignified to amend a basic law by way of a temporary provision, because we are dealing with a constitutional document.  However, matters must be weighed on the scales of profit and loss in the long term as well, and in my view the damage done by transmitting a message of the possibility  of permanently expanding the government outweighs the difficulty – which I do not underestimate – of amending a constitutional text by means of a temporary provision (and regrettably, we have not yet succeeded in endowing most of the constitutional texts, the basic laws with the aura of “constitutionality” in the public and in the Knesset for various reasons).’

I was of the opinion that a temporary provision would necessitate the instigation of renewed processes in the future, and that the wheel would possibly turn back; at that time too there were examples of temporary provisions – s. 10 of Basic Law: Freedom of Occupation. I was of the opinion therefore that “the balance is tending towards a temporary provision, in order not to permanently fix something that is liable to transpire as being a temporary necessity.” The Knesset ultimately decided on a permanent amendment, with which we are living to this very day in our minister-rich governments.

4.     I cited the above at some length in order to explain the circumstances of “Woe to me from my Creator and woe to me from my evil inclination” (B. T. Berachot 61a). The Basic Laws have not been accorded the status that they deserve, as evinced, inter alia, by the vicissitudes of Basic Law: The Government, which was enacted, amended (not necessarily by way of a temporary provision) and replaced, in large part according to changing situations of coalition needs which mostly have no relation to constitutional dignity (and see my article: “Basic Law: The Government in its Original Formulation – Theory and Practice” Mishpat Umimshal 3 (1996) 521, 578-583 (Hebrew), published also in my book Paths of Government and Law (2003) 79, 86-91 (Hebrew). Therefore, when the Government wished to increase the number of ministers in 1999, I thought, as the Attorney General, that this was an error and it was a pity that it should be fixed (as ultimately occurred) as an “eternal lament”; consequently I was of the opinion that a temporary provision was preferable, as stated, in the sense of “choosing the lesser of two evils”, in the words of the Mejelle. Today, too, I cannot say unreservedly that a constitutional temporary provision has no basis in law such that it would have to be struck down, as we are asked to do today, and I say this with regret.

5.     The subject on which the petition turns is not a trivial one. Suffice it to say that the budget is one of the central pillars on which parliamentary oversight of the government rests. I personally do not believe that a constitutional text is an experimental field, as those seeking the amendment would like to argue. Let us admit the truth: a temporary provision that stems from clear necessity – for example the temporary provision concerning the elections after the Yom Kippur War, as mentioned by my colleague Justice Naor (para. 3) – is rare. Temporary provisions will usually stem from coalition and political needs, which are virtually unrelated to a constitution that symbolizes permanence, eternity of the state and the nation, human citizens’ rights, including the rights of minorities. In the present case, the idea of a biennial budget is not in essence conjunctural and it has some basis – as demonstrated to us – in the professional approach and from the international perspective, but it involves, as stated, the ability of the Knesset to exercise oversight of the Government; ought it to be the subject of constitutional experimentation and a weather vane?

6.     Furthermore, I will not refrain from stating here that a biennial budget might well appear to be the younger sibling of the Arrangements Law, which is not well thought of – not to say infamous; a Law that continues, despite several improvements following a certain parliamentary awakening and legal and judicial remarks, to accompany every budget as a persistent slap in the face to the notion of creditable legislation, and in my view also as lack of respect for the Knesset, and much has already been written and said on this,  and to add would be to detract.

 

7.     But after having said all this, in order to strike down the Basic Law (Temporary Provision) a stronger juridical entrenchment than that which exists would be required, even though I would not padlock the door with a view to the future; in the circumstances there is not the critical mass which would entail its nullification. My colleague Justice Naor (in para. 3 of her opinion) stated that “indeed creditable constitutional arrangements must leave a narrow opening at least for changing basic laws by way of a temporary provision.” I would leave this pending future investigation; for example, in the United States an amendment to the Constitution (under art. 5 thereof) necessitates an extensive, drawn-out procedure, that combines Congressional decisions with the consent of the States. But I certainly can agree with Justice Naor, that if the thing is done and the temporary provision is passed, it must be done sparingly, and as far as I am concerned, exceedingly sparingly. In any case at the present time and in the present case and in the existing juridical situation, we cannot dignify the Knesset more than it dignifies itself, and therefore we cannot grant the petition.

I will conclude by concurring in the words of my colleague the President with respect to the need for completing the constitutional enterprise. I will say clearly and somewhat stridently: the main reason for it not having been completed until now, so it seems to me – and let us recall that for nearly two decades, not even one basic law has been passed, despite efforts having been made – is not because of what will be written in the Constitution, but apparently because of the question of who will interpret it. The last basic laws came into being in 1992, but in 1995 a ruling was handed down in the case of Bank Mizrahi v Migdal [1] which determined the constitutional authority, and since then there has been a “silence of the constitution” in the operative sense, as opposed to various proposals. It seems that parts of the Knesset are not happy with the constitutional authority of this Court, and are afraid that additional constitutional texts will add to its power. I will merely say that not only is the power of judicial review exercised by this Court cautiously and sparingly, but whoever looks into the matter will find that when it has been exercised, it has always been in areas that for the most part are not the areas that worry those who are concerned. We live in a world of appearances and public and media-related perceptions that feed off themselves. It would be good if the scrutiny would sometimes be directed at the substance of issue, if one may make this modest request, even though criticism is of course legitimate, and also in the court itself there are majority and minority decisions. But scrutiny is always a good thing, so that the criticism can follow and not come before. Why do I believe in the importance of completing the constitution, although we in fact live in a quasi-constitutional regime? For educational reasons, to perpetuate the values of Israel as a Jewish and democratic state, as a text that will teach and will constitute a historical fountain spouting the values of the nation and the individual as one. The Declaration of Independence, which constitutes a major source of interpretation by virtue of s.1 of Basic Law: Freedom of Occupation and s.1 of Basic Law: Human Dignity and Liberty, can fill some of these roles (see the article by myself and N. Solberg, “The Declaration of  Independence of the State of Israel – After it has (Almost) Waxed Old, Shall It  Have Pleasure”, Netivei Mimshal Umisphat 179, 191-195 (Hebrew)). But a complete constitution would be an upgrade and an empowerment on the educational plane and for the long term, and for this reason it ought to come into being.

9.     As stated, in the circumstances I concur in the ruling of my colleague, the President.

 Justice E. Arbel

I concur in the judgment of my colleague, the President.

Vice President E. Rivlin

I concur.

 

Justice A. Grunis

I concur.

 

The petition was denied as stated in the ruling of the President D. Beinisch. There is no order for costs.

