Parenthood

Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996

Case/docket number: 
HCJ 781/15
Date Decided: 
Thursday, August 3, 2017
Decision Type: 
Original
Abstract: 

This petition seeks to increase access to the surrogacy process in Israel, which is in major part regulated in the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996 (hereinafter: Agreements Law), such that it will also apply to single-sex couples and to single people, either with or without a genetic link to the newborn. On July 17, 2017, the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017, passed its first reading in the Knesset. Under this Bill, the circle of women eligible for the surrogacy process in Israel would be extended to include single women who are suffering from a medical problem due to which the process is necessary, on condition that the genetic link between the prospective mother and the newborn is preserved. According to Respondent 1, in view of the introduction of the Bill, the petition does not establish cause for judicial intervention. According to the Petitioners, there is no justification for waiting for an additional, lengthy period to allow for the progress of the legislative process. They emphasize that the Bill does not provide a solution for the Petitioners – single-sex couples and single men (Petitioners 1-4). Petitioner 5-6 are single women who, due to medical problems, are not able to carry a pregnancy nor to donate their own ova for fertilization and implantation in the womb of a surrogate. These Petitioners object to the requirement for a genetic link in the surrogacy process.

 

The High Court of Justice (per Deputy President S. Joubran, Justices H. Melcer, President M. Naor, Deputy President (emer.) E. Rubinstein and Justice E. Hayut concurring) ruled:

 

The petition with respect to the requirement for a genetic link is denied. As for expanding the scope of the circle of those eligible for surrogacy to single men and to male couples, this issue must remain without a final decision at present, due to pending legislation and in light of the principle of mutual respect between the branches of government.

 

The position of the High Court is that the passage of the Bill in a first reading and its being sent for preparation for its second and third reading has created a new situation that justifies granting the legislature a certain grace period to complete the legislative process with respect to extending access to surrogacy in Israel to family units that are not presently included, prior to deciding on the merits of the entire petition. This position stems from the judicial restraint that is required in sensitive matters such as this, and because implementation of such a decision at this time would raise difficulties.

 

In this context, the High Court of Justice is of the opinion that there is nothing wrong in the actual advancement of legislative initiatives as a response to or in connection with proceedings being conducted in the Court – as long as the motives are relevant and proper. The Court also believes, inter alia, that it must act with caution in postponing its decision on a pending petition due to a legislative initiative. There may be circumstances in which it is not appropriate to adopt this course, whether because the postponement is likely to cause serious harm to the petitioners or to allow a wrong that requires immediate correction to remain unaddressed, or whether because the chances of the legislative initiative actually changing the normative framework are slim. The position of the High Court is that the guiding considerations in this matter are similar to those on the basis of which ripeness is examined in constitutional law. A decision on the matter of this cause should be made by balancing the benefits of adjudicating the matter before the Court in another forum (in this case – the legislature), against the anticipated harm to the petitioners due to allowing the existing normative situation to remain unchanged.

 

In the circumstances of the case, the High Court is of the opinion that the Respondents should notify the Court of the progress of the legislation within six months. If the legislative process in the Knesset is not completed within a reasonable time, the subject will be revisited by the Court, which will deliberate and decide on it as it sees fit.

 

At the same time, the  Court is of the opinion that it is already possible to decide on the part of the petition that concerns the argument of Petitioners 5-6 (hereinafter: the Petitioners) that surrogacy should be permitted without the existence of a genetic link between the prospective parent or prospective parents and the newborn. In this context the Court ruled that the requirement of the Israeli Law for a genetic link in the surrogacy process is not discriminatory, but is based on relevant, practical considerations. The main reason for this position is the recognition (in Israel and in the Western world) of the importance of a genetic link between parents and children in general, and the importance of this link in the surrogacy process in particular.

 

As opposed to this, there is merit to the Petitioners’ argument that the requirement for a genetic link breaches their right to become parents. The Court’s position is that the scope of the right to become a parent extends to all the various medical techniques that assist reproduction, including the possibility of becoming a parent by way of surrogacy.

 

However, the Court held that this violation complies with the conditions of the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty. Therefore, a partial judgment was handed down rejecting the arguments with respect to striking down the requirement for a genetic link in the surrogacy process.

 

Nevertheless, the opinion of the Court is that the present regulation of surrogacy gives rise to fundamental difficulties that are not insignificant, and the various opinions presented considerations that the legislature should take into account in preparing the Bill for its second and third readings. The Court also explained that a decision on the issue of the requirement for a genetic link does not, of course, prevent the legislature from considering this matter, like any other matter, in the framework of the pending legislative process.

 

Inter alia, Deputy President Joubran  was of the opinion that a legislative arrangement that grants a constitutional right to one group, but excludes another group due to its identity, its preferences, its orientation or way of life, is an arrangement that appears to be discriminatory, which is hard to accept. Such unfounded preference turns its back on the value of human dignity, which is guaranteed under the Basic Laws of the State of Israel, and the principle of equality that derives from it. In addition, the distinction between heterosexual parenthood and single-sex parenthood lacks any basis in academic research that has investigated the well-being of the child. Deputy President Joubran also found it difficult to identify any relevant reason for the distinction between single women and single men with respect to realization of the right to become a parent. Those who will be deciding the fate of this weighty matter should consider this point.

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

 

HCJ 781-15

 

 

 

 

 

Petitioners:

 

  1. Etai Arad Pinkas
  2. Yoav Arad Pinkas
  3. Anon.
  4. Anon.
  5. Anon.
  6. Anon.
  7. The Association of Israeli Gay Fathers
  8. Tammuz International Surrogacy Agency Ltd.

 

 

 

v.

 

Respondents:

1.  Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996 

 

2. The Knesset

 

 

       
 

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President M. Naor, Deputy President (emeritus) E. Rubinstein, Deputy President S. Joubran, Justice E. Hayut, Justice H. Melcer.

 

Petition for an Order Nisi

(Aug. 3, 2017)

 

 

 

 

 

 

Israeli Supreme Court cases cited:

 [1]      HCJ 8665/14 Desta v. Knesset, (Aug. 11, 2015) https://versa.cardozo.yu.edu/opinions/desta-v-knesset

[2]       HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration, (Feb. 9, 2009) https://versa.cardozo.yu.edu/opinions/karsik-v-state-israel

[3]       CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel (Sept. 1, 2005).

[4]       HCJ 466/07 Galon v. Attorney General, (Jan. 11, 2012) https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary

[5]       HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996, (Sept. 18, 2014) https://versa.cardozo.yu.edu/opinions/moshe-v-board-approval-embryo-carrying-agreements-under-embryo-carrying-agreements-law

[6]       HCJ 3166/14 Gutman v. Attorney General, (March 12, 2015).

[7]       HCJ 2311/11 Sabah v. Knesset, (Sept. 17, 2014).

[8]       HCJ 1213/10 Nir v. Knesset Speaker, (Feb. 23, 2012).

[9]       HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements, IsrSC 57(1) 419 [2002].

[10]     HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health, (Dec. 3, 2014).

[11]     LFA 1118/14 Anon. v. Ministry of Welfare and Social Services, (April 1, 2015).

[12]     HCJ 4406/16 Association of Banks in Israel v. Knesset, (Sept. 29, 2016).

[13]     HCJ 3734/11 Davidian v. Knesset (Aug. 15, 2012).

[14]     HCJ 4885/03 Israel Poultry Farmers Association v. Government, IsrSC 59(2) 14 [2004] https://versa.cardozo.yu.edu/opinions/israel-poultry-farmers-association-v-government-israel

[15]     LCA 3145/99 Bank Leumi Ltd. v. Hazan, IsrSC 57(5) 385 [2003].

[16]     HCJ 6298/07 Ressler v. Israel Knesset, IsrSC 65(3) 1 [2012] https://versa.cardozo.yu.edu/opinions/ressler-v-knesset

[17]     HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior, IsrSC 61(2) 202 [2006] https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior

[18]     HCJFH 10007/09 Gluten v. National Labor Court, IsrSC 66(1) 518 [2013].

[19]     HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements (June 28, 2010).

[20]     HCJ 9134/12 Gavish v. Knesset, (April 21, 2016) https://versa.cardozo.yu.edu/opinions/gavish-v-knesset

[21]     HCJ 10662/04 Hassan v. National Insurance Institute,  (Feb. 28, 2012) https://versa.cardozo.yu.edu/opinions/hassan-v-national-insurance-institute

[22]     HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 [2006].

[23]     LFA 7141/15 A. v. B., (Dec. 22, 2016).

[24]     CFH 1892/11 Attorney General v. Anon., IsrSC 64(3) 356 [2011].

[25]     LFA 5082/05 Attorney General v. Anon., (Oct. 26, 2005).

[26]     CA 50/55 Hershkovitz v. Greenberger, IsrSC 9 791 [1955]. https://versa.cardozo.yu.edu/opinions/hershkovitz-v-greenberger

[27]     HCJ 11437/05 Kav LaOved v. Ministry of the Interior, IsrSC 634(3) 122 [2011].

[28]     HCJ 2245/06 Dobrin v. Israel Prisons Service, (June 13, 2016) https://versa.cardozo.yu.edu/opinions/dobrin-v-israel-prison-service

[29]     CFH 2401/95 Nahmani v. Nahmani, IsrSC 50(4) 661[1996] https://versa.cardozo.yu.edu/opinions/nahmani-v-nahmani-0

[30]     HCJ 4077/12 A. v. Ministry of Health, (Feb. 5, 2013) https://versa.cardozo.yu.edu/opinions/doe-v-ministry-health

[31]     A. & B., Prospective Adoptive Parents of a Minor v. Biological Parents, IsrSC 60(1) 124 [2005].

[32]     HCJ 3752/10 Amnon Rubinstein v. Knesset, (Sept. 17, 2014).

[33]     HCJ 5304/15 Israel Medical Association v. Knesset, (Sept. 11, 2016) https://versa.cardozo.yu.edu/opinions/israel-medical-association-v-knesset

[34]     HCJ 5239/11 Avneri v. Knesset, (April 15, 2015) https://versa.cardozo.yu.edu/opinions/avneri-v-knesset

[35]     LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co., (Dec. 20, 2010).

[36]     LCA 8233/08 Kovashi v. Adv. Eyal Schwartz, IsrSC 64(2) 207 [2010].

[37]     CA 3213/97 Nakar v. Local Planning and Development Council Herzliya, IsrSC 53(4) 625 [1999].

[38]     HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister, (Nov. 30, 2006).

[39]     HCJ 1756/10 Holon Municipality v. Minister of the Interior, (Jan. 2, 2013).

[40]     CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd., (Nov. 16, 2010).

[41]     HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs, (Aug. 11, 1998) https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-labor-social-affairs

[42]     HCJ 1030/99 MK Oron v. Speaker of the Knesset, IsrSC 56(3) 640 [2002].

[43]     CA 4239/15 Dor Alon Energy Israel 1998 Ltd. v. State of Israel, Tax Authority, (March 29, 2017).

[44]     HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister, IsrSC 58(3) 503 [2004].

[45]     CA 420/83 Ashur v. Migdal Insurance Co. Ltd., IsrSC 44(2) 627 [1990].

[46]     HCJ 5087/94 Zabaro v. Minister of Health, (July 17, 1995).

[47]     CFH 2121/12 Anon. v. Dayan Urbach, IsrSC 67(1) 667 [2014] https://versa.cardozo.yu.edu/opinions/anonymous-v-orbach

[48]     CA 9183/09 Football Association Premier League Ltd. v. Anon., (May 13, 2012).

[49]     HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security, (June 13, 2017).

[50]     AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa, (Feb. 2. 2012).

[51]     HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights v. Ministry of Social Affairs, (June 4, 2013) https://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-minority-rights-israel-v-ministry-social-affairs

[52]     HCJ 6698/95 Ka’adan v. Israel Land Administration, IsrSC 54(1) 258 [2000] https://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-administration

[53]     HCJ 142/89 Laor Movement v. Speaker of the Knesset, IsrSC 44(3) 529 [1990].

[54]     HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 [2009] https://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-minister-finance

[55]     HCJ 566/11 Mamet Megged v. Minister of the Interior, (Jan. 28, 2014).

[56]     HCJ 4769/95 Menahem v. Minister of Transport, IsrSC 57(1) 235 [2002].

[57]     HCJ 98/69 Bergman v. Minister of Finance,  IsrSC 23(1) 693 [1969] https://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance

[58]     AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64(2) 1 [2010] https://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality

[59]     HCJ 2078/96 Vitz v. Minister of Health, (Feb. 11, 1997).

[60]     LAA 919/15 A. v. B., (July 19, 2017).

[61]     LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd., (Nov. 16, 2011) https://versa.cardozo.yu.edu/opinions/prozansky-v-layla-tov-productions-ltd

[62]     FH 25/80 Katashvili v. State of Israel, IsrSC 35(2) 457 [1981].

[63]     HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health, (3.12.2014).

[64]     HCJ 8893/16 Cabel v. Minister of Communication, (8.1.2017).

[65]     HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services, (May 5, 2010 and Nov. 11, 2010).

[66]     HCJ 8300/02 Nasser v. Government of Israel, (22.5.2012).

[67]     HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying Agreements, (26.7.2011).

[68]     HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services, (Sept. 17, 2017).

[69]     CA 488/77 A. v. Attorney General, IsrSC 32(3) 421 [1978].

[70]     HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion, IsrSC 47(5) 485 [1993].

 

 

PARTIAL JUDGMENT AND DECISION

Deputy President S. Joubran:

1.         The petition before us seeks to extend access to the Israeli surrogacy arrangement  primarily regulated by the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996 (hereinafter: Agreements Law), such that it would also apply to same-sex couples and to single individuals, with or without a genetic link to the child.

2.         The petition was filed at the beginning of 2015, and two hearings were held before an expanded bench of this Court, and supplemental pleadings were submitted, such that the petition was ripe for decision. However, on July 17, 2017, Respondent 1 submitted a notice providing updated details concerning the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill). This Bill was introduced in the Knesset on  July 5, 2017, and passed its first reading on July 17, 2017. In its updating notice, Respondent 1 explained that the Bill deals, inter alia, with extending access to Israeli surrogacy agreements, and asked that we rule that, in light of the introduction of the Bill, the petition does not show cause for judicial intervention. In their response of July 21, 2017, the Petitioners contended that the petition should be addressed immediately, in accordance with the current legislative situation, and that in view of the ongoing plight of the Petitioners – some 21 years after enactment of the Law – there is no justification for delaying for an additional, lengthy period for legislative developments. They also emphasize that the Bill relates to the access of genetically-related single women to surrogacy agreements, but does not provide a response for the petitioners in this petition.

3.         As will be explained below, in view of the fact that the Bill recently passed its first reading, on the assumption that the legislative process will proceed at a suitable pace, and in light of the judicial restraint required in sensitive matters such as the matter at hand, we are satisfied that the legislature should be granted a certain amount of time in which to complete that legislative process prior to our deciding on the merits of the petition as a whole. However, since the principled arguments of the parties concerning the points of contention have already been heard, it is already possible, in our opinion, to decide on parts of the petition, and it particular, on the arguments of Petitioners 5-6 (hereinafter: the Petitioners) that it should be permissible to enter into a surrogacy agreement in the absence of any genetic link between the prospective parent or prospective parents and the newborn.  In my opinion, even though the Petitioners’ argument that the requirement for a genetic link violates the right to parenthood has merit, this violation meets the conditions of the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty, and as such, the arguments on this matter must be dismissed.

My opinion will be presented in two parts: the first part will address the decision to postpone deciding on the petition in the matter of extending access to surrogacy to family units that are not presently included; the second part will present a partial judgment that dismisses the arguments for striking down the requirement of a genetic link in surrogacy procedures, as will be explained below.

Postponement of the Decision on the Petition

4.         As I mentioned above, recently – on July 5, 2017 – a Government bill to amend the Agreements Law was introduced in the Knesset. This proposal passed its first reading in the Knesset plenum on July 17, 2017, and at the time of writing this opinion, it is before the Knesset Labor, Welfare and Health Committee, awaiting preparation for the second and third readings. This proposal – should it be enacted as presently formulated – is expected to bring about a significant change in the current surrogacy arrangements, including allowing, for the first time, single women who have a genetic link to the child to enter into surrogacy agreements. As opposed to this, the formulation of the proposal provides no succor for what is sought by the Petitioners, since it does not extend the Law to same-sex couples and to single men. It should be noted that the said proposal is partially based on the Memorandum for Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment – Definition of Prospective Parents and Conditions for Approval of the Agreement) Law, 2777-2016 (hereinafter: Memorandum of the Law), which was published on Oct. 30, 2016, and which similarly proposed expanding the definition of “prospective parents” in sec. 1 of the Agreements Law to include a single woman. Against the background of this development, I believe, as I wrote, that the legislature should be permitted to exhaust the legislative process before this Court decides on the full petition. Below I will briefly discuss my reasons for this.

5.         To begin, I will note that for this Court to accord status to a legislative initiative, and in particular, to postpone a hearing in proceedings that are affected by that initiative, is not a common phenomenon (for an in-depth analysis of the issue in modern legal literature, see Bell Yosef, A Mixed Blessing: The Normative Status of Legislative Initiatives 40 Tel Aviv L. Rev. 253 (2017) (Heb.) (hereinafter: Yosef). For a review of the judgments in which a legislative initiative has affected the course of the hearings in a petition before this Court sitting as the High Court of Justice, see ibid., at 262-66). In my view, this is not a bad thing, for it demonstrates a proper, healthy expression of the constitutional dialogue between the branches of government, in which each respects the sphere of activity of the other (see: HCJ 8665/14 Desta v. Knesset [1], para. 1, per Justice E. Hayut, paras. 1-7 per Justice H. Melcer (hereinafter: Desta); HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration [2], para. 6; CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel [3] para. 13; Aharon Barak, The Judge in a Democratic Society, 376-89 (2004) (Heb.) (hereinafter: Barak, Judge in a Democratic Society); David Zecharia, The Pure Sound of the Piccolo: The Supreme Court, Dialogue and the Fight Against Terrorism, 241-43 (2012) (Heb.); Yosef, at 292-308; Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue between Courts and Legislatures (or perhaps The Charter of Rights isn't such a Bad Thing after all), 35 Osgoode Hall L. J. 75 (1997)). The words of Justice (emer.) E.E. Levy in HCJ 466/07 Galon v. Attorney General [4] (hereinafter: Galon case) are apt here:

[The] concept of constitutional dialogue [reflects] an understanding that protection of the values embodied in the constitution is an endeavor that is common to the three branches of government. This understanding does not undermine the democratic fundamental principles of the separation of powers and checks and balances; rather, it is concerned with furthering the dialogue between the branches of government and the mutual sensitivity between them … This understanding provides a foundation for the approach whereby it is best that engagement with constitutional questions should be the outcome of an honest, constant and continuous dialogue between the branches. This will likely be beneficial for the conduct of government in general. It may well be good for human rights. It is able to dispel antagonism, which is frequently connected to the notion of a right and protection of this right. It has the ability to aid in the development of additional constitutional rights. It allows basic rights to share the spotlight with other values, the promotion of which is important to the public (para. 42 of his opinion).

6.         In the circumstances of the present petition, since the legislature has expressed its intention to introduce changes into the Agreements Law and to consider the scope of the definition of “prospective parents”, a decision concerning the constitutionality of the formulation of the existing Law is liable to constitute undue interference in the sphere of activity reserved for it as the “senior partner” in legislation (Barak, The Judge in a Democracy, 380). The “right of way” that ought to be given to the legislature when we are dealing with a constitutional defect was discussed by my colleague, Justice E. Rubinstein in HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements [5] (hereinafter: Moshe case), the backdrop to which was an earlier proposal to amend the Agreements Law. He wrote:

… the existence of current legislative proceedings to expand the existing circle of eligibility in the Embryo Carrying Law naturally and sensibly calls for judicial restraint by this Court, so that it will not snap at the heels of the legislature …. Of course, if ultimately there is no legislative process, constitutional judicial intervention must not be ruled out …. However, the appropriate port of call for such changes is first and foremost the legislature, and the existence of advanced legislative processes warrants such judicial restraint (para. 46 of his opinion; and see para. 17 of Justice Hayut’s opinion).

7.         Moreover, in my opinion, making a decision on this petition on the matter of expanding access to surrogacy at this time raises practical difficulties. This is because the normative framework on which this Court will base its decision is liable to change within a short time,  which would render our determinations, and any relief that may be given, purely theoretical. Moreover, a decision on the petition after the legislative process has been completed will ensure that the resources of this Court will be devoted to an issue that has practical application (cf: Yosef,  284-86).

8.         The Court must certainly exercise caution in postponing its decision on a pending petition due to a legislative initiative. There may be circumstances in which it is inappropriate to adopt such a course, whether because the postponement is liable to severely harm the petitioners or to allow a wrong requiring immediate remedy to persist, or whether because the chances of the legislative initiative maturing into a change in the normative framework are slim. In a certain sense, the major consideration in this matter appears to me to be similar to the criteria for examining a claim of ripeness in constitutional law. As I have pointed out on more than one occasion, a decision on this argument ought to be made by balancing the benefits of addressing the matter confronting this Court in another forum (in our case – the legislature) against the anticipated harm to the petitioners by allowing the existing normative situation to persist (cf. HCJ 3166/14 Gutman v. Attorney General [6], para. 5 of my opinion; HCJ 2311/11 Sabah v. Knesset [7], para. 7 of my opinion (hereinafter: Sabah case); HCJ 1213/10 Nir v. Knesset Speaker [8], para. 18 of my opinion (hereinafter: Nir case)). Therefore, I will now examine the different aspects of the legislative initiative before us, while addressing the primary criteria that have been proposed in the academic literature on this matter (see: Yosef , 301-18) and explaining why, in my view, the benefits outweigh the harm.

9.         I will first look at the legislative process concerning the matter before us. It is evident that this is not some trifling initiative that has been abandoned over the course of time. The Bill was introduced by the Government, and passed its first reading in the plenum with a majority of 12 to 1, with members of both the coalition and the opposition voting for it, even though the latter expressed reservations about the lack of a response to same-sex couples in the proposal (see: Minutes of Session no. 254 of the 20th Knesset, 205-217 (July 17,.2017)). In the said circumstances, in my view, we  should consider the official status of the initiative and the possibility that it will indeed develop into a legislative amendment (cf: Yosef, 313-315). Moreover, the Bill has recently moved forward, and currently appears on the legislative agenda, thus increasing the concern about undermining a legislative process in its initial stages (cf: Yosef, 309-10).

10.       In their response to the updating notice of Respondent 1, the Petitioners note the concurrence between the progress in the legislative process and the course of the hearing on this petition. Indeed, it is evident that the legislative memorandum was published between the two dates for oral hearings on this petition, and that the Bill was submitted to the Knesset after the conclusion of the hearings and after the parties had submitted all their pleadings,  while this Court was deliberating the matter. According to the Petitioners: “It is difficult not to feel some discomfort in view of this conduct.” I am myself surprised that it was not possible to advance a legislative process like the one before us over the course of years, particularly in view of the explicit determination of Justice M. Cheshin in 2002 in HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements [9] (hereinafter: New Family case), according to which the distinction made by the Agreements Law between women who are in a relationship and single women is discriminatory (ibid., paras. 40-42). However, whatever mistakes were made in the past, my position looking forward is that there is nothing illegitimate in advancing a legislative initiative in response to or in connection with proceedings that are under way in this Court – as long as the motives are relevant and worthy. In this context, Prof. Barak’s words are apt:

In my view, legislation in the course of a pending judicial process does not harm the Court and the mutual respect to which the branches of government are committed. If the legislature concludes that a law is not constitutional, it is not required to wait for the Court to rule on the matter. This is also the case when the legislature concludes that the existing legislation is inappropriate, and should be changed. In such situations, there is no disrespect of the Court when the legislature seeks to have its say first, without waiting for a judicial decision and without harming the party whose matter is before the court. As opposed to this, the judiciary would be severely undermined if the Knesset were to make a decision intended to influence the discretion of the judges in a matter pending before the Court (Barak, Judge in a Democratic Society, 389; see also: Yosef, at 299).

However, the situation in the present petition is more complex, inasmuch as the legal defect that the legislature is correcting is more limited in scope than Petitioners’ objection, and therefore, even if the legislative process is completed, it will not necessarily obviate a decision on the petition. In these circumstances, Prof. Barak’s comment at the end of the above passage is doubly relevant, and indeed, one must avoid a scenario of repeated requests for postponements to allow for completion of the legislation, with the anticipated legislative amendment becoming a means at the service of the Respondent. For this reason, I would propose to my colleagues that we allocate a reasonable period of time after which the State will be required to provide an update concerning the legislative process. Obviously, a rate of progress that does not comport with the importance of the process, taking into account its complexity, will attest to a lesser degree of commitment to its advancement than that attributed to it at this stage, and will also lessen the justification for allowing extra time for its completion, despite the fundamental difficulties raised by this petition (cf: HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health [10], para. 27).

11.       I will now proceed to examine the nature of the matter under discussion, and its ramifications for the appropriate attitude to the legislative initiative and the benefit that may  derive from its completion. In particular, I will discuss the substantial complexity on two levels: the professional level and the level of values.

12.       On the professional level, it is patently clear that the Agreements Law reflects a complex legislative arrangement based on a system of balances and monitoring mechanisms. This system constitutes the product of lengthy, meticulous legislative processes based on the recommendations of the public commission headed by Judge (emer.) Shaul Aloni, which studied the subject of in vitro fertilization, including the matter of surrogacy, and published its recommendations in 1994. Some two decades later, another public commission – the Mor Yosef Committee –  studied the subject of fertility and reproduction in Israel, including the issue of surrogacy and those who are eligible to avail themselves of it. On the basis of what has been said above, it is evident that the heart of the dispute in the present petition involves questions of expertise a fact that attests to its considerable complexity from the professional perspective.

13.       At the level of values, the range of medical reproductive techniques gives rise to various social, moral, ethical, religious and legal problems concerning the status of those who contribute gametes to the reproductive process, and of the surrogate mother, as well as broad social implications that may arise from the use of these means (see, in depth: Benzion Schereschewsky  & Michael Corinaldi, Family Law, vol. 2, 979-1006 (2016) (Heb.); Pinhas Shifman, Family Law in Israel vol. 2, 101-35 (1989) (Heb.); Janet L. Dolgin & Lois L. Shepherd, Bioethics and the Law 94-321 (3rd ed., 2013) (hereinafter: Dolgin & Shepherd). Private surrogacy agreements in themselves are a subject of legal, academic, social and public discussion revolving around the physical, psychological and familial difficulties of the surrogate mothers (Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 480-85 (2013) (Heb.); Margaret Jane Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1928-32 (1987); Stephen Wilkinson, The Exploitation Argument against Commercial Surrogacy, 17 Bioethics 169 (2003); June Carbon & Judy Lynee Madeira, The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices, 90 Wash. L. Rev. Online 1, 13-19 (2015)), and on the compatibility of such agreements with public policy (see and cf.: LFA 1118/14 Anon. v. Ministry of Welfare and Social Services [11] para. 3 per Justice H. Melcer (April 1, 2015) (hereinafter: Anon. case); New Family case, para. 39 per Justice M. Cheshin; Dorit Shapira and Yosef Shapira, A Decade to the Embryo Carrying (Agreement Authorization & Status of the Newborn Child) Law, 5756-1996: The Reality and the Ideal, 36 Medicine and Law 19, 29-32 (2007) (Heb.); Ruth Zafran, The Family in the Genetic Era – Definition of Parenthood in Circumstances of Artificial Reproduction in a Test Case, 2 Din u-Devarim 223 (2006) (Heb.); Hila Keren, Contract Laws from a Feminist Perspective 273-75 (2004) (Heb.); Report of the Public Professional Committee for the Examination of the Subject of In Vitro Fertilization 48-49 (1994) (Heb.) (hereinafter: Aloni Commission); Deborah S. Mazer, Born Breach: The Challenge of Remedies in Surrogacy Contracts, 28 Yale J.L. & Feminism 211, 222-28, 231-38 (2016); the position of the Supreme Court of the State of Tennessee, United States, which allowed the enforcement of surrogacy agreements subject to various restrictions: In re Baby, 447 S.W.3d 807, 827-30, 832-33 (2014); the prohibition on the enforcement of surrogacy agreements except for allowing enforcement of the amount of compensation for the surrogate mother in New South Wales, Australia – Surrogacy Act 2010, §6; and section 541 of the Civil Code that prohibits the enforcement of surrogacy agreements: Droit de la famille -151172, 2015 QCCS 2308 (canlii, 5.20.2015), § 111).

