Islamic Law

CA 8710/17

 Appellants:                  1. A.

                                    2. B.

                                               

                                    v.

 

Respondents:              1. Clalit Health Services

                                    2. C.

 

Appeal of judgment by the Haifa District Court of October 6, 2017, in CC 54431-06-14 by Judge A. Toubi

 

 

Supreme Court Cases Cited:

[1]        CA 3056/99 Stern v. Haim Sheba Medical Center, 56(2) IsrSC 936 (2002)

[2]        CA 2781/93 Daaka v. Carmel Hospital, Haifa, 53(4) IsrSC 526, 549 (1999) [https://versa.cardozo.yu.edu/opinions/daaka-v-carmel-hospital]

[3]          CA 4960/04 Sidi v. Clalit Medical Fund, 60(3) IsrSC 590 (2005)     

[4]        CA 1303/09 Kadosh v. Bikur Holim Hospital (unpublished) (March 5, 2012)

[5]        CA 6153/97 Stendhal v. Sadeh, 56(4) IsrSC 746 (2002)

[6]        CA 3108/91 Ravi v. Veigal, 47(2) IsrSC 497 (1993)

[7]        CA 434/94 Berman v. Mor Institute for Medical Information, Ltd. 51(4) IsrSC 205 (1997)

[8]        CA 8126/07 Estate of Zvi v. Bikur Holim Hospital (unpublished) (January 3, 2010)

[9]        CA 1997/10 Tsoref v. Rosenbaum (unpublished) (February 13, 2012)

[10]      CA 10306/08 Shmueli v. Mor Institute for Medical Information, Ltd. (unpublished) (March 16, 2011)

[11]      CA 2600/09 Maccabi Health Services v. N.S. (unpublished) (November 10, 2013)

[12]      CA 7416/12 Meuhedet Health Fund v. A. (unpublished) (November 4, 2014)

[13]      CA 6936/09 Yehuda v. Clalit Health Services (unpublished) (March 5, 2012)

[14]      CA 2342/09 N.G. v. Clalit Health Services (unpublished) (April 6, 2011)

[15]      CA 1615/11 Ein Tal Clinic – Ophthalmology Center v. Finkelstein (Albalah) (unpublished) (August 6, 2013)

[16]      CA 718/06 Satkhi v. State of Israel (unpublished) (October 30, 2007)

[17]      CA 7756/07 Gerstel v. Dan (unpublished) (December 21, 2010)

[18]      CA 8693/08 Herman v. Sternberg (unpublished) (March 24, 2011)

[19]      CA 119/05 Halifa v. State of Israel (unpublished) (September 10, 2006)

[20]      CA 355/11 Hadassah Medical Organization v. Meuhedet Clinic (unpublished) (February 9, 2015)

[21]      CA 1326/07 Hammer v. Amit (May 28, 2012) [https://versa.cardozo.yu.edu/opinions/hammer-v-amit]

[22]      CA 5604/94 Hemed v. State of Israel, 58(2) IsrSC 498 (2004)

[23]      CA 9936/07 Ben David v. Entebbi (unpublished) (February 22, 2011)

 

 

District Court Cases Cited:

[24]      CC (Jerusalem District Court) 19055-12-13 Abu Dahesh v. Clalit Health Services (unpublished) (February 10, 2016)

[25]      CC (Haifa District Court) 195060-07-14 R.A.B. v. Clalit Health Services (unpublished) (December 18, 2016)

[26]      CC (Tel Aviv District Court) 39999-05-13 P.A. v. Rafaelov (unpublished) (December 25, 2014)

[27]      CC (Haifa District Court) 16010-02-16 A.P. v. Odeh (unpublished) (June 20, 2019)

[28]      CC (Tel Aviv District Court) 5691-12-08 M.N. v. State of Israel – Ministry of Health (unpublished) (September 22, 2013)

 

U.S. Cases Cited:

[29]      Piper v. Cumberland Med. Ctr., 2017 Tenn. App. 33 (2017)

[30]      Canterbury v. Spence, 409 U.S. 1064, 464 F.2d 772, 786 (D.C. Cir. 1972)

[31]      Fain v. Smith, 479 So. 2d 1150, 1155 (1985)

 

 

 

The Supreme Court sitting as a Court of Civil Appeals

(August 6, 2019)

Before: Justices N. Hendel, D. Mintz, and Y. Willner

 

Judgment

 

Justice Y. Willner:

Does a physician’s duty of disclosure include the duty to disclose religious information or medical information adapted to a particular patient’s religious beliefs? That is the central question presented by this appeal.

1. This is an appeal of the Haifa District Court’s judgment (Judge A. Toubi) in CC 54431-06-14 of October 26, 2017, rejecting the Appellants’ suit for wrongful birth in regard to the birth of their daughter, who has Down’s Syndrome.
2. At the age of 41, Appellant 1 (hereinafter: the Appellant) was pregnant for the sixth time, and her prenatal care was mostly conducted through Clalit Health Services (hereinafter also: Clalit). The relevant medical records show that due to the Appellant’s age, the medical staff began providing her with prenatal care in the first weeks of her pregnancy, and explained a number of times the importance of undergoing various tests, including chorionic villus sampling,  amniocentesis, antenatal ultrasound scans and nuchal translucency screening. However, the medical records indicate that the Appellant decided not to undergo chorionic villus sampling and preferred to wait until it would be possible to undergo amniocentesis.
3. During week 12+6 of her pregnancy, the Appellant underwent a nuchal translucency screening. The results indicated a high risk that the fetus had Down’s Syndrome. Accordingly, the Appellant was referred to genetic counseling, and again the possibility of undergoing an amniocentesis was explained to her. She was even referred to a genetic clinic so that, inter alia, she could undergo amniocentesis.
4. During week 14+2 of her pregnancy, the Appellant came to the Clalit Health Services clinic in Nazareth for genetic counseling by Prof. Joel Zlotogora (hereinafter: the genetic counselor), after which Prof. Zlotogora noted in the medical records that he recommended that the Appellant undergo amniocentesis.
5. An antenatal ultrasound scan and blood test that the Appellant underwent in the 16th and 17th week of her pregnancy indicated problematic results, and the medical records indicate that the importance of undergoing amniocentesis to diagnose the fetus’s condition was repeatedly explained to her.
6. During week 18+5 of her pregnancy, Respondent 2, Dr. Yaakub Zakrian, an obstetrics and gynecology specialist at Clalit, referred the Appellant for amniocentesis, which she underwent during week 20+2 of her pregnancy. The results, which were received during week 23+1, indicated that the fetus had Down’s Syndrome. The next day, the Appellant and her husband, Appellant 2 (hereinafter: the Appellant’s husband), met with Dr. Hazanchuk, who performed the amniocentesis. During that meeting, Dr. Hazanchuk explained the results of the amniocentesis and their significance and referred them urgently to the Termination of Pregnancy Committee. Two weeks later, at an additional visit with Dr. Zakrian, he also explained to the Appellants the significance of the amniocentesis results and raised the possibility of terminating the pregnancy.
7. However, after receiving the results of the amniocentesis, the Appellant’s husband went to a Muslim clergyman, who informed him that the Islamic religion prohibits terminating a pregnancy later than 120 days from conception (hereinafter: the 120-day limit). Given that the time period for terminating the pregnancy according to their religious faith had, as noted, passed, the Appellants decided to continue the pregnancy. On November 13, 2007, the Appellants’ daughter was born, and she had Down’s Syndrome.
8. The Appellants then filed a tort suit in the District Court against Clalit and against Dr. Zakrian on the grounds of medical malpractice. In their lawsuit, the Appellants primarily argued that throughout the pregnancy, they were not informed of the possibility of conducing a FISH test – a test that would have facilitated early discovery of the fetus’s condition, as well as an informed decision regarding terminating the pregnancy before 120 days had passed from the date of conception. The Appellants added that the negligence in this case was particularly serious, given the fact that it was a clinic dedicated to treating Muslim women, such that the Respondents were aware of the 120-day limit. It was further argued that, although the FISH test requires an additional payment, the Respondents should have disclosed to the Appellant that she had the option of undergoing it, as the Appellant had undergone an antenatal ultrasound scan and nuchal translucency screening privately, indicating that she does not take risks, and that had she known about the existence of the FISH test she definitely would have been willing to pay to have it performed. It was also argued that the amniocentesis that the Appellant underwent was done too late, and that the Respondents should have performed it earlier, so that its results would have been available before 120 days had elapsed from the date of conception.

Regarding the genetic counseling, it was argued that Prof. Zlotogora was negligent in not asking the Appellant about her religious beliefs, and that he also breached his duty of disclosure by refraining from informing the Appellant about the 120-day limit.

The Appellants also raised alternative arguments, in the event that the court ruled that the Respondents did not owe them a duty to disclose religious information or medical information adapted to their religious restrictions. In that context, the Appellants argued that Dr. Zakrian customarily informed patients about the possibility of performing a FISH test, and that Prof. Zlotogora customarily informed Muslim patients about the 120-day limit. It was thus argued that the Respondents’ conduct regarding this issue should be evaluated according to the higher standard of disclosure with which they customarily conducted themselves. In that context, the Appellants relied on this Court’s decision in CA 3056/99 Stern v. Haim Sheba Medical Center [1] (hereinafter also: the Stern rule), which held that the conduct of a medical institution that has adopted a more cautious practice than is customary for a reasonable medical institution will be evaluated according to the more stringent standard of conduct that it has adopted.

The Appellants also argued that Prof. Zlotogora’s medical notes were inadequate, and that they did not include, inter alia, details of the information that was provided to the Appellant regarding the possibility of performing a FISH test, nor did they contain documentation about an inquiry into her religious faith. Thus, the Appellants argued that the District Court should have started from the assumption that Prof. Zlotogora indeed refrained from asking the Appellant about her religious beliefs and did not inform her of the possibility of performing a FISH test, as noted.

9. On the other hand, the Respondents argued that from the early stages of the pregnancy, the Appellant was informed of the relevant risks of her pregnancy, and she was given the required explanations according to accepted medical practice. Despite that, it was argued, the Appellant preferred at first not to terminate the pregnancy until there was definitive confirmation of the fetus’s status through an amniocentesis, and even afterward, the Appellants consciously decided to refrain from terminating the pregnancy. Thus, it was argued that the Respondents’ aforementioned decision severed any chain of causation between the prenatal care and the birth of their daughter.

It was also argued that it is not the role of physicians to enquire into their patients religious beliefs or discuss the restrictions related to them, and that requiring physicians to do so would impose an unduly heavy burden on them. Furthermore, it was argued that asking patients about their religious beliefs could infringe their right to privacy. Thus, the Respondents argued that even if Prof. Zlotogora did customarily talk with patients about their religious faith, it would be inappropriate to make such conduct a mandatory standard.

Given the aforesaid, it was argued that once the Appellant refrained from informing the medical staff providing the prenatal care about the 120-day limit, there was no reason to deviate from the customary practice regarding the dates for performing the necessary tests and diagnosing the condition of the fetus.

 

The District Court Judgment

10. In its judgment, the District Court rejected the Appellants’ lawsuit for a number of reasons.
11. , it was held that the Respondents cannot be found to have acted negligently toward the Appellant, because the Appellants themselves consulted with a member of the clergy only after receiving the results of the amniocentesis, and in any event, the Appellants did not inform the medical staff about the 120-day limit during earlier phases of the prenatal care. Instead, it was held, the Appellant wanted to exhaust all stages of the medical examination, and decide whether to continue the pregnancy only after definitive confirmation of the fetus’s condition through an amniocentesis – even though the results of the additional tests performed where explained to her, as were the risks arising from such results. It was also held that a FISH test is a test that provides only partial results, and it is not included in the basket of publicly funded health services. The District Court therefore held that in the absence of a medical reason for urgency, as noted, there were no grounds for urging the Appellant to undergo an amniocentesis at an earlier stage, or for informing her of the possibility of performing a FISH test.

Given that conclusion, the District Court refrained from ruling on the factual dispute between the parties regarding the question whether the Appellant was informed of the possibility of performing a FISH test. Similarly, it was held in that context that Prof. Zlogotora’s notes following the genetic consultation were indeed inadequate, but they did include a notation that he had recommended that the Appellant to undergo amniocentesis, and that is sufficient in our case.

• , it was held that it was not the duty of the medical staff to ask the Appellant about her religious beliefs or to discuss her religion’s obligations with her. In that context, it was held that asking patients about their religious affiliation, their level of observance and similar questions would likely infringe their right to privacy, and that requiring physicians to adapt the information they provide patients to particular religious obligations would impose an undue burden on them, and might even undermine the uniformity of the care provided to different patients.  
• , it was held that even if Prof. Zlotogora customarily discussed patients’ religious beliefs and the restrictions related to them, the Stern rule should not be applied in our case, because it is the practice of a single physician, it concerns information that is not medical, and the practice is not in itself desirable – as noted above.

 

The Current Appeal

11. In their appeal, the Appellants focus their arguments on the breach of the duty of disclosure. In this context, they mostly repeat the arguments they made before the District Court. Thus, it was argued that Dr. Zakrian breached his duty of disclosure by not informing the Appellants of the possibility of performing a FISH test, and that Prof. Zlotogora breached his duty of disclosure by refraining from discussing the 120-day limit with the Appellants. It was also argued that the aforementioned negligence of Dr. Zakrian and Prof. Zlotogora constitutes a deviation from the standard of care that they themselves had adopted in their medical work up until that point, which is binding upon them pursuant to this Court’s ruling in the Stern case, which, they argue, should be applied in our case, as well.

Additionally, it was argued that the District Court erred in holding that the question of the Respondents’ negligence is affected by the fact that the Appellants consulted with a member of the clergy only after receiving the results of the amniocentesis. According to the Appellants, that fact could be relevant only after ruling on the liability of the Respondents, via the doctrine of contributory negligence. Similarly, the Appellants repeat their arguments regarding Prof. Zlotogora’s inadequate medical notes and regarding the delay in performing the amniocentesis, as well as in transmitting its results to them after 120 days had elapsed from the date of conception.

12. The Respondents rely on the District Court’s decision, and mostly repeat the arguments they made before that court. Similarly, the Respondents argue that Dr. Zakrian customarily informed his patients about the possibility of performing a FISH test only when patients complained about the prolonged wait for the results of the amniocentesis. Thus, it is argued that the Appellants did not prove the existence of a more stringent medical practice that could raise the standard of care required of Dr. Zakrian.

 

Discussion and Ruling

13. This appeal focuses upon two central questions: first, the issue of the scope of the duty of disclosure imposed on the attending physician – does it also include disclosing religious information regarding obligations and restrictions deriving from religious faith, as well as disclosure of medical information that is adapted to religious characteristics of this kind? Even if we answer that question in the negative, we need to rule on an additional question, which is: should we raise the standard of the duty of disclosure required of a physician who customarily expands his disclosure to his patients to include religious information or medical information adapted as noted, in light of the rule established by this Court in the Stern case.

Below, I will address these questions in order – first-first and last-last – but first, I will begin by setting out the normative framework for our discussion.

 

Duty of Disclosure – the Normative Framework

14. Our legal system ascribes great importance to a person’s right to autonomy, in light of which it has been held, inter alia, that one cannot provide treatment or subject someone to a medical procedure without consent (See: Amos Shapira, “Haskama Midaat” Litipul Rifui – Hadin Hamatzui Viharatzui [“Informed Consent” for Medical Treatment – De Lege Lata and De Lege Ferenda], 14 Iyunei Mishpat 225, 225-226 (5749); Ruth R. Faden & Tom L. Beauchamp, A History and Theory of Informed Consent, 7-9 (Oxford University Press, 1986)). In order for a person to genuinely exercise the aforementioned right to autonomy, it is incumbent on that consent to be “informed consent”, meaning consent that derives from orderly, intelligent consideration of the medical information and the entirety of relevant risks and prospects.

However, in general, the average patient does not possess medical information of this kind, and thus places his trust in his physicians – they are the experts in the medical field, and they possess extensive medical knowledge, as well as the ability to delve into the relevant information and process it as needed. The gaps in information and understanding between a patient and a physician therefore require the latter to present the patient with “appropriate information regarding his or her condition, the nature of the treatment recommended and its purpose, the risks and prospects entailed, and the reasonable alternatives to the treatment proposed” (CA 2781/93 Daaka v. Carmel Hospital, Haifa [2]; see also: CA 4960/04 Sidi v. Clalit Medical Fund [3] 600; CA 1303/09 Kadosh v. Bikur Holim Hospital [4], para. 16 of Deputy President E. Rivlin’s opinion;  Assaf Yakov, Gilui Naot V’haskama Mudaat [ Disclosure and Informed Consent], 31(3) Iyunei Mishpat 609, 641 (2009); Adi Niv-Yaguda, Ikaron Hahadadiut Bamifgash Harefui – Bein Hovat Hagilui (Mitapel) La’ahrayut Hamitupal V’Hovat Hayidua” [The Principle of Reciprocity in the Medical Meeting – Between the Duty of Disclosure (Provider) and the Patient’s Responsibility and “the Duty to Inform”], 13 Alei Mishpat 183, 191-193 (2016); On the duty of disclosure as a “an obligation of trust” that the physician owes his patients, see: Yossi Grin, Hovat Emun Shel Rofeh – Bein Hama’arehet Ha’ezrahit Latzvait [A Physician’s Duty of Trust – Between the Civilian and Military System], in Hovot Imun Badin Hayisraeli [Fiduciary Duties in Israeli Law] 321, 331-333 (Ruth Plato-Shinar and Joshua Segev, (eds.) 2016)).