 

3 Nissan 5771.

7 April 2011.

 

 

Full opinion: 

Doe v. Ministry of Health

Case/docket number: 
HCJ 4077/12
Date Decided: 
Tuesday, February 5, 2013
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

This is a petition against the First and Second Respondents’ decision not to permit the Petitioner (a single woman, born in 1974) to use sperm donations by an anonymous donor (the Third Respondent), which were preserved for her (for a fee). The Petitioner had her first daughter from the Third Respondent’s donation. She is now interested in undergoing an additional insemination process with that same donation in order to ensure a full genetic match between her children. The Respondents’ decision was made in light of the donor’s decision to withdraw his consent and his donation due to changes in his worldview – becoming a “Ba’al Tshuva”, i.e. an observant Jew – so that sperm donations he had made in the past would no longer be used. It should be noted that the consent form sperm donors (currently) sign is silent on a donor’s right to change his mind. The Petitioner argues that the Respondents’ decision to prevent her from using the sperm donations that were preserved for her violates both her constitutional and contractual rights, is unreasonable, and must be overturned. Generally, the Petitioner’s arguments may be divided into two categories – the first, is on the public law level, primarily in terms of violating her right to parent. The second are arguments on the civil law level, including claims stemming from contracts between the parties, property rights and others. The donor claims he has autonomy rights in terms of deciding whether his sperm can be used.

 

The High Court of Justice (in a decision authored by Justice Rubinstein, with Justices Barak-Erez and Amit, concurring) rejected the Petition for the following reasons:

 

Needless to say that the High Court of Justice – as well as the attorney for the Respondents and even the anonymous donor himself – sympathizes with the Petitioner, who wishes that her children, conceived with the help of sperm donations, will carry the same genetic code. However, the donor’s position and his personal autonomy must prevail. As much as we understand the Petitioner’s arguments in terms of civil law, contract law, even in terms of administrative law, and her reliance interest – as values, these cannot dominate over personal autonomy in these circumstances. The donor formed his position as a “Ba’al Tshuva” and it seems his position has a religious aspect. But even absent the religious aspect, one’s position reached thoughtfully – although it did not occur to him in the past when he decided based on whatever considerations to donate sperm – that he does not wish for there to be any additional children in the world whom he did not choose and whose mother he did not choose, with whom he would have no relationship, and whom he would not raise is understandable. This is even if he owes them no duty under existing law (and incidentally, it is possible that under Jewish law, even if they have no right to his support, they may have a right to his estate). The autonomy aspect eclipses other considerations.

 

The right to parent is seemingly a significant value in and of itself, it is natural and primal and holds a top spot on the human list of priorities. This is joined by the autonomy reflected in the personal choices that come along with the right to parent. The right not to parent, on the other hand, does not include a protected independent value, but is designed to protect one’s personal autonomy in electing it (that is, electing not to parent, or not to co-parent with a particular man or woman). It should be noted that even those who support defining this right as merely an interest apparently still view it as one that must be legally protected.

 

However, limiting the Petitioner’s right to be impregnated by a particular person, or her right to a child with a particular genetic background is not a violation of the right to parent. This limit does not reach the core of the right to parent – the actual ability to enter the class of parents – and to bear a child. At most, and this is highly doubtful, this is a limitation at the periphery protected by the right to autonomy (without addressing, at this point, the issue of the scope of this protection, and whether indeed the right was infringed and whether under proper balancing it is worthy of protection).

 

Still, and if presumably according to existing law the donor owes no financial, social or other duties to the child, it is clear that the harm to the donor in terms of genetically parenting additional children against his will constitutes a violation of his autonomy. In this context, it has been pointed out, among others, that the harm to the donor is not merely in inability to choose not to be a father, but also includes his autonomy to decide about his status as a father. In other words, a man who sees his genetic-biological parenthood, or “blood ties”, as creating his moral obligations as a father, suffers injuries to his autonomy both in terms of lack of choice and in terms of failing to fulfill his duties according to his conscience or religious beliefs.

 

This is not to say that in any event a sperm donor’s request not to use his sperm would prevail. The stage in which the request is made is relevant, even crucial. There may be good and weighty reasons not to permit a donor to change his mind and the Court lists these potential considerations (this is not an exhaustive list). Such was the situation in Nachmani, let alone when a pregnancy has already occurred. But outside of such circumstances, the right to change his mind and the violation of his right are weighty and tip the scale in his favor. Indeed, the donor gave consent and accepted payment, but it is not a regular “transaction”, rather an issue that holds strong emotional aspects. The donor’s conscience and feelings are a matter of values and cannot be quantified in the simple legal sense.

 

Even had we assumed that the issue is a violation of the Petitioner’s autonomy to choose whom to parent with, she cannot prevail. This is a choice that needs the cooperation of two (whether within a marriage or other family unit, including – even if with significantly mitigated force – a same-sex family unit requiring a sperm donation) or some third party as a sperm bank, in order to be realized. Of course, these situations may be distinguished, and may under certain circumstances change the outcome, but in this matter there is no justification for the donor’s interest to yield to that of the Petitioner’s.

 

Protection for the Petitioner’s right to have children of the same genetic code ends where it clearly conflicts with the donor’s rights. In a regime of relative rights, there is no right that affords its holder absolute supremacy in its exercise. Therefore, the obvious interests at the basis of the Petitioner’s claims succumb to the donor’s right to autonomy.

 

Even had we assumed, for argument’s sake, that the Petitioner’s right to autonomy is violated, and Justice Rubinstein does not believe it was – in any event, not to a great extent – as distinguished from Nachmani, the conflict and determination here concerns the Petitioner’s right to autonomy in the face of the donor’s right to autonomy. In the conflict between these two autonomy rights is seems the donor should prevail because, from his perspective, we are dealing with “active” law – a use of his sperm, while for the Petitioner this is “passive” law – preventing the use of the donor’s sperm.

 

Before concluding, Justice Rubinstein briefly adds Jewish law’s perspective on the issue of sperm donation and the status of the donor. This analysis demonstrates that applying the law and principles mentioned above lead to the same outcome under contract law as well. Among others, Justice Rubinstein emphasized that the option of withdrawing a donation does not constitute a donor’s “veto right” at every point in the process. The point of no return, where the balance of rights and interests shifts and the donor loses the legal possibility of terminating the contract and withdraw his donation, may change according to various considerations. In our case, several considerations lead to accepting the donor’s withdrawal of consent, particularly a lack of any physiological link between the donation and the Petitioner at this stage.

 

The primary concern arising from this matter is the harm to the stability of sperm banks in Israel by permitting carte blanche to donors who may wish to pull their donations. The concern is that beneficiaries of donations, such as the Petitioner, who have requested that a specific sperm bank preserve additional donations for them, would discover this option is no longer guaranteed. The stability of this institution is a human and public interest of the highest order. The uncertainty that exists as a result of the tenuous statutory regulation, harms, from the outset, the public’s possibility to rely on sperm donations. The cure for this is in the legislature’s hands.

 

In the interim, and as a temporary measure, the Petitioners ought to amend donors’ and beneficiaries’ consent forms to ensure that all the parties involved know and understand their rights. As long as legislation that regulates and defines the possibility of a donor to withdraw consent is lacking, sperm banks must accurately present to beneficiaries the legal context in order not to guarantee what may not be realized.

 

Finally, the decision to donate sperm must be a result of deep thought and consideration. Donors must know that their informed consent to give sperm to another is relied upon by others who seek to plan their lives and produce offspring. This however, is not a decision that can be taken back easily, and the ability of withdrawing consent is in any event not guaranteed. It is contingent upon the stage of the process, that in the absent of a comprehensive statutory regime, is subject to the considerations detailed in the opinion.

 

Justice Barak-Erez joins the crux of the conclusions, and adds her position regarding some of the rationales behind them. Justice Amit also joins the outcome, though in his opinion, in the conflict between the Petitioner and the donor through the lens of civil law alone, the Petitioner must presumably prevail. (The choice whether to opt for applying only civil law depends on the value-based issue of the weight we are willing to attribute to the sperm’s uniqueness as “property”.)