14.       As we therefore see, the complexity presented by the Petitioners’ requested expansion is not inconsiderable in view of the range of professional and principled considerations it raises.  Justice M. Cheshin commented on this in the New Family case, stating:

… surrogacy is a new phenomenon, and the unknown exceeds the known in its ramifications for human life – in terms of health, emotion, society, religion and law. The process of surrogacy involves difficult human issues … with the passage of time and the amassing of knowledge and experience, it will be appropriate to revisit the subject (at 457-62).

Indeed, a great deal of time has passed since the advent of Israeli regulation of surrogacy and the judgment in the New Family case. Over the years, scientific knowledge on the subject has increased and essential experience has been accumulated by the professional bodies tasked with its realization. While the passage of time has indeed lessened the complexity discussed above, it cannot entirely eliminate it.

15.       In my opinion, this complexity reinforces the inappropriateness of deciding this petition at this time (cf: Yosef, 318). As we have often noted, developing policy, particularly policy in regard to sensitive issues at the heart of the public agenda and matters of professional expertise, is not the job of this Court, which lacks the resources of professional knowledge available to the legislature. This is evident, for example, in the restrained approach adopted by this Court in regard to legislation concerning socio-economic policy, which similarly involves professional considerations that are beyond the Court’s area of expertise (see, e.g.: HCJ 4406/16 Association of Banks in Israel v. Knesset [12], para. 39, per my colleague President M. Naor (hereinafter: Association of Banks case); HCJ 3734/11 Davidian v. Knesset [13], para. 39, per my colleague President M. Naor (15.8.2012); HCJ 4885/03 Israel Poultry Farmers Association v. Government [14], 60; CLA 3145/99 Bank Leumi Ltd. v. Hazan [15], 406-09), as well as in the willingness of this Court to defer deciding upon petitions that concern matters of broad public concern, such as the deferment of the military service of full-time yeshiva students (see: HCJ 6298/07 Ressler v. Israel Knesset [16], paras. 3-4, per President D. Beinisch, and the constitutionality of the Citizenship and Entry into Israel (Temporary Provisions) Law, 5763-2003 (see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior [17], para. 16, per President A. Barak (hereinafter: Adalah case)).

This does not, of course, detract from the authority of this Court to examine the constitutionality of legislation that is brought before it, and cure possible constitutional defects. This is not one of those cases in which the complexity of the issue justifies our total refusal to address it on the merits (cf: HCJFH 10007/09 Gluten v. National Labor Court [18], per President A. Grunis (hereinafter: Gluten case); for a discussion see: Yosef, 286-88). However, due to the separation of powers and the institutional differences that I discussed, I believe that it is better if the legislature first address surrogacy arrangements, and amend the law in light of its understanding and considerations. This adjournment will also allow the Petitioners, and their representatives in the legislative branch, to participate in the parliamentary and public conversation on amending the law, and try to influence its outcome. Through this process it may be possible to resolve, or at least moderate, the problems in the existing legal situation – which I will address at the end of my opinion – and yield a result in which I believe all the parties can profit. However, if these problems remain and the Petitioners insist on their arguments, we will decide upon the constitutionality of the new arrangement.

16.       As opposed to the weighty considerations that I enumerated stands the harm to the Petitioners. It should be stated from the outset that this petition is not a sporadic legal performance. Rather, it lies at the heart of a long, persistent, struggle for equality and for recognition on the part of the LGBT community in a range of areas of life, and in particular in all that concerns the right to become a parent (for a discussion of the various aspects of this issue see, e.g.: Ayelet Blecher-Prigat and Ruth Zafran, "Children are Joy": Same-Sex Parenthood and Artificial Reproductive Technologies, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 395 (Heb.) (hereinafter: Blecher-Prigat & Zafran); Zvi H. Triger and Mili Mass, The Child in her Family: A Necessary Turn Towards LGBT Adoption in Israel, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 437  (Heb.) (hereinafter: Triger & Mass)). There is therefore no denying that postponing the decision on the petition is very significant for the Petitioners, as well as for many others of the Israeli public, whether they are members of the community itself or other citizens who identify with their pain. This is due to the strong desire of men and women of the gay community to become parents, and the serious injury to their dignity as a result of the distinction drawn by the Law between them and heterosexual couples – a distinction of dubious relevance, as I will explain below. Moreover, the purpose of the postponement – giving the legislature time to complete the process of amending the Agreements Law – is not accompanied by good news for the Petitioners, for even in its proposed formulation, the Law will not provide relief for the distress of single-sex couples and of single men.

It is not superfluous to say that the disagreement around the accessibility of surrogacy to single-sex couples, as well as for single parents, is not new to us, and over the years it has brought various petitioners – including Petitioners 1-2 in the present case – to come knocking on the doors of this Court with a request for help.  Below I will briefly discuss the main milestones in this chronology in order to illustrate the many years of bitter experience suffered by the Petitioners and the community to which they belong with the subject before us, and the difficulty inherent in sending them away empty-handed – at least in the interim period until the legislative process is completed.

Already in the early years of this century, in the New Family case, this Court addressed the distinction drawn by the Law between single women and women in heterosexual relationships. Although the Court recognized the constitutional difficulties this distinction raises, it refrained from intervening in the Law in view of the need to acquire further experience from its implementation. About a decade later, Petitioners 1-2 in the present case petitioned this Court against the decision of Respondent 1 to deny them a surrogacy procedure because they did not, in its view, fall within the definition of “prospective parents” under the Agreements Law. That petition was dismissed with the consent of the parties, in view of the anticipated establishment of the Mor Yosef Committee (see: HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements [19]). The Moshe case, heard in this Court several years later, also raised questions involving the limited access to surrogacy, but the Court preferred to refrain from judicial intervention in the provisions of the Agreements Law due to the legislative proceedings that were underway at that time (see: ibid., para. 17 per Justice E. Hayut). Those proceedings, it is only fair to say, did not result in a legislative act.

17.       To summarize: we face a difficult choice, as it is said, “Woe unto me from my Creator [yotzri] and woe unto me from my inclination [yitzri]” (Babylonian Talmud, Berakhot 61a). On the one hand, there is considerable value in allowing the legislature time to complete the legislative process that it began,  which is now at an advanced stage and enjoys wide support in the Knesset. Allowing this time will allow for public debate of the sensitive issue in an institutional framework appropriate to its complexity, and will express an appropriate democratic constitutional approach in which the branches show a willingness to listen to one another and respect the sphere of authority of the other. On the other hand, postponing adjudication of the petition will extend the violation of the Petitioners’ rights,  the exalted constitutional status of which is not in doubt. This violation has affected them, and the community to which they belong, since the passage of the Agreements Law in 1996, and it constitutes only one of the many aspects in which Israeli law has not yet adapted itself to the reality of pluralistic life today.

18.       After having given serious thought to the matter, and not without hesitation, I have concluded that the time is not ripe for deciding on the matter of Petitioners 1-4, in light of the pending legislative proceedings in the Knesset, inter alia, on the question of the definition of “prospective parents” in the Agreements Law. I am certain that the legislature will be aware of the serious, on-going harm to the Petitioners, and will act with due dispatch to complete the legislative process. For this reason, I would recommend that we postpone hearing the petition for a six-month period, and that we order the Respondents to submit updated notice of the progress of the legislation no later than Feb. 4, 2018.

I will now proceed to the second part of the opinion – an examination of the constitutionality of the requirement of a genetic link in the surrogacy process.

The Requirement for a Genetic Link in the Surrogacy Process

19.       Medical procedures aimed at assisting fertilization for the purpose of pregnancy and birth have existed since the end of the eighteenth century, but recourse to these procedures became common only in the middle of the twentieth century, both in the wake of technological developments and in the wake of social changes (see: Ruth Zafran, Secrets and Lies: The Right of AID Offspring to Seek Out their Biological Fathers 35 Mishpatim 519, 527 (5765-2005) (Heb.) (hereinafter: Zafran, Secrets and Lies); Dolgin & Shepherd, at 321-28). To simplify the discussion, we can talk about four different links in the reproductive process that can be improved or replaced through medical procedures: the sperm, the egg, the fertilization process, and carrying the pregnancy by the woman (who is called a “surrogate”). Correspondingly, there are different medical procedures that can improve the quality of the sperm of the prospective father or allow for the use of a sperm donation in order to fertilize the egg. There are medical procedures that allow for ova to be extracted from the woman and fertilized outside of her body in order to overcome medical problems in fertilization; there are medical procedures that make it possible to donate a fertilized ovum and implant it in the womb of a woman who has not succeeded in becoming pregnant; and there are medical procedures for implanting a fertilized ovum into the womb of a woman who will serve as a surrogate. In other words, from a medical point of view, there are solutions that provide a response to various challenges in the reproductive process and allow for a child to be brought into the world without a genetic link to the prospective parent (Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 Wash. L. Rev. 1035 (2002); Noa Ben-Asher, The Curing Law: On the Evolution of Baby-Making Markets, 30 Cardozo L. Rev. 1885 (2009) (hereinafter: Ben-Asher, The Curing Law); on more innovative reproductive possibilities and the possibility of legal adoption, see: Erez Aloni, Cloning and the LGBTI Family: Cautious Optimism, 35 N.Y.U Rev. L. Soc. Change 1, 14-17, 18-36 (2011); and see Recommendations of the Public Committee for the Examination of the Legislative Regulation of the Subject of Fertility and Reproduction in Israel (hereinafter: Mor Yosef Committee). This possibility is not purely theoretical, as transpires from the case of Anon. that was heard recently by this Court. That case concerned a transaction entered into by a single woman who obtained an egg donation and a sperm donation, implanted the fertilized egg in a surrogate, and sought to be recognized as the single parent of the child, even though she had no genetic link to the child. The point is – and as decided there – such a request does not comport with the provisions of the Law. Section 2(4) of the Agreements Law conditions entering into a surrogacy agreement on the sperm being that of the prospective father; and secs 6(b), 11 and 13 of the Ova Donation Law, 5770-2010 (hereinafter: Ova Donation Law) allow women to receive egg donations for the purpose of a surrogacy process only in accordance with the provisions of the Agreements Law. For this reason, it was not possible to recognize the process of parenthood initiated by the petitioner in that case as a legal surrogacy procedure. However, whereas the Anon. case dealt with the possibility of retroactive recognition of the process described, and in doing so raised constitutional questions, in the present case the Petitioners have grabbed the bull by the horns, and they ask that we look into the very constitutionality of the arrangement. I will discuss this below in the context of the requirement for a genetic link, and in that context only.

The Arguments of the Parties

20.       Petitioners 5-6 are single women who seek to realize their right to become parents with the help of the surrogacy process. Due to medical problems, however, not only are they not able to carry an embryo in their wombs, but they also cannot provide their own eggs. Their request, therefore, is to enter into a surrogacy agreement without there being any genetic link between themselves and the child. On Oct. 31, 2013, Petitioner 5 asked the Approvals Committee that had been established pursuant to the Agreements Law to approve her entering into a surrogacy agreement. Her request was dismissed in limine on Nov. 24, 2013, since according to the Committee, the Petitioner did not fall within the definition of “prospective parents” as provided in the Law. The Committee was also of the opinion that because one of the requirements of the Law is the existence of a genetic connection between the prospective parents and the child-to-be, the Law does not allow for use of a sperm donation as well as an ovum donation for the purpose of the procedure.

On Oct. 31, 2014, counsel for the Petitioners submitted a letter on their behalf and on behalf of the other petitioners in the petition to the (then) Minister of Health, to the person responsible for the Agreements Law in the Ministry of Health, to the Attorney General, to the Legal Adviser of the Knesset and to the Legal Adviser of the Ministry of Health, in which she requested approval for them to submit their requests to enter into an agreement, and for these requests to be considered on their merits. In her response dated Jan. 4, 2015, the Legal Adviser of the Ministry of Health explained that it was not possible to respond positively to the Petitioners, and that the way to change the situation was by means of a legislative amendment. In view of this, the Petitioners submitted the present petition.

21.       The Petitioners contend that denying the possibility of their bringing a child into the world with the assistance of a surrogate constitutes a violation of their right to equality and their right to become parents – a violation that does not meet the criteria of the limitations clause. According to them, in the matter of surrogacy, there is no room to distinguish between a woman who is not capable of carrying a pregnancy to term but who is able to provide her own eggs for the fertilization process, and a woman who cannot  carry a pregnancy to term and is medically unable to use her own eggs for the fertilization. Their position is that in both cases, the right to parenthood is violated, and the state must repair this violation without distinction. The Petitioners point out that Israeli law recognizes parenthood in the absence of a genetic connection in several contexts: the Ova Donation Law allows a single woman to receive a donation of an ovum in order to become pregnant (where she is the one who carries the pregnancy); the Agreements Law allows a woman to be recognized as the mother when the child is born through surrogacy and there is a genetic link only to her partner, the prospective father; and the adoption procedures in the Child Adoption Law, 5741-1981, by their nature establish parenthood without a genetic connection. The Petitioners also think that the judgment in the Anon. case determined the issue of recognition of private surrogacy that is not in accordance with the Agreements Law, and that it therefore says nothing about the possibility of undergoing a controlled process of surrogacy without a genetic link, and in particular, it does not rule out this possibility.

As opposed to this, the Respondents insist that a parental connection in the absence of a genetic link is a complex matter that should addressed by legislation. According to them, this is all the more so in regard to surrogacy, which makes it possible to create a child with  no physiological link to the prospective parents. As a natural outcome, they argue, doing away with the requirement for a genetic link between the prospective parents and the child will turn the surrogacy process into a process resembling adoption. Here, the respondents refer to the position of the Mor Yosef Committee, which stressed the importance of the genetic link in fertilization procedures.

Deliberation and Decision

22.       As we know, the constitutional examination comprises three main stages: examination of the existence of a violation of a constitutional right, examination of the constitutionality of the violation in light of the limitations clause, and examination of the appropriate constitutional remedy. If there is no violation, or if the violation is constitutional, there is no need to move to the next stage of the examination (see: HCJ 9134/12 Gavish v. Knesset [20], para. 25 per President M. Naor; HCJ 10662/04 Hassan v. National Insurance Institute [21], para. 24, per President D. Beinisch, and the opinion of Justice U. Vogelman; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [22], paras. 20-21, per President A. Barak (hereinafter: Movement for Quality Government case). I shall discuss these stages in the above order.

23.       First, does the existing surrogacy arrangement violate the constitutional rights of Petitioners 5-6? As I shall immediately explain, in my view there is no violation of their right to equality. In my opinion, for the purpose of the process of surrogacy, there is a relevant distinction between prospective parents who are capable of having a genetic link to the child, and prospective parents who are unable to do so. As opposed to this, I am of the opinion that there is indeed a violation of the right of the Petitioners to parenthood.

The Alleged Violation of the Right to Equality

24.       The starting point is that there is a difference between people who are able to donate gametes (sperm or ovum) for the sake of creating an embryo, and those who are not able to donate gametes for the purpose of creating an embryo. This difference is a medical-biological difference that stems from the bodily capabilities of each person (on the developments in genetic research and their possible effect on the issue, see: Jennifer S. Hendricks. Genetic Essentialism in Family Law, 26 Health Matrix: The Journal of Law-Medicine, 109, 122 (2016); Jennifer S. Hendricks, Not of Woman Born: A Scientific Fantasy, 62 Cas. W. Res. L. Rev. 399 (2011); Rajesh C. Rao, Alternatives to Embryonic Stem Cells and Cloning: A Brief Scientific Overview, 9 Yale J. Health Pol'y L. & Ethics 603 (2009); Dolgin & Shepherd, 370-75). In the present matter, the question arises whether in the framework of the regulation of surrogacy agreements, there is a relevant distinction between a person who is able to provide gametes that will be used for the purpose of giving birth and will ensure that the child bears her genes, and another person who is unable to do so. The Petitioners argue that the condition whereby the prospective parent must supply his/her own genetic material in order for a surrogacy agreement to be approved, (i.e., a requirement for a genetic link) constitutes unlawful discrimination. I am of a different opinion. In my view, this is a distinction that is relevant and not discriminatory. The main reasons for this position are the recognition of the importance of the genetic link between parents and children in general, and the importance of this link in surrogacy in particular, as I will explain below.

25.       The genetic link between parents and their children is of considerable importance, and it has deep historical roots in most known human cultures. The words of Dr. Yehezkel Margalit on this link are apt here:

There is no material doubt that this is the most ancient model, which in almost every culture acquired historical and mythological exclusivity in determining legal parenthood – both fatherhood and motherhood. It should be stressed that even the critics of this model do not deny the very deep importance and significance of the genetic element (Yehezkel Margalit, Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553, 566-67 (2012) (Heb.).

The importance of the genetic link to the relationship between parents and children is a common thread in Israeli law. The legislature has referred to this link in several legislative acts: (see: secs. 3(a) and 9 of the Children’s Foster Care Law, 5776-2016; secs. 3(c) and 10(2) of the Succession Law, 5725-1965; sec. 6 of the Population Registry Law, 5725-1965; sec. 14 of the Legal Capacity and Guardianship Law, 5722-1962; secs. 1(a) and 3(a) of the Family Law Amendment (Maintenance) Law, 5719-1959; sec. 3(a) of the Women’s Equal Rights Law, 5711-1951; and arts. 5 and 9 of the Convention on the Rights of the Child, (concluded on Nov. 20, 1989, ratified on Aug. 4, 1991)); and this Court has mentioned several times the importance of the “voice of the blood” that symbolizes the genetic link between the child and parent (see, e.g.,: LFA 7141/15 A. v. B. [23], paras. 5-6 per Justice H. Melcer, and the references there (hereinafter: A. v. B. case); CFH 1892/11 Attorney General v. Anon. [24], per Justice E. Arbel (hereinafter: CFH 1892/11); LFA 5082/05 Attorney General v. Anon. [25], para. 5, per Justice A. Procaccia (hereinafter: LFA 5082/05); New Family case, para. 31, per Justice M. Cheshin; CA 50/55 Hershkovitz v. Greenberger [26], paras. 14-16, per Deputy President S.Z. Cheshin). I had the opportunity of relating to the matter in one of the cases, saying:

We must not forget the nature of the connection between a parent and his child. The connection of blood. The connection of life. The connection of nature … When we sever it, whether absolutely or relatively, we must act with great caution, taking into account the constitutional right of the parent, but on the other hand the constitutional rights of the child, the public interest, and sometimes the interest and even the right of the adoptive family, as may be appropriate (CFH 1892/11, para. 6 of my opinion).

26.       The elevated status of the genetic link has consequences for surrogacy, as emerged in the A. v. B. case. There, Justice Hendel noted three relevant links regarding surrogacy:  the genetic link, which is the connection between the prospective parent who contributed his or her genetic reproductive material and the child; the physiological link, which is the connection between the pregnant mother and the child; and the link to the link, which is the connection that a particular person has to the person with the genetic link to the child. It was explained there that the genetic link constitutes the basis for conferring the status of parenthood in the framework of the surrogacy process, and that it is a sine qua non for recognition of the link to the link. Justice Hendel explained that there is, indeed, also a physiological link – but its status in surrogacy is marginal, since this process, by its nature, separates the physiological mother (the surrogate) from the child (see, e.g., secs. 12-13 of the Agreements Law). Hence, in all that concerns the definition of parenthood in surrogacy, the genetic link is of great importance in the present legal situation.

The importance of the genetic link in surrogacy finds expression in several additional sources: the report of the Mor Yosef Committee, which found that surrogacy (as well as egg donation under the Ova Donation Law) is to be approved only on condition that one of the prospective parents has a genetic link to the child (see the Report, at 39-40, 62, 64); and see the Aloni Commission Report, 22-23, 48); in the language of sec. 2(4) of the Agreements Law; in the legislative history of the Agreements Law (see the minutes of session no. 430 of the 13th Knesset, per the chairman of the Labor and Welfare Committee, Yossi Katz, and the Minister of Health Dr. Efraim Sneh (March 7, 1996) (hereinafter: minutes of session 430)); in the position of the State as presented to this Court (see secs. 47-49 of the Response of Respondent 1 to the amended petition); and in the bills to amend the Agreements Law that have been introduced in the Knesset in recent years (see: sec. 2(4) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment) (Amendment of the Definition of Prospective Parents and Conditions for Approval of Agreement) Bill, 5777-2017; sec. 3(2) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment – Extension of Eligibility for Surrogacy Processes and Extension of Protection of the Surrogate Mother) Bill, 5776-2016; Explanatory Notes to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014, and sec. 6(6) of this Bill; Explanatory Notes to the Bill, 1152, and sec. 2 of that Bill).

The importance of the genetic link in surrogacy has also been recognized in comparative law (see, in general: Michael Boucai, Is Assisted Procreation an LGBT Right?, 2016 Wis. L. Rev. 1066, 1082-93 and the references there; this is the position in South Africa (see: sec. 294 of the Children’s Act 38 of 2005; AB and Another v. Minister of Social Development [2016] ZACC 43, §§ 276-278 (hereinafter: AB case); in the UK – Human Fertilisation and Embryology Act 2008, art. 54(1)(b); in the Province of Alberta,  Canada (see: Family Law Act, Statutes of Alberta, 2003 Chapter F-4.5, § 5.1(d) (2016); in the State of South Australia (see: Family Relationship Acts 1975 – Sect 10HA § 2a(h)(2)); in the States of Virginia, Nevada and Maine in the United States (see: Alex Finkelstein et al., Surrogacy Law and Policy in the U.S – A National Conversation Informed by Global Lawmaking, Columbia Law School Sexuality & Gender Law Clinic 10, 55, 81-82 (2016); Nev. Rev. Stat. § 126.670, and in the European Court of Human Rights (see: Mennesson v. France (app. no. 65192/11, ECHR 2014); Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 195, 211). At the same time, it must be noted that some legal systems comprise arrangements that recognize surrogacy even without a genetic link. This is the case in the Canadian Province of British Columbia and in the Northwest Territories (see: Family Law Act [SBC 2011], C 25, §§ 20, 29; Children’s Law Act, S.N.W.T. 1997 §8.1(3)), in the State of California in the United States (see, e.g., Cal. Fam. Code §7960; and in further detail in the updating notice of the Petitioners), and in the States of Tasmania and Victoria in Australia (see: Assisted Reproductive Treatment Act 2008 No. 76 of 2008, §§ 3, 39-45 (Victoria); Surrogacy Act 2012 (No. 34 of 2012), §3 (Tasmania)).

27.       The consistent requirement of Israeli law and of most Western states for the existence of a genetic link between the prospective parents and the child in the surrogacy process has its logic. It is true that there are other significant connections between parents and children – emotional and psychological connections that build up over time. However, I believe that for the purpose of approving the surrogacy process, there is a relevant difference between the existence of those connections alone, which are present in every connection between parents and children, and the existence of a genetic link in addition to those connections. This is due, inter alia, to the special nature and the complexity of surrogacy for all those involved in it, and to the potential it harbors for causing harm unless it is properly regulated (see and cf: para. 42 below; AB case, paras. 177-85, 283-87, 293-94; on concern for “commercialization” of the production of children as a result of under-regulation of the surrogacy process, see: Elizabeth S. Anderson, Is Women's Labor a Commodity? 19 Phil. & Pub. Aff. 71, 75-80 (1990); Richard J. Arneson, Commodification and Commercial Surrogacy, 21 Phil. & Pub. Aff. 132, 150-51 (1992)). Now, the absence of a genetic link does not, per se, prevent recourse to assisted medical reproductive techniques that are not surrogacy. Even in the absence of such a link, a particular woman may seek the assistance of some reproductive technique, as long as she is able to have another, additional link to the child – for example, a physiological link (being pregnant with the child) or a link to a link (when there is a genetic link to the spouse who is the prospective parent). However, as I shall explain below, in the absence of the possibility of an additional link to the child in the surrogacy process, the importance of the genetic link rises to the point of exclusivity.

28.       Moreover, surrogacy is a sensitive process that brings together new medical techniques and the ancient societal need for survival – whose importance cannot be exaggerated – by the birth of children. This meeting requires extreme caution. Although surrogacy is becoming ever more common with the passage of time, it still raises various moral, ethical, religious and legal difficulties. However, these difficulties are somewhat tempered by the combination of this new reproductive technique with the recognized, central element of reproduction, i.e., the genetic link. What are the implications of this? Given the importance of reproduction for the existence and continuation of society, given the novel nature of the process of surrogacy and its possible effects on traditional reproduction, and given that the element of the genetic link is an established social element at the very heart of society, I believe that a distinction on the basis of a genetic link is relevant in the regulation of an assisted reproductive technique such as surrogacy. I would emphasize that this is not an expression of a position on the relationship between reproductive techniques and social conceptions in general – especially in regard to harm to groups that have been viewed as “suspect” – which requires a more careful study. What I have said is confined to the question of the relevance, solely in the context of surrogacy, of the distinction between prospective parents who have a genetic link to the child and prospective parents who are not able to establish such a link. Israeli law does not view those who are unable to establish a genetic link to the child on the basis of producing gametes as a “suspect group”,  and without laying down hard and fast rules, I am also not convinced that this is a case of “disability” as reflected in the anti-discrimination laws (see, and cf: AB case, paras. 298-302; Ben-Asher, The Curing Law 1912-1916; Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, 92 Chi.-Kent. L. Rev. 87, 91-93, 100-02 (2017)). It is therefore evident that when we are dealing with assisted medical reproductive techniques like surrogacy, a distinction on the basis of the existence of a genetic link constitutes, as stated, a relevant distinction.

29.       It emerges from the above that both Israeli law and most Western states that permit surrogacy regard the genetic link between prospective parents and the child as an essential condition for this process – despite the harm it entails to those people whose personal circumstances prevent them from providing the reproductive material that will allow for a genetic link. It seems to me that on the basis of this common conception and the values underlying it, the requirement of Israeli law for a genetic link in the surrogacy process is not discriminatory, but rather it is based on material, relevant reasons. Therefore, I find that it does not violate the constitutional right of the Petitioners to equality, and I will proceed to examine the alleged violation of the other right – the right to become a parent.

The Alleged Violation of the Right to Become a Parent

30.       The right to parenthood has been recognized in Israel as a constitutional right that derives from human dignity (see, e.g.: HCJ 11437/05 Kav LaOved v. Ministry of the Interior [27], paras. 29-32 and 38-40 per Justice A. Procaccia, para. 4 of my opinion, and para. 6 per Justice E. Rubinstein; HCJ 2245/06 Dobrin v. Israel Prisons Service [28], para. 12 per Justice A. Procaccia (hereinafter: Dobrin case); CFH 2401/95 Nahmani v. Nahmani [29], 675-78, 719, 785 (hereinafter: Nahmani case)). There are two separate aspects to the right to parenthood: one is the right to realize parenthood, on which I have elaborated on other occasions and which does not lie at the heart of this petition (see: Adalah case, paras. 1-14 of my opinion); the other is the right to become a parent (see: Anon. v. Anon. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit; HCJ 4077/12 A. v. Ministry of Health [30] para. 29 per Justice E. Rubinstein (hereinafter: A. v. Ministry of Health); Moshe case, paras. 6-7 per Justice (emer.) E. Arbel; CFH 1892/11, paras. 4 and 6 of my opinion; LFA 377/05 A. & B. v. Biological Parents [31], paras. 7-9 per Justice A. Procaccia (hereinafter: Biological Parents case)). The right to become a parent realizes the right to family life, the right of autonomy of the individual, and the right to privacy (see: Moshe case, para. 26 per Justice E. Hayut; Biological Parents case, para. 7 per Justice A. Procaccia; A. v. Ministry of Health case, para. 32 per Justice E. Rubinstein, and para. 6 per Justice D. Barak-Erez; Nahmani case, para. 7 per Justice D. Dorner, para. 2 per President A. Barak; and see also: Aloni Commission, at 10-11; Daphne Barak-Erez, Symmetry and Neutrality: Reflections on the Nahmani Case, 20 Tel Aviv U. L. Rev. 197, 199-200 (1996) (Heb.)). Recently, a position has been expressed whereby the right to become a parent also stems from the right to liberty, as stated in sec. 5 of Basic Law: Human Dignity and Liberty (A.. v. B.. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit).