15. The duty to obtain informed consent prior to providing medical treatment, like the duty of disclosure that derives from it, were expressed in Chapter D of the Patient’s Rights Law, 5756-1996, and in Chapter D1 of the Medical Ethics Rules (See: The Ethics Bureau of the Israeli Medical Association, Etika Rifuit – Klalim V’niyarot Emda [Medical Ethics – Rules and Position Papers], (Tami Karni (ed.), 2018)). Having said that, an appropriate venue for addressing the breach of the duty of disclosure has yet to codified in an orderly fashion. Therefore, the issue can be examined in a number of ways. Thus, inter alia, one can argue that a breach of the duty of disclosure constitutes a breach of a statutory duty (See sec. 63 of the Civil Wrongs Ordinance [New Version]), and that it constitutes negligence pursuant to sec. 35 of the Civil Wrongs Ordinance (for an extensive discussion of the multiplicity of potential homes for the duty of disclosure – positive and normative – see the Daaka case, pp. 544-548; CA 6153/97 Stendhal v. Sadeh [5],  759-760; the Kadosh case, paras. 14-25 of Justice Y. Amit’s opinion; Nili Karko-Eyal, Doktrinat “Hahaskama Mida’at” – Ilat Hatvia Har’uya Makom Shebo Hufra Zchut Hamitapel L’autonomia [The Doctrine of “Informed Consent” – The Appropriate Cause of Action for Suit when the Patient’s Right to Autonomy has been Violated], 49 Haparklit 181 (5767)). In our case, the Appellants chose the path of the tort of negligence, and they focused their arguments before the District Court on that tort. I will therefore devote the following discussion to it.

 

The Nature and Scope of the Duty of Disclosure

16. What is the scope of the information that a physician must disclose to a patient in the context of the duty of disclosure imposed on him as aforesaid, and what is the standard for delimiting the scope of this duty?

First and foremost, as noted above, we find an answer to this question in sec. 13(b) of the Patient’s Rights Law, which states:

           

(B) In order to obtain informed consent, the clinician shall provide the patient medical information to a reasonable extent, so as to enable the patient to decide whether to agree to the treatment proposed. For this purpose, “medical information” includes:

 

(1) The diagnosis of the patient's medical condition and its prognosis;

(2) A description of the essence, course, goal, anticipated benefit, and likelihood of success of the treatment proposed;

(3) The risks entailed in the proposed treatment, including side effects, pain, and discomfort;

(4) The likelihood of success and the risks of alternative forms of treatment, and of nontreatment;

(5) Where the treatment is innovatory, the patient shall be so informed (emphasis added – Y.W.).

 

This provision is relevant to our case because it has been held on more than one occasion that “the standard of conduct established by the law constitutes an indication of the level of conduct in the tort of negligence … therefore, breach of the duty of disclosure under the Patient’s Rights Law can constitute an indication of deviation from the level of disclosure required as part of the tort of negligence” (Kadosh case, para. 22 and references there; See also: Yaakov, pp. 626-627); And the reverse is true (see: Yisrael Giladi, Dinei Nizikin – Gvulot Ha’ahrayut [Tort Law – the Limits of Responsibility] 522-532 (2012)).

17. This Court’s extensive case law shows that, in the past, the test for determining the scope of the duty of disclosure that a physician owes his patient was the “test of the reasonable physician”, similar to the test that generally applies to evaluating conduct or omission by a physician toward his patient. In other words, the question of whether a physician was negligent in refraining from disclosing certain information to the patient is to be determined according to customary medical practice regarding disclosure of that same information. However, over the years, it was decided to reject “the reasonable physician” test, which ignores the patient’s needs and desires and was therefore viewed as unnecessarily paternalistic. In its place, it was decided to emphasize the patient’s needs in particular, and the right to autonomy, and it was thus held that the duty of disclosure includes all the information necessary for the patient to be reasonably able to make an informed decision about treatment or a particular medical procedure. Therefore, the test that currently defines the scope of the duty of disclosure is “the reasonable patient test” (see: CA 3108/91 Ravi v. Veigal [6], 511; CA 434/94 Berman v. Mor Institute for Medical Information, Ltd. [7], 212-214 (1997); the Sidi case, pp. 599-600); CA 8126/07 Estate of Zvi v. Bikur Holim Hospital [8], para. 7 of the opinion of Justice E. Rubinstein; Amnon Karmi, Briut Umishpat [Health and Law] 1116 (2nd ed., 2013); Niv-Yaguda, p. 194).
18. In passing, I note that in the Kadosh case, Justice Y. Amit proposed to modify slightly the customary test regarding the duty of disclosure, and to evaluate it according to the reasonable patient test in the circumstances of the specific patient as he is seen in the eyes of the reasonable physician, as he noted: “According to the proposed test, the physician owes a duty to disclose to the patient information that the physician knows or should know will be grasped as important by a reasonable person in the patient’s position … in order to make an intelligent decision regarding the proposed treatment” (see: ibid., paras. 50-51 of his opinion). I also think that there is a logical-conceptual challenge in imposing liability upon a physician on grounds of negligence – which in principle evaluates the conduct of the physician according to an objective test – without evaluating his own conduct at all (in addition to the standard that relates to the needs of the patient). In any event, the test proposed by Justice Y. Amit was not adopted by this Court, and the established test for evaluating the scope of the duty of disclosure remains “the reasonable patient”.
19. Much ink has been spilled discussing the nature and scope of what the reasonable patient needs to know in order to give informed consent. In this context, we can find many, varied opinions in this Court’s case law – some expanding the duty of disclosure and some limiting its scope.

Thus, it has been held that informed consent requires a verbal exchange between the physician and the patient (see: CA 1997/10 Tsoref v. Rosenbaum [9], para. 8); that a physician does not fulfill the duty of disclosure just by having the patient sign a standard form consenting to medical treatment that does not include a detailed explanation that fulfills the required duty of disclosure (see: the Daaka case, p. 549; and cf: CA 10306/08 Shmueli v. Mor Institute for Medical Information, Ltd. [10], para. 18; and that this duty exists even when the patient is generally aware of the possible risks of a particular kind of medical treatment (see: the Estate of Zvi case, para. 10; CA 2600/09 Maccabi Health Services v. N.S. [11], para. 8; CA 7416/12 Meuhedet Health Fund v. A. [12], para. 8 of the dissenting opinion of Deputy President M. Naor (hereinafter: the Meuhedet case)).

It has further been held that the duty of disclosure also includes informing someone of the risks associated with not consenting to the proposed medical procedure (See: the Meuhedet case, para. 25), as well as disclosing the diversity of medical schools of thought (see: CA 6936/09 Yehuda v. Clalit Health Services [13]), and various clinical alternatives (see: CA 2342/09 N.G. v. Clalit Health Services [14], para. 6); and also that the scope of the duty of disclosure expands in cases of innovative, non-urgent (elective) treatment performed in the private system (see: Stendhal case, pp. 15-16); CA 1615/11 Ein Tal Clinic – Ophthalmology Center v. Finkelstein (Albalah) [15], para. 8); and also where the patient in question had in the past used private health services, thus demonstrating having the means to undergo treatment that requires monetary payment (see: the Sidi case, p. 605). Furthermore, it has been held that the duty of disclosure includes providing information about various screening and diagnostic tests – including their overall benefits and their limitations (this matter was left undecided in the Berman case – see ibid., pp. 218-220; and was decided in the Sidi case – see ibid., p. 603).

20. In addition, it has been held that the duty of disclosure does not mean “flooding” the patient with endless treatment alternatives and remote and minor risks that might result from the medical treatment he faces. Instead, it has been held that the scope of the duty of disclosure should be limited to actual risks that are substantial and relevant under the circumstances, and for which there is a medical indication for their disclosure to the individual patient – balancing the nature of the medical treatment, its necessity and its potential benefit with the probability of its expected risks (see: the Stendhal case, p. 758; CA 718/06 Satkhi v. State of Israel [16], para. 13; CA 7756/07 Gerstel v. Dan [17], para. 22; CA 8693/08 Herman v. Sternberg [18], para. 24; the Meuhedet case, paras. 21-22).

In that context, it was held, inter alia, that once a patient is informed of a necessary course of treatment or test, the physician is not required to repeat himself and try to persuade the patient to undergo it (See: CA 119/05 Halifa v. State of Israel [19], para. 36). Moreover, the scope of the duty of disclosure is more limited when we areconcerned with a patient who has previously undergone the medical procedure in question, and is thus aware of its nature and implications (see: the Herman case), as well as when the information is a matter of public knowledge (see: the Meuhedet case, para. 35).

It has further been held that the duty of disclosure is more limited in regard to screening and diagnostic tests where there is no concrete medical indication of their necessity, when such tests are not precise or unequivocal (see: the Gerstel case, para. 25).

21. It is also important to note, as background to the discussion on the merits, that in general, we should take care not to expand the duty of disclosure excessively and risk leading to “defensive medicine” – a phenomenon in which “in the area of informed consent … is expressed in providing information to patients and making a comprehensive investment in a large-scale  process of informed consent whose cost outweighs the benefits inherent in such a process. That cannot be justified by medical discretion or the good of the patient, but rather derives from physicians’ fears of legal liability” (see: Nili Karko-Eyal, Doctrinat Hahaskama Midaat B’Hok Zchuyot Haḥole 5756-1996, in Ḥok Zchuyot Haḥole [The Doctrine of Informed Consent in the Patient’s Rights Law 5756-1996] 151 (2008) (hereinafter: Karko-Eyal, The Doctrine of Informed Consent)). Exposing patients to excessively extensive information can make it hard for them to make a balanced decision, based on meaningful, relevant considerations. Similarly, endless expansion of the scope of the duty of disclosure risks imposing too heavy a burden on physicians, and in any event can make it hard for them to provide efficient and sufficient treatment to all their patients (See: the Satkhi case; the Gerstel case; the Meuhedet case, para. 21; the Sidi case, p. 602; the Kadosh case, para. 27 of Justice Y. Amit’s opinion; Adi Azar and Ilana Nurenburg, Rashlanut Refuit [Medical Malpractice] 251 (2nd ed., 2000); Karko-Eyal, The Doctrine of Informed Consent, pp. 151-153; Yaakov, pp. 649-654; cf: Gilad, pp. 654-656).

 

The Duty to Provide Religious Information or Medical Information Adapted to the Patient’s Religious Characteristics

 

22. In light of the above, I will now evaluate the first question at the focus of the current appeal, which is essentially divided into two sub-questions: First, within the framework of the duty of disclosure, is the physician required to disclose religious information to a patient regarding requirements and restrictions deriving from religious faith or law that are relevant to the medical treatment? Second, is a physician required to provide a patient with medical information adapted to such requirements and laws?

It should be noted that similar questions have arisen on more than one occasion in trial-court decisions, which have overwhelmingly found that medical advice and treatment should not be adapted to religious characteristics (see: CC (Jerusalem District Court) 19055-12-13 Abu Dahesh v. Clalit Health Services [24], para. 33); CC (Haifa District Court) 195060-07-14 R.A.B. v. Clalit Health Services [25]. para. 20); cf: CC (Tel Aviv District Court) 39999-05-13 P.A. v. Rafaelov [26], paras. 16-17; CC (Haifa District Court) 16010-02-16 A.P. v. Odeh [27], paras. 49-55).

I will already state that I also believe that a physician is not required to provide religious information to a patient, or adapt the medical information provided to a particular patient to that patient’s religious restrictions. However, in cases in which the patient asks, at his own initiative and explicitly, to adapt the medical information to the religious limitations that he communicates to the physician, then and only then is the physician required to do so in accordance with the reasonableness tests that apply to the duty of disclosure.

 

1. The Obligation to Provide Religious Information Relevant to the Medical Treatment

 

23. The starting point for the legal discussion of any issue, including the issue of the scope of the duty of disclosure, is the law. Indeed, as noted above, sec. 13(b) of the Patient’s Rights Law establishes that the duty of disclosure for informed consent includes only the duty to provide medical information regarding the patient’s condition, the characteristics of the proposed treatment, chances and risks deriving from such treatment, and only that (see: para. 16, above; also see: Karko-Eyal, The Doctrine of Informed Consent, pp. 339-341; cf: Yaakov, p. 657).

Furthermore, a review of the case law regarding the scope of the duty of disclosure in the context of medical malpractice, as described above, indicates that even according to expansive views of the scope of the duty of disclosure, there is no doubt that the duty relates to medical information, and to information of this type alone, and does not include a duty to provide religious information.

24. The relevant statutory provisions and the case law thus show that the duty of disclosure imposed on physicians extends to medical information alone, and does not include religious information concerning restrictions or obligations of religious faith.
25. Furthermore, I believe that this conclusion is also consistent with the purpose of the duty of disclosure, given the professional advantage the physician has over the patient, and because of the confines of the physician’s role. As noted above, the duty of disclosure imposed on physicians derives, inter alia, from the inherent gap in the physician-patient relationship concerning issues of medicine (see para. 14 above and the references there). However, for every other issue, including issues of religious faith, a physician, as a physician, has no advantage over the patient in terms of information or expertise, and it is also not the physician’s role to advise patients on issues that deviate from the area of medicine. In general, patients go to a physician to obtain medical information, to a member of the clergy to obtain religious information, to a psychologist to receive mental health treatment, and to an accountant for financial advice. Accordingly, the duty of disclosure imposed on each is limited to his or her areas of expertise and profession. Thus, the duty of disclosure imposed on a physician is also limited to medical information – the information that the reasonable patient expects to get from a physician.
26. Justice Y. Amit’s comments in the Meuhedet case are interesting in this context. There he addressed the difficulty of relying on medical advice given by a member of the clergy:

“Does one heed the words of the rabbi or the words of the physician?”[1] In dealing with issues that are unequivocally medical, the question would appear to be rhetorical … even the rabbi, as learned in the Bible and religious law as he may be, is not a physician … someone who goes to a rabbi to get advice-guidance-recommendation regarding issues unequivocally within a profession such as … medicine should know that the rabbi’s words are not on the purely professional plane, and they are mixed with considerations of faith and religious law (see: ibid., para. 58).

 

Justice N. Sohlberg added that “it is appropriate to remember and note the words of Abtalion in Ethics of the Fathers: ‘Sages, be careful with your words …’ (Mishna, Avot 1:11), and in any event, also – rabbis with your advice” (see: ibid., para. 9 of his opinion).

These words, and their inversion, reinforce my above conclusion that physicians do not have a duty to advise their patients regarding religious obligations and restrictions, and that it is also not their role to do so, even when advice of this kind is relevant to the medical treatment. It would also seem preferable, in general, for medical issues to be the responsibility of physicians, and for religious issues to be left to those conversant in them.

 

2.  

 

27. We have therefore arrived at the conclusion that a physician is not obligated to provide a patient with religious information relevant to the medical treatment. The next question we should address is whether, in the framework of the duty of disclosure, the physician is required to disclose to a patient medical information about treatment options that are adapted to the patient’s religious restrictions.
28. I will not conceal the fact that, at first glance, the case before us may give rise to a liberal-moral intuition in favor of ruling that the duty of disclosure imposed on physicians also includes a duty to disclose medical information adapted to each patient’s religious restrictions. That is because, in the case before us, it is argued that the patient’s “Muslim appearance” was apparent, and had the medical information been adapted to her obvious religious restrictions, she would have been able to make an intelligent decision regarding continuing or terminating the pregnancy before 120 days had elapsed from its inception. However, as I will clarify below, once we take into consideration the perspective of tort law, the overall ramifications of such a ruling, and the good of the patients, this initial moral intuition may quickly change.
29. Thus, in my opinion, even though we are dealing with medical information, it would be inappropriate to expand the scope of the duty of disclosure only in order to adapt the medical information to the patient’s religious characteristics when there is no medical indication for such disclosure. I say this even though it is clear that the patient’s informed decision naturally also comprises considerations deriving from his religion and beliefs (see: CA 355/11 Hadassah Medical Organization v. Meuhedet Clinic [20], para. 32; Niv-Yaguda, p. 194).
30. I would first note that adapting medical information to religious characteristics involves a certain subjectification of the reasonable patient test. However, this kind of subjectification appears to be inconsistent with the essence of the tort of negligence – which is generally evaluated using objective standards of reasonableness.