 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

At the Supreme Court sitting as the High Court of Justice

 

HCJ 4077/12

                       

Before:                                                            The Honorable Justice E. Rubinstein

The Honorable Justice I. Amit

The Honorable Justice D. Barak-Erez

 

The Petitioner:                                     Jane Doe

                                               

V e r s u s

 

The Respondents:                               1. The Ministry of Health

2. The Sperm Bank – In Vitro Fertilization Unit Rambam Medical Center

3. John Doe

 

Petition to grant an order nisi and an interim order

 

Date of Hearing:                                  Heshvan 29, 5773       (November 14, 2012)

 

On behalf of the Petitioner:                Adv. Gali Nagdai

 

On behalf of the Respondents:           Adv. Danna Bricksman

 

Judgment

 

Justice E. Rubinstein:

 

  1. The petition before us concerns an apparently precedential case of the request of a sperm donor, John Doe (Respondent 3), to retract his consent and donation due to changes that have occurred in his world view; such being subsequent to the Petitioner having her first-born daughter by his sperm donation, and being presently interested in undergoing another insemination procedure by the same donation, in order to maintain full identity of the genetic constitution of her children. The Petitioner seeks to receive the donor's additional sperm donation, which is stored at the sperm bank. The position of Respondents 1-2 is that there is no justification to allow this. We are concerned with an issue of a sort unimagined by our forefathers, which was impossible several decades ago, and which developments in medicine and technology have created.

 

  1. The "genetic era" and the increasing use in recent decades of artificial reproductive techniques, have brought a real blessing to many who would have remained childless "in the old world"; reality has changed immeasurably, and technology presently enables many of those whose path to parenthood was previously blocked, to bring children into the world and have a family. This is one of the dramatic developments, which creates a new social and legal reality, and gives rise to complex and sensitive human questions. The

 

legal world has not yet had the time to properly address these issues, and it falters behind them, as it does following the other dramas of the superior technology era. This was described nearly two decades ago by author Y. Green (In Vitro Fertilization through the Prism of Consent (1995)):

 

"The longing for a child is common knowledge that requires no proof. Spouses, who experience difficulties in having children, make and will make any effort in order to be blessed with children: emotional, physical and financial. They are also willing to 'sign' any undertaking, provided that their heart's desire is fulfilled. Medical technology in the fertility field has developed at an incredible pace in recent years. Solutions, which were considered science fiction only a few years ago, are slowly becoming an almost daily reality. There is a great blessing alongside this development, which grants more and more couples of various degrees of infertility a chance to expand the family. However, as chances increase and the potential of being blessed with children increases, so increases the risk involved in the various stages of the process, both to those born (sic.) and to the infant to be born in this way" (ibid, p. 9).

 

Before us is a chapter in this complex whole, on an unfinished road, and we will clearly not attempt – nor need we in this case – to encompass the full human issue, nor the legal one, relating to parenthood in the modern era; as we shall hereinafter see, this issue may be reviewed through the prism of more than one family of law, but none is exhaustive. As President Shamgar (Retired) stressed already at the outset:

 

"Any conversation with respect to issues of birth affairs is, by nature, pretentious and stirs oversensitivity. It is pretentious – since before us are complex and multifaceted issues, the legal aspect of which is unable to exhaust their nature and description. There is a kaleidoscope of elements here, which are anchored in various disciplines, medical, philosophical, theological and social, which do not fit within the standard legal compartmentalization and are not fully exhausted by the employment of legal criteria alone. Thus, in such areas, cautious legal treading is suitable… These issues evoke oversensitivity, because they directly touch on the exposed nerve of existence. Although the vast majority of legal issues of various types are taken, by mere nature, from life, there are issues that attack the problematic nature of our human existence head-on, at the core, rather than indirectly…" (President Meir Shamgar "Issues on Matters of Fertilization and Birth" 39(a) HaPraklit 21 (1989).

 

  1. This is also the case before us, and therefore we shall guide ourselves with this advice before we embark on the journey. This is the order of the discussion: firstly, we shall briefly address the normative framework concerned, the factual background of the case and the parties' claims; we shall examine the nature of the right to parenthood, and we shall examine the standing of the Petitioner vis-à-vis the standing of the donor, who asserts autonomy in deciding the use of his sperm, in view of this right. We shall thereafter briefly address additional aspects of the issue, and mainly the contractual regulation of sperm donation. Finally, we shall articulate the evident need, in this case, for the in-principle regulation of the entire field by the legislator.

 

  1. We shall forerun and state the principal part of our ruling. Needless to say, we feel – as does the attorney for the Respondents and even the anonymous donor himself – human sympathy for the Petitioner, who requests that her children by a sperm donation carry an identical genetic constitution, which apparently proved successful – thank God – with her first-born daughter. However, we have come to the conclusion that precedence should be afforded to the donor's position and to his personal autonomy. With all due understanding of the Petitioner's claims in the field of private law, contract law and even in the field of administrative law, with respect to the reliance interest – these do not amount in value to the dominancy of the aspect of personal autonomy under the circumstances of the case. The donor has formed his position, according to what he stated orally (his written response is more general) as a penitent (Chozer B'Tshuva), and it appears that there is also a religious facet to his position. However, even without such facet, one can understand the position of a person who, after reflection, reached the conclusion – which had not occurred to him in the past, when deciding to donate sperm for such or other considerations – that he no longer wants there to be children by his sperm in the world, whom he did not choose and whose mother [he did not choose], with whom he has no relation and who will not be raised by him; it being [the case] even if he is not liable to them under the presently practiced law (and incidentally, there is a possibility that under Hebrew law, even if they are not entitled to child support from him, they are entitled to inherit him). In our opinion, the autonomy aspect overshadows the other considerations, as we shall explain below.

 

The Normative Framework

 

  1. Sperm donation and the management of sperm banks in Israel are currently not regulated by primary legislation, but rather by the Public Health  (Sperm Bank) Regulations, 5739-1979 (the "Regulations") and circulars of the Director General of the Ministry of Health, which are issued thereunder (these regulations were promulgated by the Minister of Health by virtue of the Consumer Services Act (Sperm Bank and Artificial Insemination), 5739-1979; for criticism, see Pinhas Shifman "Determination of the Paternity of a Child Born by Artificial Insemination", 10 Mishpatim 63, 85 (1980); further see (in respect of the status of administrative directives) Yoav Dotan Administrative Directives (1996), 27-39). The last Director General Circular, of May 22, 2008, entered into effect on January 1, 2009, and is the principal part of the normative basis, on the administrative directives' level, for our discussion at this point. The Director General Circular mainly regulates the conditions for recognition of a sperm bank and prescribes rules with respect to the retention of information regarding sperm units and donors – a problematic issue in and of itself, as we shall briefly mention hereinafter. The Director General Circular also defines the procedure required both of the donor and of the recipient of the donation.