31.       The Petitioners’ argue that the requirement for a genetic link as provided in the Agreements Law affects their possibility of bringing a child into the world with the help of medical reproductive techniques, and particularly, the technique of surrogacy. I believe that this argument is correct. In my view, the scope of the right to become a parent extends to all the various medical techniques that assist reproduction. As such, this right also includes the possibility of becoming a parent by means of surrogacy. This position emerges both from the rulings of this Court (see: New Family case, paras. 31-32 per Justice M. Cheshin; A. v. Ministry of Health case, para. 27 per Justice E. Rubinstein, para. 6 per Justice D. Barak-Erez; Moshe case, para. 28 per Justice E. Hayut, paras. 6-7 per Justice (emer.) E. Arbel; Dobrin case, para. 15 per Justice A. Procaccia; and see reservations as to this decision in the Anon. case, para. 23 per Justice N. Hendel, and the references there); as well as from comparative law (see: European Court of Human Rights: S.H. v. Austria, App. No. 57813/00, §§ 81-82, ECHR 2011(hereinafter: S.H. case); Dickson v. United Kingdom, App. No. 44362/04 §§ 65-66, ECHR 2007; in the Constitutional Court of South Africa: AB case, paras 94, 110, 118, 121; in the Greek Constitution: European Parliament – Directorate General for Internal Policies, A Comparative Study on the Regime of Surrogacy in EU Member States, 277-78 (2013), and esp. note 513; and a combination of arts. 12(1) and 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (signed Dec. 16, 1966, ratified Oct. 3, 1991), and on this matter see S.H. case, para. 9 of the minority opinion); also from academic research on the subject (see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights, vol. 2, 675-76 (2014) (Heb.); Aharon Barak, The Light at the End of the Tunnel and the LGBT Community in Israel, Vol. III, Selected Essays: Constitutional Inquiries 399, 402 (2017) (Heb.); Meir Shamgar, Issues on the Subject of Reproduction and Birth, 39 HaPraklit 21, 28 (1996) (Heb.); and from the approach of the public committees that examined matters of medical reproductive techniques (see: Aloni Committee, 13; Mor Yosef  Committee, 25).

32.       From all of the above it emerges that the Petitioners have a constitutional right to become parents with the assistance of medical reproductive techniques. This right is a relative one: it is limited by sub-constitutional arrangements, and particularly by the Agreements Law and the Ova Donation Law (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and paras. 25-26 per Justice E. Hayut; and see: Anon. case, para. 3 per President M, Naor; and see other limitations on aspects of the right to become a parent: A. v. Ministry of Health case, para. 51 per Justice E. Rubinstein, para. 11 per Justice D. Barak-Erez; and see AB case, paras. 237, 314-15). Below I will discuss whether this violation complies with the criteria of the limitations clause.

Limitations Clause

33.       As we know, the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty comprises four conditions: the violation must be by law or by express authorization in a law; the law must befit the values of the State of Israel as a Jewish and democratic state; the law must be for a proper purpose; and finally, the violation of the right must be proportionate (see: Desta case, para. 24 per President M. Naor; Sabah case, paras. 66-70 of my opinion; HCJ 3752/10 Rubinstein v. Knesset [32] paras. 66-67 per Justice (emer.) E. Arbel). I will now address the violations of the constitutional right of the Petitioners to become parents in light of these criteria.

34.       In the present matter, it is indisputable that the first condition is fulfilled, inasmuch as the violation of the protected right was effected by virtue of the Agreements Law. In my view, the Law complies with the second condition. The Agreements Law regulates and realizes both the right to become a parent with the assistance of medical reproductive techniques and protection of women who are pregnant in the framework of surrogacy (see, e.g., secs. 4(a)(2), 4(a)(3), (4(a)(4) of the Agreements Law) – and thus the Law promotes human rights. In these circumstances, and in view of the fact that this condition has not yet been sufficiently developed in the case law, it seems to me that the Agreements Law befits the values of the State of Israel as a Jewish and democratic state (see: HCJ 5304/15 Israel Medical Association v. Knesset [33], paras. 103-106 per Deputy President E. Rubinstein (hereinafter: Israel Medical Association case); HCJ 5239/11 Avneri v. Knesset [34], paras. 28-30 per Justice H. Melcer; Galon case, paras. 13-18, 27-31 per Justice (emer.) E.E. Levy, paras. 2, 8 of my opinion).

35.       The third condition examines whether the offending Law serves a proper purpose. I will first consider the purpose of the Agreements Law itself.  Justice M. Cheshin discussed the purpose of this Law in the New Family case, and ruled that its purpose was “to establish a comprehensive arrangement on the subject of surrogacy, and that there will be no surrogacy other than by virtue thereof […] to solve the problems of spouses, men and women, who are childless, and these problems alone (paras. 15, 18 of his opinion; and see the Moshe case, para. 44 per Justice E. Rubinstein). In my view, the purpose of the Agreements Law is broader than that determined by the late Deputy President M. Cheshin. My position is based on the subjective purpose of the Law, but mainly on its objective purpose. I shall explain.

36.       The subjective purpose of the Agreements Law may be inferred from two main sources. The first source is the language of the Law. Both the name of the Agreements Law and the broad areas regulated by the language of the Law – including approval of a surrogacy agreement (Chapter 2 of the Law), regulation of the status of the newborn, the surrogate mother and the prospective parents upon the birth of the child, which includes the link of the child to the prospective parents and severance of the link to the surrogate mother (secs.  4(a)(2), 4(a)(3), 4(a)(4) of the Law, and the criminal prohibition against surrogacy contrary to the provisions of the Law (sec. 19 of the Law) – attest to the legislative intention to permit surrogacy agreements, to regulate their conditions, to regulate the status of the child and its link to the prospective parents, and to assure the well-being of the surrogate mother. The second source is the legislative history. The explanatory notes to the Agreements Law reveal that “the proposed Law is intended to permit surrogacy agreements with certain limitations and in a controlled manner” (Explanatory Notes to the Agreements Bill, H.H. 259, 259) (hereinafter: Explanatory Notes to the Agreements Bill). Similarly, the Knesset members who voted on the Law in the second and third readings noted the regulatory purpose of the Law and its aspiration to realize constitutional rights. Thus, the Minister of Health, MK Dr. Ephraim Sneh, noted: “I, as initiator of this Law, insisted first of all that there be legislation, since there were those who wanted to allow some sort of free market in the State”. Thus, MK Yael Dayan, a member of the Labor and Welfare Committee of the Knesset, who worked on the Law, noted: “What is determinant with respect […] is the existence of a fundamental right, the right to be a parent […] in every case in which the right to motherhood is denied due to a physical handicap, due to the inability to become pregnant. This is a moral issue – a basic right of the first order” (minutes of meeting 430). What we see from the above is that the subjective purpose of the Law is to regulate surrogacy agreements in Israel, including the status of the prospective parents and their link to the newborn, and to realize the right to become a parent while preserving the dignity and the health of the surrogate. In addition, Justice M. Cheshin found that the intention of the legislature was also to restrict access to surrogacy so that only heterosexual couples would be eligible to avail themselves of this technique (see: New Family case, paras. 17-18 of his opinion).

37.       In order to determine the objective purpose of the Agreements Law, we will look at the interpretive presumptions. In the present matter, two of these presumptions are particularly relevant: the presumption that the law aspires to protect and realize human rights, and the presumption concerning legislative harmony. Regarding the first, the Agreements Law permits and regulates the realization of the right to become a parent with the assistance of medical reproductive techniques, and in particular, the technique of surrogacy. Similarly, the Agreements Law includes protection of the dignity and well-being of the surrogate mother – and in this way it realizes her constitutional rights in the framework of this process.

The second presumption concerning legislative harmony says that a piece of legislation should be interpreted in accordance with the legislative tapestry into which it is woven (LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co. [35], para. 32 per Justice E. Rubinstein; LCA 8233/08 Kovashi v. Adv. Eyal Schwartz [36], para. 37 per Justice E. Arbel ; CA 3213/97 Nakar v. Local Planning and Development Council Herzliya [37], 633-34. In this context I noted in one of the cases:

It is a well-known principle of our legal system that when the Court seeks to interpret any statute, it must examine legal arrangements that are materially related to the subject under discussion (in pari materia). Giving the identical interpretation to subjects in related areas realizes the principle of normative harmony (HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister [38], para. 6 of my opinion).

This rule of interpretation tells us that different laws that pertain to the same matter or that have a similar or identical purpose (in pari materia) must be treated as one system of law with a comprehensive purpose, composed of different parts that complement each other: this is the legislative template. This legislative template has one main purpose, and every law that composes this template plays a different role in realizing the purpose of this template (see: HCJ 1756/10 Holon Municipality v. Minister of the Interior [39], para. 33 per Justice D. Barak-Erez (hereinafter: Holon Municipality case); CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd. [40], paras. 22-26 of my opinion; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs [41], para. 42 per Justice M. Cheshin; Aharon Barak, Interpretation in Law: Statutory Interpretation 341-45 (5753-1993) (hereinafter: Barak, Statutory Interpretation) (Heb.)). This Court has recognized several legislative templates: thus, for example, the Hours of Work and Rest Law, 5711-1951, the Minimum Wage Law, 5747-1987, the Male and Female Workers Equal Pay Law, 5756-1996, the Employment of Workers by Manpower Contractors Law, 5756-1996, and the Foreign Workers Law, 5751-1991, all belong to one legislative template (see: Gluten case, paras. 11-12 of my opinion). It is similarly possible to identify a legislative template in the area of electronic media and radio broadcasts (see: HCJ 1030/99 MK Oron v. Speaker of the Knesset [42], paras. 16-22 per Justice T. Orr (hereinafter: Oron case); as well as in the area of environmental protection and prevention of pollution, see: CA 4239/15  Dor Alon Energy Israel 1998 Ltd. v. Tax Authority [43], paras. 17-19 per Justice N. Sohlberg; Holon Municipality case, paras. 30-31; HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister [44] paras. 14-15 per President A. Barak; and relating to road accident compensation, see: CA 420/83 Ashur v. Migdal Insurance Co. Ltd. [45], para. 22 per Justice A. Barak (27.5.1990); Aharon Barak, Interpretation of the Civil Codex “Israel Style”, Gad Tedeschi Memorial Volume – Essays in Civil Law 115, 147-48 (5756-1996) (Heb.)).

38.       Similarly, I believe that the various statutes that regulate assistance through medical reproductive techniques must be viewed as part of a legislative template. In the framework of this template one may mention the Ova Donation Law; the Agreements Law; the Public Health (In Vitro Fertilization) Regulations, 5747-1987 (hereinafter: IVF Regulations); and Public Health (Sperm Bank) Regulations, 5739-1979, Declaration of Control of Products and Services (Sperm Bank and Artificial Insemination), 5739-1979, and Circular of the Director General of the Ministry of Health, 2.1.14, “Rules Concerning the Administration of a Sperm Bank and Guidelines for Performing Artificial Insemination” (June 29, 1979) (hereinafter: Ministry of Health Rules). I base my position on several grounds: first, these laws share the common purpose of regulating the use of various medical reproductive techniques, they determine the relationship among these techniques, they permit certain techniques and prohibit others, and they include several guiding principles such as ensuring the well-being of women involved in the process and ensuring a link between the prospective parents and the child in these processes (see, e.g., in relation to the link: sec. 11 of the  IVF Regulations, which was struck down in HCJ 5087/94 Zabaro v. Minister of Health [46]; sec. 23 of the Ministry of Health Rules; secs. 10 and 12 of the Agreements Law; sec. 42(a) of the Ova Donation Law; and see also reference to the link in the various arrangements for recourse to assisted reproductive techniques in the recommendations of the public committees on which these laws were based – Aloni Commission, 22-23, 48; Mor Yosef Committee, 76-77). Second, from the fact that the provisions of these laws complement each other and refer to each other (see, e.g., reference to a “recognized department” under the IVF Regulations in sec. 2 of the Ova Donation Law and in sec. 1 of the Agreements Law; reference to the IVF Regulations in the Explanatory Notes to the Ova Donation Law, 292, and in the Explanatory Notes to the Agreements Bill, 259; and reference to the Agreements Law in secs. 4(b), 12(b) and 11 in the Ova Donation Law); and third, from their close material relationship (see: Blecher-Prigat & Zafran, 403-20; reference to the various arrangements as one whole in the report of the Mor Yosef Committee, 8-9; Dolgin and Shepherd, 328-34, at para. 19 above). We find, therefore, that a legislative template exists in regard to the regulation of assistance through medical reproductive techniques, and also that the Agreements Law is part of this legislative template. The primary purpose of this legislative template is to regulate assistance through medical reproductive techniques in order to realize the right to become a parent, while ensuring the health of those involved in the process, and regulating the link between the newborns and the parents. Adapting the purpose of the legislative template to the said Law shows that the objective purpose of the Agreements Law is to regulate the process of surrogacy in Israel in order to realize the right to become a parent, while preserving the dignity and the well-being of the surrogate mothers, and to regulate the status of the newborn and its link to the prospective parents. As we have said, this purpose also comports with the presumption concerning realization of human rights.

39.            Thus, the lion’s share of the subjective purpose is consistent with the objective purpose, but the other part – which is concerned with restricting availability exclusively to heterosexual couples – does not comport with the objective purpose. In examining the general purpose of the Law, I believe that the subjective purpose that comports with the objective purpose is to be preferred over one that contradicts it, for several reasons. First, in examining the general purpose of the Agreements Law on the basis of its two purposes, the effect of the time that has elapsed since the Law was enacted should be taken into account. As noted by Justice M. Cheshin in the Biological Parents case: “Everything flows. We never dip twice into the same river, and the law, as a system of norms that seeks to integrate into life and navigate the path of human beings, must consider time as a factor of prime importance. Time is the fourth dimension, both in our lives, and in the law” (para. 17; and see: CFH 2121/12 Anon. v. Dayan Urbach [47], para. 48 per President A. Grunis; CA 9183/09 Football Association Premier League Ltd. v. Anon. [48], para. 6 per Justice H. Melcer; New Family case, para. 53 per Justice M Cheshin; Barak, Statutory Interpretation, 242-44, 246-47, 264-71). In truth, we are not dealing with an archaic law, but with a law that was enacted in 1996. However, we may also not ignore the significant social changes that Israeli society has undergone since the nineties, including changes in the traditional family unit (see: Anon. v. Anon., para. 20 per Justice H. Melcer, para. 14 per Justice I. Amit; Pinhas Shifman, On the New Family: Opening Lines for Discussion, 28 Tel Aviv U. L. Rev. 643, 648-9, 667-70 (2005) (Heb.)) and changes in the approach of society to assisted reproductive techniques (see: recommendations of the Mor Yosef Committee to allow surrogacy for single women as well, and altruistic surrogacy for single men – Mor Yosef Committee, 15, 63; the changes in the Ministry of Health Rules over the years; Haim Abraham, Parenthood, Surrogacy and the State, 9 Hukim 171, 175-95 (2017) (Heb.)); Tali Marcus, It Takes (Only) Two to Tango? On the Possibility of Recognizing More than Two Parents for One Child, 44 Mishpatim 45, 416-19 (2014) (Heb.)). Secondly, given that we are concerned with statutory provisions that involve human rights, greater weight should be attributed to the objective purpose (see: HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security [49], para. 115 and the references there; AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa [50], para. 24 per Justice M. Naor (2.2.2012); Aharon Barak, Purposive Interpretation in Law 255, 421-27 (2003) (Heb.)). And third, in light of the interpretive principle that a non-discriminatory purpose should be preferred over a discriminatory purpose (see: HCJ 7245/10 Adalah –  Legal Center for Arab Minority Rights v. Ministry of Social Affairs [51], paras. 6-7 per Justice E. Hayut; HCJ 6698/95 Ka’adan v. Israel Land Administration [52], para. 13 per President A. Barak; HCJ 142/89 Laor Movement v. Speaker of the Knesset [53], para. 9 per Deputy President A. Barak). My approach is that the said societal changes, taken together with the rules for prioritizing the objective purpose when dealing with human rights, and preferring a non-discriminatory purpose, indicate that the objective purpose, which largely comports with the subjective purpose, should be preferred. Therefore, we should  hold that the condition allowing only heterosexual couples to enter into surrogacy agreements is not part of the purpose of the Law. Thus, the purpose of the Agreements Law is to regulate the surrogacy process in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child.

40.       Is this purpose a proper one? In my opinion, the answer to this question is affirmative. Indeed, the Agreements Law does somewhat violate the constitutional right to become a parent. However, the rule is that a law that violates a constitutional right may serve a proper purpose if that purpose “is intended to realize social purposes that are consistent with the values of the state as a whole, and that display sensitivity to the place of human rights in the overall social system” (Adalah case, para. 62 per President A. Barak; Israel Medical Association case, para. 107 per Deputy President E. Rubinstein Quality Government case, paras. 52-53 per President A. Barak; HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance [54], para. 45 per President D. Beinisch). My position is that the social goals that underpin the Agreements Law – regulation of recourse to surrogacy as a medical reproductive technique, preservation of the health of  those involved in the process, regulation of the status of the newborn children and their relationship to the prospective parents, and realization of the right to become parents – are important social goals that justify a certain violation of human rights. These goals make it possible to realize the right to become a parent, and they protect women from exploitation. In addition, they ensure that each child that comes into the world as a result of these assisted reproductive techniques will have a link to a particular parent, thus also preventing abuse of the said techniques (such as creating children for commercial purposes) and promoting the well-being of the children. Therefore, in my view, the Agreements Law reflects a proper purpose, and as such it complies with the third condition of the limitations clause (see: HCJ 566/11 Mamet Megged v. Minister of the Interior [55], para. 17 of my opinion (hereinafter: Mamet Megged case)). Having found that the Agreements Law meets the first three conditions of the limitations clause, I will now focus the discussion on the condition of proportionality, with its three sub-criteria.

41.       First, the rational connection criterion. Does the requirement for a genetic link bear a rational connection to the purpose that the Law seeks to realize? I believe that the answer to this is yes. As will be recalled, the purpose of the Agreements Law is to regulate the process of surrogacy in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child. The Law’s requirement of a genetic link is rationally connected both to the regulatory purpose of the Law, and to the realization of the link between the prospective parent and the prospective child.

With respect to the regulatory purpose, the legislature saw fit to restrict access to surrogacy to a person who is capable of having a genetic link to the child. As noted above, this exclusivity of access says that only a person who is able to supply his or her own genetic material in order to create the embryo that is implanted in the surrogate can enter into a surrogacy agreement. This, therefore, is a regulatory constraint adopted by the Law that is connected to the regulatory purpose of the Law in that it permits entering into an agreement only on the said condition. As explained above, this condition is relevant to approval of the surrogacy process, and it therefore also complies with the case-law criteria with respect to a link that is not “arbitrary, unreasonable or unfair” (see: Quality Government case, para. 58 per President A. Barak; HCJ 4769/95 Menahem v. Minister of Transport [56], para. 23 per Justice D. Beinisch). Moreover, a clear line can also be drawn between this requirement and the legislative purpose relating to the existence of a link between the parents and the child, for as we have said, the mechanism set by the Agreements Law for the purpose of a link between the prospective parents and the child is based on the genetic link between them (see above, para. 27; AB case, paras. 283-87, 293-94). As such, I find that the requirement for a genetic link has a rational connection with the realization of the purpose of the Law.

42.       Second is the criterion of the least harmful means. The question here is whether there exists a means that similarly serves the purpose of the law, but which entails a lesser violation of the constitutional rights. In my view, the existing arrangement meets this sub-criterion as well. In examining the requirement for a genetic link as provided in sec. 2(4) of the Law, of particular relevance is the legislative purpose with respect to ensuring the existence of a link between the prospective parents and the child. The means chosen to realize this purpose is the requirement that the newborn be genetically related to one of the prospective parents. Therefore, at this stage we must ask whether a means exists that realizes the purpose of ensuring the connection between the parents and the child to the same degree, but at the same time is less harmful to the right to become a parent (see: Nir case, paras. 47-49 of my opinion; Aharon Barak, Proportionality in Law 395, 411 (2010) (Heb.)). In my opinion, the answer is negative. I will explain.

One could, indeed, argue that the purpose of ensuring the link between the prospective parents and the child could be realized through their emotional connection at the stages of initiation, approval and implementation of the surrogacy process, without any genetic connection (see the dissenting opinion in the AB case, paras. 177-85). It is true that the emotional parental link cannot simply be dismissed, and we need not address the nature of this link in the present framework (see, inter alia, recognition of this approach in this Court: Anon. case, para. 3 per Justice D. Barak-Erez, para. 2 per Justice H. Melcer; A. v. Minister of Health case, para. 29, 43-45 per Justice E. Rubinstein; Mamet Megged case, para. 14 of my opinion; LAA 5082/05 Attorney General v. Anon., paras. 22, 36 per President A. Barak; in the Supreme Court of the United States: Lehr v. Robertson, 463 U.S. 248, 259-264 (1983); Troxel v. Granville, 530 U.S. 57, 87-89 (2000); and in the Grand Chamber of the European Court of Human Rights: Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 140, 148-149; and see: Dolgin & Shepherd, at 329-31)). It is clear to me that the Law assumed that every prospective parent would establish the said emotional and psychological connection with the prospective child – a link that has existed between parents and children from time immemorial. However, in order to allow a person to bring a child into the world with the assistance of medical reproductive techniques, it was determined that an additional link is required beyond that emotional connection that exists in any case. Thus, for example, in the artificial insemination process, a genetic and physiological link with the prospective mother is required; and similarly, in the process of IVF a physiological – or absent that, a genetic – link is required. We see, therefore, that the condition of the existence of an additional link between prospective parents and a child born with the assistance of medical reproductive techniques is not met without some additional connection between at least one of the prospective parents and the child, besides the emotional connection.

What additional link is required in the surrogacy process? In view of the fact that the surrogacy process by its nature severs the connection between the surrogate mother and the child, the existence of a physiological link is not a relevant alternative here. Hence, the only means that serves the purpose of legislation requiring a link between the parents and the child is that of a genetic link between the prospective parents and the child as a condition for approving a surrogacy agreement. As such, I find that there is no means that realizes the purpose to the same extent and causes a lesser violation of the constitutional right under discussion. Therefore, the Law is in compliance with the second sub-condition.

43.       Third is the criterion of proportionality stricto sensu. In the framework of this sub-criterion, we must decide whether the benefit derived from adding the requirement for a genetic link for the approval of the surrogacy process is greater than the damage caused by this requirement as a result of the violation of the constitutional right of Petitioners 5-6 to become parents. My view is that the benefit outweighs the harm, and that the Agreements Law also complies with this condition. I will explain.

Let us begin with the benefit of the requirement for a genetic link. Above I discussed the great importance attributed in Israel and in the Western world to the genetic link in general, and in the surrogacy process in particular. I also explained that this regulatory element is consistent with the ethical decision of the Israeli legislature, and with that of other legislatures, in regard to the great importance of the genetic link to parents in the surrogacy process. I also explained that the legislature sought to confine surrogacy to circumstances in which an additional link to the emotional link engendered by the parental connection would be forged in the framework of the broad regulation of assisted reproductive techniques, in which some kind of link in addition to the emotional link is required. Similarly, I pointed out that this link helps in addressing some of the potential problems raised by assisted reproductive techniques such as surrogacy, and it constitutes a fulcrum for assistance through such techniques (see above, para. 27). In this case, the requirement for a genetic link reflects benefits that are in keeping with the purpose of the Agreements Law – ensuring the connection between the newborn and the prospective parents, and helping regulate the use of surrogacy on the basis of relevant distinctions. These benefits cannot be brushed aside, and the proof is that most states in the Western world that permit surrogacy have adopted similar models requiring a genetic link between the child and the prospective parent.

I will now discuss the harm caused by the demand for a genetic link. This requirement undeniably entails a result that is harmful to the right of Petitioners 5-6, and of other men and women like them that fate has not been kind enough to allow to become parents. However, this harm is not at the core of the right to become a parent, and it does not affect the existence of this right. Rather, it affects its mode of realization (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and para. 26 per Justice E. Hayut). This is because Israeli law does not negate the right of the Petitioners to become parents in general, but rather, prevents their access to a particular, special track because they do not comply with the criteria required for this track. Blocking the track leaves open a wide range of ways for realizing their yearning for parenthood, for example, by means of adoption, by means of joint or shared parenting agreements, or by any other legal means. True, these possibilities are not a precise alternative to realizing of the right to become a parent by way of the process of surrogacy, but their existence means that the right is limited only in its means of realization, and it is far from being totally nullified. Hence, the harm to the right to become a parent in our case is not great. Moreover, I find that there is substance in the Respondents’ contention that removal of the requirement for a genetic link in the surrogacy process will lead to a great similarity between that process and the process of adoption. As explained by Justice N. Hendel in the Anon. case, Israeli law today recognizes parenthood on the basis of four alternative, complementary foundations – genetic link, physiological link, adoption, and a link to a link (para. 7 of his opinion). In its present format, the process of surrogacy rests on the first foundation, in view of the requirement for a genetic link. As stated, this classification therefore shows us that the genetic link constitutes a significant means of distinction between surrogacy and adoption. Unfortunately, since parenthood through a genetic link is not possible for Petitioners 5-6, this means of distinction does not exist as far as they are concerned, and therefore the alternatives of adoption and surrogacy become more similar to one another. Therefore, the harm inflicted by the requirement for a genetic link is confined and limited: it relates to one out of a number of possibilities for realizing the right to become a parent, it also affects a very particular way of realizing the right to parenthood (surrogacy with no genetic link), which is not significantly different from another way of realizing the right to become a parent (adoption). This is even more so when the particular nature of the process of surrogacy and the many dilemmas to which it gives rise are considered.

I therefore find that the requirement for a genetic link in the surrogacy process is of considerable benefit, and the harm it causes is limited. My position regarding the overall balance is that this benefit outweighs the constitutional harm that it entails. Accordingly, I have reached the conclusion that the Agreements Law also meets the third sub-criterion of proportionality, and that the harm done to the right of Petitioners 5-6 to become parents is proportional.

Summation

44.       From the above it emerges that the requirement of the Agreements Law for a genetic link complies with the limitations clause, and therefore its constitutionality is not flawed. Although the circumstances of Petitioners 5-6 arouse empathy, on the basis of all that has been said above I do not find that there is room, in the framework of the present petition, to change the principles expressed in the Agreements Law with respect to the requirement for a genetic link. I will therefore recommend to my colleagues that we deny the petition in regard to those Petitioners.

Before Concluding

45.       In the framework of this petition, the Petitioners ask that we order that the portals to the surrogacy process be opened so that also those who wish to establish a non-heterosexual family framework will be able to pass through them with pride. As stated, in view of the fact that the legislature addresses this issue in the Bill that passed its first reading last month, we have decided to allow it time and not to decide the matter at present. However, I wish to devote a few words to the existing legislative situation, and to shed some light on issues that apparently arouse more than a little discomfort.

46.       I find it hard to come to terms with a situation in which single people and single-sex couples are prevented from realizing their right to become parents by entering into surrogacy agreements when their heterosexual brothers and sisters enjoy this right. A legal arrangement that grants a right with constitutional status to one group and excludes another group because of its identity, preferences, orientations or ways of life, is an arrangement that appears  discriminatory and is hard to accept. For myself, I see no justification for preferring heterosexual parenthood over single-sex parenthood in general, and particularly insofar as the right to become a parent – in terms of all the techniques for its realization – is concerned (cf.: Mamet Megged case, paras. 5 and 10 of my opinion; Moshe case, para. 8 per Justice (emer.) E. Arbel).

This unfounded preferential treatment turns its back on the value of human dignity that appears in the Basic Laws of the State of Israel, and the principle of equality that is derived from it. Even though equality is not specifically mentioned in the Basic Laws, the principle of equality has long been recognized as part of “the soul of our entire constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [57], 698). It was accorded the status of a supra-statutory constitutional right deriving from Basic Law: Human Dignity and Liberty (see, e.g., Association of Banks case, para. 3 of my opinion; Sabah case, para. 13 of my opinion; Quality Government case, paras. 36-43 per President A. Barak), and it is a common thread running throughout the foundational documents of our State. It was Theodor Herzl who wrote in Altneuland: “Let me tell you, then, that my associates and I make no distinctions between one man and another. We do not ask to what race or religion a man belongs. If he is a man, that is enough for us.” This principle also appears in the writings of Ze’ev Jabotinsky, who stated that “human rights and citizens’ rights are the property of the person and the citizen, qua person and citizen. This is a first principle.  There is no room for negotiating or for reckoning who is entitled to rights and who is not” (Ze’ev Jabotinsky, Untitled Notes, Plitonim 23, 29 (5714-1954) (Heb.)), and it is captured in the words of the Declaration of Independence, namely, that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants …”.