Similarly, I believe that there are policy considerations that make it problematic to expand the duty of disclosure to one adapted to religious characteristics as noted above, because adapting medical information to the individual patient’s religious characteristics requires investing substantial effort, thought and time, and would therefore make the duty of disclosure significantly more expensive – expenses that would ultimately be passed on to those needing medical treatment. Additionally, there is a real difficulty in evaluating the tort liability of a physician using a retrospective, subjective test, because such a test is based almost entirely on the testimony of the patient in retrospect regarding his preferences and personal needs at the time of the alleged breach of the duty of disclosure, even though he is unequivocally a party interested in the results of the proceeding. Imposing a burdensome duty of disclosure like this on physicians, while granting patients a structural advantage in the framework of determining liability, as noted, risks creating excessive deterrence which, at the end of the day, would have a boomerang effect on the entire community of patients (see: para. 21, ibid., and also see: the Sidi case, p. 602; the Kadosh case, para. 48A; Azar & Nurenberg, pp. 237-238; , 367-369; Yaakov, pp. 665-666; Jaime Staples King & Benjamin W. Moulton, Rethinking Informed Consent: The Case for Shared Medical Decision-Making, 32 Am. J.L. & Med. 429, 443–445 (2006).

31. Additionally, refraining from imposing such a duty also derives from the structural difficulty of assuming, as a point of departure, that a physician knows the religious characteristics relevant to the individual patient. As will be explained below, disclosing such information – not in response to a request by the patient – may lead to many mishaps, infringe the patient’s privacy and autonomy, and even harm the medical treatment itself. In this context, we might think of two possibilities for the physician to initiate disclosing such information: the first, through questioning the patient about his religious beliefs; the second, through an initial assumption that the patient belongs to a particular religious group.

 

1. Questioning the Patient about Religious Beliefs

32. In my opinion, questioning the patient about issues of faith and religion risks infringing the privacy of the patient and the patient’s right to freedom of religion and freedom from religion. Thus, for example, asking a question about the religious characteristics of a patient who comes for prenatal care risks putting her in a problematic situation regarding the physician and perhaps even regarding herself. In that context, the question might expose the said patient to an ethical or religious conflict that may never have arisen had the physician not asked the patient about her beliefs or the extent of her devotion (see: the Abu Dahesh case, ibid; the R.A.B. case, ibid; the P.A. case, para. 17; and cf: Niv-Yaguda, p. 205).

 

2. Initial Assumption about the Patient’s Religious Beliefs

33. Indeed, just as it is inappropriate to question the patient about matters of faith and religion, it is certainly inappropriate to make an assumption about a particular patient’s individual religious characteristics, and  accordingly adapt the medical information provided in the framework of the duty of disclosure. The reason is not just that an assumption of this type is unequivocally paternalistic, but it also risks leading to medical treatment that does not correspond to the patient’s true will and needs. Thus, for example, if a physician assumes that a patient who appears to be religious is not interested in undergoing tests that might justify terminating a pregnancy, he might refrain from providing that patient with medical information about tests of this kind, even though she might indeed be interested in undergoing them. Under these circumstances, it is clear that refraining from disclosing information about relevant medical tests would seriously infringe the patient’s autonomy and her right to decide independently whether to continue the pregnancy.
34. An illustrative example is the case heard by the State of Tennessee’s Court of Appeals in Piper v. Cumberland Med. Ctr.[29]. That decision addressed the case of a woman whose husband went to the hospital for medical treatment, and his medical file mistakenly listed him as a member of the Jehovah’s Witnesses, who generally avoid blood transfusions. Because of that documentation, the medical staff refrained from performing critical treatments that would have required him to undergo blood transfusions and he died. While the lawsuit was denied for procedural reasons, and the appeal of the judgment was also denied, the case testifies to the serious ramifications that can result from a physician making an assumption about a patient’s religious beliefs.
35. We may therefore further note that there are many religions and beliefs, and even within them there are various and diverse ideological movements, opinions and approaches as numerous as the sands of the seashore. Furthermore, not everyone who belongs to a particular religion or movement feels bound by all of its obligations and restrictions. Given what was written above, I think it would be inappropriate for a physician to assume that a woman who lives in a Muslim neighborhood would undoubtedly see herself bound by the entirety of Islam’s commandments; would think that a Jewish patient wearing a yarmulke is necessarily religious, traditional, ultra-Orthodox or a member of a particular Hasidic sect, where sometimes each of the above may hold a different position regarding the medical treatment at hand; or would conclude that a woman coming to him for medical treatment wearing a cross around her neck, necessarily adheres to a strict Christian  approach prohibiting termination of a pregnancy (see: the Abu Dahesh case, ibid.; and cf: CA 1326/07 Hammer v. Amit, paras. 52-53).
36. In conclusion, a physician is not required to adapt the medical information provided in the context of the duty to disclose to his patients’ religious beliefs and restrictions if those arise in the context of an inquiry initiated by the physician or flow from an assumption based on external characteristics that appear to indicate the patient’s religion.
37. In this context, it is worth emphasizing that sometimes a patient’s failure to inform the physician of his religious beliefs or to initiate a conversation on the subject does not necessarily indicate a lack of information, but rather a conscious choice not to discuss subjects of this kind with the physician. This conscious decision should be respected, and thus it is inappropriate for a physician to initiate a discussion of a patient’s individual religious beliefs, undermining the patient’s wish to avoid doing so (see and compare: CC (Tel Aviv District Court) 5691-12-08 M.N. v. State of Israel – Ministry of Health [28].

 

The Patient’s Request to Receive Adapted Medical Information

38. Having said that, when a patient asks a physician, at his own initiative, to receive medical information adapted to his religious beliefs – then and only then would the physician be required to disclose information of this type to that patient (see: the R.A.B. case, ibid.). That is because when a patient makes a request of his physician, at his own initiative, the question changes the standard relationship between the physician and the patient and creates a different standard of disclosure, based on the patient’s expectation of receiving medical information conforming to his request from the physician. In such a case, in response to the patient’s questions, the physician has a duty to disclose all the individual information that is relevant, commensurate with that request, in accordance with the test of reasonableness and the rest of the tests of the tort of negligence.
39. Therefore, if the patient wishes to receive medical information adapted to his religious characteristics – that is, a right to a disclosure that deviates from the customary disclosure – then he is the one who bears the burden of asking the physician, at his initiative, for medical information adapted as noted (See: Karmi, pp. 1179-1181; and cf: Niv-Yaguda, pp. 203-204; similarly, on the nature of the burden as a requirement of any conduct “for the purpose of obtaining or continuing to obtain a legal advantage”, and on the distinction between burden and duty, see: Gad Tedeschi, Hanetel Uba’ayat Ha’ones Vihasikul [The Burden and the Problem of Coercion and Frustration], 16 Mishpatim 335, 335-337 and 339-340 (5746)).
40. And note: Even when a patient asks his physician for information adapted to his individual religious characteristics, which are communicated directly by the patient, the physician is not obligated to disclose religious information to him, but rather medical information adapted as noted. That is because religious information is completely outside the area of the physician’s expertise. Therefore, in his role as physician, it has no place in the framework of the duty of disclosure.

 

On the Subjectification of the Duty of Disclosure in U.S. Law

 

41. Before we apply the aforementioned to the case at hand, I will dedicate a few words to the position of American law on the issue before us.

In American law, each and every state has discretion to determine the standard for a physician’s duty of disclosure, and in general one can divide the customary standards on the issue into three groups. In some of the states, the duty of disclosure is evaluated in light of customary medical practice and commensurate with the scope and nature of the information that a reasonable physician would disclose to his patients. In some states, the duty of disclosure is evaluated according to the standard of the reasonable patient, similar to the test used in Israel. A few states have established a truly subjective test that defines the scope of the duty of disclosure by reference to the wishes and needs of a particular, individual patient. It is indeed true, as noted, that the subjective test has been rejected in the law of most American states, but many states have internalized certain subjective characteristics even within the objective test, such that the reasonable patient is evaluated as if he is standing in the shoes of the individual patient (see: William J. McNichols, Informed Consent Liability in a "Material Information" Jurisdiction: What Does the Future Portend?, 48 Okla. L. Rev. 711, 716–717 (1995); Elysa Gordon, Multiculturalism in Medical Decisionmaking: The Notion of Informed Waiver, 23 Fordham Urb. L.J. 1321, 1335–1336 (1996); and see also: King & Moulton, p. 445).

42. One of the leading cases concerning the test of the reasonable patient is the D.C. Circuit’s decision in Canterbury v. Spence [30], which held, inter alia, as follows:

 

In our view, the patient's right of self-decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is the information material to the decision. Thus the test for determining whether a particular peril must be divulged is its materiality to the patient's decision: all risks potentially affecting the decision must be unmasked (emphasis added—Y.W.).

 

It was further held that shaping the duty of disclosure to the individual needs of each and every patient risks imposing an unduly heavy burden on physicians and is inconsistent with the nature of the tort of negligence, which is generally evaluated through objective standards of reasonableness. Therefore, it was held that physicians are required to disclose to their patients the information that the reasonable person in the patient’s position would need in order to make an informed, intelligent decision commensurate with the information that the physician knows or should know about the patient before him (see ibid., p. 787; similar to the test proposed by Justice Y. Amit in the Kadosh case, as cited above in paragraph 18):

 

                   From these considerations we derive the breadth of the disclosure of risks legally to be required. The scope of the standard is not subjective as to either the physician or the patient; it remains objective with due regard for the patient's informational needs and with suitable leeway for the physician's situation. In broad outline, we agree that “[a] risk is thus material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy” (emphasis added – Y.W.).

 

43. In order for the physician to adapt the relevant information to the patient before him – whether according to the subjective test or according to the test of the reasonable person in the patient’s position – he must, of course, know his patient. Thus, American law also recognizes the physician’s duty to question his patients (Duty to Inquire) (see: Robert Gatter, Informed Consent Law and the Forgotten Duty of Physician Inquiry, 31 Loy. U. Chi. L.J. 557, 567 (2000)). However, this duty is limited to questions regarding medical information related to the patient, as Gatter explained in writing:

          The majority of courts require a physician to ascertain only a patient's medical condition, proposed treatment, or sometimes both, in order to adequately determine what must be disclosed to that patient. Accordingly, the law generally permits physicians to remain ignorant of a patient's non-medical characteristics despite the relevance of those characteristics in providing useful treatment information to each patient. So, for example, under the majority approach, a physician may disclose the same information to every patient with colon cancer even if one patient's primary goal is to participate in his daughter's wedding rather than to maximize his chances for a cure. The physician is permitted to assume that the patient's goal is to maximize his chances of cure, and, therefore, the physician satisfies the duty of disclosure without explaining the likelihood that any of the patient's treatment choices will achieve the patient's goal"(ibid., p. 568; emphasis added—Y.W.).

 

44. The scope of the duty of inquiry described above inherently affects the duty of disclosure that follows such inquiry. Thus, American courts have held more than once that a physician is not required to adapt the medical information he discloses to a patient to individual non-medical characteristics. That is due to the fact that, from the outset, he is not required to ask about such information in the framework of the inquiry and questioning of the patient (see: ibid., pp. 558-559 and 568-574; and compare with the Alabama Supreme Court decision in Fain v. Smith [31].
45. It is also interesting to note that one can indeed find a number of decisions in which U.S. courts also recognized the physician’s duty to disclose to his patient information adapted to his non-medical characteristics or needs. However, these decisions – most or all of them – dealt with situations in which the physician in fact knew about his patient’s unique non-medical characteristics, and despite that knowledge, refrained from giving them expression in the context of disclosing the relevant information. As Professor Gatter wrote in the article cited above:

          These cases… hold that, in determining what treatment information to disclose to a patient, a physician must account for every patient characteristic about which the physician has actual knowledge regardless of whether the physician was required to have discovered those characteristics. Accordingly, these cases do not redefine the scope of the physician's duty to discover, or even inquire about, non-medical characteristics of patients (ibid., p. 577; emphasis added —Y.W.).

 

46. We thus learn that, according to U.S. law, the duty of disclosure does not generally imply a duty to question the patient about individual, non-medical characteristics and needs, inquire about them, or assume their existence based on various external factors. Accordingly, the dominant American approach is that the duty of disclosure does not include adapting the medical information provided to individual, non-medical characteristics, as noted, unless the physician actually knows about such characteristics, desires or preferences.

 

From the General to the Specific

 

47. We will now return to the case before us. Applying all of the above to the circumstances of the case at hand leads to the conclusion that all the Appellants’ arguments regarding breach of the duty of disclosure should be rejected.
48. , Professor Zlotogora did not breach the duty of disclosure by not informing the Appellants of the 120-day limit, because it is religious information that is not part of the duty of disclosure (see: paras. 23-26 ibid.).
49. , Dr. Zakrian, as well, did not breach his duty of disclosure by not providing the Appellants with medical information adapted to the 120-day limit, which is the information regarding the possibility of undergoing a FISH test. That is because the Appellants did not ask Dr. Zakrian to disclose information that would allow them to make a decision about continuing the pregnancy before 120 days elapsed from conception, and thus we are dealing with a standard physician-patient relationship in which the physician is not required to disclose adapted information, as noted.

Furthermore, as extensively detailed above, since the Appellants did not raise the issue of the 120-day limit with Dr. Zakrian, he was not allowed to ask them, at his own initiative, if they would be interested in medical information that would facilitate a decision about continuing the pregnancy during the 120 days, and it would have been inappropriate for him to assume that the Appellants wanted adapted information, given their Muslim appearance or their place of residence.

48. In this context, I would emphasize that I am not addressing whether it was appropriate at that time (2007) to inform every pregnant woman about the FISH test as an inherent part of the duty to disclose medical information, unrelated to the above-mentioned religious affiliation, as that question did not arise in the opinion of the expert (Dr. Peter Yaakobi) presented by the Appellants, and in any event it was not proven by them. In essence, an examination of Dr. Yaakobi’s opinion shows that he did not claim that there was a medical indication that required informing the Appellants about the possibility of performing a FISH test, but rather relied only on the existence of a religious indication which, as noted above, does not create a duty of disclosure.

 

The Duty of Disclosure in light of the Stern Precedent

 

49. What is left, therefore, is to address the last question that this appeal raises: Should this Court’s judgment in the Stern case be applied to this case? As noted, the Appellants argue in this regard that even if it were to be held that the duty of disclosure, per se, does not include disclosing religious information or medical information adapted to religious restrictions or preferences, it should still be held that in this case, because Prof. Zlotogora customarily informed his Muslim patients about the 120-day limit, and Dr. Zakrian customarily informed all his patients about the possibility of undergoing a FISH test, their conduct should be evaluated according to a higher-than-usual standard, pursuant to the Stern rule.
50. The judgment in the Stern case held that once a medical institution adopts practices and procedures that are more meticulous than the customary, reasonable practice, then it has shown that it has the information and data necessary to operate more strictly and cautiously. Thus, it was held that the standard of reasonable behavior that this institution is required to meet should be “elevated”, essentially by attributing the specific medical institution’s unique knowledge and expertise to the test of the reasonable medical institution, according to which the conduct of the said institution would be evaluated.
51. At the outset, I will note that despite the logic of the Stern rule, it is not immune to criticism. That is because, inter alia, the subjectification that it introduces to the standard of reasonable conduct does not, in general, appropriately comport with the objective standards of the tort of negligence, and even risks  “punishing” physicians who operate with extra caution, thus creating a negative incentive to adopt innovative practices or skills (see and compare: Gilad, pp. 494-495; Restatement (Third) of Torts: Liability for Physical and Emotional Harm, § 12, Comment a). I will add that, in my opinion, that precedent may actually be relevant for the rules of reliance, and not the tort of negligence.

In any event, I think that it would be inappropriate to apply the Stern rule to our case, as I will explain.