 

  1. The donor, alongside whose donation there is a certain financial benefit, fills out a "Donor Card" form (Exhibit B to the Respondents' response), which requires general details, including name, identity number, a general description of appearance, and data regarding physical examinations, which are intended to negate the existence of illnesses in his body. The donor also fills-out a "Consent of a Sperm Donor" form (Exhibit C to the Respondents' response), in which he declares by his signature as follows:

 

"I agree to donate of my sperm for use thereof for the artificial insemination of women or for research purposes, according to the considerations of the sperm bank. I hereby agree and declare that I will not be entitled to receive any details of the identity of the women, and their identity shall remain confidential. Furthermore, my name and my identity or any detail about me will not be provided to any person and will also remain confidential, except for a cross-check of these data with a center for national donor registration and national registration of persons ineligible to marry".

 

This statement is required under Section 25(e) of the Director General Circular, which determines that "[T]he sperm of a donor shall not be taken nor received nor used for artificial insemination, unless the donor shall have given his consent to the use of the sperm" (emphasis added - E.R.). The donor also states that he is willing to undergo medical examinations and that to the best of his knowledge he is not suffering from an illness or family history, which might disqualify his donation. The forms do not address the issue of consent withdrawal or additional issues such as a quantitative limit of the possible amount of inseminations by the donation (such as inseminations that produced a pregnancy, as distinguished from unsuccessful attempts).

 

  1. A similar personal data card is filled-out by the recipient of the donation (Exhibit D of the Respondents' response), which one of two consent forms is added to, in accordance with her family status: one consent form for spouses, and another consent form for a single mother [who is] a "single woman" (Exhibit E-1 and Exhibit E-2 to the Respondents' response). The second form, which is the one relevant to the case at hand, mainly includes a statement as to the explanation the recipient of the donation received with respect to complications and side effects (and a waiver of future claims in respect of such matters), and as to the practical prospects of impregnation as a result of the insemination. As pertains to the sperm and the donor, the recipient of the donation states as follows:

 

"I consent that the donor or donors of the sperm that will be used in the insemination, or the sperm itself, be chosen by the physician and according to his discretion and with his consent and I will not be allowed to know the identity of the person whose sperm is used, or his attributes, or any other detail related to him or to his family" (emphasis added – E.R.).

 

  1. As we can see, the only documents that include the parties' consent, each separately, do not address the issue of donation withdrawal at all. These matters were presented somewhat in length, since, in the situation before us – a ruling on which is "the lesser of two evils", and involves a measure of harm to one of the parties – it is appropriate to examine how to avoid such situations in the future, rather than merely how the current situation will be resolved.

 

The Case At Bar

 

  1. The Petitioner is a single woman, born in 1974, holding Israeli and American citizenships, and a resident of the Unites States for the past 17 years. In 2010, the Petitioner's first-born daughter was born via fertilization treatments, during which use was made of the sperm donation of an anonymous unknown donor (Respondent 3, hereinafter the "Donor"), which the Petitioner received from the sperm bank at the Rambam Medical Center in Haifa (Respondent 2, hereinafter: the "Sperm Bank"), which is under the supervision of Respondent 1 (hereinafter: the "State"). Following the birth of her first daughter, the Petitioner purchased - apparently at the first opportunity she had – the option to use five additional sperm units of the Donor, to be kept at the Sperm Bank for an annual fee. For this purpose, the Petitioner filled out a sperm reservation form and paid the required amount. It was stated on this form that:

 

"The sperm bank undertakes to use its best efforts to keep these sperm units, but will not be responsible in any manner for a loss, harm or other use of these sperm units" (emphasis added – E.R.; Res/3).

 

  1. On December 1, 2011, the Sperm Bank received a letter from the Donor, in which he stated his wish that use of the sperm donation that he had made in the past be discontinued, among other things, in view of a change in his lifestyle (Res/4); following is his letter verbatim:

 

"My name is ________, in the past I was a sperm provider to the sperm bank managed by you and I ceased this activity several years ago.

Due to a change in my lifestyle, use of my sperm by the sperm bank at the present and future time raises a problem for me. I approached you several months ago with a request to cease use of my sperm. At first I was told that I had no right or say on the matter, and afterwards it was said that in any event the use of my sperm had already been discontinued, so that there was no problem.

After a medical-legal inquiry, it was clarified to me that I have a veto right on the matter, despite the contract between us.

My request to you is a formal letter of statement that no use is presently made nor will it be made in the future by the entity managed by you (the sperm bank)".

 

Following this letter, the Bank notified the Petitioner (on January 10, 2012), that she would no longer be able to use this sperm donation. Subsequently and in view of the Petitioner's appeals to the Bank's manager, the Bank's manager contacted the legal advisor to the Ministry of Health and forwarded the reply of the legal office to the Petitioner, whereby "[A] consent which is unlimited in time is not "everlasting" and the sperm donor who previously agreed to donate his sperm may recant at any time [so long] as "irreversible reality" has not been created". It was stated that under the facts of the case, such a reality had not been created, and it was assured that the money that had been paid for reservation of the sperm units would be refunded (letter of January 11, 2012 by Dr. A. Leitman, Manager of the Sperm Bank; Res/5). The Petitioner requested not to destroy the donation and to allow her to exhaust the legal avenues; the Sperm Bank's manager accepted her request.

 

The Petition

 

  1. On May 22, 2012, the present petition was filed claiming that the Respondents' decision to prevent the Petitioner from using the sperm units that had been saved for her infringes upon her constitutional and contractual rights, is unreasonable and should be annulled. The Petitioner's claims may be separated, in general and for the sake of discussion, into two levels. The first, claims on the level of public law, and mainly the impingement on her right to parenthood. The second, on the level of civil law, rights by virtue of a contract between the parties, by virtue of proprietary ownership and more.

 

First Level – the Right to Parenthood

 

  1. The Petitioner claims that there is presently no dispute as to the standing and importance of the right to parenthood, a "fundamental human right which every person is entitled to", a natural right which is established in Basic Law: Human Dignity and Liberty; hence, this right may be limited – as argued – only under the conditions of the Limitation Clause (to substantiate her position, the Petitioner referred to the rulings of this court in CA 451/88 John Does vs. the State of Israel, IsrSC 44(1), 337 (1990); in CFH 2401/95 Nachmani vs. Nachmani, IsrSC 50(4) 661 (1996); in HCJ 2458/01 New Family vs. the Committee for Approval of Embryo Carrying Agreements, the Ministry of Health, IsrSC 57(1) 419 (2002)). The Respondents' decision impinges – so it is mentioned – on her right, since following the birth of her first-born daughter it may "seal the Petitioner's fate, remaining a mother of a single child only, and forgoing her wish to have the family she was hoping to have" (Paragraph 21 of the Petition).

 

  1. Moreover, per the Petitioner's position, there is a parallel infringement upon her right to a family, another derivative of the protection of human dignity and the autonomy of individual will. To her mind, this right has a higher status than the other constitutional human rights, such as the right to property and to freedom of occupation. Furthermore, beyond the infringement on her constitutional rights – so it is argued – the Respondents' decision is marred by unreasonableness, and is therefore void ab initio. It is further argued that the Respondents' decision impinges upon her daughter's rights to siblings in general, and to biological siblings in particular.