47.       The prohibition against discrimination on the basis of sexual orientation is one of the basic elements of the principle of equality, and Israeli law has managed over the years to weave it into the web of legislation and case law (for a review see: AAA 343/09 Jerusalem Open House for Pride v. Jerusalem Municipality [58], para. 54 per Justice I. Amit). However, our legal system has unfortunately been left trailing behind in many aspects that are at the heart of the lives of LGBT citizens, and particularly recognition and equal rights for gay partnerships and families (see: Yotam Zeira & Barak Medina, The Right to Equality and Sexual Orientation, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law, 159, 176-88 (Einav Morgenstern, Yaniv Loshinski and Alon Harel eds., 2016) (Heb.)). This legal situation comprises a severe violation of human dignity, for it places a group of citizens with equal obligations and rights in an inferior position to that of the rest of Israeli society with no material justification. This violation, and the value of a legal system that is prepared to entertain change, was discussed by US Supreme Court Justice Anthony M. Kennedy, who stated in the context of a case related to our matter:

There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices […] If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied […] It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality” (Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (emphasis added – S.J.).

In the context of the subject of this petition, I had the opportunity of saying the following in the Mamet Megged case (albeit in a dissenting opinion with regard to the result):

As long as the interpretation of the Committee for the Approval of Embryo Carrying of the Embryo Carrying Agreements Law remains in force, and the Law itself has not been changed by the legislature or found unconstitutional by the Court, same-sex couples find themselves in a categorically inferior position. Unlike heterosexual couples, same-sex couples can resort to surrogacy arrangements only outside of Israel […] The policy of the Respondent in all that regards parenthood discriminates against same-sex couples, and this, alongside totally preventing same-sex couples from turning to the track of surrogacy in Israel. This general policy […] is discriminatory. This policy seeks to establish the heterosexual couple as “natural” […] This discriminatory policy, alongside the deep violation of human dignity and equality, also harms the constitutional right of every person to family life (paras. 5 and 10 of my opinion).

48. It bears saying that over and above the moral flaw involved, the distinction between heterosexual and homosexual parenthood lacks any basis in academic research that has studied the welfare of the newborn. See, for example, Triger and Mass’s article, which addressed  the various arguments raised against same-sex parenthood systematically and in depth, and shows, through broad research from different areas, that they have no basis. Thus, for example, it was demonstrated that children who are raised in single-sex families do not have particular difficulties as opposed to children who grew up in families with a father and a mother – either from the point of view of the child’s development, or from the point of view of the partnership of the parents in raising the child, as well as from other aspects (see: Triger and Mass, 448-53). Other studies have looked into and dismissed various claims concerning the apparently negative ramifications of single-sex arrangements in the surrogacy process. These studies indicate that there are good connections with the surrogate mother in the course of the pregnancy and thereafter, and they also determine that it is not possible to identify any difference between the situation of children who were born to heterosexual families and that of children born to single-sex families through assisted reproductive techniques (see: Lucy Blake, et al., Gay Father Surrogacy Families: Relationships with Surrogates and Egg Donors and Parental Disclosure of Children's Origins, 16 Fertility & Sterility 1503 (2016); The Ethics Committee of the American Society for Reproductive Medicine, Access to Fertility Treatment by Gays, Lesbians, and Unmarried Persons: A Committee Opinion, 100 Fertility & Sterility 1524, 1526 (2013); and see Moshe case, para. 23 per Justice (emer.) E. Arbel and the references there.

49.       Moreover, I am also struggling to find a relevant reason for the distinction between single women and single men in relation to realizing the right to become a parent (see and cf. HCJ 2078/96 Vitz v. Minister of Health [59]; New Family case, para. 26 per Justice M. Cheshin; Moshe case, para. 21 per Justice (emer.) E. Arbel, para. 17 per Justice E Hayut; and in the U.K.: Z (A Child) (No 2) [2016] EWHC 1191 (Fam) (20 May 2016)). It is clear that the principle of equality also extends to the difference in gender between women and men, and it seems to me, without setting the matter in stone, that limiting access to assisted reproductive techniques for one gender and not for another raises questions. Thus, for example, a distinction between men and women with respect to the realization of the right to become parents is liable, prima facie, to broadcast, even unwittingly, an approach whereby single-parent family units headed by a woman are preferable, and therefore a higher normative value is to be accorded to a single female’s yearning for parenthood than to that of a single man; it is liable to hint at a basic assumption whereby this family structure is more proper and desirable; and it may echo archaic social approaches whereby the role of a woman as a parent is more central than that of a man as a parent (cfSessions v. Morales-Santana, 198 L. Ed. 2d 150 (2017); Ben-Asher, The Curing Law, 1913-15; Jean Strout, Dads and Dicta: The Values of Acknowledging Fathers’ Interests, 21 Cardozo J. L. & Gender 135, 148-149 (2015)) – and in this it may possibly reflect a discriminatory basic assumption (cf. LAA 919/15 A. v. B..  [60] paras. 103, 105, 107 per Justice U. Vogelman; my opinion in LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd. [61]).

50. We see, therefore, that the current surrogacy arrangement gives rise to considerable fundamental difficulties. With the caution required at this interim stage, I dwelt above on the substantial harm to single-sex couples and to single men, and on the shaky social-ethical basis on which the distinctions in the Law stand. In view of our decision to postpone our ruling on the petition in order to allow for completion of the legislative process, this is neither the place nor the time to deliberate on the merits of the arguments presented by the Respondents in their response to the petition. However since we cannot suffice by leaving the matter without comment, I will note – without making any firm determination – that although I listened attentively to the Respondent’s arguments and considered them carefully, I was left with an uncomfortable feeling as to the compatibility of this arrangement with the values of the Basic Laws and their provisions. Those who are involved in this very weighty matter must consider this.

Conclusion

51.       In this decision, we are postponing determining the very important issues that I addressed above. We do so out of respect for the legislature and for the relationship between the judiciary and the legislature. This relationship is a complex one, based on dialogue between the Court and the legislature. This dialogue turns on the basic principles and the laws of the State of Israel. In that framework, the two branches aspire to advance the goals of the State and address the challenges that face  it in an optimal manner, while preserving the basic rights of every person by virtue of the Basic Laws. At the end of this dialogue, the expectation is that a legal result will be achieved that is in keeping with the fundamental principles of the State and that protects individual freedoms. At present, it is the turn of the legislative branch to have its say. Presumably it will fulfill its constitutional obligations and act to realize constitutional rights (see, at length: Aharon Barak, The Constitutional Right to Protection of Life, Body and Dignity, 17 Law and Government 9, 16-19, 29-27, 31-35 (5776-2016) (Heb.)). As always, this Court will listen very carefully to what the legislative branch has to say. And as always, its doors will be open and its ear bent to any person who claims that his constitutional right has been violated. This is so in regard to the further handling of the present petition, as well as to future petitions.

 

President M. Naor

1.         I concur in the opinion and decision of my colleague Deputy President S. Joubran, and will add just a few of my own comments.

2.         In the course of the deliberations on the petition before us, the State announced that the Ministry of Health wishes to advance an amendment to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996 (hereinafter: Agreements Law), which will also enable single women to enter into surrogacy agreements. Several days ago, the State updated us on the progress of the legislative process and noted that the bill to amend the Agreements Law (Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) was due for a vote on the first reading that same day (July 17, 2017). Indeed, the Bill passed its first reading that day, and was sent for further discussion to the Labor, Welfare and Health Committee of the Knesset for the purpose of preparation for its second and third readings . Under the circumstances, passage of the Bill in its first reading and it being sent for preparation for its second and third readings created a new situation. At the time, we did indeed express our displeasure at the way in which the Respondents conducted themselves in this process, which expressed itself in submitting a memo of the Bill at the last minute, on the eve of the oral hearing. Now, however, this has indeed come to pass. Accordingly, we have decided as stated by Deputy President Joubran, not to decide at the present time on the issue at hand (other than in relation to the constitutionality of the requirement for a genetic link). This means that we who have or will soon have completed our tenure on the Court – my colleague Deputy President (emer.) Rubinstein, Deputy President Joubran and myself – will not be party to the final judgment, insofar as one may be necessary after the exhaustion of the legislative process. We are a “house of judgment” and not a “house of judges.”

3.         As a rule, a court may address the legal questions before it even when a bill on that same subject is pending in the Knesset (see and cf.: FH 25/80 Katashvili v. State of Israel [62]; HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health [63], para. 27 per Justice M. Mazuz). At the same time, in light of the principle of mutual respect among the branches if government, in relevant cases it is appropriate to refrain from competing with the legislature, and to give the Knesset the opportunity to complete the legislative process within a reasonable time (cf.: HCJ 8893/16 Cabel v. Minister of Communication [64], in which we granted the State’s request for an extension of the period for submitting a response due to the progress of legislation that would have affected the petition there). It is appropriate to do so in the present case, particularly considering the complexity of the issues that have been raised in the petition and the advanced stage of the legislative process. I will not deny that the Respondents have refrained from estimating when the legislative process is expected to be completed, thus giving rise to concern that they will not make progress as required (and cf. other cases in which consideration of petitions was postponed for many months, and even years, until the completion of the legislative process: HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services [65], ; HCJ 8300/02 Nasser v. Government of Israel [66], paras. 2-5 per President (emer.) D. Beinisch). Moreover, the Bill in its present formulation does not provide a response to the Petitioners, and on reading the responses of the Respondents one can cautiously surmise that the chance of this changing is not great. To this must be added the fact that when realization of the right to parenthood is at stake, prolongation of the proceedings is liable to lead to an irreversible situation. Finally, it must be borne in mind that the Agreements Law was enacted more than 20 years ago, and since then it has been deliberated in various legal proceedings, in some of which reservations were expressed regarding its scope. In recent years, there have even been attempts – unsuccessful – to amend it. For this reason, and in view of the additional considerations mentioned above, I believe it right to rule, as proposed by Deputy President Joubran, that the Respondents must submit notice of the progress of the legislation within six months.

4.         Notwithstanding the above, and considering the fact that this petition has been pending for several years and oral argument has been heard in this Court, I would like to address briefly the definition of “prospective parents” in sec. 1 of the Agreements Law. What I will say is in the category of musings alone, and cannot limit the discretion of the justices who will replace us in these proceedings, if it should be necessary. What I am about to say is directed at the ears of the legislature as considerations that would seem to warrant attention.

5.         The Agreements Law was originally intended to provide a solution to a limited number of childless couples, while preserving the rights of all those involved in the process – first and foremost the surrogate mother (see: Report of the Mor Yosef Committee, at 53-54); New Family case [9], 434-35, 442-43; HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying [67], para. 8 per Deputy President E. Rivlin). This being the case, the application of the Law was confined to prospective parents who are “a man and a woman who are a couple, who can never bring children into the world due to a physiological condition that prevents the woman from carrying a child or when pregnancy poses a risk to her life.” Several constitutional petitions have been submitted against the Law in the past – now is not the place to go into details – which in turn led to the establishment of various public committees. The latest committee to deal with this subject, including the question of expanding the circle of those eligible for surrogacy, was the Mor Yosef Committee. The Report of the Committee (submitted in May 2012) stated that “the Committee has been convinced of the strong desire of same-sex couples to bring children into the world and has heard that they regard surrogacy as having great potential … [that] constitutes a good solution … in light of the fact that it preserves the genetic link to one of the partners …” (at 57). Accordingly, the Committee assumed that in the absence of other significant interests, single men and women should not be prevented from bringing children into the world by way of surrogacy. However, the Committee also specified several opposing considerations: first, the concern was expressed that surrogacy would change from a specific solution for particularly difficult medical cases into an accepted way of bringing children into the world, and as a result it would be difficult to safeguard the well-being of the surrogates. Second, the concern was expressed that opening up surrogacy to broad populations would come at the expense of women who are suffering from a medical problem. Finally, there was a concern that broadening the scope of those eligible for the procedure would turn surrogacy into a solution only for the rich. In view of these considerations, the Committee ultimately recommended distinguishing between women and men in the sense that men would be permitted to enter into surrogacy agreements on an altruistic basis alone.

6.         In the petition before us, the Respondents explained that, in their view, expanding the scope of those eligible for surrogacy requires legislation. At the same time, they argued, in light of the considerations mentioned in the Mor Yosef Report, there is apparently a relevant distinction between single men or male couples and between women who suffer from a medical problem. Accordingly, as stated above, the Bill that is being considered seeks to expand the circle of those entitled to surrogacy to single women only. In my opinion, there is substance to the approach that entering into surrogacy agreements should be permitted only in a controlled fashion, and to the argument that turning surrogacy into the “major route” for bringing children into the world is problematic. Surrogacy involves health and emotional risks to the surrogate, and in certain cases it is also liable to spill over into exploitation of women and their objectivization (see: Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 442 (5773-2013) (Heb.) (hereinafter: Lipkin & Semama)). These risks, which are inherent in the surrogacy process, were raised before the Mor Yosef Committee and they figured in their recommendations. Indeed, one cannot ignore the physical, emotional and ethical difficulties that are liable to arise in the surrogacy process. Nevertheless, since entering into controlled, monitored surrogacy agreements has been permitted in Israel, I see no apparent justification for distinguishing between women with medical problems and single men or male couples in this matter. These two groups are not able to bring children into the world other than by artificial insemination and reproductive techniques. At the same time, we have not been shown factual data indicating that expanding the arrangement in the Law would necessarily lead to a significant increase in demand for surrogacy in Israel. Apart from gender, there is therefore no material difference between the groups. In all events – and this is the main point – both the Mor Yosef Committee and the Respondents themselves did not argue that such a difference exists (and see and cf. also: Mamet Megged case). The considerations of the Committee, like those of the Respondents, focused, as we have said, on the extent of the demand for surrogacy and the risks this entails. However, it seems right to solve these problems in an egalitarian manner. For example, it is possible (and maybe desirable) to tighten up the control and monitoring of the surrogacy process and to improve the terms of these agreements (see: Lipkin & Semama, at 490-97). Furthermore, it is possible to limit the number of times that a couple or an individual are permitted to enter into a surrogacy agreement, or to prohibit the surrogacy process in the case of a person who already has a child (see also: sec. 5(b) of the Bill). Similarly, the possibility exists of prohibiting commercial surrogacy, and to permit only altruistic surrogacy, as is the practice in some European states (but see: Report of the Mor Yosef Committee, in which it was recommended by majority opinion to permit commercial surrogacy in Israel, at 61-62; and cf. sec. 15 of the Organ Transplant Law, 5768-2008). In the final analysis, even though approval of surrogacy agreements is no simple matter, prima facie it would seem that there is no difference between women and single men or male couples that justifies discrimination. Let me again emphasize that I am not laying down the law on the present issues. These are only comments as I see things. In any case, the legislature, which must now address these issues, will have to think about them. Insofar as the legislative processes in the Knesset are not concluded within reasonable time, the subject will return for adjudication before this Court, which will deliberate and decide as it sees fit.

7.         With respect to the constitutionality of the requirement for a genetic link as a condition for entering into a surrogacy agreement, I accept the ruling of Deputy President Joubran that the requirement of the Law that there be a genetic link between one of the prospective parents and the child meets the criteria of the limitations clause. Bringing a child into the world without a genetic or physiological link to the prospective parent gives rise to complex social, ethical and moral questions, and providing an answer to these questions in a courtroom is liable to entail broad consequences that have not been elucidated in the present proceedings. Unlike surrogacy with a genetic link, which has been discussed from every perspective over the years, in the courts and by other institutional actors, discussion of the issue of reproduction without a genetic or physiological link has not yet been exhausted. This is even more evident in view of the position of the Mor Yosef Committee, which saw fit to recommend expanding the circle of those eligible for surrogacy as long as a genetic or physiological link exists with at least one of the prospective parents. I therefore accept the position that in relation to the issue of the genetic connection, the petition should be denied. It is important to clarify, however, that our decision on this subject does not, of course, prevent the legislature from considering it, like any other matter, in the framework of the ongoing legislative process. I will also mention, with the required caution, that one cannot rule out in advance a situation in which, as a result of particular changes that may occur in the future, the legislature will once again be called upon to address this issue. I do not make light of the plight of the Petitioners. Indeed, as I have said in the past, the very fact that there are different ways to become a parent does not necessarily mean that the state must allow the realization of them all (Moshe case, para. 2 of my opinion). At the same time, without laying down the law on issues that are pending in other proceedings (see, e.g., HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services [68], which deals with the scope of those entitled to adopt children), we should strive for alternative solutions that will enable the Petitioners to realize their right to parenthood.

8.         To summarize: I concur in the opinion of my colleague Deputy President Joubran, whereby the petition concerning the requirement for a genetic link must be denied. As for expanding the circle of those eligible for surrogacy to include single males and male couples, at the present stage this issue should remain without a final decision due to the ongoing legislative processes and taking into account the principle of mutual respect between the branches of government.

 

Deputy President (emer.) E. Rubinstein

1.         I concur in the outcome reached by Deputy President Joubran. The issues that arise for deliberation in this case add to the human, social and legal complexity that has been created in the present era, in which technological developments in the medical field on the one hand, and social developments in the area of family on the other, have engendered situations that our forefathers could not have imagined. In HCJ 407712 A. v. Ministry of Health [30], I had the opportunity, in a different context, to say the following (para. 2):

The "genetic era" and the increasing use in recent decades of artificial reproductive techniques have brought a real blessing to many who would have remained childless "in the old world". Reality has changed immeasurably, and technology presently enables many of those whose path to parenthood was previously blocked, to bring children into the world and have a family. This is one of the dramatic developments, which creates a new social and legal reality, and gives rise to complex, sensitive human questions. The legal world has not yet had the time to properly address these issues, and it falters behind them…

This “faltering along” continues to this day, and therefore issues arise such as the one before us. There are no bounds to a person’s desire for a child. My colleague Justice Barak-Erez, at the beginning of her opinion in the above case, quoted from the poem “Barren” by the poet Rachel: “A son! If I only … had one little boy, Dark, sable-curled and so smart …”; and I would add from the end of the poem: “But I’ll still weep like Rachel the Mother. And I’ll still plead like Channah at Shiloh. I’ll await him. I’ll await…”. Whose heart would not identify with this prayer?

2.         The point is that these issues, which change the known reality, such as the situation of single women and men and same-sex couples, should in principle be addressed by the legislature, which sees the entire picture in all its aspects. My colleague (in para. 6) quoted from the Moshe case (para. 46), and I will repeat what he said in order to complete the picture:

In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it will not trail behind the legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes, constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is, first and foremost, the legislature, and the existence of advanced legislative processes warrants such judicial restraint.

These words appear to me to be in keeping with what my colleague has now proposed, that is, postponement of the decision at a time in which the legislature is acting as reported. I support his proposal, and the constitutional arguments will be reserved for the petition when it comes.

3.         I also concur in the determination as to the importance of the genetic link, for it seems to me that anyone reading the judgment in the Moshe case cannot fail to form the impression that its basic assumption is genetic parenthood for the purpose of the Agreements Law, alongside severance between the surrogate mother and the prospective parents. It is true that the “genetic model,” which was the focus of legislation in the past, has been weakened to a certain degree (see in detail the above A. v. Ministry of Health. case, para. 44), but the genetic link still carries great weight (para. 45).

4.         I will conclude with the comment that regarding all the subjects raised by my colleague at the end of his written opinion, there is room for gradual progression in order to arrive at appropriate, correct results from the overall social aspect as well. This Court should, in my opinion, address these issues while observing the progress of the legislation, without slamming the door on judicial intervention. I will only mention that, on the one hand, the Mor Yosef Committee recommended expanding the circle of those eligible for surrogacy to single women, while on the other hand, it recommended the establishment of altruistic surrogacy for single men. However, the memorandum of the Law that was submitted at the time – which differs from the present one with the change of Government – expanded the circle of those eligible for commercial surrogacy to include single men as well (see my opinion in the Moshe case, para. 45). The reason given by the Committee – that expanding the circle may numerically limit the possibilities available for single women – bothered me, even upon carefully reading what my colleague Deputy President Joubran and my colleague the President wrote, and their thoughts regarding a solution. As for myself, I think that, in general, a committee is established in order that its conclusions be adopted, unless it has clearly deviated from what is reasonable. But of course, the legislature is permitted to think differently and act differently. On the other hand, there is the question of equality, which is no small thing: we are all created imago dei, nor does time stand still, socially and personally.

5.         This judgment, in its various opinions, comprises recommendations – even if cautious – to the legislature. In order to “glide over the lips of sleepers” (Song of Songs 7:10), and to show the progress that has been made by Israeli law, I would like to cite a summary of a memo written by Supreme Court President Itzhak Olshan during his tenure (1954-1965 – the date of the memo is unknown), who is quoted by Professor Pnina Lahav in her article, The Pains and Gains of Writing the Biography of Chief Justice Simon Agranat, Harris, Kedar, Lahav & Lichovski (eds.), The History of Law in a Multi-Cultural Society (2002) 147, 157-158. I cite these words not due to agreement with their content, but as an historical comment. President Olshan wrote (I do not have the original Hebrew text) – and according to him the subject had already arisen in discussions with judges in the past – that it is not recommended to make recommendations in a written opinion (he does not explain exactly which recommendations he means, and it may not necessarily be only legislative recommendations), particularly not in criminal matters. He says that it puts the authorities in a difficult position, for if they do not accept the recommendation, they are liable to be seen as offending the Court. On the other hand, the authorities may have good reasons for not accepting the recommendation, but they will be seen as offensive. President Olshan says that he raised the subject because he had been approached on the matter. Prof. Lahav, the author, notes that the memo is of interest both because it refers to informal connections between the governmental branches, and because although President Olshan was very careful to preserve and fight for judicial independence, he also preserved the relationship with the executive branch and was prepared to deliver its requests to the judges. She points out that the proclivity of courts for writing recommendations is common; it is something that could be said to contradict the principle of separation of powers, but on the other hand it could be seen as a “safety valve” attesting to the discomfort of the Court in applying a particular law as against considerations of justice, and prohibiting it would dilute judicial opinion and prevent the Court from sounding a moral voice. According to the author, the justices did not comply with the “rebuke” of the President, but the very fact that the memo was issued is an indication of the leadership of President Olshan.

As I noted, I cited these words as an historical comment, although I disagree with the position expressed in the memo, and I would add that in my opinion, on the basis of long years of practice and common sense, it is absolutely inappropriate to withhold judicial recommendations that are generally based on long professional, institutional and personal experience, and on consideration of the distressing situations that the Court encounters. On the contrary, the fifty years that have elapsed since President Olshan retired have shown us that there was and is great value to judicial recommendations. Many of them have found their way into legislation and governmental actions, and have contributed to their improvement. Even if caution is wise in making recommendations on matters of principle that are controversial, lack of action on the part of the legislature sometimes compels the Court to have its say. In any case, in general, not only is there nothing wrong with making judicial recommendations, but they are a good thing, for the benefit of all. The dialogue between the branches is important – that is the nature of democracy. The ability to listen is invaluable, and it is of course multi-directional. The spirit of our generation in the context of judicial recommendations was aptly described by Justice Melcer in describing academic discourse (see: Desta case, paras. 6-7 of his opinion, and the references cited there).

6.         I will conclude with what I wrote in the Moshe case (para. 23):

It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an egg donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in 8 Hukkim (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, 7 Moznei Mishpat 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, which is charged with weighting the balances..

Subsequently, it was said that there is a need (in that context) for a “guide” in the form of statutory directives, which would not require any great legislative effort. This applies, mutatis mutandis, in the present case. The last word has not yet been said.

7.         This judgment is being handed down on the day of the retirement of my good friend, Deputy President Selim Joubran. I have merited to serve alongside him in friendship and with affection throughout the whole period of our tenure, since we were sworn in on the same day in 2004. Deputy President Joubran – a proud Israeli, a proud Christian Arab – has in the period of his tenure made a great contribution to Israeli law and Israeli society, both with his substantive jurisprudence in his learned opinions, and with his incomparably amiable personality as a colleague, a friend, and a public personality. The “golden mean” approach that he represented in the law, which is particularly close to my heart, has contributed greatly to the peaceful settlement of conflicts, as a lover of peace and a pursuer of peace. May my friend continue in the ways of peace, of health and of contentment.

 

Justice E. Hayut

1.         What is the appropriate scope of the circle of persons eligible for assistance through the surrogacy process in Israel?

This is an issue that the Petitioners have once again laid at the door of this Court in the present petition. The petition raises arguments against the constitutionality of the arrangement provided in the Agreements Law, most of which concern the violation of the right to parenthood and the right to equality of single-sex couples (Petitioners 1-4) and men and women who do not have partners (hereinafter: single men and women), including women who, due to the inability to become pregnant or to donate their own ovum to the reproductive process (Petitioners 5-6) will not have a genetic link to the child as required by sec. 2(4) of the Agreements Law.

2.         This Court first considered the matter of the appropriate scope of those eligible for assistance through the surrogacy process in the New Family case, but this was in one single derivative only – a single but fertile woman who was not able to become pregnant and give birth. The judgment determined by majority opinion that denial of the right of a single woman to be included within the definition of “prospective parents” in the Agreements Law, and confining the process of surrogacy under the Law exclusively to “a man and a woman who are a couple”, appeared to constitute a violation of the principle of equality and discriminated against women such as the petitioner without justification. At the same time, the Court denied the petition for the reason that it dealt with a “new and complex” issue that should be developed gradually, in small steps, through legislative processes and not by way of case law that intervenes in the legislation of the Knesset. In the New Family case, the Court therefore confined itself to a call to the legislature to the effect that –

… it think about the plight of single women such as the Petitioner; that it give serious consideration, weighing one against the other, the reasons for and reasons against the application of the Law to single women; and that it decide on the merits of the question one way or another. Indeed, the plight of single women is genuine, their plight is not less than that of couples, and those single women deserve to have the legislature think specifically about them and about the prohibitions it placed on their path to surrogacy (at 461) (for an analysis of the status of calls such as this on the part of the Court to the legislature, see: Liav Orgad and Shai Lavi, Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv L. Rev. 437 (2011) (Heb.)).

3.         More than 14 years have passed since judgment was rendered in the New Family case, but the definition of “prospective parents” in the Agreements Law has remained unchanged. As pointed out by my colleague Deputy President Joubran, some 8 years after the judgment in the New Family case, the Director General of the Ministry of Health appointed a public committee to examine the statutory regulation of the subject of fertility and reproduction in Israel, and this committee submitted a report in May 2012 (the Mor Yosef Report) in which it recommended, inter alia, to expand the circle of those eligible for assistance through surrogacy under the Agreements Law to include a single woman who has a medical condition preventing her from becoming pregnant, and a single man (with respect to whom it was recommended to permit only an altruistic surrogacy track). Also, in 2014, in the wake of the Mor Yosef Report, a governmental bill was formulated which expanded the circle of those eligible for surrogacy in Israel such that both single women and men would be able to employ the process for payment in Israel (Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014). However, this Bill was not moved forward, and when the rule of continuity was not applied to it, it lapsed.

4.         The present petition was submitted on Feb. 2, 2015. On July 17, 2017, after we – sitting as an expanded bench – had completed hearing the objections to the order nisi that had been issued, we were informed that the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) had been published and introduced in the Knesset on July 5, 2017. Under this Bill, the circle of women eligible for surrogacy in Israel would be expanded to include single women who suffer from a medical problem that necessitates undergoing the process, on condition that the genetic link between the prospective mother and the newborn is preserved. We were also informed that the Bill had passed its first reading and was sent to the Labor, Welfare and Health Committee of the Knesset for preparation for its second and third reading.

5.         In view of the conduct of the legislature regarding this issue over the years, it may be assumed that our deliberations on the present petition served as a fairly significant accelerant in the present legislative process. At the same time, and even though the Bill currently under consideration is more limited than the 2014 version (it does not include single men), I agree with my colleague Deputy President Joubran and with my colleague President Naor that at this stage, we should not enter into a “race” with the legislature, which should be allowed to complete the legislative process before we decide on the present petition insofar as it concerns Petitioners 1-4, given the principle of mutual respect between the branches by which we should abide. I therefore concur in this context in the position of my colleagues that we postpone handing down a judgment on the petition (insofar as it concerns Petitioners 1-4) for a period of six months, in order to allow the Knesset to complete the legislative process that it has begun.

6.         As opposed to this, like my colleagues, I too am of the opinion that with respect to Petitioners 5-6, the petition should already be denied at this stage.