52. First, as noted above, the crux of the Stern rule is raising the standard of conduct required of the reasonable physician or medical institution because of the special knowledge or skill and greater caution of a specific physician or medical institution. However, as noted, the duty of disclosure is evaluated from the viewpoint of the reasonable patient, and not according to the test of the reasonable physician. In any event, it would appear to be inappropriate to evaluate the unique skill and conduct of a specific physician (including a specific medical institution) in the context of the discussion of the duty of disclosure.
53. , and this is the main point, I believe that the Stern rule does not lead to the conclusion that a physician who customarily provides his patients religious information or medical information adapted to their individual religious characteristics is negligent in refraining to do so in a given case, and that is for reasons of legal policy, which I addressed at length above (see: the Stern case, p. 955; see also the comment of Justice E. Rubinstein in CA 5604/94 Hemed v. State of Israel [22], 518-519) (dissenting, joined by Justice J. Turkel)). Thus, including religious information or medical information adapted to individual religious characteristics in the context of the duty of disclosure (not in response to the patient’s request) is not only outside the physician’s expertise and professional area, but it also raises, as noted above, significant difficulties. Therefore, it is clear that it would be inappropriate to perpetuate such a practice through the Stern rule, and to make it a binding standard of conduct.
53. In light of the above, I believe that the District Court was correct in ruling that it would be inappropriate to raise the standard of conduct required of Prof. Zlotogora and Dr. Zakrian to the point of obligating them to disclose information to patients about restrictions based in religion, or medical information adapted to individual religious characteristics, just because of their alleged custom of doing so.

 

Result

54. Given the result I have reached, there is no need to rule on the Appellants’ argument regarding Prof. Zlotogora’s inadequate medical notes, because even if they were to prove that he refrained from informing them about the 120-day limit, there would be no flaw in doing so, and perhaps the opposite is true.

 

55. Finally, we should also reject the Appellants’ claim that the amniocentesis was performed at too late a stage, and therefore its findings were received after 120 days had elapsed from conception. By that, the Appellants argue medical malpractice by omission, and therefore the relevant test for evaluating their arguments is the test of the reasonable physician in the circumstances of the case. In that context, the customary medical practice is of great significance (see: Azar & Nurenberg, pp. 320-321; Gilad, pp. 503-504). However, the Appellants did not prove that it was customary practice at the relevant time to perform an amniocentesis at an earlier stage. I will also note that the expert opinion submitted on their behalf stated that amniocentesis results are generally received “within 2-3 weeks, as in the case in question” (see ibid., p. 6; emphasis added — Y.W.). It is worth adding that the Appellant was informed of the importance of an amniocentesis as early as the first stages of the pregnancy, and despite that fact, she did not communicate to the medical staff any desire to hurry and undergo it as soon as possible. The District Court therefore correctly held that there is no basis for ruling that the Respondents should have “urged the plaintiff to undergo the necessary tests, primary among them the amniocentesis, in order to remain within the religious restrictions, when she herself did not express any desire or request related to that issue” (see para. 46 of the judgment).

 

Afterward

56. After writing the above, I received the opinion of my colleague, Justice N. Hendel. In that opinion, he argues, inter alia, that there are situations in which a physician should provide his patients with religious information that he possesses (see para. 2 of his opinion; emphasis added –Y.W.). I cannot agree.

I cannot deny that my colleague’s words are touching, and relate to that same moral-liberal intuition that I addressed in para. 28 above. However, despite this initial intuition, as I explained in detail above, I believe that not only is disclosing religious information not part of a physician’s duty in his role as physician, but also that disclosing such information is completely outside the bounds of his role and expertise, and he should avoid doing so (see para. 25 above).

57. This also hold true, in my opinion, for the examples brought by my colleague in his opinion. Thus, I am of the opinion that it is inappropriate for a physician to inform a patient about the stage at which she is permitted to terminate a pregnancy according to the dictates of her religion, even if she informed him that she is a devout Muslim. That is both because, as noted, a physician’s job does not include providing religious information, and also because the fact that a particular patient is Muslim does not in any way indicate the specific theological tradition to which she adheres, her level of devotion, or the views of the specific religious leader on whom she relies. As explained extensively above, assumptions of this kind – that “paint” all Muslim patients, or all Christian or Jewish patients with a uniform religious “color” – are inappropriate, and even risk creating substantial mishaps (see paras. 33-37 above).
58. I would also say in regard to my colleague’s second examples that the determination that a physician would do well to inform a patient of the possibility of talking to rabbis or other religious officials whose opinions may  differ from those of the patient’s rabbi, or would do well to talk to the rabbi advising the patient, clearly deviates from the role of the physician, and might be interpreted as offending the patient’s sensibilities.

 

•  

59.  In light of the all the above, I propose to my colleagues that we deny the appeal without issuing an order for costs.

 

 

Justice D. Mintz:

I concur with the detailed opinion of my colleague Justice Willner. I will only add a small contribution of my own regarding providing “religious information” to a patient.

1. In my view, the attending physician should completely avoid providing “religious information” or medical information adapted to the patient’s religious characteristics, unless asked to do so. The reason, and perhaps the only reason, is the physician’s lack of knowledge regarding those same religious characteristics, which unquestionably deviate from his professional, medical expertise. That is true even if the physician has acquired some degree of broad knowledge of religious law as a result of his clinical experience over time. In our case, the Appellants believe that the physician should know the Muslim law regarding the period in which a pregnancy may be terminated. It is possible that every gynecologist knows this kind of information, but it is also possible, and even probable, that it is not the case. However, even if the information is indeed common among gynecologists, the range of religious-law questions concerning medicine in the various religions is so broad that it would be inappropriate to expect physicians, whose area of expertise is medicine, to possess it.
2. If only as the briefest example of the range of questions that arise at the interface between Jewish religious law and the various fields of medicine, one can point to the numerous articles on halakha published in the journal Tehumin—an annual devoted to the areas of Torah, Society and State. This journal contains articles in the field of medical ethics; gynecology, obstetrics and fertility; paternity and maternity; illnesses, geriatrics and disabilities; transplants; medical devices and para-medical roles, and more (see, e.g., in the field of gynecology, on the narrow question before us regarding terminating a pregnancy: Rabbi Moshe Feinstein, Hapala Malachutit Linachrit [Termination of Pregnancy for a Gentile], 5 Tehumin 64; Rabbi Dr. Aharon Lichtenstein, Hapalot Malachutiot – Hebetei Halacha [Termination of Pregnancy – The Halakhic View], 21 Tehumin 93; Rabbi Abraham Stav, Keitzad Livatzea Hapala Malachutit [How to Terminate a Pregnancy], 29 Tehumin 352; Rabbi Abraham Stav, Shlavim B’herayon L’inyan Isur Hapala [Stages of Pregnancy in regard to the Prohibition upon Termination], 31 Tehumin 53; Rabbi Moshe Tsuriel, Hapalat Ubar She’uvchena Etzlo Mahala Kasha [Aborting a Fetus Diagnosed with a Serious Illness], 25 Tehumin 64; Rabbi Yoel and Dr. Hana Katan, Ubar Pagum – Ivchun Mukdam Um’niyat Herayon [A Fetal Defect– Early Diagnosis and Contraception], 21 Tehumin 107; Rabbi Nahum Elazar Rabinovitch, Zihui Hitpatchut Shel Valad B’emtzaut Ultra-Sound [Identifying the Development of the Fetus by Ultrasound], 30 Tehumin 120; also see articles published on the website of Herzog College – Daat Jewish Studies and Humanities – Asia – Jewish Law and Medicine: www.daat.ac.il/he-il/refua and the Halakhic Medical Encyclopedia – Schlesinger Institute: www.medethics.org.il/articles-main, and there are many more).
3. It is therefore impossible to require a physician to provide any “religious information” related to the patient’s religious characteristics. To paraphrase the Court’s words in CA 7416/12 Meuhedet Health Clinic v. A. [12], which my colleague cited, just as the patient should look to the physician for his answers on matters of medicine, if he so wishes, the patient should look to a religious-law expert of his religion  for answers on matters of religious law, if he so wishes.

 

Justice N. Hendel:

I concur with the main elements of the comprehensive opinion of my colleague Justice Y. Willner. Precisely because of the matters of principle raised by the issue, I will briefly address four comments, regarding which this is not the appropriate occasion or framework to expand.

1.         Religion and medicine. There are various aspects to the tension that has developed between the two. Here, we examine the scientific perspective, or to be more precise, the providing of religious information in the context of medical treatment. My colleague Justice Willner explained why a physician must provide medical information and not religious information, even if the latter may be relevant. As noted, I agree with her. To be sure, in order to understand the issue we must present the character and scope of the physician’s duty to provide medical information to the patient.

The scope of the duty of disclosure that a physician owes his patient is evaluated by reference to the question of whether the patient received all the information that a person reasonably needs to decide intelligently whether to consent to the treatment offered (and see CA 1303/09 Kadosh v. Bikur Holim Hospital [4], paras. 2-3 of Deputy President E. Rivlin’s opinion (hereinafter: the Kadosh case); CA 4960/04 Sidi v. General Federation Medical Fund [3], 599-600). This test is called “the reasonable patient” test. But the name of the test can be misleading. The welcome innovation in the name of the test is meant to clarify that the emphasis is on the patient rather than the physician. However, the test does not replace the physician with the patient, but rather the reasonable physician versus the reasonable patient. That is a different move.

The test of the reasonable physician appears to be appropriate for evaluating the conduct of the physician. The test places an emphasis on the physician and his duty to act according to the standard of reasonableness that is at the heart of the element of negligent conduct as found in the negligence provision – para. 35 of the Civil Wrongs Ordinance [New Version]. The patient is the one who benefits from setting standards that may be strict for the physician. The latter must exercise a duty of care toward the former. The problem with the test of the reasonable physician is that the patient may find himself outside of the equation, even if that is not the intention. Such an approach does not comport with modern conceptions in medicine, including medical ethics. According to these conceptions, the patient is not a passive victim of his condition. The case law correctly rejected the paternalistic approach to the patient (and see: the Kadosh case, paras. 10-11 of Deputy President E. Rivlin’s opinion). As I will immediately explain, “the reasonable patient” does not provide a real response to these modern conceptions. Reasonableness is not required of the patient in the way it is required of the physician – we are not dealing with the patient’s duty, but rather with the patient’s rights.

It is in this context that the information gap between the physician and the patient arises. The former is the expert, and the latter is the layperson. But because the patient has a right to dignity and autonomy, he must be given the possibility to choose (on the interwoven relationship of human dignity, individual autonomy and freedom of choice from the point of view of Jewish law, as well, see CA 9936/07 Ben David v. Entebbi [23], para. 12 of my opinion). The Patient’s Rights Law, 5756-1996 (hereinafter: the Law) was intended to recognize the status of the patient in the treatment he receives. The focus is on para. 13 of the Law, which establishes: “In order to obtain informed consent, the clinician shall supply the patient medical information to a reasonable extent, such as to enable the patient to decide whether to agree to the treatment proposed […]” (emphasis added – N.H.). Note that the requirement is for informed consent. That is a very complex issue. The patient cannot become an expert during the course of his treatment, but his lack of knowledge does not nullify his right to choose, which includes certain kinds of information. In that sense, the physician is not just the expert in the treatment but also the patient’s advisor. According to the text of the law, as well, the reasonableness must be found in the information provided the patient. In this sense, it would be more accurate to call the test, “the reasonable information test” and not “the reasonable patient test”. Of course, the question of what constitutes the reasonable information that should be given to the patient is one that is also based on policy considerations. The boundaries in either direction are important. However, in my view, the test emphasizes the information that is provided to the patient, and not just the patient’s expectations. The reason is that the patient’s expectation, before he receives information from the physician, can be misleading, because he has no idea what to expect. The purpose of the aforementioned para. 13 is to create informed consent – meaning a voluntary, independent choice (and see: para. 13(c)). That is the goal, and that is the condition for providing medical treatment. Reasonableness is, therefore, expressed in the information provided to the patient – both the content of the information, as well as the way it is transmitted.

Emphasizing the rules for providing information would appear to help in deciding hard cases. Of course, the name is not what determines the substance. The physician must act reasonably. There is no such requirement of the patient in the context of medical malpractice cases. The patient’s conduct may have ramifications for determining the scope of the physician’s liability, but that is not the focus. In contrast, the duty to provide the patient with the necessary information, reasonably, is imposed on the physician, and it derives from the patient’s right to know, to choose and to consent in an informed manner.

2.         The distinction between providing medical as opposed to religious information is an appropriate distinction from the point of view of legal policy considerations, which my colleague Justice Willner addressed. The physician is not a religious official, and he is not expected to know the ins and outs of the various religious laws, and to inform his patients about them. I will not deny that in certain cases, the physician presenting religious positions is unwelcome and may even be harmful. Just as partial information in medicine may confuse, that is also true of religious information. However, in examining the issue, there may be situations in which, in my view, the physician would do well to provide his patients with religious information that he possesses, even indirectly, and I say that without establishing an obligation to do so.

I will give two examples, but there are more. The goal is not to impose new obligations on the physician, but rather to create a dialogue. Just as legal realism made its home in the legal world, such is also the case for medical realism. Refraining from imposing a legal obligation on the physician to act in a certain way is not the same thing as prohibiting acting in that way. Take for example a situation in which a patient informs a physician that she is a devout Muslim. The physician is well aware that, in general, according to her religion, a pregnancy cannot be terminated after 120 days from conception have elapsed. At the beginning of the pregnancy, the physician recommends performing a certain test that can reveal various syndromes in the fetus, which may lead the patient to decide that she wants to terminate the pregnancy. The patient, in response to the physician’s recommendation, says that she is interested in these tests, but she will do them at a later stage of the pregnancy, for example five months into it. Only then will she consider the options at her disposal, commensurate with her religion. In such a case, is the physician obligated to remain silent, without mentioning that he knows that according to the patient’s religion, terminating the pregnancy would not be permissible at that stage? I think the answer is likely to be no. Note well: The intention is not for the physician to provide the patient with recommendations on issues of her faith. The only meaning of this comment is that when a physician is well aware of certain religious information that is relevant to a patient according to the patient’s declaration, the physician can recommend that the patient talk to an appropriate religious figure, to the extent that the issue constitutes a consideration for the patient. That should be done while emphasizing that the physician is not an expert in the field. Doing so can allow the patient to make an intelligent decision and prevent irreparable future harm. I would emphasize that this is not professional advice, and the physician should offer the appropriate caveats. But in some situations, we should not rule out providing information as noted, even if there is no obligation to do so. Doing so may even have benefits.

I will present another example. Let us assume that a physician believes that there is an essential, even life-saving, operation for a particular patient, but the patient makes it clear that he does not want to undergo the treatment because he spoke with a religious official, a rabbi, for example, who told him that the treatment is not necessary for his health, and that he will recover without it. Notice that in this example, the religious official takes a medical position, and the patient accords it weight because of the official’s spiritual role. In order to illustrate the example, we will add a description. A thirty-year old man was bitten by a dog, and it becomes apparent that the dog was rabid. The physician expresses the vital need to receive a vaccination quickly. The patient informs the physician that he consulted with his rabbi, who told him that there is no need for it, he should not receive the vaccination, and no danger awaits him. Again, without creating obligations for the physician, he would seem to do well to explain to the patient again that the treatment is essential, and even tell him that there is a possibility of talking with additional rabbis. In the appropriate circumstances, he might even offer to talk to the rabbi himself, if necessary. It should be clear that I am not making a determination about the appropriate course of action in this example, which is not theoretical, but I think that having the physician remain detached from any statement related to the religious element is not necessarily the best approach. It also does not reflect the needs of medical realism, and it may be contrary to the D.N.A. of a devoted physician.

These examples were not presented in order to rule on them, but rather to present the reality with which physicians must grapple, multi-faceted as it is. These are ethical issues that should be recognized. The general rule is as my colleague Justice Willner presented. It is the job of the physician to provide medical information and not religious information. The duty of a physician is to provide the first kind of information. However, in my view, reality is not always binary – not everything is a question of obligation or nothing. The argument about the difficulty of setting boundaries for the religious information that the physician provides requires great thought and caution, but on the other hand, it need not completely negate the possibility of seeking the appropriate balance. We should not forget that the slippery-slope argument can itself be a kind of slippery slope. It is therefore important to enrich the discourse and allow the physician a margin of discretion in dealing with his complex role, both from a medical and a human perspective.

3.         This comment concerns the precedent set in CA 3056/99 Stern v. Haim Sheba Medical Center [1] (hereinafter also: the Stern rule). That case held that when a medical institution adopts an advanced medical practice, the law may hold that institution to a higher standard of caution, even if it is not required of other medical institutions. Similar to the approach of my colleague Justice Willner, I believe that it would be inappropriate to apply that precedent to the case at hand. In my opinion, that is primarily because the rule addresses situations in which a hospital chose an advanced medical practice, whereas informing a patient about religious restrictions does not address an issue of medicine. In other words, we are not dealing with an “advanced” practice. Having said that, I would make two comments on the issue. My colleague noted that the Stern rule treats of the test of the reasonable physician, while the duty of disclosure is evaluated from the point of view of the reasonable patient. As noted, I think that the emphasis should be on reasonable information. In any event, as far as I understand, the Stern rule relates to the standard of conduct expected of an institution that has adopted an advanced practice, whether the standard is evaluated according to the test of the reasonable physician or according to the test of the reasonable patient. That is to say that for purposes of applying the Stern rule, we should not distinguish between negligence in breaching the duty of disclosure and negligence in the actual medical treatment.  An additional question is why should there be a distinction between a physician and an institution in applying the Stern rule when the advanced standard is adopted consistently and continuously. In other words, it is appropriate to ask whether it is proper to differentiate between the logic that applies to a medical institution and the logic that applies to a specific physician. However, given that this question would not change the final outcome, I will leave it undecided.