 

Second Level – Contractual and Other Causes

 

  1. The Petitioner also claims that the Donor gave his consent to use of his sperm – informed consent; and therefore his present request to prohibit the use of his sperm constitutes a breach of contract, both vis-à-vis the State and the Sperm Bank, and vis-à-vis herself, as a third party to the contract. Moreover, the State and the Bank are themselves in breach of the contract they entered with the Petitioner: the Petitioner fulfilled the procedure determined thereby as required; she gave financial consideration for the sperm units. As stated, at no stage of the proceedings was the possibility of the Donor withdrawing his consent raised before her. Since the Petitioner relied on this representation (in view of the manner of presentation of the sperm donation by the State and the Director General Circular) and chose to bring her first born daughter into the world from the Donor's donation, it may no longer be said, per her position, that an "irreversible reality" has not been created. It is difficult – so it is argued – to assume that the Petitioner would have consented to undergo the insemination process knowing that the Donor might change his mind at any time. It is further argued that the Donor sold his sperm, and therefore cannot retroactively demand that no use be made of the donation without cause under law, like any other sale contract that confers ownership upon the purchaser.

 

  1. The Petitioner also claimed that a change in the circumstances of the Donor's life may not serve as cause for his retraction of the consent, and the reversal of the Respondents' decision does not constitute an impingement on the best interests of the child or on public policy. It was further argued that the damage to be caused to the Petitioner as a result of the upholding of the Respondents' decision is disproportionate; it is argued that the Petitioner's time to undergo another fertilization is running out, beyond the fact that the mere impediment to having additional children who have the same genetic constitution, as aforesaid, might prevent her from having more children. Conversely – it is so claimed – the Donor "has finished his part", and no cooperation is required of him for the purpose of continuing the process; he is not the parent of the child to be born, and therefore this does not involve the coercion of parenthood; his right to personal autonomy is thus not violated.

 

  1. It is finally argued that upholding the Respondents' decision will have severe across-the-board implications on sperm recipients of donations in Israel. The donor's option to retract his consent at any time creates uncertainty in the planning of a future family, as it leaves the recipients of donations under the shadow of the "concern that the donor they chose will change his mind". This compromises the ability to plan a family according to the circumstances of every woman's life and wishes. This might – as asserted – lead to many donors withdrawing their consent, and gravely harm sperm banks in Israel and their stability. In order not to render the Petition redundant, an interim order has been sought to order the Respondents to prevent the disposal of the donation until the Petition is decided.

 

The Response of the Respondents and the Hearing before us

 

  1. On July 10, 2012, the State's response was filed, which argued that indeed it is undisputed that the core of the right to parenthood and the right to family gives rise to a protected constitutional right deriving from the right to dignity, and established in Basic Law: Human Dignity and Liberty. However, the case at bar does not concern the exercise of the right to parenthood, but rather the right to birth children who are full biological siblings, and the right of a child to a sibling or a full biological sibling; these rights do not exist in law, and therefore the Petitioner cannot point to an infringement on her constitutional rights. The State emphasizes that the Petitioner's aspiration is understandable in and of itself, yet under the circumstances of the matter – even if the Petitioner's position is accepted as to the infringement on the rights conferred upon her – her right is outweighed by the right of the Donor not to be a biological parent against his will. It is argued that, although in re Nachmani it was decided to hold the right to parenthood superior to the right not to be a parent, the factual situation in that case was such that Ms. Nachmani no longer had the option of being impregnated by other sperm, i.e., a situation of the absence of a possibility of biological parenthood other than by means of Mr. Nachmani's sperm. This is not – so it is argued – the situation at hand, and the Petitioner has other options for exercising her right to parenthood. Furthermore, the Petitioner has no "biological link" to the sperm contemplated in the Petition, as was the case in re Nachmani (which, as may be recalled, concerned fertilized ova) – and a fertilization process has not commenced in the case at hand.

 

  1. With respect to the second level of arguments, it is maintained that although the Sperm Bank offers recipients of donations a same-donor sperm storage service (for a fee), such storage, at most, creates "a priority" over other recipients of donations; such storage does not ensure use of the sperm, nor does it obligate the sperm donor or the bank to make use of the sperm in circumstances where this is impossible. It is further asserted that the Petitioner cannot claim that had she been aware that the Donor may retract his consent she would have used other sperm, because this right is available to each one of the sperm donors, whoever they are, so long as no irreversible reality has been created. It is emphasized that in the consent form that the Petitioner signed, it was clarified that the choice of sperm is ultimately entrusted to the physician according to his discretion; that is to say, the choice is subject to the discretion of the representative of the sperm bank from the outset, and is not guaranteed to the recipient of the donation in advance. On the contractual level, it is argued that a contract whose expiration date has not been determined is not in force and effect forever and ever, and after a reasonable time, in the framework of the duty of good faith, a party to the contract may – so it is claimed – notify the other party of his intention to be released from the contract; such – in view of the elapse of time and change of circumstance.

 

  1. To reinforce its position, the State sought to draw an analogy from the Ova Donation Law, 5770-2010, which expressly regulates the option of an ovum donor to withdraw her consent "at any time prior to the performance of the act, which she agreed to designate the ova retrieved from her body to, and in respect of consent to designate ova for implantation – at any time prior to the fertilization of the ova" (Section 44 of the Ova Donation Law). It is also claimed that a similar analogy may be drawn from the Patient's Rights Law, 5756-1996, which prescribes that the patient's consent is required not only at the medical treatment stage, but throughout the continued treatment in its entirety (Section 13(a) of the Patient's Rights Law). According to the State's position, it emerges from these two laws that the legislator adopted an approach whereby infringement upon a person's right to autonomy is only merited in rare events of concern of grave danger, or at the stage of "irreversible reality"; this is not the case in the matter at hand. It was agreed that an interim order be issued, which prevents the disposal of the sperm donation until the court rules on the Petition. It was also requested that the Donor be joined as a respondent in the Petition, as the person whose rights might be compromised as a result of the Petition.

 

  1. The Donor, who was joined in as a respondent, had been requested to provide his response to the Petition (the decision of Justice Solberg of July 13, 2012, in which the interim order in consent was issued, as well as aforesaid), and after numerous attempts and efforts by the Sperm Bank's manager his response was received. At first, the Donor had notified the Sperm Bank's manager that he was willing to meet outside hospital grounds, in order to refrain from exposure "due to his current situation as a penitent", but failed to hold the appointment (notice by the State of August 15, 2012). Following the decision of November 6, 2012 (toward the hearing), in which the Donor's position had been requested once more, and it had been stated that if such response is not presented, "the court may consider this conduct in his ruling, without, of course, expressing an opinion as of this time", the Donor provided his position. In a letter of November 13, 2012, the Donor noted that, at the time of the donation "I had considered the act an ideal thing for childless women, and I am not playing innocent here, the money given was also a motive, but the desire to do good was the main thing"; however, "Afterwards, I changed my lifestyle and beliefs. The aforesaid act is presently incompatible with my world view, and in my opinion, the damage it holds is greater than the benefit, both to me, to my relatives, and to the woman who is the recipient of the donation and her children who are born by the sperm of a stranger". The Donor expressed his sympathy for the Petitioner's wishes, he also explained that since providing the donation, he got married and had a son; he is not interested in adding injury to his wife and hurting his children by adding a terrible uncertainty to their lives, "in the knowledge that they have siblings they do not know"; and it was further stated: "I am not interested in having a child born by me, without me being able to give him love, and without me loving his mother". At the bottom line, the Donor requested that use no longer be made of his sperm and expressed his apologies to the Petitioner for all the sorrow he had caused her as a result of these proceedings.