As will be recalled, Petitioners 5-6 (hereinafter: the Petitioners) are single women who, due to medical problems are not able to carry a pregnancy nor are they able to donate their own ova for the purpose of fertilization and implantation into the womb of a surrogate. As described in the petition, Petitioner 5 has no children, and after attempts to become pregnant from fertilized ova implanted in her womb were not successful, her doctors determined that she could not become pregnant. Petitioner 5 is in possession of several frozen fertilized eggs that were prepared in the framework of her earlier attempts to become pregnant, and after she was told that she would not be able to carry a pregnancy herself, she turned to Respondent 1 (hereinafter: the Committee for Approval of  Embryo Carrying or the Committee) with a request to allow her to embark on a process of surrogacy using these ova. The Committee for Approval of Embryo Carrying rejected Petitioner 5’s request outright, due to her personal status as a single woman and due to the provision of sec. 2(4) of the Agreements Law that makes the process of surrogacy conditional upon the existence of a genetic link between the prospective parents and the child. Petitioner 6 is also a single woman who, as the result of a medical issue, cannot carry a pregnancy, nor can she donate her own ova for the purpose of surrogacy. Petitioner 6 has one child who was born after she became pregnant through the donation of another woman’s ovum that was fertilized by a sperm donation. After she gave birth to her son, Petitioner 6 was told she would not be able to carry further pregnancies, and that several fertilized ova remained carrying the same genetic load as that of her son. Petitioner 6, too, approached the Committee asking to be allowed to embark upon the surrogacy process, in the framework of which those fertilized ova would be implanted in the womb of the surrogate mother. The Committee also rejected the request of Petitioner 6 for the same reasons as those grounding its rejection of the request of Petitioner 5. Alongside the arguments common to them and to the other Petitioners regarding the discriminatory definition of “prospective parents” in the Agreements Law, the Petitioners further argue that denying the possibility of surrogacy  to a person who has no possibility of having a genetic link to the child, as provided in sec. 2(4) of the Agreements Law, violates the right to parenthood and to equality, and that for them, this causes harm in addition to the harm caused to them by virtue of their being single women.

7.         This Court has not infrequently discussed the importance attributed by society to the human desire of many for progeny who will carry their genetic material and who will be related to them “by blood” (see: New Family case, 447; CA 488/77 A.. v. Attorney General [69], 441-42; and see further in this context: Yehezkel Margalit, The Rise, Fall and Rise Again of the Genetic Foundation for Legal Parentage Determination, 3  Medical Law and Bio-Ethics 125 (5770-2010) (Heb.)). Now, as I pointed out in one of the cases in another context:

The biological-genetic connection between parent and child is not the be-all and end-all. No less important (and sometimes even more important) “raw material” constituting and fashioning the relationships between parents and their children is the emotional link and the commitment to the well-being of the children and raising them. At the same time, and has already been mentioned, real and significant justification is required in order to deny a person the possibility of realizing the right to parenthood that includes a blood tie between himself and the child (Moshe case, para. 33 of my opinion); see also Yehezkel Margalit,  Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553 (2012) (Heb.); Yehezkel Margalit, Towards Determining Legal Parenthood by Agreement in Israel, 42 Mishpatim 835 (2012) (Heb.)).

It may also be said that the medical limitations due to which the Petitioners are unable to form a genetic link to the child, alongside their single status, places them in certain senses at the top of the ladder of those who encounter difficulty in realizing their right to parenthood. However, the question facing us is not whether realization of the right to parenthood must be allowed in the case of a person who cannot have a genetic relationship with a child, but whether that person should be allowed to realize this right by way of the process of surrogacy under the Agreements Law.

8.         In the New Family case, Justice M. Cheshin said as follows:

… people are not always ready and able to absorb and digest the achievements of science and technology. This is the general case. A fortiori in relation to the subject of surrogacy, in which the most sensitive and intimate aspects of a person are involved.

            Justice Cheshin further mentioned there that in view of the novelty and the complexity of the issue of surrogacy from various perspectives, it is appropriate that this process develop in a gradual, proportionate manner (at 459-60). Indeed, the issue of the scope of the circle of persons eligible to realize the right of parenthood by means of surrogacy is a complex one that involves medical, social and ethical considerations, the sensitivity of which cannot be overstated. This applies to the process of surrogacy in general, and all the more so where the prospective parent lacks a genetic link to the child. First, in the absence of a genetic link, we are not concerned with denying a person the possibility of realizing parenthood that includes a blood relationship between himself and the child. It can therefore be said that the prospective parent has no special interest in bringing a child into the world by way of surrogacy in particular. In effect, it can be said that absent a genetic or physiological link to the prospective parent, we are dealing with the production of children for the purpose of adoption (see: Anon. case, paras. 25-26 per Justice N. Hendel; and Mor Yosef Report, at 6 and 61 (note 28)). And insofar as the matter is one of a variation of adoption, the question naturally arises why the prospective parent, who has no particular interest in the process of surrogacy, should not be directed to the adoption track, with all its advantages from the point of view of benefitting children who already exist.

Similarly, in this context of surrogacy  with no genetic link, ethical questions that are not simple arise concerning, inter alia, the possibility of creating children who are in certain senses “children by order”, with all the ramifications from the point of view of the surrogate mothers who participate in the process; questions about “industrialization” of these processes; and concerns about a concept of property taking root with regard to children created in this framework (Lipkin and Semama, 441-43). As my colleague the President pointed out, it may not be right to rule out in advance the possibility of considering the process of non-genetically linked surrogacy in the future, and it may be that the experience that will continue to accumulate regarding surrogacy in Israel and the world  will warrant legislative reconsideration of the issue. However, like my colleagues, I too think that the petition does not show constitutional grounds for striking down the provision of sec. 2(4) requiring such a link. This is similar to the approach adopted in this context in most states that permit surrogacy, and respectively, to the approach adopted by the Israeli legislature in additional statutes that attribute importance to the genetic link in the context of parent-child relationships (see paras. 25-26 per Deputy President S. Joubran).

9.         In summary, I concur in the opinion and decision of my colleague Deputy President S. Joubran.

 

Justice H. Melcer

1.         I concur with the result reached by my colleague Deputy President S. Joubran. I choose not to express a detailed opinion with respect to his main reasoning, for in view of what appears in the decision part of my colleague’s opinion, I am likely to deal further with this petition, alongside my colleague Justice Hayut (and other justices who will join the panel).

Nevertheless, I will permit myself to make several comments regarding the right of Petitioners 5-6 (in relation to whom the petition is denied) to realize their aspiration for parenthood by way of surrogacy, specifically in the legal situation pertaining at present and the future, and concerning the link between legislative initiatives and the case law of this Court.

I will discuss these subjects in their order.

The right of Petitioners 5-6 to realize their aspiration for parenthood specifically by means of surrogacy

2.         Petitioners 5-6 wish to realize their aspiration for parenthood by means of surrogacy, without having a genetic link (their ova) or a physiological link (pregnancy) to the child.

In LFA 7141/15 A. v. B. [23], I explained the similarity and the difference between the right to parenthood (which is not necessarily biological) and the right to continuity (which is at base genetic). Both these rights are in my view constitutional rights, as I explained there.

In the present case, Petitioners 5-6 wish to obtain approval to enter into an agreement with a “surrogate mother”, but various provisions in the existing Agreements Law stand in their way, including the requirement for a biological link, as expressed in sec. 2(4) which provides as follows:

The implantation of a fertilized egg for the purpose of impregnation of a surrogate mother in order for the child who will be born to be given to prospective parents will not be performed unless all the following are fulfilled:

….

(4)                   The sperm used for the in vitro fertilization is that of the prospective father and the ovum is not that of the surrogate mother.

These provisions indeed violate the rights of Petitioners 5-6 to parenthood, but as my colleagues showed, it cannot be said that the requirement for a genetic link, in this context of surrogacy, fails with respect to the criteria of the limitations clause. However, the right of Petitioners 5-6 (and others like them) to parenthood may possibly be realized in other ways that do not require a genetic link.

Moreover, in the case of Anon. [11], I called upon the legislature to consider finding a means for helping those belonging in this category. This is how I stated it there:

Thus, just as in the past, the institution of adoption provided for the problem of childlessness, now it can be expanded, either to enable individuals who have no available alternative … to resort to new medical technologies in order to become parents, or to be considered such, even without a genetic link …Following these paths is intended to provide a response to a reality within which technology usually precedes the law. The legislature and the courts are therefore asked in these cases to pour the essence of the good, well-grounded existing principles into legal containers that have not been in use before (as if these were old wine that improves over time and simply requires a newer container). Cf.: Steven Breyer, Active Liberty 64 (2009); see also my opinion in CA 9183/09 Football Association Premier League Ltd. v. Anon. [48] (13.05.2012)).

3.         In conclusion: my heart goes out to Petitioners 5-6 to whom we could  not extend more help in this process, given the existing legal situation. Nevertheless, I would point out that this does not detract from the possibility on the part of the said Petitioners to present their case and the interests of those like them to the Knesset during the deliberations that are to be held in the Labor, Welfare and Health Committee (hereinafter: Labor Committee) in preparation for the second and third readings of the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) that was introduced in the Knesset on  July 5, 2017 and passed its first reading on July 17, 2017.

4.         Owing to the fact that the Bill passed its first reading, the Respondents requested that we not decide upon the petition, and we have granted this request partially, as described in the opinions of my colleagues. On this issue of the constitutional dialogue, which is important, I will add several comments below, as a type of introduction for the future.

 

The ramifications of legislative initiatives for pending processes

5.         In principle we (as well as the administrative authorities) are supposed to decide according to the existing law. See: HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion [70]. However, over the years exceptions to this rule have emerged. A comprehensive discussion of them appears in a recently published article: Bell Yosef, A Mixed Blessing – The Normative Status of Legislative Initiatives, 40 Tel Aviv U. L. Rev. 253 (2017) (Heb.). See also: Aharon Barak, Partnership and Dialogue between the Legislative and the Executive Authority and the Judiciary, 4 Moznei Mishpat 51, 68 (2005) (Heb.); Barak Medina, Strategic Considerations behind Normative Explanations: Lessons from Israel’s Supreme Court Expropriations Case: A Reply to Haim Sandberg, 11 Int’l J. Const. L. 771, 773-776 (2013); Alison L. Young, Democratic Dialogue and the Constitution (Oxford University Press, 2017) (hereinafter: Young)).

A related issue concerns the question of whether the reviewing court should give directives to the legislature when it strikes down a law – how to legislate a future law that will be immune, as it were, to constitutional judicial review ‒ or whether it should confine itself to a constitutional analysis of the new law that will be brought before it, after the legislature has had its say.

In the Desta case [1], I discussed this question and said as follows:

There is much theoretical discussion of the dialogue between the judiciary and the legislature that develops in such situations (for the theoretical literature on the subject, see the article by Liav Orgad and Shay Lavie,  Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv U. Law Review 437, 440 (2011) (Hebrew) (hereinafter: Orgad & Lavie, Judicial Directive), and see: Ittai Bar Siman-Tov, The Puzzling Resistance to Judicial Review of the Legislative Process, 91 B.U. L. Rev. 1915, 1954-1958 (2011); Aharon Barak, The Judge in a Democracy 382-389 (2004) (Hebrew) (English: Princeton, 2008) ; Gideon Sapir, The Constitutional Revolution in Israel: Past, Present & Future 219-222 (2010) (Hebrew)).

            The answers to this question can be classified into three categories, although the dividing line between them is sometimes blurred (the analysis, references and presentation below are based upon the article Orgad & Lavie, Judicial Directive):

(a)        One model is that of “judicial advice”. Judicial advice is an approach that allows the judge to recommend necessary legislative changes to the legislature. It does not express a demand, but rather a legal preference, while leaving discretion to the legislature (compare: Nitya Duclos & Kent Roach, Constitutional Remedies as "Constitutional Hints"A Comment on R. v. Schachter, 36 McGill L.J. 1 (1991)).

(b)        A second model is that of the “constitutional roadmap”. The constitutional roadmap is a technique that allows the judge to recommend to the legislature, expressly or impliedly, how to overcome the defects in the current law. In the constitutional context, it constitutes a sort of recommended path to correcting the constitutional defect found by the court (see: Erik Luna, Constitutional Road Maps, 90 Crim. L. & Criminology 1125 (2000)).

(c)        A third model is the “fire alarm”. The fire alarm is a technique that allows the judge to warn the legislature of defects in the current law. In the constitutional context, this concerns cases in which the court just barely accepts the constitutionality of the law, but explains that although the law is “still constitutional”, it may become unconstitutional in the future (see: Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1719 (1998)).

7.         In Israel, in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 412-413 (1997) (hereinafter: the Investment Managers case), President A. Barak employed the “constitutional roadmap” approach, informing the Knesset of the alternatives that it might adopt in order to create an arrangement that would pass constitutional review in place of the provision that the Court had declared void in that case, emphasizing: “Choosing the proper balance point is given to the legislature” (ibid.).

            A tendency toward approach (a) appeared in later decisions (for example, by some of the justices in the Eitan case), or toward approach (c) (for example, in the Admissions Committees case: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014), or the judgment in the matter of raising the electoral threshold:  HCJ 3166/14 Gutman v. Attorney General (March 12, 2015)). However, there has been no decisive verdict on this issue to date, and I do not propose that we adopt one here. However, I do think it appropriate to emphasize that it would be proper, in my opinion, to tell the legislators not only what is not constitutional, but also to provide them with general guidelines as to what can be expected to meet constitutional requirements, as President Barak did in the Investment Managers case. Beyond that, I believe that the said dialogue must continue openly, comprehensively and with mutual respect.

            This is the place to note that in the meantime a tendency has developed, at least in Europe, towards a fourth approach that takes the view that a court that declares a law unconstitutional must not suggest to the (national) legislature how to fix the law (see: the majority opinion in Hirst v. United Kingdom (No. 2) 42 EHRR 41 (2006), decided by the European Court of Human Rights, and which was influenced, inter alia, by the need to grant relative freedom to the EU member states. As opposed to this, see the leading article supporting substantive dialogue: Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited – Or “Much Ado About Metaphors”, 45 Osgoode Hall L.J. 1 (2007)).

6.         Now, after having presented the comparative law on this issue, and the theoretical streams that indicate the possible routes for dealing with it, I will return to the matter at hand.

It appears to me that the legislators, when they discuss the Bill in preparation for its second and third readings, must give thought to the words of my colleague the President, and my colleagues who are retiring from this Court (and therefore from this panel), which were uttered by way of “judicial advice” in relation to the subjects that remain pending in this petition. Moreover, the Respondents have made it clear that issues that the Petitioners raised could be discussed in the framework of the deliberations of the Labor Committee. The same applies, in my view, to the situation discussed in the Moshe case – a petition that was denied by a majority of four judges against three, and which presented, according to all the judges, a problem that called for a solution, preferably within the borders of Israel, without sending those petitioners (one of whom had a genetic connection and the other a physiological one) to a foreign country in other to fulfill their yearning for parenthood.

7.         How is the matter of Petitioners 1-4 therefore distinguishable from that of Petitioners 5-6, such that we leave the petition of the first group pending? I will now answer that briefly.

8.         The matter concerning Petitioners 1-4 does not encounter the barrier of an absence of a genetic link (at least with respect to one of the couples). At this stage, therefore, their request ought not to be rejected in advance, for it may be possible to find a solution for the issues that they raise within the framework of particular constitutional remedies, which my colleague Justice E. Hayut and myself were ready to consider in the framework of our dissenting opinion in the Moshe  case.

However, the legislature takes precedence in this regard, and a first step has already been taken in the framework of the Bill. Therefore, we found that we should wait for the process to ripen by virtue of the principle of mutual respect between the branches. However, the Bill, even if it is approved within a reasonable period of time, still does not, apparently, provide a solution for Petitioners 1-4 and others like them. Thus, their right to claim that a constitutional omission in this area violates their basic constitutional rights must be preserved. Recognition of this, if it should be given, and if  the violation is not protected in the framework of the limitations clause, might justify obligating the legislature to act (see: Aharon Barak, The Constitutional Right to Protection of Life, Body and Liberty, 15 Mordechai Kremnitzer Volume (Ariel Bendor, Haled Ghanayim, Ilan Saban eds., 2017)  (Heb.)), or the development of a suitable constitutional remedy. I say this here, without laying down the law, as a milestone or traffic sign in the framework of the above models (cf.: Young, at 131).

9.         In conclusion: this judgment is being handed down on the day of the retirement of my colleague Deputy President Selim Joubran. In translation from Arabic to Hebrew, the name Selim has two, separate or perhaps complementary, meanings: completeness and health. I know how much my colleague wanted his opinion in the case before us to be complete and to address all the aspects of the petition, so that his opinion would give expression to his complete judicial approach, which supports equality. The irony is that due to his pursuit of peace and in light of the above legislative initiative, which appeared only recently, he is forced to leave the labor for others to complete (the legislature, and if there is no choice – this Court).

It remains to me, therefore, only to wish our colleague Selim good health – which, as we have said, is the other meaning of his name – and that he continue to engage in productive activity, and to say to him who has in our eyes symbolized the possibility of co-existence with mutual respect, recognition and appreciation – goodbye and may peace be with you.

 

Decided in accordance with paragraphs 18 and 44 of the partial opinion and decision of Deputy President S. Joubran.

Given this day, 11 Av 5777 (Aug. 3, 2017).

 


Nahmani v. Nahmani

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

Facts: Ruth and Daniel Nahmani, a married couple, were unable to have a child because of an operation that Ruth underwent. They therefore decided to try in-vitro fertilization of Ruth’s ova with Daniel‟s sperm, with a view to implanting the fertilized ova in a surrogate mother. Under Israeli law, surrogacy was not permitted and in-vitro fertilization was only permitted for implantation in the woman from whom the ova were taken. Because of the great expense of the in-vitro fertilization procedure in the United States, the couple petitioned the Supreme Court, sitting as the High Court of Justice, to allow the in-vitro fertilization procedure to be conducted in Israel, for the purpose of surrogacy in the United States. In that proceeding (HCJ 1237/91), a consent judgment was given allowing the in-vitro fertilization procedure to be done in Israel. The procedure was carried out at Assuta Hospital. Subsequently, Daniel left Ruth and went to live with another woman, who bore him a child. Ruth applied to Assuta Hospital to release the fertilized ova into her possession for the purpose of the surrogacy procedure in the United States, but Daniel opposed this. Assuta Hospital therefore refused to release the fertilized ova. Ruth applied to the Haifa District Court for an order against the hospital to release the fertilized ova, and in its judgment the District Court gave such an order.

 

Daniel appealed the judgment of the District Court to the Supreme Court. In the appeal (CA 5587/93), the Supreme Court, with a majority of four of the five justices that heard the case, allowed the appeal of Daniel Nahmani and reversed the order of the District Court. Ruth petitioned the Supreme Court to hold a further hearing of the appeal, and this further hearing was subsequently held before a panel of eleven justices.

 

Held: A majority of seven of the Supreme Court justices reversed the judgment in the appeal, with four justices dissenting.

 

(Majority opinion — Justice Ts. E. Tal) The husband was estopped from opposing the continuation of procedure by promissory estoppel, since he gave his consent, his wife reasonably relied on this consent, and she did so irreversibly, by fertilizing her ova with her husband’s sperm. Furthermore, Jewish heritage, which is one of the fundamental principles of the Israeli legal system, considers having children an important value, whereas not having children is not considered a value at all.

 

(Majority opinion — Justice D. Dorner) The liberty of not having unwanted children is in essence secondary compared to the right to have children. Subject to this principle, the balancing between the rights of the parties is made by taking into account the current stage of the procedure, the representations made by the spouses, the expectations raised by the representations and any reliance on them, and the alternatives that exist for realizing the right of parenthood. In this case, the basic principles and considerations lead to a preference of the wife to be a parent over the right of the husband not to be a parent.

 

(Majority opinion — Justice E. Goldberg) In the absence of any normative arrangement, the case should be decided according to the basic value of justice. The just solution is the one that results in the lesser of evils. Justice demands that we do not, retroactively, undermine the position of someone who was entitled to rely on a representation of another, as the petitioner was entitled to do in this case.

 

(Majority opinion — Justice Y. Kedmi) Before fertilization, each spouse can change his decision to be a parent, and his basic right not to be a parent prevails over the contractual right of his partner to demand performance of the agreement between them. After fertilization, the right of the spouse wishing to complete the procedure of bringing the child into the world and to become a parent is strengthened by the fertilization of the ovum. From this point onward, the right of the spouse wishing to complete the process of bringing the child into the world overrides the right of the one wishing to destroy the fertilized ovum.

 

(Majority opinion — Justice Y. Türkel) The ethical weight of the right to be a parent is immeasurably greater than the weight of the right not to be a parent. Doing “ethical justice” compels us to prefer the former right to the latter.

 

(Majority opinion — Justice G. Bach) Where there is no express statute to guide us, we must avail ourselves of our sense of justice, and make our ruling according to what seems to us to be more just, in view of all the circumstances of the case before us. Even if the scales of justice were evenly balanced, then the fact that preferring Ruth’s position created the possibility of granting life and bringing a living person into our world, would tip the scales.

 

(Majority opinion — Justice E. Mazza) The restriction that Daniel wishes to impose on Ruth’s right to be a mother, although it appears to be a specific restriction, is really a quasi-general one, since Ruth has no real alternative to becoming a mother other than by use of her ova that were fertilized with Daniel’s sperm. The restriction that Ruth wishes to impose on Daniel’s right not to be a father against his will is a specific restriction. Imposing a specific restriction on Daniel’s right is preferable to imposing a quasi-general restriction on Ruth’s right to be a mother. The violation caused by the specific restriction to Daniel’s right is, necessarily, less than the violation caused by the quasi-general restriction to Ruth’s right. Where all other factors are equal, justice requires us to prefer the lesser violation to the greater violation.

 

(Minority opinion — Justice T. Strasberg-Cohen) Consent is required for each stage of the in-vitro fertilization procedure up to the point of no-return, which is the implantation of the ova in the woman’s body. In the absence of such consent, Daniel cannot be compelled to consent to Ruth’s aspiration against his will by means of a judicial order, either in the name of the law, or in the name of justice or in the name of life.

 

(Minority opinion — Justice T. Or) The consent of the parties to cooperate towards realization of an in-vitro fertilization procedure is a framework consent. It is founded on the basic assumption that the marital relationship between the parties will continue. But it does not include consent, ab initio, to all the stages and aspects of the fertilization procedure. The consent is based on the understanding that at each stage of the procedure the joint consent of both spouses will be required.

 

(Minority opinion — Justice I. Zamir) If, before the procedure began, Daniel were asked whether, if he separated from Ruth, he would consent to implantation of the ovum, which would make him and Ruth joint parents of a child, his answer, as a reasonable person, would be no. His initial consent to the procedure should therefore not be regarded as consent even in the circumstances of a separation. For the same reason, Daniel is not estopped from opposing the continuation of the fertilization procedure, since he never represented that he consented to the continuation of the procedure even if he separated from Ruth.

 

(Minority opinion — President A. Barak) Continuing consent is required for every stage of the fertilization procedure. This cannot be waived ab initio for reasons of public policy. Justice requires equality between the spouses in decision making. Refusing to give consent to the continuation of the fertilization procedure because the relationship has ended does not constitute bad faith.

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

 

 

Ruth Nahmani v

1.            Daniel Nahmani

2.            Attorney-General

3.            Assuta Ltd

 

CFH 2401/95

 

 

The Supreme Court sitting as the Court of Civil Appeals [12 September 1996]

Before President A. Barak and Justices G. Bach, E. Goldberg, T. Or,

E.            Mazza, Y. Kedmi, I. Zamir, T. Strasberg-Cohen, D. Dorner, Ts. E. Tal,

Y. Türkel

 

Further Hearing of Civil Appeal 5587/93 on the judgment of the Haifa District Court (Justice H. Ariel) on 2 September 1993 in OM 599/92.

 

Facts: Ruth and Daniel Nahmani, a married couple, were unable to have a child because of an operation that Ruth underwent. They therefore decided to try in-vitro fertilization of Ruth‟s ova with Daniel‟s sperm, with a view to implanting the fertilized ova in a surrogate mother. Under Israeli law, surrogacy was not permitted and in-vitro fertilization was only permitted for implantation in the woman from whom the ova were taken. Because of the great expense of the in-vitro fertilization procedure in the United States, the couple petitioned the Supreme Court, sitting as the High Court of Justice, to allow the in-vitro fertilization procedure to be conducted in Israel, for the purpose of surrogacy in the United States. In that proceeding (HCJ 1237/91), a consent judgment was given allowing the in-vitro fertilization procedure to be done in Israel. The procedure was carried out at Assuta Hospital.

Subsequently, Daniel left Ruth and went to live with another woman, who bore him a child. Ruth applied to Assuta Hospital to release the fertilized ova into her possession for the purpose of the surrogacy procedure in the United States, but Daniel opposed this. Assuta Hospital therefore refused to release the fertilized ova. Ruth applied to the Haifa District Court for an order against the hospital to release the fertilized ova, and in its judgment the District Court gave such an order.

Daniel appealed the judgment of the District Court to the Supreme Court. In the appeal (CA 5587/93), the Supreme Court, with a majority of four of the five justices

 

 

 

that heard the case, allowed the appeal of Daniel Nahmani and reversed the order of the District Court.

Ruth petitioned the Supreme Court to hold a further hearing of the appeal, and this further hearing was subsequently held before a panel of eleven justices.

 

Held: A majority of seven of the Supreme Court justices reversed the judgment in the appeal, with four justices dissenting.

(Majority opinion — Justice Ts. E. Tal) The husband was estopped from opposing the continuation of procedure by promissory estoppel, since he gave his consent, his wife reasonably relied on this consent, and she did so irreversibly, by fertilizing her ova with her husband‟s sperm. Furthermore, Jewish heritage, which is one of the fundamental principles of the Israeli legal system, considers having children an important value, whereas not having children is not considered a value at all.

(Majority opinion — Justice D. Dorner) The liberty of not having unwanted children is in essence secondary compared to the right to have children. Subject to this principle, the balancing between the rights of the parties is made by taking into account the current stage of the procedure, the representations made by the spouses, the expectations raised by the representations and any reliance on them, and the alternatives that exist for realizing the right of parenthood. In this case, the basic principles and considerations lead to a preference of the wife to be a parent over the right of the husband not to be a parent.

(Majority opinion — Justice E. Goldberg) In the absence of any normative arrangement, the case should be decided according to the basic value of justice. The just solution is the one that results in the lesser of evils. Justice demands that we do not, retroactively, undermine the position of someone who was entitled to rely on a representation of another, as the petitioner was entitled to do in this case.

(Majority opinion — Justice Y. Kedmi) Before fertilization, each spouse can change his decision to be a parent, and his basic right not to be a parent prevails over the contractual right of his partner to demand performance of the agreement between them. After fertilization, the right of the spouse wishing to complete the procedure of bringing the child into the world and to become a parent is strengthened by the fertilization of the ovum. From this point onward, the right of the spouse wishing to complete the process of bringing the child into the world overrides the right of the one wishing to destroy the fertilized ovum.

(Majority opinion — Justice Y. Türkel) The ethical weight of the right to be a parent is immeasurably greater than the weight of the right not to be a parent. Doing „ethical justice‟ compels us to prefer the former right to the latter.

(Majority opinion — Justice G. Bach) Where there is no express statute to guide us, we must avail ourselves of our sense of justice, and make our ruling according to what seems to us to be more just, in view of all the circumstances of the case before us. Even if the scales of justice were evenly balanced, then the fact that preferring

 

 

 

Ruth‟s position created the possibility of granting life and bringing a living person into our world, would tip the scales.

(Majority opinion — Justice E. Mazza) The restriction that Daniel wishes to impose on Ruth‟s right to be a mother, although it appears to be a specific restriction, is really a quasi-general one, since Ruth has no real alternative to becoming a mother other than by use of her ova that were fertilized with Daniel‟s sperm. The restriction that Ruth wishes to impose on Daniel‟s right not to be a father against his will is a specific restriction. Imposing a specific restriction on Daniel‟s right is preferable to imposing a quasi-general restriction on Ruth‟s right to be a mother. The violation caused by the specific  restriction to Daniel‟s  right is, necessarily, less than the violation caused by the quasi-general restriction to Ruth‟s right. Where all other factors are equal, justice requires us to prefer the lesser violation to the greater violation.

(Minority opinion — Justice T. Strasberg-Cohen) Consent is required for each stage of the in-vitro fertilization procedure up to the point of no-return, which is the implantation of the ova in the woman‟s body. In the absence of such consent, Daniel cannot be compelled to consent to Ruth‟s aspiration against his will by means of a judicial order, either in the name of the law, or in the name of justice or in the name of life.

(Minority opinion — Justice T. Or) The consent of the parties to cooperate towards realization of an in-vitro fertilization procedure is a framework consent. It is founded on the basic assumption that the marital relationship between the parties will continue. But it does not include consent, ab initio, to all the stages and aspects of the fertilization procedure. The consent is based on the understanding that at each stage of the procedure the joint consent of both spouses will be required.

(Minority opinion — Justice I. Zamir) If, before the procedure began, Daniel were asked whether, if he separated from Ruth, he would consent to implantation of the ovum, which would make him and Ruth joint parents of a child, his answer, as a reasonable person, would be no. His initial consent to the procedure should therefore not be regarded as consent even in the circumstances of a separation. For the same reason, Daniel is not estopped from opposing the continuation of the fertilization procedure, since he never represented that he consented to the continuation of the procedure even if he separated from Ruth.