4.         I read the opinion of Justice D. Mintz, and without disagreeing with him, I would clarify the following point. My colleague concluded by saying that in matters of medicine, one hears the physician, and in matters of religion, one hears the religious arbiter or rabbi. However, according to Jewish law, even this issue is not necessarily characterized by perfect order that divides the decisions neatly into different, hermetically separated drawers – a drawer for the rabbi and a drawer for the physician. Take, for example, the important religious commandment about saving a life. Maimonides, who was himself a physician, expressed it well in his religious ruling regarding the laws of the Sabbath:

Like all the other commandments, the Sabbath is overridden by danger to life. Hence, we execute all of the needs of an ill person in mortal danger according to the word of an expert physician in that place on the Sabbath. When there is a doubt whether there is a need to desecrate the Sabbath for him or there is not a need, and likewise if [one] physician said to desecrate the Sabbath for him but another physician said he does not need [it], we desecrate the Sabbath. For [even] a doubt about [danger to] life overrides the Sabbath (Maimonides, Mishneh Torah, Sabbath 2:1; emphasis added).

And later:

When these things are done […] scholars and sages of Israel are to perform them […] One must not put off the desecration of the Sabbath in treating a seriously ill patient, as it is written: “If a man obeys them he shall live by them” (Leviticus 18:5) (ibid., 2:3).

 

Therefore, according to Maimonides, the physician is the one who decides whether or not the issue is life-threatening, which allows overriding the Sabbath, and the religious actor must follow his instructions. Thus, Maimonides does not place the physician completely outside the sphere of Jewish law. This rule expresses a holistic view of the role of the physician, who is first and foremost committed to determine the patient’s medical condition in order to preserve the sanctity of his life.

This and more will await at the appropriate opportunity.

 

                                                                       

 

Decided in accordance with the opinion of Justice Y. Willner.

Given this day, 5 Av 5789 (August 6, 2019)

 

The Supreme Court sitting as the High Court of Justice

 

HCJ 3856/11

 

Before:                                                The Honorable Deputy President M. Naor                                                                 The Honorable Justice E. Arbel                                                                                  The Honorable Justice N. Solberg

 

The Petitioner:                        Anonymous

 

v e r s u s

 

The Respondents:                   1.       The Supreme Sharia Court of Appeals

                                                      2.       The Sharia Court in Tayibe

                                                      3.       Anonymous

 

The Parties Requesting

to Join as amici curiae:           1.       "Kayan" – Feminist Organization

                   2.       The Concord Research Center for Integration of International Law in Israel

                                                                                   

Petition to Grant an Order Nisi

 

Date of Session:                                           13^th of Kislev, 5773 (November 27, 2012)

 

On behalf of the Petitioner:                Adv. V. Herzberg, Adv. T Mudlij

 

On behalf of Respondents 1-2:           Adv. A. Avzek

 

On behalf of Respondent 3:                Adv. A. Natur

 

On behalf of Party 1 requesting

to join as amicus curiae:                      Adv. S. Batshon

 

On behalf of Party 2 requesting

to join as amicus curiae:                      Adv. F. Raday

 

On behalf of the Attorney General:    Adv. D. Bricksman

 

 

J U D G M E N T

 

 

Justice E. Arbel:

 

Before us is a petition against the decision of the Sharia Court of Appeals ruling it is impossible to appoint a female arbitrator in a divorce proceeding before the court.

 

 

 

 

Background and Review of the Proceedings

 

1.The Petitioner and Respondent 3 (hereinafter: the “Respondent”) are Muslim Israeli citizens who are married to each other. A dispute erupted between the two, which led to various proceedings held in civil courts, including motions for protective orders, alimony actions and more. At the same time, on April 23, 2009, the Respondent filed an “Arbitration Claim” with the Sharia Court in Tayibe. There, the Petitioner claimed that the claim was filed in bad faith since the Respondent intended to divorce. Despite this, the court accepted the Respondent’s petition and on November 1, 2010, instructed that each party appoint an arbitrator on its behalf pursuant to Sections 130 and 131 of the Ottoman Family Law (hereinafter: the “Family Law”). On January 17, 2011, the Petitioner filed a notice to the Sharia court regarding the appointment of Hajjah Rudina Amsha from Tayibe as the arbitrator on her behalf.

 

2.On January 18, 2011, the Sharia Court ruled that: “This court sees that the religious scholars stipulated that the arbitrators must be men, according to the Maliki, Hanbali and Shafi schools of thought…”. Later the court required the Petitioner to appoint a male arbitrator. The Petitioner appealed this decision to the Sharia Court of Appeals. On April 5, 2011, the court denied the appeal. It was ruled that Section 130 of the Family Law, which is the binding law in Sharia courts in Israel, is based on the Maliki interpretation. Since the Maliki required that arbitrators be men, it is impossible to appoint women as arbitrators. Following the judgment, the Sharia Court in Tayibe decided again that the Petitioner must appoint an arbitrator on her behalf within a week. After the Petitioner did not appoint an arbitrator on her behalf, the court appointed two male arbitrators on its behalf on May 11, 2011. At the same time, this petition was filed. Notably, on June 2, 2011, this Court (Honorable Justice Meltzer) granted the Petitioner an interim order prohibiting the arbitrators appointed by the Sharia court from issuing any decisions in the entire matter handed over to their care, until another decision in the petition.

 

3.Following a hearing we held on July 13, 2011, we decided to issue an order nisi, and to have the Attorney General file its position on the matter. After receiving the positions of the parties, we held an additional hearing on May 7, 2012, in which we decided that the Sharia Court of Appeals should give a detailed and reasoned decision on the parties’ arguments, and particularly regarding the applicability of the Equal Rights for Women Act, 5711-1951 (hereinafter: the “Equal Rights for Women Act” or the “Act”). Such judgment was indeed handed down and provided to this Court on August 9, 2012, whose main points we shall address immediately. On November 27, 2012, we held a final hearing in the petition and heard the parties’ arguments. In order to complete the picture, it shall be noted that two organizations filed motions to join the petition as amici curiae“Kayan”–Feminist Organization (hereinafter: the “Kayan Organization”), and the second is the Concord Research Center for Integration of International Law in Israel (hereinafter: the “Concord Center”). Following these proceedings, it is now time to deliver our decision in the petition.

 

 

 

The Sharia Court of Appeals’ Judgment

 

4.As mentioned, following our decision, a reasoned judgment in the matter was given by the Sharia Court of Appeals on June 18, 2012. The Court stated that first the question of which school of thought was chosen by the Ottoman legislator when legislating Section 130 of the law, which binds the Sharia courts in Israel, must be addressed. The Court clarified that according to the Maliki school of thought, the arbitrators serve as a kind of Qadi, and not as representatives of the parties. Their authority is to reconcile the couple or divorce them from each other even without the couple’s consent. In contrast, according to the Hanafi, Shafi and Hanbali schools of thought, the arbitrators’ authority ends with delivering a report to the Qadi who is the one who performs the divorce according to the arbitrators’ report, and the arbitrators do not have authority to perform the divorce unless they have been permitted to do so. The Court further ruled that in Section 130 of the law, the Ottoman legislator relied on the Maliki's opinion, as the language of the section authorizes the arbitrators to dissolve the marriage and provides that the arbitrators’ judgment will be final. The court also relied on the explanatory notes to the Family Law that explicitly referred to the Maliki school of thought.

 

5.The Court stated that the Sharia courts indeed operate pursuant to this principle when implementing Section 130 of the Family Law, and it has been ruled that the act of the panel of arbitrators is a judicial act that creates a judgment similar to the act of a Qadi. The Qadi's only role is to confirm whether the arbitrators’ report is consistent with the law, and if not, to void it. It has been ruled that the Qadi may intervene in the scope of the dowry (mahr) given to the women if he found that the arbitrators unjustifiably reduced it, however this is only the case for a monetary matter and where the court has tools to intervene, in the absence of a Sharia reason for the reduction. It has been ruled that the purpose of the intervention is to prevent the prolonging of the litigation between the parties. In contrast, the court cannot intervene in other matters of the arbitrators’ report since the arbitrators are the ones who heard the couple’s arguments based upon which they reached their conclusions. In summary, the Sharia Court of Appeals rules that “the arbitrators, pursuant to Section 130 of the law, are Qadis and not representatives, and they are the ones who rule regarding the dissolution of a marriage, and the Qadi’s authority is to confirm their ruling.”

 

6.The Court stated that the law does not clarify the terms and characteristics required of the arbitrator, and therefore, it is necessary to turn to the customary opinion in the Maliki school of thought to clarify such terms. According to this school of thought, the arbitrators must be men. The court clarifies that the religious scholars that viewed arbitrators as representatives permitted women to be arbitrators, while the religious scholars that viewed arbitrators as Qadis did not permit women to be arbitrators. The Court further noted that according to the Hanafi school of thought a woman can also be a Qadi.

 

7.As for the Equal Rights for Women Act, the court rules that both of the Act’s exceptions apply: the exception regarding laws permitting or prohibiting marriage and the exception regarding appointing a person to a religious position. The Court emphasized that the arbitrators’ judgment has Sharia implications that stem from the dissolution judgment, which is final and binding, and therefore the Equal Rights for Women Act should not be applied to the appointment of arbitrators. The Court rejected the argument that the Family Law is a civil law and ruled that this law is the codification of Sharia laws that includes laws regarding marriage and divorce that were taken from various schools of thought. The Court also stated that at hand is a religious lex specialis that prevails over the provisions of the Mejelle which is legi generali. The Court cautioned that adopting a different school of thought would harm women, since according to other schools of thought the arbitrator cannot perform a divorce without the husband’s consent, while the Maliki school of thought is the only one that applies a cause of action for dissolving a marriage without the husband’s consent.

 

The Petitioner’s Arguments

 

8.The Petitioner’s attorney claims that Section 130 of the Family Law does not prohibit the appointment of a female arbitrator. According to him, we are concerned with a statue of a civil governing body within the codification process and reforms made during the Ottoman Empire. The Family Law was intended to introduce some into the existing rules and also to reform the legislation while adopting and integrating opinions from various schools of thought and creating a single body of binding legislation. It follows, as argued, that the law is to be interpreted similarly to other civil laws, rather than according to interpretations that were customary among the religious scholars in the period preceding the law’s legislation. It is further argued that the Ottoman legislature did not adopt the Maliki interpretation across the board and allowed itself to prescribe norms that diverge from this school of thought. For example, it is argued that the idea the law established, whereby the authority to dissolve the relationship is granted to the Qadi and not the arbitrators, deviates from Maliki law, as does the Qadi’s authority to appoint a third deciding arbitrator. The Petitioner’s attorney also refers to religious institutions in Muslim countries, such as Jordan, Egypt and Morocco, and even in the Palestinian Authority, where women were appointed in recent years to serve in the position of Qadis. The Petitioner’s attorney claims that according to the civil interpretation, Section 130 of the law is to be interpreted as allowing the appointment of a male or female arbitrator, based also on comparison with the provisions of the Mejelle, which deal with arbitration and grant the parties the freedom to choose the arbitrator acceptable to them.

 

9.The Petitioner’s attorney further claims that the Sharia court’s decisions are to be reversed as they are contrary to the Equal Rights for Women Act. According to the attorney, the Petitioner’s right to be heard (audi alteram partem) was impaired as her arguments regarding the appointment of the female arbitrator were not heard at all before the decisions of the Sharia courts were handed down.

 

10.In the supplementary arguments by the Petitioner, following the Sharia court giving its supplementary judgment, her attorney repeated the argument that the interpretation of Section 130 of the law must be separated from the Maliki school of thought and the law must be treated as an independent and modern statute. According to him, the Sharia courts have also not necessarily adhered to the Maliki school of thought in interpreting the law and that it has been ruled many times that the court has the authority to intervene and revoke the arbitrators’ judgment. He further argues that the Mejelle is based on the Hanafi school of thought and that that is how the residents of the country conducted themselves for several years, and therefore the rules of the Maliki school of thought should not be imposed upon them now. He states that no specific characteristics are required of the arbitrators other than them being acceptable to the parties.

 

The Respondent’s Arguments

 

11.The Respondent’s attorney claims first that the Petitioner’s right to be heard was not impaired since all her arguments were reviewed in writing before the Sharia Court of Appeals, which is not required to conduct oral hearings. As for Section 130 of the Family Law, he argues that this is part of the material-judicial-religious law that is based on the Quran. He presents references that the arbitrator is a judge of sorts who is somewhat inferior to a Qadi. The arbitrators’ authority to listen to the parties’ arguments, and even to rule on a divorce, indicates, so it is argued, their judicial position. The arbitrators’ authorities go to dissolving the relationship between the couple, and therefore their actions relate to the hard core of the laws of divorce. The Respondent’s attorney further states that the Court must accept the arbitrators’ judgment as long as it is not flawed. His conclusion is, therefore, that this is a religious judicial position that falls within the exceptions of the Equal Rights for Women Act. The Respondent’s attorney agrees that the Family Law was indeed legislated primarily based on the Hanafi school of thought, but it includes sections, such as Section 130, which were legislated based on the Maliki school of thought. Furthermore, he argues that the Court is authorized to appoint arbitrators without granting the parties the option of choosing arbitrators on their behalf. Finally, the attorney argues that this is not a case for the High Court of Justice to intervene.

 

12.In relating to the Sharia Court of Appeals’ supplementary judgment, the Respondent’s attorney reiterates his arguments and supports substance of the supplementary judgment. According to him, the Family Law is not a civil law, and contrary to the Mejelle, it is directly based on the Quran, which is a religious law. It is a lex specialis that prevails over the legi generali of the Mejelle. It is also argued that one must distinguish between arbitration under the Mejelle and arbitration under the Family Law. Arbitration under the Mejelle is pursuant to the parties’ desire and at their choice, while arbitration under the Family Law is mandatory by law and it is in fact the Qadi who is authorized to appoint. He further mentions that according to the Maliki school of thought, the arbitrators must be male.

 

The Position of the Attorney General

 

13.At our request, the Attorney General presented its position that the Family Law is a civil law that was legislated based on Sharia Law. During the Ottoman period it was applied to all of the subjects of the Empire irrespective of their religion, but since 1919 this law binds only the Sharia courts. The Family Law was primarily legislated based on the Hanafi school of thought, and it is turned to only upon a lacuna in the law. However, there are sections that were legislated based on other schools of thought, including Section 130, which is based on the Maliki school of thought. According to the Attorney General, the adoption of the Maliki school of thought in this context was apparently meant to benefit women, since this school of thought allows a woman to separate from her husband in broader circumstances and causes of action than the other schools of thought. According to this school of thought, the arbitrators must try to reconcile the couple that is in conflict, but should their attempts be unsuccessful, they have the power to separate the couple even without their consent. The arbitrators are further authorized to determine the sum of the dowry that the husband must pay the wife, according to the degree of fault by each party. The Attorney General clarifies that according to the Maliki school of thought the arbitrators are Qadis for all intents and purposes, and therefore, their ruling is final and binds the Qadi who is not authorized to intervene therein. Additionally, the arbitrator must be a man. However, there are schools of thought which relate to the arbitrators as representatives and allow a woman to be appointed to this position.

 

14.The Attorney General examines the two exceptions of the Equal Rights for Women Act. As for the exception regarding laws permitting or prohibiting marriage and divorce, the Attorney claims that there is doubt whether this exception applies. Indeed, according to the Maliki school of thought the arbitrators are authorized to dissolve the marriage, however, on the other hand it is not actual laws of divorce that are at hand, but rather the identity of those authorized to determine the divorce. According to the Attorney, it is doubtful whether the exception was meant to apply also to those authorized to implement the marriage and divorce laws. As for the exception regarding the appointment of a religious position pursuant to religious law, the Attorney General claims that according to the Maliki school of thought arbitrators have a somewhat judicial position that requires Sharia education. However he notes that this Court has ruled in the past that the arbitrators’ decision is not final and their decision is subject to the confirmation of the Sharia court, in which the court is also authorized to intervene. The Attorney General notes that the Sharia courts indeed do so de facto, similarly to the Hanafi school of thought. According to the Attorney General, these figures allegedly indicate that the exception does not apply to the appointment of the arbitrators. However, the Attorney General believes the exception also applies to religious positions that are not judicial. Since the position of the arbitrator was created by virtue of the Muslim religious law, it appears that the exception in the Equal Rights for Women Act does apply. The Attorney General adds that the Family Law grounds religious laws even if it was made by the Ottoman legislator which applied the law to all the subjects of the Empire.