 

  1. In the hearing before us, on November 14, 2012, the Petitioner's attorney reiterated her arguments with respect to the infringement on her right to parenthood and her reliance on the representation before her. At the same time, the State's attorney reiterated the difficulty in recognizing the Petitioner's right, and asserted the need to regulate the area through primary legislation.

 

 

Ruling

 

  1. We are not dealing with a binary decision between "good and bad", or between right and wrong – both of the parties before us are "right" from their subjective point of view; we are dealing with human emotions of the both of them, and as pertains to the Donor – also internal feelings that derive from a current viewpoint. I believe that our decision must reflect the weight of the values of the law in a proportionate manner; there is no illegitimate position before us, as stressed by Justice (his former title) Witkon a long time ago:

 

"As with most problems of law and of life in general, it is not the choice between good and bad that makes the decision difficult for us. The difficulty lies in the choice between various considerations, all of which are good and worthy of attention, yet in contradiction with one another, and we are required to determine the order of priority among them" (CA 461/62 Zim Israel Navigation Company Ltd. vs. Maziar, IsrSC 17(2)1319, 1337 (1963)).

 

Such is also the case before us. It does not concern the elimination of one of the interests that lie in the balance, but rather the relative preference of one over the other. As we have noted at the outset, this case raises questions of numerous fields of law. The issue may be looked at through the prism of contract law, property law, and, naturally, from the angle of administrative law. Each one of these perspectives may serve as fruitful grounds for a rich and innovative discussion. However, I believe that, at the end of the day, the most appropriate and correct perspective for a ruling on the issue is through the right to dignity and autonomy conferred upon any person to tell the story of his life, as we shall see below. Therefore, the discussion will principally revolve around this angle of the subject, yet, as aforesaid, we shall also address some of the claims raised by the parties on the other levels of discussion. We shall already state at this point that it is worthy to once more call upon the legislator to regulate the issue through primary legislation.

 

Preface – Of Interests and Rights

 

  1. Legal reality often summons a fundamental contest between various legitimate considerations and values; obviously, such cases raise uncertainties and the need for an objective outline, to the greatest possible extent, of the craft of ascribing priority among them. Not every interest is protected by the law, and it depends upon circumstances even where a fundamental legal right has been recognized by law (of the classification of interests as rights, see HCJ 1514/01 Gur Aryeh vs. Second Television and Radio Authority, IsrLR 267, 275 (2001), in the judgment of President Barak, and compare to the dissenting opinion of Justice Dorner, ibid, p. 284; HCJ 6126/94 Senesh vs. the Chairman of the Broadcasting Authority, IsrSC 53(3)817 (1994); Oren Gazal Ayal and Amnon Reichman, "Public Interests as Human Rights", 41 Mishpatim 97 (5771)). Thus – for example – freedom of speech, which is recognized as a fundamental right in our legal system (HCJ 806/88 Universal City Studios vs. Films and Plays Censorship Board, IsrSC43(2)22 (1989)), receives legal protection on the political level, as the core of the right, but will not necessarily receive a similar protection on the level at the distant periphery of the recognized right, which collides with other interests; the farther you go from the core of the recognized right, so it is possible that under certain circumstances a certain act will not fall within the protection of the law. The question is thus twofold: whether the act falls under the definition of the fundamental right, and whether, under the circumstances, it is protected by the law, after the balance against other interests and rights (see ibid, p. 33-34, President Barak). In order to complete the picture, we shall note that the classification of the considerations at stake as rights or as interests defines the formula of the balance between them, and the normative superiority of one value over the other or their equal value (see Re Gur Aryeh, p. 284); however, the mere classification and the balancing manner ("horizontal" or "vertical") do not necessarily decide the concrete question before the court, since a weighty interest in vertical balancing, such as the interest of the security of the State and the public, may prevail in certain cases over a fundamental right (see HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel vs. Minister of the Interior, [2006](1) IsrLR 202, 339 - President Barak; and compare with the position of former Deputy President Cheshin, p. 457-459, and the position of Justice (his former title) Rivlin, p. 555-559 (2006)).

 

  1. The tough question – which was raised in re Nachmani under the special circumstances thereof – with respect to the classification of the right to parenthood against the right not to be a parent and the normative status of the one against the other, is not raised in the case at bar; because, as we shall see, harm to the core of the right to parenthood has not been proven, and, in fact, if harm has taken place in the matter at hand, it pertains to the right to autonomy; in this situation again, at most the issue concerns the right of the Donor to autonomy against the right of the Petitioner to autonomy, all as shall be specified below.

 

Of the Right to Parenthood

 

  1. Indeed, on the one hand, the Petitioner stands before us with her heart's desire to bring into the world another child from the Donor's donation, having full genetic siblinghood with her daughter. On the other hand, there is the Donor, who asks to prevent further use of the sperm donation he made in the past, and prevent an insemination process, that would make him, against his will, a genetic father to at least one more child, even if without ties with the child and obligations to him. Justice Strasberg-Cohen described this in re Nachmani as two sides of the same coin (see re Nachmani, p. 682), yet, according to her statements as well, a mixture of interests lies at the balance, and even if these interests may be referred to under the general term of right to parenthood and the right no to be a parent, this matter is not thereby exhausted; see the essay of the scholar Daphne Barak-Erez, "Of Symmetry and Neutrality: Reflections on the Nachmani Case", Iyunei Mishpat, 20(1)197, 198 (5756). I shall note already at this point that I do not believe that this case requires legal innovation with respect to the right to parenthood and the right not to be a parent, since the Petitioner's right to parenthood is undisputed, and the question is whether one should recognize the interest of parenthood necessarily by the sperm of the specific donor, as protected under one of these rights.

 

  1. Indeed, despite the different reasoning in re Nachmani and the disagreement between the members of the panel, including among the justices of the majority, it appears that there is presently no longer a dispute with respect to the status in-principle of the right to parenthood – and this is true also in the case at bar. In other cases as well, the perception that the natural right to parenthood is conferred upon every person has been established, as emphasized in CFH 7015/94 the Attorney General vs. Jane Doe, IsrSC 50(1)48, 102:

 

"It is the law of nature that a mother and father will naturally hold their son, raise him, love him and see to his needs until he grows and becomes a man. This is the instinct of existence and survival in us – 'the call of blood', the ancient longing of a mother to her child – and it is common to man, beast and bird. 'Even sea-monsters [jackals – M.C.] offer their breast and nurse their young' (the Book of Lamentations, 4:3)…this tie is stronger than anything, and is beyond society, religion and state…the law of the state did not create the rights of parents toward their children and toward the entire world. The law of the state addresses something already made, it aims to protect an inborn instinct within us, and it transforms an 'interest' of parents to a 'right' under law, to the rights of parents to hold their children" (Justice (his former title) M. Cheshin).