(Minority opinion — President A. Barak) Continuing consent is required for every stage of the fertilization procedure. This cannot be waived ab initio for reasons of public policy. Justice requires equality between the spouses in decision making. Refusing to give consent to the continuation of the fertilization procedure because the relationship has ended does not constitute bad faith.

 

Basic Laws cited:

Basic Law: Administration of Justice, 5744-1984, ss. 6, 15(c).

 

 

 

Basic Law: Human Dignity and Liberty, 5752-1992, s. 1.

 

Statutes cited:

Administrative Courts Law, 5752-1992, s. 22.

Contracts (General part) Law, 5733-1973, ss Administrative Courts Law, 5752-1992, s. 22. 14(b), 25, 30, 31, 61(b).

Contracts (Remedies for Breach of Contract) Law, 5731-1970, s. 3(4). Criminal Procedure Law [Consolidated Version], 5742-1982, s. 3.

Foundations of Justice Law, 5740-1980, s. 1. Immovable Property Law, 5731-1971, s. 10.

Labour Court Law, 5729-1969, s. 33.

Land Law, 5729-1969, s. 10.

Penal Law, 5737-1977, ss. 314, 316, 316(a), Chapter 10, Article 2.

Surrogacy Agreements (Approval of Agreement and Status of the Child) Law, 5756- 1996, ss. 2, 2(1), 5, 5(c), 7.

Tenant‟s Protection Law [Consolidated Version], 5732-1972, s. 132(a). Torts Ordinance [New Version], s. 84.

Unjust Enrichment Law, 5739-1979, s. 2.

 

Regulations cited:

Civil Procedure Regulations, 5744-1984, r. 524.

Public  Health  (In-vitro  Fertilization)  Regulations,  5747-1987,  rr.  2,  2(a),  3,  8,

8(b)(1), 8(b)(2), 8(b)(3), 8(c)(3), 9, 11, 14, 14(c).

 

Israeli Supreme Court cases cited:

[1]          CrimA 95/51 Podamski v. Attorney-General [1952] IsrSC 6 341.

[2]          CA 451/88 A v. State of Israel [1990] IsrSC 44(1) 330.

[3]          CA 614/76 A v. B [1977] IsrSC 31(3) 85.

[4]          CA 5464/93 A v. B (a minor) [1994] IsrSC 48(3) 857.

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

[6]          BAA 663/90 A v. Bar Association Tel-Aviv District Committee [1993] IsrSC 47(3) 397.

[7]          HCJ 4267/93, Amitai — Citizens for Good Government v. Prime Minister

[1993] IsrSC 47(5) 441.

[8]          CA 488/77 A v. Attorney-General [1978] IsrSC 32(3) 421.

[9]          CA 413/80 A v. B [1981] IsrSC 35(3) 57.

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

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

[12]        FH 22/73 Ben-Shahar v. Mahlav [1974] IsrSC 28(2) 89.

 

 

 

[13]        CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [1963] IsrSC 17 1319; IsrSJ 5 120.

[14]        LCA 4298/92 Ezra v. Tel-Mond Local Council [1993] IsrSC 47(5) 94.

[15]        CA 518/82 Zaitsov v. Katz [1986] IsrSC 40(2) 85.

[16]        CA 398/65 Rimon v. Trustee in bankruptcy of Shepsals [1966] IsrSC 20(1) 401.

[17]        CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840.

[18]        FH 4/82 Kut v. Kut [1984] IsrSC 38(3) 197.

[19]        HCJ 200/83 Wathad v. Minister of Finance [1984] IsrSC 38(3) 113.

[20]        HCJ   4712/96   Meretz   Democratic   Israel   Party   v.   Jerusalem   District Commissioner of Police [1996] IsrSC 50(2) 822.

[21]        CA 499/81 Odeh v. Haduri [1984] IsrSC 38(4) 729.

[22]        CA 506/88 Shefer v. State of Israel [1994] IsrSC 48(1) 87; [1992-4] IsrLR

170.

[23]        HCJ 73/53 Kol HaAm Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1

90.

[24]        HCJ 153/83 Levy v. Southern District Commander [1984] IsrSC 38(3) 393;

IsrSJ 7 109.

[25]        HCJ 292/83 Temple Mount Faithful v. Jerusalem District Commissioner of Police [1984] IsrSC 38(2) 449.

[26]        MApp  298/86  Citrin  v.  Tel-Aviv  District  Disciplinary  Tribunal  of  Bar Association [1987] IsrSC 41(2) 337.

[27]        CA 496/88  Henfeld  v.  Ramat  Hasharon  Sports Association  [1988]  IsrSC 42(3) 717.

[28]        HCJ 1601/90 Shalit v. Peres [1991] IsrSC 45(3) 353; IsrSJ 10 204.

[29]        HCJ 4112/90 Association of Civil Rights in Israel v. Southern Commander

[1990] IsrSC 44(3) 353.

[30]        HCJ 3412/91 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 848.

[31]        CA 105/92 Re‟em Contracting Engineers Ltd v. Upper Nazareth Municipality

[1993] IsrSC 47(5) 189.

[32]        CA 2266/93 A v. B [1995] IsrSC 49(1) 221.

[33]        HCJ 753/87 Borstein v. Minister of Interior [1988] IsrSC 42(4) 462.

[34]        HCJ 721/94 El-Al Israel Airlines v. Danielowitz [1994] IsrSC 48(5) 749;

[1992-4] IsrLR 478.

[35]        CA 154/80 Borchard Lines Ltd, London v. Hydrobaton Ltd  [1984] IsrSC 38(2) 213.

[36]        CA 554/83 Atta Textile Company Ltd v. Estate of Zolotolov [1987] IsrSC 41(1) 282.

 

 

 

[37]        CA 275/83 Netanya Municipality v. Sahaf, Israeli Development Works Co. Ltd

[1986] IsrSC 40(3) 235.

[38]        HCJ 846/93 Barak v. National Labour Court, Dinim 37 823.

[39]        HCJ 932/91 Central Pension Fund of Federation Employees Ltd v. National Labour Court [1992] IsrSC 46(2) 430.

[40]        CA 4956/90 Paz-Gas Marketing Co. Ltd v. Gazit Hadarom Ltd [1992] IsrSC 46(4) 35.

[41]        CA 248/86 Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [1991] IsrSC 45(2) 529.

[42]        CA 840/75 Jewish National Fund v. Tevel [1976] IsrSC 30(3) 540.

[43]        CA 555/71 Amsterdramer v. Moskovitz [1972] IsrSC 26(1) 793. [44]            HCJ 5087/94 — unreported.

 

Israeli District Court cases cited:

[45]        CC (TA) 3021/84 Apple Computer Inc. v. New-Cube Technologies Ltd [1987] IsrDC 5747(1) 397.

 

Australian cases cited:

[46]        Mount Isa Mines Ltd v. Pusey (1970) 125 C.L.R. 383.

 

American cases cited:

[47]        Davis v. Davis 842 S.W. 2d 588 (1992).

[48]        Griswold v. Connecticut 381 U.S. 479 (1965).

[49]        Eisenstadt v. Baird 405 U.S. 438 (1972).

[50]        K.S. v. G.S. 440 A. 2d 64 (1981).

[51]        Kass v. Kass WL 110368 (1995).

[52]        Skinner v. Oklahoma 316 U.S. 535 (1942).

[53]        Roe v. Wade 410 U.S. 113 (1973).

[54]        Planned Parenthood of Missouri v. Danforth 428 U.S. 52 (1976).

[55]        Lochner v. New York 198 US 45, 25 S.Ct 539, 49 L.Ed 937 (1905).

[56]        In re Baby M 525 A. 2d 1128 (1987).

 

English cases cited:

[57]        Layton v. Martin [1986] 2 F.L.R. 227 (Ch.).

 

Jewish Law sources cited:

 

 

 

[58]        Rabbi  Moshe  ben  Maimon  (Maimonides),  Mishneh  Torah, Hilechot Ishut

(Laws of Marriage), 15, paras. 2, 5.

[59]        Rabbi Yaakov ben Asher, Arba‟ah Turim, Even HaEzer, 1. [60]     Rabbi Yosef Karo, Shulhan Aruch, Even HaEzer, 1, 1; 154, 4.

[61]        Mishnah, Tractate Yevamot 6, 6.

[62] Dr Avraham Steinberg ed., Encyclopaedia of Jewish Medical Ethics, vol. 2, the entry „In-vitro fertilization‟, at p. 115 et seq.; vol. 4, Responsum of Rabbi Shaul Yisraeli pp. 28, 41.

[63]        Responsum of Rabbi Shalom Shalush, „Fertilization in a Surrogate Womb‟, in

Orchot, the magazine of the Haifa Religious Council, no. 39, p. 31. [64]    Deuteronomy 4, 42; 16, 20; 19, 2-5.

[65]        Genesis 1, 28; 30, 1.

[66]        Bereishit Rabba 79, 9 on Genesis.

[67]        Jeremiah 22, 10.

[68]        Babylonian Talmud, Tractate Moed Katan, 27b. [69]         Mishnah, Tractate Gittin, 4, 5.

[70] Babylonian Talmud, Tractate Yevamot, 63b, 65b. [71] Babylonian Talmud, Tractate Berachot, 3b, 10a. [72]    II Kings 20, 1.

[73]        Rabbi Yaakov ben Asher, Arba‟ah Turim, Hoshen Mishpat, 1. [74]             Babylonian Talmud, Tractate Shabbat, 10a.

[75]        Rabbi Yehoshua ben Alexander HaCohen Falk, Drisha, on Rabbi Yaakov ben Asher, Arba‟ah Turim, Hoshen Mishpat, 1, 2.

[76]        Babylonian Talmud, Tractate Nedarim, 64b. [77]                Babylonian Talmud, Tractate Makkot, 10a.

[78]        Rabbi Moshe ben Maimon (Maimonides), Mishneh Torah, Hilechot Rotzeah uShemirat Nefesh (Laws of Homicide and Preservation of Life), 7, 1.

[79]        I Samuel 1, 27.

[80]        II Samuel 19, 1.

 

For the petitioner — Z. Gruber.

For the first respondent — D. Har-Even.

 

 

 

JUDGMENT

 

 

Justice T. Strasberg-Cohen

Introduction

1.            The Nahmani case, which was considered on appeal (CA 5587/93 Nahmani v. Nahmani IsrSC 49(1) 485), now comes before us for a further hearing. For the purposes of this hearing we shall briefly review the facts. After several years of marriage without children, and after Ruth Nahmani underwent surgery, as a result of which she lost the ability to conceive naturally, the Nahmani couple decided to have children by means of in-vitro fertilization. Ova taken from Ruth‟s body were fertilized with Daniel‟s sperm, frozen and stored at the hospital. The couple entered into a contract with an institute in the United States to find a surrogate who would bear their child. But before this stage of the procedure had been reached, Daniel Nahmani left home, established a new family and fathered a daughter, while he was still married to Ruth, who refused to be divorced. Ruth contacted the hospital and asked for the fertilized ova in order to continue the procedure, and when she was refused, she filed suit in the Haifa District Court, which ruled in her favour. This court allowed the appeal of Daniel Nahmani, by a majority decision with Justice Tal dissenting, and this led to the further hearing.

2.            The emotions, morals and norms associated with this issue naturally lead to a lack of consensus. Differences of opinion concerning a problematic issue such as this are to be expected and are legitimate, and are reflected in both the decision on appeal and this decision (see also Ch. Gans, „The Frozen Embryos of the Nahmani Couple‟, 18 Tel-Aviv Uni. L. Rev., 1994, at p. 83; Dr

A. Marmor, „The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟, 19 Tel-Aviv Uni. L. Rev., 1995, at p. 433; and Ch. Gans, „The Frozen Embryos of the Nahmani Couple: a Reply to Andrei Marmor‟, 19 Tel- Aviv Uni. L. Rev., 1995, at p. 453). The problem before us has two diametrically opposed solutions. We must choose a solution that is consistent with both the law and the fundamental principles of our legal system, and that is based upon the values and norms of our society.

I have re-examined the matter before us with an open heart and mind. I again reviewed the appeal judgment, the opinions of my colleagues in this proceeding and the erudite articles published after judgment was given. I have reconsidered and re-examined my earlier position and tested it against the opposing position, and in the final analysis, I do not see any reason to change it.

 

 

In the judgment on appeal, I discussed at length the nature, novelty and difficulty of the matter before us, and I shall not repeat myself. Nonetheless, it is appropriate that what was covered extensively in that decision should be referred to in this. Moreover, I shall make clarifications to my position, which will constitute an integral part of my remarks in the judgment on appeal. The two opinions should be regarded as one.

In the first opinion, the issue was examined and analyzed from every possible angle. In it I concluded, after having examined and analyzed the fundamental rights of the individual, that a spouse does not have an enforceable right, where that right would lead to imposing parental status on an „objecting‟ spouse. It was held that there is no basis in the various areas of private law, whether in law, statute or case-law, for granting shared genetic material to one of the spouses without the consent of the other. The opinion concluded that the fertilized ova — which are pre-embryonic — have no independent „right‟ to life, nor have they any kind of status that would give precedence to someone interested in the continuation of the procedure over someone who does not wish this. Comparative law was brought to show that the majority of countries in the enlightened western world — whether in statute or as a result of recommendations made by commissions that considered the issue — require both spouses to consent to each stage of the procedure, including the stage of implantation, and without consent from both spouses, the procedure cannot continue. This can also be seen in the Public Health (In-vitro Fertilization) Regulations, 5747-1987, and it was also the recommendation made by the Professional Public Commission for Examining the Issue of In-vitro Fertilization, 1994, whose members included renowned experts from several relevant fields. It can also be seen from the recently enacted Surrogacy Agreements (Approval of Agreement and Status of the Child) Law, 5756-1996.

Court intervention

3.            It has been argued that the appeal decision avoided intervention in the case or taking a stand, and that the outcome was a matter of chance resulting from the status of the litigants, with the stronger party having the advantage. These claims have no basis. I too am of the opinion that there should be legal intervention, even in cases involving normative value judgments, as well as in matters ruled by emotion; indeed, the appeal decision did just that. It did not refrain from taking a stand or from intervening, as suggested by Dr. D. Barak-Erez („On Symmetry and Neutrality:  Reflections on the Nahmani Case‟, 20 Tel-Aviv Uni. L. Rev. (1996) 197). The decision adopted a position

 

 

by refusing to force parenthood on a person. This constitutes ethical, normative and legal intervention. It is not avoiding making a decision. It is a decision made responsibly. The outcome was not a matter of chance resulting from the status of the litigant, as plaintiff or defendant (as claimed by Dr Barak-Erez, ibid.). The outcome would have been identical had a suit been filed by Daniel Nahmani for an injunction preventing the ova from being given to Ruth Nahmani, or had a suit been filed by the institution where the ova are stored because it had been given conflicting instructions. The decision does not give legitimacy to the maxim „might is right‟, but instead it applies the law in its wider sense. It does so in a way that reflects the legal policy outlined by the principles and norms that are fundamental to our legal system, a policy that recognizes the basic rights of the individual, his freedom of choice, and a refusal to force on him a status that he does not agree to take upon himself.

Indeed, 1e have not been called upon to interpret a particular statute, and we are not required to implement any such statute. In this case, as in others, we are called upon to decide issues that are not governed by any special statute. We must establish a legal norm that has ethical significance. In doing so, we are not operating in a vacuum. We have at our disposal the rich world of existing law with all its branches that affect the issue under discussion.

The case as an exception

4.            The matter before us is exceptional in that it is the first and only case being litigated. But it is not exceptional with regard to the situation that it presents to us. What do I mean by this? As science presents us with new, previously-unknown possibilities, and as more and more couples use in-vitro fertilization, the problem before us will take on an increasing general importance. Quarrels and  separations  between  spouses  are — unfortunately — a common phenomenon in our society. Whenever a couple quarrels about the use of fertilized ova, it occurs between spouses who have separated, and one of them does not agree to continue the procedure. The rule established by this court will have implications for all of these people, and the question of whether consent is required by each spouse to every stage in the in-vitro fertilization process prior to implantation in the womb must receive a clear, principled answer. The same is true of the question whether a spouse who refuses to continue the procedure that will lead to his becoming a parent against his will should be compelled to do so. Our determination in this case is likely to have implications that go beyond the specific circumstances in this instance, and affect every field where an individual has

 

 

rights that have no corresponding obligations, and where the consent of those involved is required to achieve a common goal.

As I said in the judgment on appeal, foremost in my mind has been Ruth Nahmani‟s longing for motherhood, her anguish and frustration at not being able to achieve it, and the improbability that she will become a biological mother. But we should not consider only the specific case before us, and sympathy and understanding for Ruth Nahmani‟s aspiration is insufficient for giving rise to a legal remedy to her problem. This issue cannot be decided on the basis of the wishes of one of the parties; it must be decided according to the rights and duties  of the parties  vis-à-vis  one  another, and these are enshrined in our legal system and provide the basis for an answer.

The right of parenthood

5.            It would appear that no one disputes the status and fundamental importance of parenthood in the life of the individual and in society. These have been basic  principles of  human  culture throughout  history. Human society exists by virtue of procreation. Realizing the natural instinct to be fruitful and multiply is a religious commandment of the Torah (see Rabbi Moshe ben Maimon (Maimonides), Mishneh Torah, Hilechot Ishut (Laws of Marriage), 15, 2 [58]; Rabbi Yaakov ben Asher, Arba‟ah Turim, Even HaEzer, 1, 1 [59]; Rabbi Yosef Karo, Shulhan Aruch, Even HaEzer, 1, 1 [60];

H. H. Cohn, HaMishpat (Bialik Institute, 1991) 579, 580). This is a basic need for ensuring the continuation of society and the self-realization of the individual. The importance of parenthood and its status as a basic constitutional right has found expression in American case-law, see: K. D. Alpern ed., The Ethics of Reproductive Technology, New York, Oxford, 1992,

p. 252, and the decisions cited there. With respect to the status of this right, the Court of Appeals of the State of Tennessee said in Davis v. Davis (1990) [47] at pp. 4-5:

„The United States Supreme Court in Skinner v. Oklahoma… recognized [that] the right to procreate is one of a citizen‟s “basic civil rights”. Conversely, the court has clearly held that an individual has a right to prevent procreation. “The decision whether to bear or beget a child is a constitutionally protected choice.” Cary v. Population Serv. Int‟l, … Eisenstadt v. Baird … see Griswold v. Connecticut … Matter of Romero…‟

The dispute is not about the importance of parenthood and the status of the right to be a parent. That is not the question at issue. In principle, the

 

 

relevant question is: is it possible, because of the great importance of parenthood, to force parenthood on someone who does not want it, and to use the machinery of the legal system to achieve such coercion? In order to answer this question, it is first necessary to make a correct classification of parenthood as a value, in the relationship between the potential parents.

Classification of rights

6.            The classification of norms that regulate activity in relationships between man and his fellow-man has not infrequently occupied legal scholars and academics in various fields. The scholar Dias deals extensively with what is sweepingly called „rights‟, and indicates the lack of clarity that prevails on this issue and on the distinctions gradually reached by scholars.

„Claims, Liberties, Powers and Immunities are subsumed under the term “rights” in ordinary speech, but for the sake of clarity and precision it is essential to appreciate that this word has undergone four shifts in meaning. They connote four different ideas concerning the activity, or potential activity, of one person with reference to another‟ (R. W. M. Dias, Jurisprudence, London, 5th ed., 1985, at p. 23).

Dias presents a list of thinkers and jurists (Sir Edward Coke, Hobbes, Bentham and others) who contributed to the conceptual classification of

„rights‟, and he mentions the American jurist Hofeld, who revised and completed a table made by the scholar Salmond, and prepared a table known as the Hofeld Table, which categorizes the claims, liberties, powers and immunities that are called „rights‟, according to their status, substance and implications (ibid., at p. 23).

In CrimA 99/51 Podamski v. Attorney-General [1], Justice Agranat — with regard to the classification of rights — gives a summary of several principles that he says are derived from the writings of recognized legal scholars, who classified rights into rights entailing legal obligations or legal liberties or legal privileges. Legal rights, in the narrowest sense, are interests that the law protects by imposing duties on others with regard to those interests. By contrast, legal rights in the widest sense also include interests that are recognized by the law but do not entail a legal duty. These are the liberties (see Salmond, On Jurisprudence, London, 11th ed., by G. Williams, 1957, at pp. 269, 273). Where a person has a right that is a liberty or a privilege, he is under no duty toward either the State or another to refrain from carrying out the act, just as he is under no duty to carry out an act that

 

 

he is free not to do. A right that is a freedom or a liberty cannot impose a duty on another and require him to perform an act that he is free not to do.

„Sometimes a right takes the form of a “liberty” or a “privilege”: in such a case, the duty that we are obliged to uphold is not to interfere with, or disturb, the exercise of the right…‟ (H. H. Cohn, HaMishpat, supra, at p. 512).

Moreover, at p. 513:

„“Basic rights”, or “human rights”, or “civil rights” are rights to which a person is entitled by law, as a human being. Some say that these rights were born with us, or are inherent in us; but whatever may be the case, we are concerned, as stated, not with “natural” rights but with legal rights.‟

Below the freedom to be a parent will be called a „right‟.

Classification of the right to parenthood

7.            The right to be a parent is, by its very nature, essence and characteristics, a natural, innate right, inherent in human beings. It is a liberty that does not entail a legal obligation, either in relations between the State and its citizens, or in relations between spouses. The right not to be a parent is also a liberty. It is the right of the individual to control and plan his life. Indeed, non-parenthood in itself is not the protected value. The protected value in non-parenthood is the liberty, privacy, freewill, self-realization and the right to make intimate decisions without interference. These are protected basic values of supreme importance, from which the liberty not to be coerced into parenthood is derived (see also: CA 451/88 A v. State of Israel [2], at

p. 337; H. Fenwick, Civil Liberties, London, 1993, at p. 295). Regarding freewill as a liberty leads to the conclusion that every person is free to choose and decide whether or not to be a parent, and a person wishing to be a parent cannot coerce another into becoming one in order to become a parent himself. This also means that the State may not impose parenthood on a person, either directly or through the courts. Consequently, I do not accept the position of those who consider the right not to be a parent as a right of less value than the right to be a parent.

The right to be a parent and the right not to be a parent are two rights which, although they are two sides of the same coin, have different characteristics. Each in itself can be found within the framework of civil liberties; the distinction between the two levels of rights does not lie in the one being a positive right and the other a negative right, but in the right to

 

 

parenthood belonging to the group of rights requiring cooperation of another individual in order to achieve it, whereas the right to non-parenthood does not extend beyond the particular individual (see Ch. Gans, „The Frozen Embryos of the Nahmani Couple‟, supra, and Ch. Gans, „The Frozen Embryos of the Nahmani Couple: a Reply to Andrei Marmor‟, supra). This distinction affects the question of the limits of proper legal intervention.

Had the right to be a parent been a right in the narrow sense, entailing an obligation, consent ab initio would not theoretically be needed, since when the obligation exists, all that remains is to examine what is the proper relief. Since the right is a liberty that does not entail an obligation but entails an opposing right, and since it requires two persons to achieve it, the person needing cooperation must obtain it from the other by receiving his consent throughout the procedure.

The right to be a parent — when the spouse refuses — requires a coercive, positive judicial act, whereas the right not to be a parent requires no intervention or interference in the freedom of the person who is unwilling to undertake parenthood. Since the „refusing‟ parent has a right not to be a parent, such a coercive order should not be made against him. Realizing the right of someone who wants parenthood by imposing an obligation on someone who does not want it conflicts with the essence of the freedom and deals it a mortal blow.

Non-coercion of parenthood

8.            In the sphere of liberties, the law refrains from forcing someone to do what he is not obliged to do, and this is also the case in other contexts within the sphere of inter-personal relationships. Every person has a right to marry. Nonetheless, no-one disputes that a person to whom a promise of marriage is made and breached will not receive from the court a relief of enforcing the promise. Every person has a right to establish a family and have children. Nonetheless, no-one disputes that the State — directly or  through  the court — may not coerce a person to have children if he does not want to, even if he promised his spouse to do so, and even if the spouse relied on this and maybe even entered into the marriage by relying on this and with an expectation that this is what will happen. Why do we not do this? Not merely because a mandatory injunction cannot compel performance (other than perhaps by way of contempt of court proceedings until the „refuser‟ wants to do it), but because of the fundamental and normative reason for this, namely the refusal of the law to employ coercive measures to realize the wishes of one  of  the  spouses  contrary  to  the  wishes  of  the  other  (Griswold  v.

 

 

Connecticut (1965) [48], at pp. 1688-1689; Eisenstadt v. Baird (1972) [49], at

p. 1038; P. Shifman, „Parent against one‟s will — false representation about use of contraception‟, 18 Mishpahah 1988, at p. 459).

9.            Refraining from forcing parenthood on someone who is not prepared to undertake it is especially important in view of the nature and significance of parenthood. Parenthood involves an inherent restriction on future freedom of choice, by imposing on the parent an obligation that encompasses most aspects of life. Entering into the status of parent involves a substantial change in a person‟s rights and obligations. When a person becomes a parent, the law imposes on him an obligation to care for his child. We are not talking of a mere concern, but of an obligation to place the best interests of the child as his foremost concern. A parent cannot deny the needs of his child merely because it is inconvenient for him to fulfil them. A parent‟s responsibility for his child‟s well-being also has a tortious and criminal aspect. This responsibility embodies the normative expectation that our social values and legal system have of the individual, with respect to his functioning as a parent. The very significant implications deriving from this status necessitate that the decision to be a parent is made only by the person concerned (see also P. Shifman, Family Law in Israel, vol. 2, The Harry Sacher Institute for Research of Legislation and Comparative Law (1989), 174; CA 614/76 A v. B [3], at p. 93; CA 5464/93 A v. B [4]).

There are some who consider the paternity of Daniel Nahmani —should the procedure continue and result in the birth of a child — as merely an economic burden of which he can rid himself. There are some who hold that when Daniel gave his consent to begin the procedure, he need not be consulted again and the procedure may be continued, irrespective of his wishes. This is the opinion of some of my colleagues, as well as Dr Marmor in „The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟, supra, with which Prof. Gans disagrees in „The Frozen Embryos of the Nahmani Couple: a Reply to Andrei Marmor‟, supra). Dr Marmor holds that the procedure can be divided into two: the technical stage — when the husband gives over his genetic material — and the „parental‟ stage — the continuation of the procedure to its end. In his view, when the husband gives over his genetic material, the husband‟s role is ended, and this should be sufficient for continuing the procedure without him. His cooperation is not needed for continuing the procedure. Since he is not liable to raise the child that will be born, his right to personal autonomy is not affected. In his opinion, the right of a woman to carry out an abortion derives from an

 

 

unwillingness to  impose on her options that will be very  limited if she becomes a mother in such a way that her right to an autonomous life is nullified. This is not the case — in his opinion — with respect to the husband.

10.          I find it difficult to agree with such theses. I do not accept that the consent of a married couple to the fertilization procedure with a view to parenthood is completed by giving over the genetic material which ends in fertilization. The two decisive stages in the fertilization treatment are: first, in-vitro fertilization of the woman‟s ova with the man‟s sperm; and second, the implanting of these in the body of a surrogate mother. The two stages are different in nature and they are carried out on different dates. The two spouses are partners in all the stages of the procedure, and they should not be regarded as having done their part when they have given over the genetic material. This material is part of its owners and continues to be so even after it has been separated from them. The interest of each of the spouses in the procedure is existential, and it has lifelong implications. I do not think that the husband can be considered merely a technical means for realizing the wife‟s motherhood. Bringing a child into the world without the father‟s consent should not be regarded solely as an economic burden from which he may exempt himself — moreover, under the law he cannot exempt himself from it. A decision to bring a child into the world is a joint decision of supreme importance in the lives of both parents. The great importance of parenthood as a value, the obligation it imposes on both parents, and the expectations that society has of the parents and of each one of them to their children are the factors that should give full weight to the husband‟s right — as well as the wife‟s — not to bring a child into the world against their will. The special status of parenthood in the field of the basic rights of the individual and the burden of obligations that it involves is the source for the principle that parenthood should not be forced upon someone who does not want it.

11.          Recognizing the need for ongoing consent in order to bring a child into the world creates equality, which is a fundamental value in our legal system. Giving the wife the possibility of terminating an unwanted pregnancy, and giving the husband — as well as the wife, if she wishes it — the possibility of stopping the in-vitro fertilization procedure is an expression of this value. The possibility of stopping the procedure is blocked only when a right that takes precedence comes into the picture; this, in the case of pregnancy, is the wife‟s right not to become a mother against her will and her

 

 

right over her body. These two rights give her the right to have an abortion without the husband‟s consent. The wife‟s right over her body derives from the same fundamental values of personal liberties and personal autonomy, which are the basis of a person‟s right not to be a parent against his will. Only when a third factor enters the picture, such as the right of the wife over her body, which takes precedence, does the right not to be a parent give way to it.