 

The Position of the “Kayan” Organization

 

15.The "Kayan" organization emphasizes that the decisions of the Sharia court constitute an ultra vires act since they are contrary to the principle of equality and to the Equal Rights for Women Act. As for the exception regarding the appointment of a religious position according to religious law, the organization argues that it is to be interpreted narrowly, so that it shall only apply to actual religious or judicial positions. It is further argued that the arbitrator’s position is not a judicial or religious position and therefore does not fall within this exception. According to the provisions of the Family Law and according to the customary practice of Sharia courts, the arbitrators have the status of representatives of the parties and their recommendations are subject to the court’s confirmation. It follows that this is not a judicial position. According to the organization, these arguments were already accepted and ruled in the past, by this Court. The organization further adds that according to Sharia law and customary practice, the arbitrator can be any person whom either party chooses to appoint and that there are no criteria for such choice. The arbitrators can even be relatives of the couple. It is further argued that it is obvious that a relative, who lacks objectivity and independence in performing his duties, cannot accept a judicial position. Additionally, the Qadi is the one with the authority to confirm the marriage or to declare a separation between the parties. Scholars indicate that the Sharia court has deviated from the Maliki school of thought in all that relates to the roles of the arbitrator and has ruled that the court can reject the arbitrator’s judgment.

 

The “Kayan” organization further clarifies that it is its position that the arbitrator is not a religious position. There are no criteria for appointing an arbitrator, who may also be a relative, which indicates this is not a religious position. At issue, so it is argued, is a familial-social role that is intended to reconcile the couple. It also states that the Family Law is a civil law and argues that in any event the interpretation that minimizes the violation of the principle of equality should be chosen.

 

16.As for the exception relating to laws permitting or prohibiting marriage and divorce, the “Kayan” organization argues that since the arbitrator does not fulfill a judicial or religious position, and since the court is the one that rules on the divorce claim as it is permitted to reject the arbitrators’ recommendation, then this is not a matter of violating laws permitting or prohibiting divorce. The arbitrator has limited discretion that amounts to examining the fault of each of the parties and making a recommendation in the matter of the dowry.

 

17.In general, the “Kayan” organization further argues that preventing the appointment of a woman to the position of an arbitrator in a Sharia court critically violates women’s rights to dignity. It emphasizes that there is no relevant difference between men and women in terms of this position, and therefore, any distinction between them is improper. Furthermore, according to the organization, the appointment of women as arbitrators in necessary in order to realize women litigators’ right to self-expression, and so that they may have an arbitrator on their behalf who would listen to their inner-most feelings in such personal and sensitive matters, who would serve as a voice and a mouthpiece to the woman. Doing so would, in fact, prevent a double infringement, both to the arbitrating women and to the litigating women. Preventing the appointment of a woman as an arbitrator prejudices Muslim women’s access to Sharia courts and contributes to silencing their voice.

 

The Position of the Concord Center

 

18.The Concord Center focuses its arguments on the implications of international law on the case at hand. According to the Center, the Family Law and the Equal Rights for Women Act must be interpreted in light of the human rights conventions Israel committed to uphold. The Center mentions the International Convention for Civil and Political Rights, which protects the right of litigating parties to equality in civil legal proceedings. According to the Concord Center, the Sharia court’s interpretation violates this right, as it prevents one of the parties to the proceeding from exercising the litigating party’s right to choose the person who, pursuant to her discretion, will most efficiently represent her before the family council, while the other party benefits from the option of appointing such a person. According to the center, the said interpretation particularly violates women’s right to due process without discrimination. The disqualification of women to serve as arbitrators has negative implications for the status of women as litigating parties. Such disqualification signals to the litigating woman that her position is inferior to that of the man against whom she is litigating. Finally, the Concord Center argues that the Sharia court’s ruling excludes women in terms of public representation. Such exclusion is contrary to Israel’s commitment pursuant to Section 7(b) of the Convention on the Elimination of All Forms of Discrimination against Women, not to restrict women’s participation in the public arena.

 

Discussion and Decision – Intervening in the Judgment of Religious Courts

 

19.The religious courts, including Sharia courts, are independent judicial authorities with judicial jurisdiction in matters relating to personal status. As such, this court exercises narrow and limited judicial review to decisions of the religious courts, in accordance with that stated in Section 15 of Basic Law: The Judiciary:

 

15.       The Supreme Court

…

(c)        The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court.

(d)       Without limiting the general applicability of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be authorized –

…

(4) to order religious courts to hear a particular matter within their jurisdiction or to refrain from hearing or continue hearing a particular matter not within their jurisdiction; provided that the court shall not entertain an application under this paragraph if the applicant did not raise the question of jurisdiction at its earliest opportunity; and if he had no reasonable opportunity to raise the question of jurisdiction until a decision had been given by a religious court, the Court may cancel a hearing that was held or a decision given by the religious court without authority.

…

 

It has been repeatedly said that this Court does not sit as an instance of appeal on decisions of the religious courts. As such, and in light of the authorities granted to them by law, defined causes of actions were prescribed for this Court’s intervention in decisions by religious courts (HCJ 2578/03, Pachmawi v. Pachmawi, para. 17 (May 8, 2006)). Among such causes of action is the cause of action of ultra vires – the cause of action of violating the rules of natural justice; and the cause of action enshrined in Section 15(c) of Basic Law: The Judiciary, regarding granting relief for the sake of justice (HCJ 11230/05, Muasi v. The Sharia Court of Appeals in Jerusalem, paragraph 7 (March 7, 2007) (hereinafter: the “Muasi Case”). These causes of action, and particularly the latter two, could include various matters from both sides of the coin of justice, violation of the rules of natural justice on the one hand, and relief that shall be granted for the sake of justice, on the other hand. As for this latter cause of action, it has been said:

 

“The latter cause of action for intervention – ‘for the sake of justice’ – is a blanket cause of action which can cover various different matters. The crux of all these matters is the need to grant relief for the sake of justice in the circumstances of a given case, and there is no necessary internal logical connection between them” (HCJ 5227/97, David v. The Great Rabbinical Court of Jerusalem, IsrSC 55(1) 453, 458-459 (1998)).

 

20.An additional cause of action justifying this Court’s intervention in the religious court’s decisions is the court’s deviation from the provisions of a law directed to it. The question whether this cause of action falls within the ultra vires cause of action prescribed in Section 15(d)(4) of Basic Law: The Judiciary, or rather within the cause of action justifying intervention to grant relief for the sake of justice, prescribed in Section 15(c) of Basic Law: The Judiciary, has been raised in the court’s rulings. The different classification of the causes of action implicates the determination of the scope of this Court’s intervention:

 

“This distinction between the causes of the High Court of Justice’s intervention according to the different alternatives of Section 15 of Basic Law: The Judiciary, could implicate the scope and extent of the High Court of Justice’s intervention in the relevant judicial act. If at hand is a court decision that is ultra vires since it did not follow all of the specific details of the civil partnership rule, such decision would generally be overturned. On the other hand, if the matter is classified as a case where relief must be granted for the sake of justice, then there is extensive discretion to examine the essence of the result reached by the court, from a perspective of justice, even if all of the specific details of the civil law required in the path chosen to obtain it, were not strictly implemented.” (HCJ 2222/99, Gabay v. The Great Rabbinical Court, IsrSC 54(5) 401, 426-427 (2000)).

 

In any event, the proper classification has yet to be ruled upon by courts, and it appears that we, too, are not required to rule on the matter.

 

The Matter Before Us

 

21.As emerging from the petition before us, the cause of action that merits our intervention in the Sharia court’s decisions is that relating to the religious court ignoring provisions of law directed to it. The relevant statutory provision here appears in Section 1A(a) of the Equal Rights for Women Act, which prescribes as follows:

 

“There shall be one law for a woman and a man for purposes of every legal act; any statutory provision which, for purposes of any legal act, discriminates against a woman because she is a woman shall not be followed.”

 

This statutory provision, which is also directed to the Sharia court, must be applied by the court, even if applying the religious law brings about different results:

 

“The actions of any court, which shall not act according to the law, shall be ultra vires. Because the Equal Rights for Women Act limited and restricted the authorities of the religious courts to act according to religious law, as they did before the Act’s legislation” (HCJ 187/54, Briya v. Qadi of the Muslim Sharia Court, Acre, IsrSC 9(2), 1193 (1955)).

 

Meaning, the religious court is not permitted to rule based on discriminating against the woman, at least as long as the exceptions to the application of the Equal Rights for Women Act do not apply, or as long as there is no other statute that trumps the provisions of the Equal Rights for Women Act (see HCJ 1000/92, Bavli v. The Great Rabbinical Court-Jerusalem, IsrSC 48(2), 221, 241 (1994) (hereinafter: the “Bavli Case”). It follows that should the Act apply to the case at hand, and the Sharia court reached a result that is contrary to this provision of the Law, and if there is no other law that implicitly overrides the provisions of the Equal Rights for Women Act, the petition is to be accepted and the decision of the Sharia court is to be overturned.

 

Therefore, first we shall have to examine whether the Act applies to Sharia court in the case before us, and whether the exceptions prescribed in it do not. To do so we must interpret the Act’s provisions, while elaborating on its fundamental principles and primarily on the principle of equality between the sexes. It is also necessary to elaborate on the essence of the Sharia court’s ruling in the matter before us. Should we find that the Act applies to the case at hand and that there is no other overriding statutory provision, it would be necessary to examine whether the Sharia court’s ruling violates it. Should the answer to this be in the affirmative, we shall examine the relief that should be granted to the Petitioner in this case.

 

The Principle of Equality Between the Sexes and the Equal Rights for Women Act

 

22.When the architects of the nation wrote the Declaration of Independence they promised to ensure “complete equality of social and political rights for all its citizens, regardless of religion, race and sex”. In doing so, they signed a bill for the benefit of the State, society and the women among it. A bill of promise of basic rights to life, liberty and equality. The State requested to honor the bill and in its early days legislated the Equal Rights for Women Act. The basis for the legislation of the Equal Rights for Women Act is, of course, the principle of equality between the sexes. The principle of equality constitutes one of the main foundations of our legal system and of the democratic rule, in general. The principle of equality is the soul of democracy. “Where there is no equality for a minority, there is also no democracy for the majority” (HCJ 6924/985, The Association for Civil Rights in Israel v. The Government of Israel, IsrSc 55(5) 15, 28 (2001) (hereinafter: the “Association for Civil Rights Case”)). This Court has emphasized the great importance of the principle of equality on many occasions, “setting its place in the center of the legal map and in the roots of all of the rules of law” (HCJ 6845/00, Niv v. The National Labor Court, IsrSc 56(6) 683 (2002) (hereinafter: the “Niv Case”); HCJ 2671/98, The Israel Women’s Network v. The Minister of Labor and Welfare, IsrSC 52(3) 630, 650-651 (1998) (hereinafter: the “Second Women’s Network Case”). Violating the principle of equality creates a double violation: both to the individual and to the public. Discrimination sends out a message of inferior status to the individual and to the discriminated group, and in doing so creates deep humiliation and violates the dignity of such individual or group (HCJ 4541/94, Miller v. The Minister of Defense, IsrSC 49(4) 94, 132 (1995) (hereinafter: the “Miller Case”); (HCJ 953/87, Poraz v. Mayor of Tel-Aviv-Jaffa, IsrSC 42(2) 309, 332 (1988) (hereinafter: the “Poraz Case”). “Discrimination is an affliction that creates a sense of deprivation and frustration. It damages the sense of belonging and the positive motivation to participate in social life and contribute to it” (HCJ 104/87, Nevo v. The National Labor Court, IsrSC 44(4) 479, 760 (1990) (hereinafter: the “Nevo Case”). Equality is essential for society and for the social contract upon which it is built. Infringing the principle of equality means not only prejudicing the individual discriminated against or the group experiencing the discrimination, but also “derogating from the entire public interest, from the character of the society, the wellbeing of all those who comprise it” (HCJ 5755/08, Aren v. The Government of Israel, para. 4 of Justice E. E. Levy’s opinion (April 20, 2009) (hereinafter: the “Aren Case”)). It should be emphasized that the meaning of equality is, not relating differently to people who are not different in any relevant way. The existence of a relevant difference directly and concretely related to the purpose at hand, could, however, justify a permitted and legitimate distinction (the Miller Case, on pages 109-110; the Nevo Case, on page 754). It shall further be noted that the examination of discrimination is an objective examination which is not impacted by the existence or absence of the intent to discriminate (the Niv Case, on page 698; the Second Women’s Network Case, on page 654).

 

23.The principle of equality holds many meanings and various sub-principles. However, the core of the principle of equality, or as it is called “the principle of equality in the narrow sense”, includes a list of defined causes of action which are referred to as the classic causes of action of equality or the generic causes of action of equality. Among these causes of action is equality between the sexes. Violation of the principle of equality in the narrow sense in considered especially severe, and in many countries is even deemed a violation of a constitutional right (the Association of Civil Rights Case, on page 27). “Discrimination due to religion, race, nationality or sex is among the most severe forms of discrimination”, and “the prohibition of sex discrimination – the prohibition of discrimination against women – became one of the strongest leading principles of Israeli law” (the Niv Case, p. 683; 689). Sex discrimination is a form of discrimination with which many of the world’s countries are dealing, and which requires eradication of prejudices and perceptions that were common in human society as to the essence of the differences between the sexes:

 

“Confronting the problem of discrimination in general, and with regard to differences between the sexes in particular, is not only our concern. It concerns every free society where the principle of equality is one of its foundations. Discrimination derives from a perception that was grounded in human society as part of a perspective that for generations viewed the status of women as inferior and without rights. The granting of rights to women has developed step by step. It received impetus and strength in this century as part of the ideological and practical renaissance aimed at eradicating discrimination between people. This struggle to eradicate discrimination against women because of their sex is taking place in various arenas and with a range of weapons. It occupies a place of honor in literature, philosophy, articles, the media, political frameworks and various public arenas.” (the Miller Case, p. 122; see also Justice Dorner’s review there, p. 129).

 

24.The principle of equality, in general, and the principle of equality between the sexes, in particular, have both been recognized in the State of Israel, since the birth of the State of Israel. The declaration of independence establishes the new state’s commitment to maintain “complete equality of social and political rights for all its citizens, regardless of religion, race and sex”. Not long after the Basic Laws were enacted, the principle of equality was recognized as a constitutional principle that is encompassed within human dignity – in its narrow model – and therefore, is protected by Basic Law: Human Dignity and Liberty. The position that was voiced was that the equality that is constitutionally protected is that whose violation amounts to humiliation. Sex discrimination was recognized as humiliating discrimination, and therefore a violation of a constitutional right (the Miller Case, p. 110, 132). It shall be noted that today an interim model has been adopted in the rulings of this Court, whereby “discrimination that does not involve humiliation may also be included within the boundaries of human dignity, provided it is directly related to human dignity as an expression of personal autonomy, freedom of choice and freedom of action, and such other aspects of human dignity as a constitutional right” (HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset, IsrSC 61(1) 619, para. 38 of President Barak’s opinion (2006); HCJ 4948/03, Elhanati v. The Minister of Finance, IsrSc 62(4) 406, para. 17 of Justice Hayut’s opinion (2008) (hereinafter: the “Elhanati Case”).

 

25.Israeli courts’ jurisprudence has, for many years, dealt with discrimination against women in various fields. The courts have constructed the roof beams upon the foundations laid by the legislature. Step by step, courts are taking strides towards eradicating discrimination against women, at least at the declarative and normative levels. The court applies the duty not to discriminate first and foremost to government authorities, “however since it derives from the fundamental principles of fairness and good faith that formulate any social contract and any jurisprudence that stem from them, the forms of the right to equality are not absent in the fields of private law” (the Elhanati Case, para. 17 of Justice Hayut’s opinion). Over the years, the legal system has played an important role in advancing the status of women in society and in realizing the aspiration towards an egalitarian society in which each individual has the opportunity for self-fulfillment, and realizing their capabilities, their desires and aspirations. The Court has not been deterred from intervening in and overturning decisions and actions that were afflicted by sex discrimination, in all walks of life, in a broad and varied list of matters: in the field of employment and wages (the Nevo Case; HCJ 1758/11, Goren v. Home Center (Do it Yourself) Ltd., (May 17, 2012); the Niv Case); in the matter of appropriate representation for women (the Aren Case; HCJ 5660/10, Itach-Women Lawyers for Social Justice Organization v. the Prime Minister of Israel, (August 22, 2010); HCJ 453/94, The Israel Women’s Network v. The Minister of Transportation, IsrSC 48(5) 501 (1994) (hereinafter: the “First Women’s Network Case”); the Second Women’s Network Case; NLC 33/3-25, Air Crew Flight Attendants Committee - Hazin, IsrLC 4 365 (1973)); in the military and security field (the Miller Case); in the family law field (developing the partnership presumption – see for example CA 1915/91, Yaacobi v. Yaacobi, IsrSC 49(3) 529 (1995); FC 4623/04, Anonymous v. Anonymous, IsrSC 62(3) 66 (2007); during pregnancy, birth and parenting (HCJ 11437/05, Kav Laoved v. The Ministry of Interior, (April 13, 2011)); and more. “The equal status of women within the principle of equality is not solely formal and it must span over all the arenas of our life in a practical and real way” (the Poraz Case, p. 342). The meaning of all of the above is that we hear the sounds of equality but still do not see it in full. There are still things to be done, improved and advanced, and the Court has an important and significant role in this matter.