 

            And elsewhere, Justice Cheshin emphasized:

 

"The State argues and maintains as follows: a woman does not have the "right" to surrogacy; it is as though the issue of surrogacy is 'off-limits' and therefore a discrimination argument is an unmerited argument. According to this claim, because a woman is not entitled, ex hypothesi, to need a surrogacy process, a woman's claim of discrimination will consequently not be heard …I have found this argument difficult to comprehend…undoubtedly, the argument of a 'right' under law is a misplaced argument, certainly after the Surrogacy Law, which regulates the issue of surrogacy as it does. Whereas prior to the Law (and the regulations that preceded it), and there being no prohibition on surrogacy, one might argue that a woman, any woman, did have, a 'right' to surrogacy. In any event, the argument of a right to surrogacy is not to the point, yet, the main thing is that the 'right' we speak of – the right to parenthood – is a right that nature brings to us; it is of this right that we speak, not of the right to surrogacy by law (HCJ New Family, p. 445; emphasis added – E.R.).

 

  1. These words are also relevant to the matter at hand (also see HCJ 2245/06 Dovrin vs. the Israel Prison Service (June 13, 2006): "Family and parenthood are the consummation of the natural urge for the continuity of generations and the self-fulfillment of the individual in society"; ibid, paragraph 12 – Justice Procaccia). It is only natural that we mention at this point, that one of the first and foremost commandments is "[B]e fruitful and multiply and fill the earth" (Genesis, 1:28). And this is a deep aspiration, not to be taken lightly. Rachel says to Jacob (Genesis, 30: 1) "[G]ive me children, or else I die". The longing of the mothers, Sara, Rebecca and Rachel, and Hanna, the mother of Samuel, as well as the mother of Samson, all of these are documented in the Bible. The divine promise is " [T]here shall be no male or female barren among you..." (Deuteronomy, 7:14). The visitation of barren women is entrusted to the Almighty and to the righteous (Genesis Rabbah, 77), but the key of birth ("key of life" – "Maftea'ch shel Haya") is not entrusted to an agent and remains in the hands of the Almighty (Babylonian Ta'anit 2, 1-2); see also the ethics book Messillat Yesharim [lit. "Path of the Upright"] by the RaMHaL (Rabbi Moshe Haim Luzzato), the Sanctity chapter. Indeed, in any situation in which the person claiming a right to parenthood requires the approval of use of a new technology in order to enter the world of parenthood, a claim may be voiced that such person does not "hold the right to a particular treatment", he does not hold the right to insemination treatments, to surrogacy and the like. However, the core of the right to parenthood is the practical ability to bring children into the world. Just as the State does not require a "parenting license", so it may not prejudice a person's right to parenthood without weighty pertinent reasons (see CA 413/80 Jane Doe vs. John Doe, IsrSC 35(3)57, 81-82 (1981)). In such situations, wherein a person requires a certain medical treatment in order to be included in the parent circle, non-administration of the treatment infringes upon his right. Naturally, the right to parenthood is also relative, but there can be no dispute that in such cases there is a concrete infringement on the protected interest.

 

  1. I shall briefly address the classification of the right to parenthood (also see the words of Justice Goldberg, re Nachmani, p. 723-724). This point was extensively articulated by Justice Strasberg-Cohen (in a dissenting opinion) in re Nachmani:

 

"The classification of norms that regulate activity in relationships between man and his fellowman has occupied more than a few legal scholars and academics of various fields…legal rights in their strictest sense are the interests that the law protects by imposing duties on others in respect thereof. Conversely, legal rights, in their broadest sense, also include interests that are recognized by the law, against which there is no legal duty. These are liberties…Where a person has a right, which is a liberty or permission, he is under no duty toward the State or toward another to refrain from committing the act, just as he is under no duty to commit the act, which he is at liberty not to commit. A right, which is a freedom or a liberty, does not hold the power to impose a duty on another and to demand that he commit an act, which he is free not to commit…

 

The right to be a parent is, by its very nature, essence and characteristics, a natural, innate right, inherent to human beings. It is a liberty against which there is no legal duty, neither in the relationship between the State and its citizens nor in the relationship between spouses. The right not to be a parent is also a liberty, it is the right of an individual to control and plan his life. Indeed, non-parenthood in and of itself is not the protected value. The protected value in non-parenthood is the liberty, privacy, free choice, self-fulfillment and the right to make intimate decisions..." (ibid, p. 681-682; emphasis added – E.R.).

 

            And like her, Justice Dorner in the same case:

 

"Liberty in its fullest sense is not merely the freedom from outside interference by the government or by others. It also includes a person's ability to direct his lifestyle, fulfill his basic wishes and choose from a variety of possibilities while exercising discretion. In human society, one of the strongest expressions of an aspiration, without which many would not consider themselves to be free in the full sense of the word, is the aspiration for parenthood. This is not merely a natural-biological need. It concerns a freedom, which, in human society symbolizes the uniqueness of man. 'Any man who has no children is as good as dead' said Rabbi Yehoshua Ben Levi (Nedarim, 64, B [19]). Indeed, whether man or woman, most people consider having children to be an existential necessity that gives their lives meaning. Against this basic right, which constitutes a key layer in the definition of humanness, we are required to examine the right not to be a parent. The foundation of the right not to be a parent is the individual's autonomy against the interference of the authorities in his privacy." (re Nachmani, p. 714-715).

 

  1. Hence, the right to parenthood is a liberty, in the legal sense thereof – the right that fellowman and the State not interfere in the individual's actions and not obstruct the fulfillment thereof; a right against which there is no positive duty to act. However, an additional distinction emerges from these words, which pertains to the two layers of this right. The first layer, which holds value in and of itself, is the ability to fulfill the reproductive ability and become a biological mother or father. The second layer, which is also the one underlying the right not to be a parent, is the ability of a person to choose how to fulfill his natural right, i.e., the first layer. The second layer is at the periphery of the right to parenthood, it is not intended to protect the value of bringing children into the world in itself, but rather other values, such as the right to privacy, autonomy and the free choice of with whom, how and when, if at all, to bring children into this world (including the ability to plan a family). This point was articulated by the scholar Green in his aforementioned book:

 

"There are two facets to the right to be a parent: one facet, which to distinguish from the other shall be referred to as the factual, biological-physical facet, namely the right to belong to the parent population and have the status of a parent. The other facet is the right to decide if, when, with whom and in what way to exercise the first facet of the right to parenthood" (Green, p. 68).

 

  1. The right not to be a parent, as aforesaid, is based on the protected value of autonomy; on the face of it, in Israeli society in particular and perhaps in the free world in general, there is presently no value in and of itself in not being a parent; even if the Sages have said "[I]t is better for a man not to have been created than to have been created" (Babylonian, Eruvin, 13, 72), they added in the same breath "[and] now that he has been created, let him examine his deeds". In re Nachmani (p. 710-711), Justice Tal emphasizes the commandment "[B]e fruitful and multiply" (Genesis 1:28), which we have mentioned, and the words of the Sages (Babylonian Yevamot 63, 2): "Tanna, Rabbi Eliezer says that every person not engaged in bearing fruit and multiplying is as though spilling blood". Indeed, Rabbi E.M. Shach, may he rest in peace, told the story of the Chofetz Chaim, Rabbi Israel Meir HaCohen, may he rest in peace (HaMe'ot, the 19th-the 20th), who was deliberating in his times whether to give a couple a blessing for fertility because "children are an immense responsibility, it being a deposit from Heaven", and he saw the difficulty in raising children in a generation whose behavior is lawless and immoral (see Rabbi Asher Bergman The Use of Torah (Year 5758), 139). However, one way or another, everyone, or virtually everyone, would certainly agree that the right to parenthood includes a core value which stands on its own – to bring children into the world – and protects the value of autonomy. Scholar Barak-Erez wrote of this rationale in her aforementioned essay:

 

"This assumption of symmetry between the rights requires further inspection. Albeit captivating, it is far from being self-evident. 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 only due to their allegedly being symmetric. In other words, the existence of symmetry between the two rights may not be assumed merely because they hold both ends of the rope of parenthood.