The nature of consent

12.          An examination of the issue before us from the perspective of basic rights is an examination of one of the many aspects of this issue, and as I said in the judgment on appeal*:

„… consideration of the question before us from the viewpoint of human rights is insufficient to decide it, for we are not concerned with a couple where one of the spouses wishes to bring children into the world and the other opposes this, and the law does not force itself on the “objector”; we are concerned rather with spouses who have gone a long way together and given their genetic material from which ova were fertilized and put in frozen storage, in order to bring a child into the world with the help of a surrogate mother. Should the husband be forced to continue the procedure even in this situation? I suspect that he should not. The reasoning for this position requires consideration of the nature of the consent of the spouses and the legal regime within which it operates.‟

13.          The fertilization procedure for joint parenthood embodies, by its very nature and as an essential condition, the consent of both spouses. What is the nature of the consent on a crucial, sensitive, and intimate subject such as having a child? Generally, consent is an accord of the wills of two or more persons, which makes their individual wills into a common will. Consents between married spouses can be distinguished into two categories: a general, main and central consent, which is a consent to live together as a couple, and goal-oriented consents for achieving a specific goal within the framework of married life, of which the most important is the consent to bring children into the world. The specific consent is reached within the framework of the main consent, and it is entitled to exist only within that framework and as long as it continues, unless the spouses have decided otherwise. When there is a main consent to a joint relationship, any decision that is of major significance to

 

 

*             Ibid., at p. 503 {20}.

 

 

both parties to the relationship and that derives from that relationship, cannot be made by one of the partners. A consent of a married couple to a procedure leading to parenthood, which is the most important of the goal-oriented consents, requires the procedure to be begun with consent and to be continued with consent. Both spouses will face the consequences of such a consent together. Therefore, someone who agrees to fertilization but does not agree to implantation cannot be bound by his consent to the first stage of the fertilization. Each spouse has the right to withdraw his consent when the marriage has been undermined and the main consent has collapsed. Consent to the in-vitro fertilization procedure — from a theoretical and conceptual perspective — is like consent to the natural procedure of fertilization. Just as someone who has agreed to bring children into the world naturally can withdraw his consent, so too someone who began the in-vitro fertilization process can refuse to agree to continue the procedure or withdraw his consent. I am aware that in the first case the „objector‟ who withdrew his consent cannot be „compelled‟, whereas in the second case there is no such problem, since the fertilized ova are situated outside the bodies of the two spouses; but the question and the answer thereto lie in the normative, theoretical, conceptual sphere and not in the practical sphere. The question is whether it should be done, and not whether it can be done. My answer is that it should not be done; rather, we need the consent of both spouses throughout the procedure.

14.          Admittedly, the right to withdraw the initial consent creates a degree of uncertainty, but this exists in many spheres of married life, and it does not deter people from entering into it. A decision to bring a child into the world by means of in-vitro fertilization is a serious and momentous one. The difficulties and risks involved in this procedure far from guarantee success. The refusal of a spouse to continue the procedure is merely one of the possible risks. A couple starts the procedure against a background of a working marriage, notwithstanding the risks and uncertainty as to the success of their marriage and the success of the procedure. It can be said that a situation in which, after the in-vitro fertilization, there is no right to withdraw on any condition or in any case, may deter spouses from entering into a procedure from which there is no way out, no less that the fear that that the procedure will be stopped as a result of the collapse of the marriage, something that is feared by my colleague Justice Tal.

The consent of the Nahmani couple

 

 

15.          ‟What is the status of the consent that was given; what is its scope, what is its nature? Is it subject to any legal framework, and if so, what is that framework? Was an agreement made between the parties, and if so what is its basis and what are its implications? What are the ramifications of the change of circumstances that occurred subsequently on this agreement? Is the person who gave his consent entitled to revoke it and what is the remedy that can be granted, if any?‟* I answered these questions extensively in the judgment on appeal, where I emphasized  the problematic status  of an undertaking to change personal status, where I said:

„In our case the agreement was made in special circumstances, on an intimate, personal and sensitive matter that lies within the sphere of the human psyche. Notwithstanding, I do not think that this case does not involve any agreement whatsoever. The Nahmani couple expressed consent, determination and resolve with regard to a very serious matter and they took steps to carry out their consent. When two persons continue to give their consent and do not revoke it, their wishes should be respected and the agreement should be acted upon in so far as it concerns matters that they have agreed (provided that they indeed agreed them). Such an agreement — as long as the parties still agree with regard to it — is valid vis-à-vis third parties such as the medical institution or other parties involved in the in-vitro fertilization procedure, and these should respect the joint wishes of the parties (within the framework of the law). Notwithstanding, we are not concerned with an ordinary contract but with an unique contract. It certainly does not fall into the category of “perfect” contracts. Since it has contractual elements, it can be classed among the “weak” contracts. Therefore the legal framework that applies to it will also not be the framework of the laws of contract in the strict and narrow sense.‟†

16.          My colleague Justice Tal holds that we are dealing with an unenforceable extra-contractual agreement, but in his opinion Ruth does not require anything of Daniel, and his consent is not needed for the implantation. Is it really the case that Ruth is making no demands of Daniel?

 

 

 

*             Ibid., at p. 507 {26}.

†             Ibid., at pp. 509-510 {29}.

 

 

I suspect that the opposite is true. She demands that his opinion should not be taken into account, that he should be removed from the picture and that his refusal should be ignored. She demands that she should be allowed use of the genetic material against his will in order to bring a child into the world. She demands that the court should give consent instead of Daniel and instruct the hospital to give her the ova so that she can continue a procedure that will lead to the birth of her and Daniel‟s joint child, without his consent. To this end she asks that his consent to fertilization should be interpreted as consent to bringing a child into the world against his will, even if he will not raise the child.

Against this background, what is the significance of my colleague‟s determination that Ruth does not require anything of Daniel and that his consent is unnecessary at the time of implantation? The significance is that Daniel‟s consent is frozen in time and place, and constitutes a firm resolve at a given moment — the moment of fertilization — exactly as in a regular contract. From this moment onwards — which in our case is the period from the time when the procedure was started until the implantation of the ova — the spouses are „bound‟ by their consent and each can do as he pleases with the other‟s genetic material without the other‟s consent and against his will. This is a rigid and narrow statement, even within the framework of the laws of contract themselves, and all the more so in the special and sensitive

„contract‟ before us, in which the laws of contract should not be applied strictly, but in keeping with the nature, background and circumstances of the relationship. The contractual aspect does not operate in a legal vacuum of its own. It constitutes part of the laws of contract in their wider sense, and it should not be severed from them absolutely. It follows that we must examine the consent of the couple and each one of them and their implications, by using the tools available to us, which we must borrow from the sphere of law that is closest to the matter, namely the contractual sphere in its wider sense, adapted to the sensitive material with which we are dealing. In this framework, the agreement between Ruth and Daniel is a special agreement built on the foundation of a functioning married life. It anticipates a joint future, and the birth of a child wanted by both into the family unit. It is unenforceable and ought not to be enforced in the absence of a joint will of both parties throughout the process.

Agreement, representation and estoppel

17.          In order that the consent should have legal effect, the law makes certain requirements, some formal and some substantive. These requirements

 

 

are not mere obstacles. Underlying them are normative, social and ethical ideals that require the existence of certain elements or a certain form of elements, in order to create a binding legal obligation. They are all needed to create reliability, stability, clarity and certainty and to ensure that the person making the commitment knows what he can expect, and understands the significance of expressing his will. This is the case with every consent, but all the more so with regard to „informed consent‟, which requires awareness of the circumstances in which the consent will operate. The consent required for bringing a child into the world in this way is „informed consent‟ at each stage of the procedure. Consent at the stage of fertilizing the ova cannot be used to infer „informed consent‟ to the continuation of the procedure in circumstances that are totally different to those that  prevailed when the procedure began.

18.          Was there any express or implied consent or promise on the part of Daniel to continue the procedure in any circumstances and under any conditions, and is he estopped or prevented from changing his mind? My answer to these questions is no. Within the framework of the main consent to a joint lifestyle, the Nahmani couple reached a joint decision to bring a child into the world. They began the procedure and carried out the first stage of fertilizing the ova and freezing them. Before the consent had matured and before the joint goal was achieved, the family unit fell apart and the main consent collapsed. From a factual perspective it is clear that, from this stage onwards, there no longer existed the main consent to a joint lifestyle, and there was no consent to bring a child into the world outside this framework. The court is asked to give the goal-oriented consent that never reached fruition an existence of its own, even though the main consent, within which framework it operated, has broken down and no longer exists. I suspect that this should not be done, and without consent to the continuation of the procedure, parenthood should not be forced on Daniel against his will.

19.          The law recognizes the right of a person who gave his consent to change his mind in circumstances that are different from those in which the consent is supposed to be realized. For example, consent to give a child up for adoption, which was given before the child was born, is a consent without awareness of the circumstances that will exist when the adoption will take place. It is specifically for this reason that the law allows the person who gave his consent to change his mind. „If consent was given before the birth of the adoptee, the court may invalidate it for this reason only, namely because of the date when it was given…‟ (CA 577/83 Attorney-General v. A [5], at p.

 

 

484). In this matter also consent may be withdrawn, until a third factor enters the picture — the best interests of the child — which is a higher value that overrides the right to withdraw the consent. In this way the principle that I wish to apply in our case is applied.

20.          Both from a factual and a legal perspective, there was no consent, and certainly no informed consent, on the part of Daniel to continue the procedure in the circumstances of a breakdown of the family unit. It is reasonable that when the couple began the procedure by consent, they assumed that their marriage would continue, and in this framework their joint child would be born. Reality has dealt them a hard blow. The circumstances have changed utterly, and although Daniel created the change —

„We are not sitting in judgment on the acts of Daniel Nahmani in the moral sphere and “punishing” him for his behaviour. These are not the criteria for deciding the question whether he has a right to object to the continuation of the procedure. The relationship between spouses is not static. It is by nature dynamic and subject to crises. The feelings of spouses are not always stable. They may change even without any connection to a complex procedure such as in-vitro fertilization. An initial consent to this procedure is not an informed one in the full sense of the word because of the inability to foresee — emotionally and psychologically — what will happen in the future. Spouses do not always deal successfully with the difficulties in their lives together, especially when they are faced with a procedure such as in this case, with its emotional, physical and economic difficulties and the subjective and objective problems that it involves.‟*

21.          Daniel did not promise Ruth that the procedure would continue whatever the conditions or circumstances, and such a promise cannot be inferred from his consent to begin the procedure when their family life was intact. The learned District Court judge did not reach any finding of fact that Daniel promised Ruth to continue the procedure even without the joint family unit and, indeed the evidence does not show that Daniel made such a promise or representation. The learned judge inferred from the initial consent a continuing and irrevocable consent. As I have explained both in the judgment on appeal and in this opinion, I do not accept this position. It is not required

 

 

*             Ibid., at p. 512 {33}.

 

 

by the facts of the case, it is inconsistent with our experience of life and it is incompatible with recognized and accepted principles of law. What can be seen from the evidence and is plausible from the circumstances is the absence of a promise to bring a child into the world even if the marriage collapsed and the family unit broke up. The absence of such a promise is inherent in the circumstances surrounding the goal-oriented consent to joint parenthood of the couple within the framework of the main consent to married life.

22.          Daniel did not make any representation upon which Ruth could rely, and in practice Ruth did not rely on any representation, and did not begin the procedure on the basis of such a reliance. She did not adversely change her position by relying on any representation. The only representation that can be inferred from the circumstances is a limited representation of consent within the framework of the existing family unit, assuming that it will continue to exist. The procedure began when their family life was functioning, with expectations that it would continue to be so, and that the child that would be born would become a part of it. The expectations proved vain and the main consent, and consequently the goal-oriented consent, no longer exist. An initial consent given to begin the in-vitro fertilization procedure is not a promise to bring a child into the world in any circumstances whatsoever. It is a promise that is limited to the conditions and circumstances in which it is given.

It follows that Ruth‟s expectation that she could bring Daniel‟s child into the world notwithstanding his opposition, against his will and not into a family unit jointly with him is a wish but not an enforceable right; but not every wish of one person imposes an enforceable legal obligation on another; not every desire of one person constitutes a basis for a judicial order against another. Not all walks of life should be controlled by court orders. There are spheres — and marriage and family planning are some of the most obvious — where judicial enforcement halts at the threshold of the litigants. When a couple enter into a marriage, each promises the other that they will live together forever. This promise, which no-one thinks is enforceable, exists on the level of good intentions, expectations, hopes and desires. There is no remedy in the law that can guarantee its existence, nor should there be. The same is true also of a promise for joint parenthood. Enforcing parenthood is not a legitimate option when we are speaking of actions that require the consent of both spouses. As I stated in the judgment on appeal:

„The relationship between spouses should be based on love, friendship,  understanding,  support,  trust  and  consideration.

 

 

Sometimes this relationship collapses, expectations fade, hopes vanish and  dreams are shattered.  Not in  every case can the victim find a remedy for his injuries in court orders, where enforcement is impossible, is improper in view of the circumstances and under the law, and is inconsistent with the basic rights of the individual in our society.‟*

23.          Consent loses its significance only when the fertilized ova have been implanted in the woman‟s body. Then the body of the surrogate mother enters into the picture — and no interference can be allowed to this without her consent. It may be that one day, when science allows even pregnancy to take place outside the woman‟s womb, we will be confronted with a new problem that must be faced. Who can foresee the future? At present, we reach the point of no return only when the ova are implanted in the body of the surrogate mother, when the value of the woman‟s right to protection of her body, control of her body and non-interference with her body takes precedence. The relevant considerations for fixing the point of no return at the latest time and place in the procedure derive from a balance between the conflicting rights and interests. Until the stage of implantation, the value of free choice takes precedence and consent is required. From that moment onwards, rights and interests that override the interests protected by the principle of consent enter the picture. In a natural pregnancy, the point of no return is reached when the pregnancy begins, because from which point onwards the woman does not need her  partner‟s consent to perform an abortion because of her control over her own body and her right that it should not be interfered with. With in-vitro fertilization, this point is reached upon implantation of the ova in the woman‟s body, since then the woman‟s right over her body enters the picture, and this overrides the need for consent to the continuation of the procedure.

The need for consent in different legal systems

24.          Most western countries, Europe, England, the United States, Canada and others, require continuing consent throughout the procedure, for each stage. I discussed this extensively in the judgment on appeal, so I will say nothing more. In all of those countries, each spouse may withdraw consent at any stage of the procedure. In some of the countries, there is legislation to this effect, such as, for example, in England: the Human Fertilization And Embryology Act, 1990 (Schedule 3, sect. 4). Pursuant to this law, effective

 

 

*             Ibid., at p. 522 {48}.

 

 

consent is required, and this incorporates the possibility of a change and withdrawal of consent at any time before use of the fertilized ova. The withdrawal of consent by one of the parties obliges the authority storing the fertilized ova to destroy them. This is also the case in Western Australia: the Human Reproductive Technology Act, 1991 (ss. 22(4) and 26(1)(a)(i)).

In the United States, Canada and other Western countries, the issue is not regulated by legislation, but rather by the recommendations of commissions that were appointed to investigate the issue. In some of these countries — because of the great importance attributed to consent in  such  a  fateful matter — it was recommend that the couple should agree between themselves in advance as to the fate of the ova in the event of a separation, and their agreement would then be honoured (there was no such agreement in our case). The vast majority of these countries give the couple the prerogative of making a joint decision whether to continue the procedure or terminate it, and they require the express consent of both to each stage of the procedure, which will be stopped if one of the parties expresses opposition to its continuation (for the position of legislation and the recommendations of the various commissions in the various countries, see the judgment on appeal).*

The American Medical Association submitted recommendations according to which continuing consent is required, and it did not accept the view according to which consent at the time of fertilization only is sufficient (see: American Medical Association, Board of Trustees Report, JAMA, vol. 263, no. 18, 1990, at p. 2486).

In the surrogacy agreements that are common in the United States, among bodies that deal with them, there is a section that requires the consent of both spouses to implantation in the womb of the surrogate, and the signature of both of them on a surrogacy agreement. This was also the case with the agreement which was supposed to be signed by the Nahmani couple but which was never signed. In a judgment of the United States Federal Court

K.S. v. G.S. (1981) [50], the court expressed the opinion that once consent is given, it is deemed to continue; but the court further held that as soon as the consent is expressly terminated, the procedure cannot continue. The petitioner refers to the judgment in Kass v. Kass (1995) [51], (See New York Law Journal, 23 January 1995), where the written agreement between the parties was interpreted as providing for the continuation of the procedure in the event that the couple separated, and the court honoured this agreement

 

 

*             Ibid., at p. 503 {20}.

 

 

and gave it validity. Here there is no such agreement. Consequently, this decision has no bearing on our case.

In Israel, the issue has not been regulated in direct legislation. The Public Health (In-vitro Fertilization) Regulations, which I considered extensively in the judgment on appeal, require consent of the husband at all stages of the in- vitro fertilization.

The public commission established in Israel to examine the issue of in- vitro fertilization and to submit its recommendations, unanimously recommended that:

„… in the absence of joint and continuing consent, no  use should be made of the fertilized ova that were frozen until the end of the freezing period agreed by the spouses but consent that was given at the beginning of the treatment shall be deemed to continue as long as neither of the spouses revokes it in writing‟ (emphases supplied).

„The Commission considered the possibility that the genetic mother or the genetic father would have no other way of realizing genetic parenthood. But giving permission to have a child in such a situation, without joint consent, means forcing fatherhood or motherhood, both from the legal viewpoint and from the emotional viewpoint, in that there will be a child who is born without their consent. The commission was of the opinion that a man or woman should not be forced to be a father or mother against their will, even if they initially consented to this‟ (see the Report of the Professional Public Commission for Examining the Issue of In-vitro Fertilization (1994), 36).

On 7 March 1996, the Knesset passed the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law. Section 2(1) of this law requires written consent between the surrogate mother and the parents availing themselves of her services. The conditions and the procedure for approving the agreement are set out in the law, which stipulates in section 5(c) that „the approvals committee may reconsider an approval that was given if the facts, circumstances or conditions that served as a basis for its decision have undergone a substantive change, as long as the fertilized ova have not been implanted in the surrogate mother in accordance with the surrogacy agreement‟ (emphasis supplied). The point of no return is the moment of implanting the ova. Until this point, the continuing consent of both partners to the procedure is required. This issue was expressly included on the agenda

 

 

of the Knesset Committee, when the first draft law contained the words „as long as the fertilization has not been carried out in accordance with the agreement, the committee may reconsider…‟ was changed in the law to „as long as the fertilized ova have not been implanted…‟ (see the discussions of the Knesset Labour and Social Affairs Committee on 9 Jan 1996, at p. 14, 17). The aforesaid approach derives from the basic ethical recognition that regards parenthood as a journey taken by two people together — a journey that can only begin by virtue of consent between them, and that can only continue by virtue of continuing consent between them.

25.          In all the countries that require the continuing consent of both spouses, the ova can be destroyed either by joint agreement of the couple or due to the passage of time. In Israel, too, the ova are destroyed after five years (regulation 9 of the Public Health (In-vitro Fertilization) Regulations), unless both spouses request an extension of the period. This is a result of the outlook that regards the consent of both spouses throughout as essential and imperative, and from the outlook that the ova are the „quasi-property‟ of the two owners of the genetic material and they do not have, in themselves, a

„status‟ worthy of protection (see also Gans, „The Frozen Embryos of the Nahmani Couple‟, supra, at p. 86). Their status is pre-embryonic.  With regard to the status of the ova, as regarded in the western world, in Israel and in Jewish law, I can only refer to what I wrote in the judgment on appeal, and I will not expand on it.*

26.          My colleague Justice Tal sees support for his approach in Jewish law; but it is very questionable whether my colleague‟s position reflects  the approach of all aspects of Jewish law. „Even Jewish law, which imposes a commandment to be fruitful and multiply on the man, but not on the woman (Mishnah, Tractate Yevamot 6, 6 [61]), does not see fit to compel him if he does not fulfil his obligation. The refusal gives the woman a ground for divorce but not a ground for enforcement and coercion (Maimonides, Mishneh Torah, Hilechot Ishut (Laws of Marriage), 15, 5, [58]; Rabbi Yosef Karo, Shulchan Aruch, Even HaEzer, 154, 4 [60]). See the responsum of Rabbi S. Yisraeli, „On Consent and Retraction in Pregnancy and Birth by In- vitro Fertilization‟ in Encyclopaedia of Jewish Medical Law, Dr A. Steinberg ed., vol. 4, p. 28, 41 [62]; ibid., vol. 2, under „In-vitro fertilization‟, p. 115 [62], the responsum of Rabbi Shalom Shalush, „Fertilization in a Surrogate

 

 

 

 

*             Ibid., at p. 519-520 {44-47}.

 

 

Womb‟, Orchot, the magazine of the Haifa Religious Council, no. 39, p. 31 [63] (see also the judgment on appeal).*

Before I end  this opinion,  I would like to associate myself with the remarks of my colleagues Justices Or, Zamir and President Barak. I would also like to add some remarks with regard to what is stated in the opinions of some of my colleagues whose positions are different from mine, and which came to my attention after writing this opinion.

The right to life

27.          My colleagues, Justices Goldberg and Kedmi discussed the biological aspect of parenthood and the transfer of the genetic material from generation to generation. My colleague Justice Türkel granted Ruth Nahmani‟s wish by emphasizing the „right to life‟ and the enormous value of „human life‟. The

„value of life‟ and the „right to life‟ cannot be belittled, for we hold them to be amongst the most exalted and sacred rights, if not the most sacred right of all. But the fertilized ovum is not a living creature. The fertilized ovum is genetic material of both spouses in a pre-embryonic state, frozen soon after fertilization. It is composed of several separate cells, without any distinction between what will become a foetus and what will become a placenta. We are not dealing with preservation of existing life, but with advancing the potential for life. We are not speaking of preserving life that has been created, but with the creation of life ex nihilo. A society in which the individual is entitled to  plan his family and have children, a society  which does not compel someone to create life, not even as a moral injunction (except as a religious injunction), cannot force someone to create life against his will, in the name of the right to life. The creation of life is a totally separate issue from the preservation of existing life. Every enlightened society struggles with the question whether to create life at any cost. Medicine and technology allow for the creation of life by means that are becoming more and more removed from the natural means of creation it. The day may not be far off when it will be possible to replace the mother‟s womb with an artificial one that will carry the foetus and the whole process of creating life can take place in laboratories. The moral questions will continue to reverberate in the air and will become even more acute. Most of the states of the United States and most European countries that venerate the sanctity of life prohibit the creation of life by means of a surrogate mother, for moral, ethical, ideological,   sociological,   medical   and   other   reasons.  Various   bodies,

 

 

*             Ibid., at pp. 500, 506 {15, 24}.

 

 

including the „Israel Women‟s Network‟, regard surrogacy as immoral and encouraging a type of female slavery, which offers the womb for hire. The topic of in-vitro fertilization involves existential questions concerning the nature of life. One cannot find in the sacred and supreme value of life a reason or justification for forcing either of the spouses to create life by means of an in-vitro fertilization procedure; the consent of each of the spouses to the implanting of the frozen ova in the surrogate cannot be waived. The procedure cannot be continued without the consent of the two spouses that donated their genetic material. The sanctity of life has nothing to do with considerations for continuing the fertilization procedure, by coercion, at this early stage prior to the creation of life.

„Justice‟

28.          It is only natural that in the case before us, which has existential, emotional and normative human aspects, opinions are divided and there is no single solution. But recruiting „justice‟ for one view, thereby negating it from the opposing view, is to do an injustice to the opposing view, and possibly even to justice itself.

Man is commanded to pursue justice: „Justice, justice you shall pursue‟ (Deuteronomy 16, 20 [64]); the law strives to do „justice‟; but the difficult and paramount question has always been, what is „justice‟, what is its meaning, what are its characteristics, how is it defined and how is it attained. These questions have occupied the greatest scholars of the Bible, the Talmud, philosophy, literature, law and religion in all generations and cultures. Justice has many aspects and many facets: social, personal, political, national, economic, legal, etc.. Some see in human justice an attempt to imitate divine justice (imitatio Dei); some regard equality as the embodiment of justice. Others regard the dispensing of just law as compliance with the rules that fall within the scope of the „rules of natural justice‟.

The difficulty in defining and discovering justice is discussed by Justice Cohn, HaMishpat, supra, at p. 84:

„… Justice is not a science that can be discovered or defined: it is an attribute of the soul; and the fact that it is beautiful and humane, does not make it easier to define. It can be compared to the beauty of a Beethoven symphony or of a Gothic cathedral that one cannot prove… It is usually the case, for example, that each of the litigants who stands before a judge genuinely feels and believes that justice is on his side; the sense of justice of the

 

 

successful litigant is satisfied, whereas the sense of justice of the losing litigant is severely injured, and he is convinced that an injustice has been done to him… So it can be seen that the human sense of justice cannot serve as a yardstick for an objective party, in addition to the fact that it cannot even be defined or measured. Moreover, one cannot know, and one certainly cannot determine, whether one person‟s sense of justice is more reliable or trustworthy than that of another: from its subjective perspective, each of them is right, but even from an objective point of view, each of them may be right, or partially right.‟

Concerning the many and vague connotations of the term „justice‟, the scholar C.K. Allen says:

„Ever since men have begun to reflect upon their relations with one another and upon the vicissitudes of the human lot, they have been preoccupied with the meaning of justice… I choose at random a miscellany of the adjectives which, in my reading, I have found attached to different kinds of justice — distributive, synallgamatic, natural,  positive,  universal,  particular, written, unwritten, political, social, economic, commutative, recognitive, juridical, sub-juridical, constitutional, administrative, tributary, providential, educative, corporative, national, international, parental.

A very little ingenuity would extend the vocabulary indefinitely. There seems to be no end to this classification and sub- classification and its instructiveness is not always proportionate to its subtlety. There is a danger of the cadaver being so minutely dissected that little of its anatomy is left visible to normal sight‟ (C. K. Allen, Aspects of Justice, London, 1958, at pp. 3-4).

In recent decades, we find scholars that have given up trying to find an exhaustive and uniform definition of the nature of „justice‟. In this regard Ronald Dworkin says:

„In the end, however, political theory can make no contribution to how we govern ourselves except by struggling against all the impulses that drag us back into our own culture, toward generality and some reflective basis for deciding which of our

 

 

traditional distinctions and discriminations are genuine and which spurious, which contribute to the flourishing of the ideals we want, after reflection, to embrace, and which serve only to protect us from the personal costs of that demanding process. We cannot leave justice to convention and anecdote‟ (Ronald Dworkin, A Matter of Principle, Cambridge, 1985, at p. 219) (emphases supplied).

29.          „Justice‟ for one person may be „injustice‟ to another, or an „injustice‟ to society; the exercising of a right by one person may involve a violation of the right of another, which will prevent him from exercising his own right; every litigant believes that justice is on his side, and that feeling stays with him even when he has lost the case, and then he feels that he has suffered an

„injustice‟. Socio-economic „justice‟ in a certain society may be perceived as

„injustice‟ in another society. Is not the repair of a wrong to one person at the expense of another, merely because the first person was harmed and even if he has no right against the other, an „injustice‟ to the other? Is the granting of compensation to a person who was injured, without him having a cause of action to receive relief, by making another  person liable, because he is injured and the other person can pay, doing „justice‟? The law does not require a person who has promised marriage to fulfil his promise, and it does not compel him to do so. The relief granted is compensation. The law does not require a person to have children with his spouse even if he promised to do so and changed his mind. A person who breaks a promise causes disappointment and frustration to the other. His behaviour is not „just‟, but the law will not require him to keep his promise in the name of „justice‟. The law does not intervene when a woman aborts a foetus against the father‟s will: is that „just‟ to him? According to his feeling of frustration, unfairness and loss, it is not just; notwithstanding, the law will prevent the man from interfering and will protect another interest which it regards as preferable; autonomy over the body.

30.          The scholar Hare said that not only do people disagree as to the just solution to a particular problem, but it is possible that there is no completely

„just‟ solution to a particular problem:

„By this I mean not merely that people can disagree about the just solution to a particular dilemma, but that there may be no completely just solution‟ (R. M. Hare, Moral thinking, Oxford, 1981, at p. 158).