 

One of the sensitive fields in which the court must deal with discrimination against women is that field which directly or indirectly relates to matters of religious law, religion and state. Indeed, the Court has, on more than one occasion, addressed the principle that prohibits discrimination against women because of their sex, in this field as well, and has overturned decisions afflicted by such discrimination. Thus, this Court intervened in the matter of training and appointing female rabbinical pleaders when it appeared that the relevant institutions were attempting to make it difficult for them in order to prevent such positions from being performed by women (HCJ 6300/93, “Hamachon Lehachsharat Toanot Beit Din” v. The Minister of Religious Affairs, IsrSC 48(4) 441 (1994) (hereinafter: the “Rabbinical Pleaders Case”); thus, a petition to order that the female petitioner be added to the Religious Council in Yerucham, after such candidate was disqualified merely because she was a woman, was accepted (HCJ 153/87, Shakdiel v. The Minister of Religious Affairs, IsrSC 42(2) 221 (1988) (hereinafter: the “Shakdiel Case”); and thus it was ruled that a local authority is not permitted to avoid selecting a woman as a representative to the meeting electing a city Rabbi, merely because she was a woman (the Poraz Case).

 

26.However, this is a field in which discrimination against women at the declarative and principle level, too, still remains. This is partly protected by legislation, and the Court must maneuver its way in a manner that respects the legislator’s decisions, but with maximum commitment to the basic principle and constitutional right of equality for women. This is particularly true when at hand are public and state institutions whose services are required by the entire public who cannot avoid such institutions’ services. The perspective regarding discrimination against women shall be different for a member of a community that chooses to belong to it and to accept its rules and the rulings of its institutions, than for a public institution which the public cannot choose whether or not to need its services (see Ruth Haplerin-Kaddari, More on Legal Pluralism in Israel, 23 559, 570 (5760)). It is clear that as every right, the right to equality between the sexes is also not absolute and at times requires balancing with additional interests and rights. However, a violation of equality between the sexes shall have to comply with the tests of the Limitation Clause prescribed in Basic Law: Human Dignity and Liberty (HCJ 11163/03, Vaadat Hamaakav Haelyona Leinyanei Haaravim Beyisrael v. the Prime Minister of Israel, IsrSC 61(1) 1, para. 22 of President Barak’s opinion (2006); the Miller Case, p. 138).

 

27.When we focus on religious courts, the difficulty is exacerbated, since discrimination is inherent to these institutions’ system. This is primarily because only men are being appointed to judicial positions, the appointment to which is allegedly protected by the Act, as we shall see below. Additionally, repeated arguments are heard that the religious law itself often creates discrimination against women, and that at the very least, in terms of results, there is often some kind of propensity against women in these institutions (see for example, Frances Raday, Religion and Equality: Through the Perspective of Jurisprudence, 341, 381, 386 (Vol B, 5760); Frances Raday, On Equality, 19 (edited Frances Raday, Carmel Shalev and Michal Liban-Kobi, 1995); Shirin Batshon, (Kayan Organization, 2012); Aharon Layish, The Status of the Muslim Women in the Sharia Court in Israel, 364 (edited Frances Raday, Carmel Shalev and Michal Liban-Kobi, 1995) (hereinafter: Layish); Pinchas Shipman, Rabbinical Courts: Where Are They Heading, 2 523 (5755); Yifat Biton, Feminine Matters, Feminist Analysis and the Dangerous Gap between Them: Response to Yechiel Kaplan and Ronen Perry, 28 871, 875, 890 (5765)). It shall be emphasized that it is important to maintain the sense of equality and egalitarian results particularly in these institutions, which deal with most sensitive matters of family law, and already often reflect a struggle between the sexes. In any event, the principle of equality also applies in religious courts, subject to the exceptions that were prescribed in the Act (the Shakdiel Case, on page 278). Hence, the role of the state and the government systems, with the support and intervention of this court, is to try, to the extent possible, to balance the said picture, so that women who require the services of these institutions feel they are equal and that they receive the same treatment given to men. For example, one can encourage the appointment of candidates to judicial positions, who besides their professional skills, are supported by women’s organizations (see my remark in HCJ 8756/07, Amutat “Mavoi Satum” v. The Committee for the Appointment of Religious Judges (June 3, 2008)); additionally, one can promote the appointment of women to managerial and administrative positions in the religious courts themselves (see HCJ 151/11, The Ruth and Emanuel Rackman Center for the Advancement of Women's Status v. The Ministry of Justice, (December 27, 2011)); one can also enable and encourage women to fill various positions in religious courts that do not represent the court itself, such as was done with respect to female Rabbinical pleaders in the Rabbinical Courts (the Rabbinical Pleaders Case). This is also the point of departure when examining the appointment of female arbitrators in Sharia courts. Having said that, we must examine the matter in light of the provisions of the Equal Rights for Women Act.

 

The Equal Rights for Women Act, Its Exceptions and Interpretation

 

28.Along with the work done by case law in advancing equality between the sexes, the legislature did not stand still either. Over the years, commencing from shortly after the establishment of the State and until this very day, statutes have been legislated with the purpose of protecting women from sex discrimination. First on the list of these laws is the Equal Rights for Women Act, which was legislated in as early as 1951, and which we discuss in further depth below. Additionally, the Authority for the Advancement of the Status of Women Act, 5758-1998, and the Local Authorities (Advisor for the Advancement of the Status of Women) Act, 5760-2000, were legislated with the general purpose of advancing equality between men and women in Israel. In the area of employment the following statutes and provisions were legislated: section 42(a) of the Employment Service Law, 5719-1959; the Equal Employment Opportunity Act, 5748-1988; the Equal Pay for Female and Male Employees Act, 5724-1964, which was replaced by the Equal Pay for Female and Male Employees Act, 5766-1996; and the Encouragement of Advancement and Integration of Women in the Workforce and the Adjustment of Workplaces for Women Act, 5768-2008. The Women’s Employment Act, 5714-1954, which was intended to protect women in the workplace was also legislated. Sections intended to obtain appropriate representation of women in various institutions and bodies were also legislated (see Section 18A of the Government Companies Act, 5735-1975; Section 4(b) of the Senior Citizens Act, 5750-1989; Sections 8(b)(3) and 16(c) of the National Laboratories Accreditation Authority Act, 5757-1997; Section 63(a)(3) of the Sewage and Water Corporations Act, 5761-2001; Section 15A of the State Service (Appointments) Act, 5719-1959; Section 11(d) of the National Battle Against Road Accidents Act, 5757-1997; see also the Niv Case, on page 686; the Second Women's Network Case, on pages 652-654). One of the long-standing and general statutes in this matter is the Equal Rights for Women Act, which stands at the heart of this petition, and on which we shall now focus.

 

29.As stated, the Equal Rights for Women Act was legislated in as early as 1951, and its purpose was to maintain “complete and full equality for women – equality in rights and obligations, in the life of the state, society and market and in the entire network of laws” (see the Equal Rights for Women Bill, 5711-1951, on page 191). The Act was recognized by this Court as having a special status, superior to ordinary laws. As such, it was referred to by President Barak as a “royal” law (the Bavli Case, p. 240), and Justice Zilberg emphasized that “this law is not like another ordinary law! This is an ideological, revolutionary law that changes social order” (HCJ 202/57 Sides v. The President and Members of the Great Rabbinical Court, Jerusalem, IsrSc 12 1528, 1537 (1958)). The Law is directed at all of the government authorities as well as all of the judicial instances, and religious courts were explicitly obligated to act accordingly (see Section 7 of the Act and the Bavli Case, p. 240). In 2000, a purpose statement was added in the following section:

 

1.Purpose of the Act

The purpose of this Act is to set principles for the assurance of full equality between women and men, in the spirit of the principles of the Declaration of Independence of the State of Israel.

 

It shall be noted that within that same amendment from the year 2000 the exception provided in Section 7(c), upon which we shall elaborate further below, was also added (see Equal Rights for Women (Amendment no. 2) Act, 5760-2000). The Act’s center of gravity, in my opinion, is located in the general and broad provision anchored in Section 1A of the Act, pursuant to which “There shall be one law for a woman and a man for the purposes of every legal act.” This section has been interpreted broadly as anchoring women’s right to equality not only regarding any legal act, but also regarding any legal aspect whatsoever (see Civil Appeal 337/61, Lubinski v. The Assessment Officer, Tel Aviv, IsrSC 16 403, 406 (1962); the First Women’s Network Case, p. 522, the Poraz Case, p. 335). It is further important to emphasize that this is a declaratory and descriptive statue rather than one that is constitutive, since the principle of equality between the sexes existed before the Act was legislated (see the Niv Case, p. 686). An interesting question then follows – what will the impact of the principle of equality on the matter be should we determine that the Equal Rights for Women Act does not apply to the case at hand (see the Shakdiel Case, p. 277). In any event, as we shall see below, we need not rule on this issue here. However, I find it appropriate below to add a few words on it.

 

30.The Equal Rights for Women Act applies broadly. Section 7(a) provides that every governmental authority is obligated to honor the rights detailed in the Act. Section 7(b) expands this application to all courts and tribunals competent to address matters of personal status as well, unless all parties agree to litigate according to the laws of their community. However the law establishes two central exceptions to its applicability, both of which relate to religious courts. Section 5 of the Act provides that “this Act shall not infringe any legal prohibition or permission in connection with marriage and divorce”. Section 7(c), which, as mentioned, was added to the Act in the legislative amendment of 2000, provides that:

 

The provisions of this Act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and of holders of judicial positions in religious courts.

 

31.In light of the Act’s objective, its unique status and the principles upon which it relies, it is my opinion that the Act should be interpreted broadly while the exceptions provided in the Act should be interpreted narrowly. This approach follows this Court’s jurisprudence that legislation that violates basic human rights should be interpreted narrowly, based on the assumption that the Act’s provisions are not intended to violate the principle of equality (the Miller Case, p. 139; the Nevo Case, p. 763; the Shakdiel Case, p. 273; the Poraz Case, p. 322). This is all the more relevant when the principle of equality under the Equal Rights for Women Act is concerned:

 

“In this case even more weight should tip the scale in favor of the Equal Rights for Women Act. This law reflects an important and central value, a principle that formulates life in our state as a civilized state. The Equal Rights for Women Act declares a value that should encompass our entire legal system. Therefore, as long as nothing explicitly contradicts this law, an interpretation that corresponds with the principle of equality between the sexes should be preferred” (the Nevo Case, p. 764).

 

This approach certainly corresponds with the general objective of the Act, as is explicitly provided in Section 1 of the Act, which addresses securing full equality between men and women, explicitly provides. It is appropriate in a democratic state that honors human rights, in general, and equality between the sexes, in particular, and is all the more relevant when an interpretation relating to state and public institutions that serve the entire public is concerned. This approach also addresses the need to interpret the provisions of the Act in light of the spirit of Basic Law: Human Dignity and Liberty, which protects women from discrimination (see the Miller Case, p. 138).

 

32.The exceptions that are relevant to the case at hand appear, as mentioned, in Section 5 and Section 7(c) of the Equal Rights for Women Act. Pursuant to Section 5 of the Act we must examine whether the appointment of a female arbitrator according to Section 130 of the Family Law violates laws permitting or prohibiting marriage or divorce in Muslim law. Pursuant to Section 7(c) of the Act, we must examine whether the appointment of arbitrators is an appointment to a religious position according to religious law or an appointment to a judicial position in a religious court. In order to examine whether or not the case before us falls under the said exceptions, we must first elaborate on the legislative framework in Sharia law that applies to the matter at hand and understand its essence.

 

Arbitrators in Sharia Law and Section 130 of the Family Law

 

33.Before turning to understanding the matter that was presented to the Sharia Court, I shall state in general that the authority of the Sharia courts stems from Section 52 of the King’s Order in Council that grants Sharia courts exclusive jurisdiction to address matters of personal status of Muslim Israeli citizens. The matters of personal status also include matters of marriage and divorce pursuant to Section 7 of the Act of Procedure of the Muslim Religious Courts 1933 (see S. D. Goitein and A. Ben Shemesh The Muslim Law in the State of Israel 42, 276 (1957) (hereinafter: “Goitein and Ben Shemesh”)). It shall be noted that the Family Matters Court Act, 5755-1995, was amended in 2001 to grant parallel jurisdiction to the family matters courts to address personal status matters of Muslims, except matters of marriage and divorce (see HCJ 2621/11, Anonymous v. The Sharia Court of Appeals in Jerusalem, para. 13 (December 27, 2011)). The matter before us, which addresses the divorce of a couple, is, indeed, still in the exclusive jurisdiction of the Sharia court.

 

34.The law that applies to this case is the Ottoman Family Law. The Family Law was legislated by the Ottoman regime and its purpose was to regulate the family laws that would apply to all citizens regardless of their religion. In 1919, the British Mandate adopted the law in the framework of the Muslim Family Law Ordinance, but limited its applicability to Muslims only. The statute’s provisions address matters of marriage and divorce, and the drafters of the law adopted various laws from various schools of Muslim thought – the Hanafi, the Shafi, the Maliki and the Hanbali – in an attempt to choose the rules most appropriate for the twentieth century (Goitein and Ben Shemesh, p. 213; Layish, p. 371).

 

35.The parties before us disagree on whether the Family Law is a religious or civil law. The Family Law was legislated by the Ottoman legislature and was even intended to apply to all citizens of different religions, allegedly indicating that the law is “civil”. The Family Law does not adopt each and every rule of the Quran. For example, there are forms of termination of marriage which appear in the Quran and which were not expressed in the Family Law (see Goitein and Ben Shemesh, p. 139). The Ottoman legislature even took the liberty to select various rules from different schools of thought in Muslim law, as a sign of the times, as it deemed fit. However, the Ottoman legislature did not create rules out of nowhere, but rather, even if in a mixed manner and as per its civil discretion, anchored rules from the various schools of thought which are ultimately based on the Sharia and the Quran (see Iyad Zahalka, The Identity of the Sharia Courts in Israel, in 75 (edited by Liat Kozma, 2011)). It follows that I am willing to assume that the Family Law is a law that is religious in its essence (however, see Moussa Abu Ramadan, The Status of the Ottoman Family Law” in 49 (edited by Liat Kozma, 2011) (hereinafter: “Abu Ramadan”).

 

36.The section the Sharia court applied in this case is Section 130 of the Family Law, which reads as follows, as translated by Goitein and Ben Shemesh:

 

“If arguments and disagreements erupt between a couple, and one of them approached a judge, the judge shall appoint two arbitrators from the couple’s families and if arbitrators from among the relatives are not found or do not have the required characteristics, the judge shall appoint appropriate arbitrators not from among the relatives. A family panel of such composition shall listen to the parties’ complaints and arguments and shall try, to the best of its ability, to reconcile them. If this is not possible because of the husband, they shall rule that the marriage be untied, and if because of the wife, they shall also revoke her right to the entire dowry or a portion thereof. If the arbitrators cannot agree among themselves, the judge shall appoint appropriate arbitrators in a different composition, or a third arbitrator not from among the relatives. The decision of such persons shall be final and non-appealable.”

 

The section anchors an additional way of dissolving the marriage in the event that disputes emerge between the couple. Each one of the couple may demand that a family “panel” or “council” be established and that it shall be comprised of one representative from the husband’s family and one representative from the wife’s family. The council must attempt to reconcile the couple, but if they do not succeed, they must rule to untie the marriage and determine the scope of the dowry to be paid (the Muasi Case, para. 9). If the first arbitrators that were appointed do not agree among themselves, additional arbitrators must be appointed or a third arbitrator must be appointed to decide (HCJ 9347/99, Hamza v. The Sharia Court of Appeals in Jerusalem, IsrSC 55(2) 592, 597 (2001) (hereinafter: the “Hamza Case”).