 

As a rule, the right to "have" and the right to "not have" are not always equivalent. Is the right to life completely equivalent to the right to die? ... This is not a sole example. From the fundamental principle of freedom of speech develops both the right to speak and the right to be silent. However, does it thence result that the right to speak is always equivalent to the right to be silent? … In order to decide the question of balancing the rights, one must address the justifications that underpin them … Justice Strasberg-Cohen determines that 'the right to parenthood derives from the right to self-fulfillment, liberty and dignity'. If the focus is on 'self-fulfillment', the right to parenthood is part of the idea of the autonomy of will: the law respects the individual's choices, including the choice of self-fulfillment through parenthood. When the right is perceived in this way, when it is the will that takes the focus, the balance between it and the decision to avoid parenthood is supposedly simple, since the court also respects this decision in the name of the autonomy of will.

 

However, there is only a semblance of simplicity here. Firstly, even were we to deem the right to parenthood and the right to avoid parenthood merely as derivatives of the autonomy of will, the symmetry between them would not be imperative. We do not respect every will, nor should every will be respected to the same degree. Beyond this, the main criticism is directed against the narrow perception … in my opinion, one should unravel in it [in the right to parenthood – E.R.] many additional facets. The right to be a parent is an independent right, rather than a mere expression of the autonomy of individual will. The realization of the option of parenthood is not just a possible way of life, but rather it is rooted in human existence. One may find it a cure for loneliness; another will thereby cope with the consciousness of death. Indeed, the choice to avoid parenthood is a possible way of life, which society and law need to respect" (p. 199-200).

 

  1. We shall also recall the position of Justice Goldberg, who noted in re Nachmani that "[I]n the dispute before us a positive right and a negative right face one another", both of which are derived from the right to autonomy (ibid, p. 723); but, in contrast, the position of Justice Turkel in that same case, who emphasized:

 

"The modern view, social and legal, recognizes the autonomy of the will of the individual. Hence derive and stand, ostensibly, one against the other, the right to be a parent and the right not to be a parent… Indeed, as cited by Joseph Raz from the essays of Prof. Gans and Dr. Marmor: 'An autonomic person is a person who writes his life story himself'. However, to use this simile, is there indeed symmetry between the rights of each of the spouses to write his own life story himself? In my view, there is no symmetry between the rights, despite the 'external' similarity between them, and the right to be a parent may not be deemed merely as a derivative of the autonomy of will, which stands against the right not to be a parent. Still, even if we deem both of the rights as such derivatives, they are not of equal value and standing, as though existence and nonexistence are equal to one another, and as though they are the symbols 1 and 0 on the computer under the binary method" (ibid, p. 736-737).

 

I believe that this last position is closer to the position I support, whereby the right to parenthood includes an independent value component that exceeds the right to the autonomy of will, unlike the right not to be a parent, which is anchored in the autonomy.

 

  1. We have thus found that the right to parenthood is, on the face of it, a cardinal value in and of itself, natural and primeval, and with high-ranking on a human scale of values; this is joined by the autonomy embodied in the choices of the individual related thereto. We have also seen that, in contrast, the right not to be a parent does not include a protected independent value, but is rather intended to protect the personal autonomy of a person in his choice (not to be a parent, or not to be a co-parent with a certain woman or man). It shall be noted that even those who side with this right being only an interest, see it – so it appears – as an interest that should be protected legally; see the words of Justice Tal in Re Nachmani (ibid, p. 701), who had reservations with respect to this classification. Now that we have established the characterization of the right to parenthood and the right not to be a parent, we shall now move forward to an examination of the standing of the Petitioner and the Donor.

 

Of the Standing of the Petitioner

 

  1. It appears that, in the case at bar, the infringement upon the Petitioner's right does not pertain to the core of the right to parenthood. The primary basis of this right is the practical ability to be included in the "parent circle", and bring a child into this world; there is no actual dispute that such option is, thank Heavens, available to her from a practical standpoint. The Petitioner is healthy and fit to bring a child into this world and is not bound (as was the situation with Ms. Nachmani at her time) to the Donor in the case at bar. She is able to act soon to receive another sperm donation at her preferred timing for undergoing additional insemination treatments. The Petitioner claims that impingement upon the ability to choose with whom to bring children into this world is sufficient in order to be sheltered by the legal right to parenthood. However, in practice, this is not an infringement upon the right to parenthood, but rather, as explained above, at most, and this is highly doubtful, an infringement upon the periphery protected by her right to autonomy (without, for now, addressing the question of the scope of protection, whether the right was indeed violated and whether, on proper balance, it is deserving of protection). It is a major question, and I believe that as a rule the answer thereto will not be positive, whether the right to autonomy has been infringed upon by the focusing thereof on the sperm of John Doe the Donor and no other, at any rate where an anonymous donor is concerned.

 

  1. It is claimed in this respect that "once the Petitioner arrived at the decision to bring children into this world from one donor only, and once she executed this decision when giving birth to her first-born daughter…the Respondents' decision infringes upon the Petitioner's right to parenthood" (Paragraph 21 of the Petition). However, as emerges therefrom, the Petitioner is not seeking protection of the core of the right to parenthood or of her autonomy, but rather of her right to parenthood from a specific person, or her right to a child having a specific genetic constitution.

 

  1. In order to assert the difficulty in legally protecting the Petitioner's interest to again conceive by the same genetic constitution, we shall compare her situation with the situation of a married woman who gave birth to a first child in wedlock, and whose husband promised her that they would have another child. This is not identical, of course, but both of them hold the same promise in-principle, that the second child to join the family would have the same genetic constitution of the first child, i.e. a biological son or daughter by the same father. Can the law enforce this promise when the husband decides to dissolve the marriage, and consequently also infringe on the mother's interest of parenthood to children of the same genetic constitution (or the right of the child to a full genetic sibling)? Can one point to a protected legal interest, other than the interest of reliance, and the prima facie interest that contracts should be honored, although, of course, one may not, as a rule, disparage them? It is my opinion that the answer to these questions cannot be affirmative, and the power of the interest of reliance and agreement is insufficient. Moreover, the infringed interest in the case of the married woman as described may even be stronger in relation to the case at hand, since her reliance is perhaps greater in view of the close relationship between her and her husband; it is recalled that in the case at hand the choice is also subject to the discretion of the treating physician, as aforesaid (see above, according to Annex E-2 to the Director General Circular). Indeed, on the face of it, one might argue that the contractual relationship in a case of sperm donation attests to a choice to follow a different path to parenthood, "businesslike" or "financial", of the type that grants security that is not extant in an intimate set of understandings. We shall hereinafter return to an analysis of the issue on this basis, and shall already state here that this proposition cannot be held.

 

Interim Summary

 

  1. We have addressed the nature of the right to parentho