 

37.The different schools of thought in Sharia law viewed the role of arbitrators differently. As the Sharia court stated in its decision here, the Maliki school of thought allows arbitrators to dissolve the marriage themselves without the involvement of the Qadi, and they serve as a kind of Qadi themselves. According to this school of thought, the arbitrators must be male adults. In contrast, the Hanafi school of thought, along with other schools of thought, views the arbitrators as representatives of the parties, and therefore there is nothing preventing the Qadi from intervening in their decision. According to these schools of thought, a woman can be appointed as an arbitrator (see also Moussa Abou Ramadan, Divorce Reform in the Sharia Court of Appeals in Israel (1992-2003), 13, 2 / (2006) (hereinafter: Abou Ramadan); Abu Ramadan, p. 61).

 

38.The matter of interpretating Section 130 of the Family Law was already brought before this Court in the Hamza Case, which addressed how to interpret the end of the section that “the decision of these people shall be final and is non-appealable.” This Court interpreted the section to mean that after the arbitrators completed their role, the matter is handed to the Sharia court to make its decision, and it has the discretion whether or not to adopt the arbitrators decision:

 

“It is my opinion that the proper interpretation of the sentence in dispute is that the finality mentioned therein means that from that stage, the matter is transferred to the decision of the Sharia court that appointed the arbitrators. At this stage, the arbitrators have completed their role, and the Sharia court is to have its say. The sentence uses the phrase “the decision of these people.” “These people”: the arbitrators, and the finality means that their decision is final, in the sense that their decision is the last decision to be given in by arbitrators before the Sharia court has its say. The arbitration proceeding pursuant to Section 130 has been exhausted and from this stage the Sharia court must rule in the dispute with the arbitrators’ decision before it. This does not mean that the Sharia court cannot return the matter to the arbitrators. But as of this stage, the arbitrators have completed their work, the decision is “final”, and the matter is transferred to the Sharia court for it to reach a decision.

This interpretation accords with the fact that in order for a separation between the couple to be valid, a Sharia court judgment is required. The arbitrators’ decision in and of itself does not dissolve the marriage. Only once a judgment by the court is handed down can the divorce be registered under the law (Section 131 of the law). It is unreasonable to interpret the sentence in dispute such that even though the court must issue a judgment, it does not have the discretion whether or not to accept the arbitrators’ decision. Only an explicit statement that the Sharia court is bound by the arbitrators’ decision and has denied the authority to rule in the matter, could bring about such an extreme result. Therefore the correct interpretation is that the arbitrators’ decision is final, on the arbitration level, but does not derogate from the regional Sharia court’s authority to consider the merits of the arbitrators’ decision and decide whether or not to adopt it” (the Hamza Case, p. 598).

 

According to this interpretation, the final authority to confirm a divorce judgment is granted to the Sharia court. The arbitrators’ decision itself does not dissolve the marriage, and the Sharia court must exercise its discretion and decide whether to adopt the arbitrators’ decision, reject it or accept it in part. The parties may raise arguments against the arbitrators’ decision before the Sharia court and the Sharia court has the authority to accept such or other arguments. It is the one that makes the final ruling in the dispute before it. It shall be noted that in its ruling, the Court also relied on the customary practice in Sharia courts, whereby the Sharia courts have consistently ruled that they have the authority to intervene in the arbitrators’ decision:

 

“One can see that the Sharia court intervenes in the arbitrators’ conclusion when it finds that it does not accord with the facts of the case or is not based on sufficiently solid evidence. It can further be seen that in certain circumstances the court sends the case back to the arbitration level. Meaning, it also emerges from the customary practice that the court has the authority to intervene in the arbitrators’ decision, and that this is how the sentence that is in dispute is interpreted." (The Hamza Case, p. 600).

 

This case law has indeed since been implemented by this Court (the Muasi Case).

 

 

 

Applying the Exceptions of the Equal Rights for Women Act on the Appointment of Arbitrators

 

39.After elaborating on the Equal Rights for Women Act, its purpose and the manner it is interpreted, as well as on the essence of the matter before us, it is now time to examine whether the exceptions in the Act apply to the appointment of arbitrators under Section 130 of the Family Law. The first exception is that in Section 5 of the Act whereby “this Act shall not infringe any legal prohibition and permission in connection with marriage and divorce.” In this matter I agree with the Attorney General’s position that this section was intended to apply to the content of the religious law itself that regulates the matters of divorce and not to the laws that apply to the persons having the authority to implement such laws. This explicitly emerges from the language of the section that deals with the prohibition and permission laws.

 

Furthermore, as mentioned, in my opinion the exceptions in the Act should be interpreted narrowly and thus the interpretation which relates only to the content of religious law, as implied by the language of the section itself, must be preferred. Section 7(c) of the Act also supports this interpretation, since it addresses the persons holding the positions that implement the religious law. The logical conclusion is that Section 5 does not address those in these positions. However, I shall leave instances where a certain appointment in and of itself results in violating laws prohibiting and permitting marriage or divorce for future consideration. In the case of the appointment of arbitrators, at hand is an appointment to a position that exercises authorities related to divorce and not to the actual law that regulates divorce. Additionally, as we saw, there are schools of thought in Sharia law which allow women to be appointed as arbitrators. So the question left for future consideration does not arise. Hence, the conclusion is that the exception in Section 5 does not apply to the case at hand.

 

40.The main exception on which the litigating parties focused, is in Section 7(c) of the Equal Rights for Women Act, and in light of its importance I found it appropriate to restate it here as well:

 

(c)        The provisions of this Act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and of holders of judicial positions in religious courts.

 

The section effectively includes two exceptions, and we must explore the application of both here. The first addresses the “appointment to a religious position under religious law,” and the second addresses the “appointment of holders of judicial positions in religious courts.” On its face, according to the Act’s language the second exception is encompassed by the first exception, but we shall examine each exception separately.

 

41.Is the appointment of arbitrators an appointment to a religious position under religious law? As mentioned, I am willing to assume that the Family Law is a religious law and therefore the end part of the exception applies. This assumption is not free of challenges, because this Act was legislated by a civil legislature and was absorbed into our general system of laws (see Abu Ramadan). However, we shall leave this assumption in place, since in any event I am of the opinion that one cannot say we are concerned with a religious position. The legislature did not exclude any appointment to a position under religious law, but rather only the appointment to a religious position under religious law. This distinction by the legislature is significant. I find much logic in this distinction. There can be an appointment to an administrative position under religious law. Why should such an appointment be excluded from the provisions of the Act? I believe that the expression “religious position” must be interpreted as a position in which some level of professionalism and expertise in religious law and the exercise of such law in the course of the position are required (see the Shakdiel case, p. 274: “Indeed, there is nothing in the Religious Services Act that indicates that only religious and legal scholars should serve on religious councils, and in principle even a non-religious person is qualified to serve on the council”). The more professionalism and expertise in religious law are required for the position and the more religious law is actually exercised in the course of the position, the more we will tend to perceive the position as a religious position, and vice versa.

 

The appointment of arbitrators pursuant to Section 130 of the Family Law does not meet such definition at all. The arbitrators, as we have seen, are representatives of the disputing couple’s relatives. They are not required to have any familiarity with religious law, skills, understanding or qualification in this law. They have no professionalism or expertise in exercising the religious law. Even according to the Maliki school of thought, the characteristics are unrelated to the religious matter (for example, it is required that the arbitrators be fair, mature, adult persons who are not slaves, are not corrupt, are not wastrels and are not atheists. It is preferable that they be relatives or neighbors and in any event that they be aware of the problems between the parties. See Abou Ramadan, p. 264-265). Furthermore, the arbitrators are not required to implement religious law in the course of their position. All they are required to do is act according the provisions of the section – to try to reconcile the couple, and when unable to do so, they must rule a divorce while determining which party is at fault, and accordingly, the scope of the dowry. Once they encounter any problem they must turn to the Sharia court for instructions (see the Muasi Case, paragraph 13).

 

The conclusion is, therefore, that the appointment of the arbitrators is not a religious appointment under religious law, and therefore is not included in this exception.

 

42.Is the appointment of arbitrators an appointment to a judicial position in a religious court? I believe that the answer to this question is also in the negative. On its face, it appears that the section’s interpretation must be limited only to holders of judicial positions in actual religious courts, such as rabbinical judges or Qadis. However, even were we to assume that the exception should be interpreted more broadly, it would not cover the appointment of arbitrators pursuant to Section 130 of the Family Law. As mentioned, in the Hamza Case the Court held that the arbitrators’ decision is not final and is subject to the Sharia court’s absolute discretion. In practice, Sharia courts intervene in the arbitrators’ rulings (see Abu Ramadan, p. 61). It follows that even pursuant to Section 130 of the Family Law the judicial position to rule the divorce is granted to the Qadis in Sharia courts, and not to arbitrators. While arbitrators are important auxiliary tools for Qadis in ruling in the dispute between the couple, they do not make the final decision and they have no authority to divorce the couple without receiving material confirmation from the Sharia court of such decision. The conclusion is that arbitrators cannot be perceived as holding any judicial position whatsoever. It shall be further noted that contrary to holders of a judicial position, arbitrators are not an objective party in the dispute, but rather an involved party, that is generally appointed from among the relatives and as per the desire of the parties in dispute, and therefore, their position cannot be perceived as a judicial position.

 

Hence, Section 7(c) does not apply to the appointment of arbitrators pursuant to Section 130 of the Family Law.

 

43.It emerges from the above analysis that the exceptions provided in the Equal Rights for Women Act do not apply to the case at hand. It follows that the Sharia court should have ruled in this case according to the provisions of the Act that there shall be one law for a woman and a man. The parties before us did not, in fact, dispute the fact that the ruling of the Sharia court was contrary to this provision. None of the parties even raised an argument that there are contrary or conflicting interests in the matter. In my opinion it cannot be said that Section 130 of the Family Law intended for the provisions of the Equal Rights for Women Act not to apply. First of all, the Equal Rights for Women Act was legislated after the Family Law. Secondly, there is not even a hint in the section implying the intention of the law not to allow the appointment of female arbitrators. Furthermore, the purpose of the section supports the appointment of female arbitrators according to the parties’ desire. The arbitrators are meant to represent the parties. They are meant to try to reconcile the couple, and if this is unsuccessful, to determine fault in the dissolution of the couple’s relationship. As such, it is proper to allow the couple to choose an arbitrator who shall be acceptable to them and with whom they are comfortable. Indeed, the Sharia court, as occurred in the case at hand, approaches the couple and allows them to choose an arbitrator on their behalf who shall be approved by the court. Since we are concerned with a dispute between a couple, in a system that is generally patriarchal, it should not come as a surprise that a woman would, at times, prefer to appoint a woman, rather than a man, as arbitrator on her behalf (and of course the man may as well). Perhaps by appointing someone who is acceptable to each of the parties and with whom they are comfortable, the chances of reconciling the couple increase. Similarly, maybe the chances of reaching the correct decision regarding each party’s fault in the dissolution of the relationship and the scope of the dowry would also increase. It follows that the objective of the section also indicates the need to allow a female arbitrator to be appointed.

 

The conclusion that emerges from all of the stated above is that the decision by the Sharia court is to be overturned as it ignored the provisions of the Equal Rights for Women Act. Before I turn to examine the relief, I would like to add one additional remark beyond the necessary scope here.

 

44.It is possible that we would have reached the same result even had we assumed that the Equal Rights for Women Act does not apply to this case. Religious courts, as all judicial tribunals and government authorities, are subject to the fundamental principles of the system, including the principle of equality, which has been consistently implemented in the rulings of this Court. As I mentioned, the principle of equality between the sexes was not born of the Equal Rights for Women Act, but rather only received practical and declarative grounding. Therefore, religious law must also be exercised while taking the fundamental principles of the system, in general, and the principle of equality, in particular, into consideration, to the extent possible within the limitations of the religious law itself. As President Barak stated “There is equality in the application of the principle of equality” (the Shakdiel Case, p. 278; see also the Bavli Case, p. 248). Thus, Basic Law: Human Dignity and Liberty provides that “All governmental authorities are bound to respect the rights under this Basic Law” (Section 11). In my opinion, the implication of this provision is that if there is a customary school of thought in the religious law that conforms to the principle of equality, the religious court must prefer it over a different school of thought in the religious law that does not conform to such principle.

 

45.As I specified above, there are a number of customary schools of thought in Sharia law which religious courts as well as the Ottoman legislature applied in a mixed fashion, without any absolute commitment to one school of thought or another (see also Goitein and Ben Shemesh, p. 24). Indeed, part of the Family Law is based on the Maliki school of thought that only allows appointment of male arbitrators. However, there is also the Hanafi school of thought which is customary in the Muslim world and upon which the Mejelle is based (Goitein and Ben Shemesh, p. 4). Even most of the Family Law is based upon it (Iyad Zahalka 115 (2009)). It allows the appointment of female arbitrators (and it shall be noted that it also allows the appointment of female Qadis). In my opinion, given the principle of equality, the court should have preferred the school of thought that fits this principle over the school of thought that denies it. Especially given that in fact the Sharia courts actually conduct themselves in a manner similar to the Hanafi school of thought, since they do not relate to the arbitrators’ decision as final, but rather exercise their discretion whether or not to confirm it.

 

46.It shall be further emphasized that I do not accept the argument that should it be decided to appoint a female arbitrator similar to the Hanafi school of thought, the Sharia court will have to also adopt the causes of action for divorce of such school of thought, which are more stringent against the wife (see Goitein and Ben Shemesh, p. 141). First of all, as mentioned, the law combines laws from different schools of thought, and therefore there is nothing preventing the appointment of arbitrators under the Hanafi school of thought, meaning allowing a female arbitrator, while the causes of action of divorce shall be determined under the Maliki school of thought, which is more friendly toward women, as has been done so far. The causes of action of divorce have nothing to do with the characteristics of the arbitrators. Secondly, the causes of action of divorce have already been grounded in the Family Law, and it is impossible to derogate from those that are grounded in the law and are customary today as per the rulings of the Sharia court (see CrimAppeal 353 Al-Fakir v. the Attorney General, PD 18(4) 200, 221 (1964)).

 

Summary and Relief

 

47.As we have seen, the exceptions of the Equal Rights for Women Act specified in Sections 5 and 7(c) of the Act, do not apply to the appointment of arbitrators under the Family Law. It follows that the Sharia court should have taken the provisions of the Act into consideration and it failed to do so. Taking the provisions of the Equal Rights for Women Act into consideration would have led to the result that it is possible to appoint female arbitrators, and in turn to the approval of the arbitrator suggested by the Petitioner. The conclusion that follows is that the Sharia court’s decision is overturned. The case shall be remanded to the Sharia court for the arbitration process to continue, while granting the Petitioner the option to choose a female arbitrator on her behalf. Hopefully this may open a window to equality and prevent discrimination among officers in this field.

 

Should my opinion be heard, the petition would be accepted. The Respondent would pay the Petitioner’s costs in the amount of NIS 15,000.

 

 

 

Justice

 

 

Justice M. Naor

 

1.I agree with my colleague, Justice Arbel’s extensive judgment.

 

2.At the basis of the Sharia Court of Appeals’ reasoned decision is the approach that arbitrators are Qadis. The Sharia court summarized its approach in Section 12 of the reasoned judgment dated June 18, 2012, as follows:

 

“12.     In summary, arbitrators pursuant to Section 130 of the law are Qadis and not representatives, and the judgment regarding the dissolution of a marriage is in their hands, and the Qadi's authority is to confirm their judgment. As for the monetary rights, the dowry resulting from the dissolution, the Qadi has the authority to alter the judgment of the arbitration panel and rule that the wife receive the entire dowry in the absence of a Sharia cause of action to reduce it, and the sole purpose is to prevent prolonged litigation” (my emphasis – M.N.)

 

3.Accepting this approach that the judgment regarding the dissolution of the marriage is in the hands of the arbitrators and that the Qadis’ authority is solely to confirm the arbitrators’ ruling, could, in other cases, lead to severe results. Where Qadis conclude the facts of the case do not justify the arbitrators’ ruling that the marriage is to be dissolved, are the hands of Qadis – who were authorized by the law of the State to judge – indeed tied by arbitrators’ final judgment regarding the dissolution of a marriage? This is hard to accept. This is an approach that takes judging out of the hands of those who were appointed to judge – the Qadis. As my colleague noted, this is inconsistent with the rulings of this Court in HCJ 9347/99, Hamza v. the Sharia Court of Appeals in Jerusalem, IsrSC 55(2), 592 (2001) and in HCJ, Muasi v. The Sharia Court of Appeals in Jerusalem (March 7, 2007).

 

 

 

Deputy President

 

 

 

 

 

Justice N. Solberg

 

I agree.

 

Justice

 

 

It was decided as per Justice E. Arbel’s judgment.

 

Given today, the 19^th of Tamuz, 5773 (June 27, 2013).

 

 

Deputy President                                Justice                                     Justice