 

 

Doing justice in a trial cannot be fully expressed in a formula. It is a complex process of finding a balance between various factors, including equality. The scholar Dias says:

„Justice is not some “thing”, which can be captured in a formula once and for all; it is a process, a complex and shifting balance between many factors including equality. As Freidrich observed “Justice is never given, it is always a task to be achieved”.‟ (Dias, Jurisprudence, supra, at p. 66).

31.          Notwithstanding the difficulty in discovering and defining justice, the desire to do justice is an inner imperative of every judge. The exercising of judicial discretion constitutes an effort to achieve justice. The judge‟s subjective sense of justice guides his judicial discretion to achieve legal justice, which is an integral part of the law. In his aforementioned book, Cohn says at pp. 93-94:

„… One must not distinguish between the nature and purpose of the law and the „legal justice‟ in its application. We have already seen that people are different from one other, also in that each of them has his own sense of justice, and an individual sense of justice is, to some degree or other, a function of individual interests. Should every person exercise his own sense of justice and act accordingly, then I fear that the world would revert to utter chaos. By upholding the law, man makes his contribution towards the existence of the world… This is what we have said: if statute and the law is upheld, social justice will be done, and the purpose of this is merely to foster peace between men.

… Legal justice is always manifested in acts and omissions that comply with the norms that bind everyone and apply equally to everyone…‟ (emphases supplied).

He also says:

„Of the many meanings of justice, which we have already discussed, we have chosen very specific meanings in which we see “justice” that constitutes an integral part of the “law” as we have defined it. This “justice” is consistent, to a large degree, with what Pound termed “the philosophical, political and moral ideas” that — as we have seen — also in his opinion constitute an integral part of the law.‟ (H. H. Cohn, HaMishpat, supra, at p. 83; emphasis supplied).

 

 

32.          Justice, as an abstract concept, is neutral in our case. A finding in favour of Daniel Nahmani is doing an „injustice‟ to Ruth Nahmani, and a finding in her favour is doing an „injustice‟ to him. We must seek „justice‟ that is consistent with the „philosophical, political and moral ideas‟ that are an integral part of the law.

My decision in the matter before us, that the implantation process should not proceed without Daniel‟s consent, is a decision of justice in law. It is not a random or partisan decision. It is not an intuitive decision based merely on subjective feelings and an inner voice. It is a decision based on the values of justice of the legal system, which are incorporated in it and are its very essence: the rights of the individual, personal autonomy, relationships between spouses in the field of fertility, the result of a joint decision which requires two people to carry it out, the establishment refraining from forcing parenthood on someone, the need for cooperation and consent between spouses on a subject hidden in the recesses of the human soul and inherent in the delicate fabric of intimacy and parenthood. The decision that I have reached is the result of a process of various balances between values, rights and desires that conflict with one other. It represents — to the best of my understanding and feeling — the dispensing of legal justice, in its complete and coherent sense. Loyalty to the basic norms, to the fundamental principles of the legal system, to basic human rights, to the liberties of the individual and equality in exercising and realizing these rights and applying the law in its wider sense, will ensure that a just trial that is normative, ethical, principled and worthwhile. „Gut feelings‟ or „subjective feelings‟ are likely to lead us on the path of granting a right to someone who does not have one and forcing the will of one person — by means of the law — on another, so that duties that he does not have will be imposed on him, and this coercion constitutes a violation of his basic rights, which we are mandated to safeguard. All of the aforesaid emphasizes the difficulty inherent in attaching the label of „justice‟ to one of the two possible solutions.

Conclusion

33.          I am aware of Ruth‟s distress and frustration, of which I have been mindful throughout. I am aware that Ruth‟s harm from the non-realization of her parenthood is greater than Daniel‟s harm if parenthood is imposed on him: Ruth‟s contribution to the fertilization involved suffering and effort beyond those involved in Daniel‟s contribution; Daniel left the home, established a new family, achieved parenthood, while for Ruth this is apparently the last chance to realize biological motherhood. Daniel should be

 

 

mindful of this balance and consider whether as a result he ought to consent to allow Ruth to try to realize her aspiration. No-one can, or should, consent in his stead, and he should not be forced to consent by means of a judicial order that will replace his consent. Such a balance does not replace the required consent, and it does not create a legal right capable of judicial enforcement. Such a balance cannot avail us when a right is a liberty without a corresponding duty and when there is no basis for establishing a right to force parenthood on someone against his will.

34.          In summary of my position I will say that, in my opinion, a person has the liberty to be a parent and thereby fulfil a basic human yearning, but he does not have a right that imposes on another a duty to make him a parent, and to make himself a parent. In the absence of mutual consent to bring a child into the world, the right to be a parent — as part of the right of self- realization — cannot limit the autonomy given to another person and the freedom of choice given to him to direct and plan his life. Two people are needed to bring a child into the world, and this implies a need for continuing consent of both of them to achieve this purpose. Without joint consent, a person should not be obliged to continue a procedure that is likely to result in an unwanted parenthood. Consent to begin a procedure of  in-vitro fertilization within the framework of a main agreement for a joint life and joint parenthood cannot be considered sufficient consent or continuing consent, and even if it can be considered as such, each party is entitled to retract it when there is such a drastic change of circumstances as in our case. Consent is required for each stage up to the point of no return, which is the implantation of the ova in the woman‟s body. In the absence of such consent, Daniel cannot be compelled to consent to Ruth‟s aspiration. Daniel did not agreed to bring a child into the world in all conditions, circumstances and frameworks. He made no such promise, made no such representation, and when the framework within which the original consent of the two spouses operated fell apart, the procedure cannot be continued without obtaining Daniel‟s consent or by ignoring his refusal to consent to the continuation of the procedure. Parenthood cannot be forced upon him against his will by means of a judicial order, neither in the name of the law, nor in the name of justice nor in the name of life.

Therefore my opinion remains as before, that the petition should be denied.

 

 

 

Justice Ts. E. Tal

The case of the Nahmani couple is again placed before this court for its decision, pursuant to the decision of President Shamgar, who ruled that a further hearing should be held on the judgment of the Supreme Court in CA 5587/93.*

Let us briefly review the main facts and proceedings of the Nahmani case. The couple married in 1984, and after three years the wife was compelled to undergo a hysterectomy. In 1988 the couple decided to try and have a child by means of in-vitro fertilization of the wife‟s ova with the husband‟s sperm, and implantation of the fertilized genetic material in the womb of a surrogate. Surrogacy was not permitted in Israel at that time, and so they decided to carry out the fertilization stage in Israel and implantation in the United States at a surrogacy centre there. After the fertilization took place, but before the implantation stage was carried out, disputes arose between the couple. The husband left home and went to live with another woman, who became pregnant and bore him a child.

The wife applied to Assuta Hospital, where the fertilized ova were deposited in cold storage, and she asked to receive it in order to carry out the implantation. The hospital refused, because of the husband‟s objection, both in a letter to the hospital and in a letter to the surrogacy centre in the United States. The wife applied to the Haifa District Court, where his honour Justice

H. Ariel ruled that she was entitled to receive the fertilized ova.† Among the

reasons given by the judge, a central role was given to the consent between the spouses, and to the fact that the husband could not withdraw his consent. The husband filed an appeal on the judgment, and the appeal was allowed by majority opinion.

I have once again studied the matter, as well as the remarks of my colleagues both in the appeal and in this proceeding, and I have not changed my opinion,  which was the minority opinion  in  the aforementioned  CA 5587/93.

My opinion was based on the principle that we do not listen to a man who wants to terminate a pregnancy, even when the pregnancy was obtained by deception and fraud, because we do not interfere with a woman‟s body

 

 

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

†             IsrDC 5754(1) 142.

 

 

against her will. Similarly, a man should not be heard with regard to termination of a fertilization procedure, when such a termination — retroactively — makes the interference in the woman‟s body futile, and her dignity and modesty are violated. Also, the man is estopped from withdrawing his consent, by virtue of the principle of reasonable reliance, when the woman has adversely and irrevocably changed her position. As explained there, estoppel by virtue of reliance is no longer merely a defence argument, but also constitutes a cause of action and a ground for enforcement.

I reaffirm what I wrote there, and I would like to add a few remarks. We do not have any provision in the law according to which we can solve the dispute before us. Even the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law, which recently came into force, contains no provision that regulates a situation like the one before us. The silence of the legislator can be interpreted in several ways. See BAA 663/90 A v. Bar Association Tel-Aviv District Committee [6], at p. 404; HCJ 4267/93, Amitai — Citizens for Good Government v. Prime Minister [7], at p. 457.

It cannot be said that the silence of legislation amounts to a negative arrangement. The issue is too important, problematic and complex for an arrangement to be derived from silence.

It would seem that the silence of statute derives from the disparity that always exists between the rate of development in the fields of science and technology, and the ability of the law to absorb these changes and embody them in legislation. The Supreme Court of Australia described this disparity in Mount Isa Mines Ltd v. Pusey (1970) [46]:

„Law, marching with medicine, but in the rear and limping a little.‟

The law is silent in our case because it is „limping behind medicine‟, and consequently we have before us a field of medical law that has not yet been regulated by the legislator.

Development of the law

A lacuna in the law imposes on the court the duty to develop the law in order to provide a response to cases brought before it. It may not sit idly, as if it were better not to take any positive action. See in this regard J.C. Gray, The Nature and Sources of the Law, New York, 2nd edition, 1948, at p. 302:

 

 

„When a case comes before a court for decision, it may be that nothing can be drawn from the sources heretofore mentioned; there may be no statute, no judicial precedent, no professional opinion, no custom, bearing on the question involved, and yet the court must decide the case somehow; the decision of cases is what courts are for… And I do not know of any system of Law where a judge is held to be justified in refusing to pass upon a controversy because there is no person or book or custom to tell him how to decide it. He must find out for himself; he must determine what the Law ought to be; he must have recourse to the principles of morality.‟

In what manner and with what tools should we develop the law? Prof. Barak distinguishes between different types of legal creation, and in our case, it is important to distinguish between the following two: filling a lacuna and developing the law. In his article, „Types of Legal Creation: Interpretation, Filling a Lacuna and Development of the Law‟, 39 Hapraklit, (1990) 267, 269-270, he said the following:

„The second way in which a judge determines the law is by filling a lacuna… a lacuna exists where a legal norm or legal arrangement is incomplete, and this incompleteness conflicts with the purpose of the norm or the purpose of the arrangement. Just as there exists a gap in a stone wall, where the builder forgot to put in one of the stones needed to complete the wall…

The third way in which a judge determines the law is by developing the law… central to this is the judge‟s activity as a creator of a new legal norm, which is required by the needs of life, other than by interpreting an existing normative text, or creating a new normative text in order to fill a lacuna in an existing normative text.‟

Prof. Barak repeated these remarks in his book Interpretation in Law, vol. 1, The General Theory of Interpretation, Nevo, 1992, at p. 609, where he says:

„Development of the law is a judicial activity, in which framework the judge creates a new norm or declares an existing norm to be invalid… this activity is based on the need to adapt the law to the reality of life. Legal institutions and arrangements,

 

 

which served society in the past, may no longer be consistent with the needs of the present and the future.‟

According to this distinction, the case before us belongs to the field of development of the law, and not the field of filling a lacuna, since there is no defective or inadequate norm before us. Because of the rate at which life has developed, the legislator has not yet addressed all of the questions in the field of fertilization and genetics, and therefore we must create a proper norm to apply to the case before us.

In doing so, we must: a) consider the conflicting interests; b) determine the legitimate expectations of both parties; c) weigh up the proper legal policy considerations.

The conflicting interests

There are two main rights competing with one another: the right to be a parent and the right not to be a parent. However, since there is no provision in the law that applies to the case, it would be more precise to say the interest in being a parent and the interest in not being a parent. What is the nature of these interests? The interest in being a parent is one of the most basic aspirations of man, and needs no explanation. In CA 488/77 A v. Attorney- General [8], at p. 441, it was said:

„In general, a person has no more precious possession than the emotional bond between parents and their natural child, in which they see the fruit of their love, their own flesh and bone, and the succeeding generation that bears their genes.‟

And in CA 451/88 A v. State of Israel [2], at p. 337, it was said:

„The right to parenthood is a basic human right to which everyone is entitled…‟

The Supreme Court of the United States, in Skinner v. Oklahoma (1942) [52], considered the question whether the right to parenthood is a protected constitutional right, and it concluded that the right to parenthood is „one of the basic civil rights of man‟ and that this right is „fundamental to the very existence and survival of the race‟ (ibid., at p. 541).

Against this existential interest lies the opposite interest, not to be a parent, or, to be more precise, not to be a parent against one‟s will. When we come to balance these conflicting interests, we should remember that despite the symmetrical forms of speech, „to be a parent‟ and „not to be a parent‟, these interests are not equal. The interest in parenthood constitutes a basic

 

 

and existential value both for the individual and for the whole of society. On the other hand, there is no inherent value in non-parenthood. The value that is protected in the interest of non-parenthood is the value of privacy, namely the freedom and right of the individual not to suffer interference in his intimate decisions. See in this regard the article of Dr Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra, at pp. 198-200:

„It is not at all clear whether the right to be a parent and the right not to be a parent should be discussed on the same level merely because they are prima facie symmetrical. In other words, we cannot assume the existence of symmetry between the two rights just because they hold two ends of the cord of parenthood.

As a rule, the right to “something” and the right to “nothing” are not always equal. Is the right to life entirely equivalent to the right to die? Indeed, a moral position whereby every person has a right to live and a right to die, and the two of these are rights of equal weight, is possible. Whoever accepts this outlook will support full recognition of realizing the right to die, even by means of active “euthanasia”. But another, asymmetrical, position is possible. Thus, for instance, the “equivalent” approach to life and death has been rejected in Jewish thought. From CA 506/88 Shefer v. State of Israel we can see the approach of the court that the right to life has a higher status, and therefore, at most, it is possible to recognize passive “euthanasia” (in certain circumstances). In other words, the something and the nothing are not always of equal weight.

… Even were we to regard the right to parenthood and the right not to be a parent merely as derivatives of the autonomy of the will, there would not necessarily be symmetry between them. We do not respect every desire, and not every desire should be respected to the same extent. Moreover, the main criticism is directed against the narrow view of the judgment regarding the right to  parenthood.  Is it correct to  see in it a right that is “derived from the right to self-realization, liberty and dignity”? Is that all that it involves? In my opinion, we can find many other facets to it. The right to be a parent is an independent right, and not just an expression of the autonomy of the private will. Realizing the option of parenthood is not merely a possible way

 

 

of life, but it is rooted in human existence. There are some who will regard it as cure for loneliness; others will use it to deal with the thought of death. Indeed, the choice of refraining from parenthood is a possible way of life, which society and the law must respect. However the choice of parenthood is not just a decision concerning a way of life; it has much greater significance for human existence. It expresses a basic existential need. Moreover, the decision to become a parent also has an element of self-realization, particularly in modern society, which emphasizes self-realization as a value. But the right to parenthood does not derive only from self-realization. The right to life is an independent basic right, and it is not a derivative of the autonomy of the will; the same is true of the right to parenthood. From this perspective, the symmetry created by the judgment between the right to parenthood and a decision (legitimate, in itself) not to be a parent (as an expression of personal freedom) is undermined, or at least requires further consideration.‟

Let us turn to our case. First, we are not speaking of forced parenthood. We are speaking of a person who gave his consent to parenthood, but who wants his consent to be required also during the continuation of the procedure. The interest of society in non-forced parenthood does not necessarily lead to the conclusion that his consent is required over an extended period. The interest in preventing parenthood against a person‟s will is satisfied by requiring a one-time irrevocable consent.

Secondly, for the woman, it can be assumed that that this is her only possibility of realizing her parenthood.

The cumulative weight of these two factors leads to a clear conclusion that the interest of being a parent takes precedence. We can reach the same conclusion by comparing the damage that is likely to be caused by denying the rights. If you take parenthood away from someone, it is as if you have taken away his life. In the Bible we find the desperate cry of our ancestress Rachel, „Give me children, else I die‟ (Genesis 30, 1 [65]). Similarly, from the teachings of the Rabbis we learn that „whoever has no children is considered as a dead person‟ (Bereishit Rabba 79, 9 on Genesis [66]). Similarly, they interpreted the verse in Jeremiah 22, 10 [68]: „“Do not weep for the dead, nor bemoan him; weep indeed for him who goes” — Rabbi Yehuda  said:  for  him  who  goes  without  children‟ (Babylonian  Talmud,

 

 

Tractate Moed Katan 27b [69]). By contrast, denying the interest of non- parenthood amounts to no more than imposing burdens that may not be desirable to that person. Without belittling the weight of these burdens, they are not equivalent to „taking the life‟ of the spouse.

Even in Davis v. Davis [47] the court decided in favour of the husband‟s position, only because at that stage the wife was not asking for the fertilized genetic material for herself, but for another woman. The court said there that had the wife wanted the fertilized material for herself, and had the situation been such that she had no alternative for realizing her right to motherhood, the court inclined to the opinion that the wife‟s right to motherhood should take precedence over the husband‟s right not to become a father.

In summary of this point, I will say that the woman‟s interest in motherhood is greater, and overrides the man‟s opposite interest.

The legitimate expectations of the parties

One of the tasks of a judge, when engaging in judicial legislation, is to realize the legitimate expectations of the parties. When we say „legitimate‟, we do not mean expectations embodied in the law, for if there were a statute or precedent in our case, we would not need to resort to judicial legislation;

„legitimate‟, in the sense of expectations that merit protection according to the system of values accepted by society.

The importance of this task was discussed by Prof. Barak in his article

„Judicial Legislation‟, 13 Mishpatim, 1983, 25, at p. 71:

„…We should refrain… from choosing that option that harms reasonable expectations. The reasons for this are many. Harm to a reasonable expectation harms the sense of justice, disrupts proper social life, harms the public‟s faith in the law, and denies any possibility of planning behaviour.‟

Realization of the parties‟ expectations is important in every sphere of judicial legislation, but it has special importance in our case. The development of fertilization and reproduction techniques requires the law to recognize the importance of the emotional aspect of the persons involved in these techniques. See in this respect A. E. Stumpf, „Redefining Mother: A Legal Matrix For New Reproductive Technologies‟, 96 Yale L. J. (1986-7), 187.

The case before us concerns two spouses who travelled a long distance in each other‟s company. It is true that one cannot know with certainty what the

 

 

spouses originally thought about a situation in which they might separate. But this uncertainty is not characteristic merely of  family  law. The law reconstructs a person‟s intentions in two ways; presumed intention and imputed intention: presumed intention, according to experience of life and common sense, and according to the special circumstances of each case; imputed intention, when there is no way of assessing the presumed intention of the parties, and the law — for its own purposes — attributes to someone an intention without his knowledge, and maybe even against his will.

Our case involves a woman who underwent gynaecological surgery and was forced to undergo complex, invasive and painful procedures in order to extract the ova, in the knowledge that this was almost certainly her last opportunity to bring a child of her own into the world. It is difficult to assume that she would have agreed to undergo these treatments in the knowledge that her husband could change his mind at any time that he wished. It is inconceivable that someone should agree that her last and only glimmer of hope should be dependent on the whim of her spouse, who might change his mind at any time.

It can therefore be said that the presumed intention of the woman was that a change of mind on the part of the man would not affect the procedure that had been begun.

And what is the husband‟s position? He was required at the outset to make a decision to agree to fertilize the ova with his sperm. Can it be presumed that he would have refrained from this had he known that he could not subsequently change his mind? Not necessarily. Husbands do not refrain from having sexual relations merely because their wishes will not be consulted later with regard to an abortion (following CA 413/80 A v. B [9]).

It therefore seems to me that we should assume that the presumed intention of both parties in this case was that neither party has a right to stop the continuation of the procedure.

With regard to „imputed‟ intention, an intention can be imputed for considerations of justice or considerations of policy. The considerations of justice have already been set out above, and we will mention them briefly. Giving a right to the husband to destroy the ova (or to prevent their use — which is the same thing) will deprive the woman of her only chance of having a child, while he has had children by another woman. On the other hand, giving the wife the ability to continue the procedure will impose on him undesired burdens. There is no basis whatsoever for comparing these

 

 

evils. Moreover, we are speaking of a man who gave his consent, and in reliance on this the woman consented to interference in her body and painful treatments, and also adversely and irrevocably changed her position. She did so by relying on a representation that the procedure would continue; thus the criteria for „promissory estoppel‟ were met, as I explained in CA 5587/93.* Now, after all of this, the husband wants to change his mind. Of cases such as this, it is said that „whoever changes course has the disadvantage‟. And when we consider whether to impute to the husband an intention that he could change his mind whenever he wanted, it seems to me undesirable to do so.

Another of the considerations of justice is that neither party should be given an unfair advantage. Saying that, in the absence of express consent, either party may change his mind whenever he wishes, disturbs the equilibrium and equality  between the parties. A need for the continuing consent of both spouses throughout the procedure gives the party wanting the procedure to be stopped a right of veto over the other party. This right leaves the party that wants to continue the procedure entirely at the mercy of the other party, who may consent and change his mind a moment later. This result is unacceptable. Instead, it should be held that in the absence of explicit consent with regard to a case of separation, an intention should be imputed to the parties that no party can change his mind.

In this matter also let us turn to the legal literature concerning Davis v.

Davis [47] for the purpose of comparison and inspiration.

The consideration that the party uninterested in implantation should not be given „control‟ over the other party was discussed in detail in the article of

A.            R. Panitch, „The Davis Dilemma; How to Prevent Battles Over Frozen Preembryos‟, 41 Case W. Res. L. Rev. (1991) 543, 572-573.

„One approach would be to require mutual spousal consent as a prerequisite to implantation of all preembryos created through IVF. This approach would require obtaining consent twice from each spouse — once when the IVF procedure is initiated and again before each implantation.

This rule would also have disadvantages, however. Most significantly it would grant tremendous power to one spouse over the other. It would mean that even though both spouses

 

 

*             Ibid..

 

 

initially consented to having a child through IVF, neither could proceed with certainty that the other would not truncate the process. Such an outcome would surely  frustrate the spouse seeking implantation, who will have invested large financial expense, time, energy, and, in the wife‟s case, physical pain. The required second consent for implantation could become a tool for manipulation and abuse between spouses, especially under circumstances of a pending divorce. Any spouse ultimately denied the chance to have a child through IVF would probably suffer considerable emotional stress‟ (emphases supplied).

After the author considers the advantages and disadvantages of this approach, she reaches the conclusion that the consent given at the time of fertilization should be sufficient, on the basis of the laws of estoppel:

„Fairness considerations require a determination of whether it would be more equitable to allow the spouse who wants to prevent the possibility of a birth to prevail, or instead to allow the spouse who wants to continue the process of procreation to prevail. One fact is of vital importance in making this judgment; the spouse who opposes implantation wanted a child at one time and submitted to the IVF process with that end in mind. The two spouses once agreed on this issue and initiated the IVF procedure in reliance on that mutual wish. Given this background, the greater injustice would be to deny implantation to the spouse who detrimentally relied on the other‟s words and conduct.

Protection against this sort of injustice is recognized by the well established doctrine of estoppel…

The elements of estoppel are satisfied in a dispute such as Davis. The knowing action of the objecting spouse is the undertaking of IVF for the purpose of producing a child. The prejudice to the other spouse consists of money, time and the psychological commitment necessarily expended in pursuing the full procedure. The injury would include not only the time and money spent, but also the last opportunity to have a child‟ (at pp. 574-575; emphases supplied).

 

 

See also B. L. Henderson, „Achieving Consistent Disposition of Frozen Embryos in Marital Dissolution under Florida Law‟, 17 Nova L. Rev. (1992) 549.

The conclusion arising from all of the aforesaid is that in the absence of an express stipulation between the parties concerning the fate of the ova in a case of separation, it should be presumed that their intention was that one party would be unable to stop the procedure against the will of the party interested in the implantation. And if their intention cannot be presumed, this intention should be imputed to them. According to weighty considerations of justice, the right of reliance and legitimate expectations, these expectations should be fulfilled without the need for continuing consent in order to continue the procedure once the fertilization was carried out by consent.

Policy considerations

Besides the abovementioned considerations, there are additional policy considerations according to which it should be held that consent of the parties only at the time of fertilization is sufficient.

First, legal stability and legal certainty demand that the period of time during which the consent of the parties is required should be reduced to a minimum. Apart from the two spouses, additional parties and bodies are involved in the procedure, including the surrogate mother and the medical institution. Allowing the possibility of unilateral cancellation is likely to increase the number of cases in which there are fluctuations and reversals, and it will make it more difficult to carry out the procedure.

This consideration has been mentioned in the context of adoption, and it was said that the court should restrict the number of cases where parents are allowed to withdraw their consent. In CA 623/80 A v. Attorney-General [10], at p. 77, Justice Shamgar said:

„… The results of the described approach, as established in Israel, are also dictated by logic and life experience: it will be very difficult to complete the adoption of a minor if,  even though the parents gave their consent, it would be necessary to fear or expect, each morning of the months that necessarily pass between the parents giving their consent and the granting of the adoption order, that perhaps the natural parents will suddenly change their minds, of their own initiative or through the influence of others, whatever their considerations or reasons may be.‟

 

 

Another consideration is that we should seek for an arrangement that will encourage couples that are unable to conceive naturally, to make use of methods of artificial insemination, and we should refrain from an arrangement that is likely to deter and prevent couples from using such methods. The determination that each party can change his mind whenever he so desires will certainly serve as a deterrent. This is true of both spouses, but especially of the woman who must undergo long and complex treatments. This is especially so when, as in the case before us, a single and last opportunity is involved.

On the other hand, there is no reason to believe that a determination that consent at the time of fertilization is irreversible will serve as a deterrent. The couple will consider all the factors before carrying out the fertilization, in the knowledge that they are irrevocably bound by their consent, unless the change of heart is a joint one. We have already pointed out above that the inability of husbands to demand that their wives have abortions does not constitute a deterrent to starting the process.

Considerations of proper legal policy, together with the ethical considerations and considerations of justice enumerated above, all combine to point to a clear and unequivocal conclusion: we should reaffirm the result reached by the District Court, and order the hospital to allow the woman to carry out the continuation of the treatment required for the purpose of surrogacy.

The right to abort

We can compare the question in this case to a similar issue, namely the issue of abortions.

The right of the woman, in certain circumstances, to abort a pregnancy is recognized in our legal system, even though there is public debate as to the grounds that justify an abortion, as reflected in statute (see chapter 10, article 2, of the Penal Law, 5737-1977). Exercising this right may harm the interests of the man; notwithstanding, it has been established that there is no need for his consent, and he even does not have any standing before the „abortions committee‟ under section 316(a) of the Penal Law (see CA 413/80 A v. B [9]).

In an article devoted to our case, Prof. Chaim Gans sought to reach the conclusion that:

„I said, that if women have the right to abort at the beginning of their pregnancy on the basis of their right to control their lives, Daniel Nahmani ought to have a right to stop the proceedings

 

 

leading to surrogacy of the ova impregnated with his sperm. Since I have shown that women have such a right, Nahmani also has such a right‟ (Gans, „The Frozen Embryos of the Nahmani Couple‟, supra, at p. 91).

However, the conclusion reached by Gans does not stand up to scrutiny. The preference that the law gives to the woman to decide about an abortion, while discriminating against the man and despite his objection, derives solely from the fact that we are speaking of a decision concerning her body. The woman alone carries the embryo, and therefore the decision to abort is hers alone. The symmetrical analogy regarding a similar right for the man is merely an imaginary and spurious analogy.

In an article that was published after the decision in Roe v. Wade (1973) [53], which developed the right of abortion, it was said that:

„Allowing women the exclusive right to decide whether the child should be born may discriminate against men, but at some point the law must recognize that there are differences between men  and  women,  and   must   reflect   those   differences‟ (R. A. Gilbert, „Abortion: The Father‟s Rights‟, 24 Cin. L. Rev. (1973) 443).

Indeed, the Supreme Court of the United States so held in Planned Parenthood v. Danforth (1976) [54], at p. 71:

„We recognize, of course, that when a woman, with the approval of her physician, but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor‟ (emphasis supplied).

Even under our law the principle that the husband has no right to oppose the abortion derives from the same reasons. The learned Prof. Shifman summarized the matter as follows:

„The main emphasis on the woman‟s right to control her body has led to the man having no standing in decisions regarding the termination of pregnancy. Thus it has been held in Israel, following similar rulings in the United States and Britain, that

 

 

the man is not entitled to prevent the woman from terminating her pregnancy, just as he is not entitled to demand that she abort if she wishes to continue the pregnancy. The woman‟s decision to terminate her pregnancy may harm the man‟s expectations of being a father, i.e., of the birth of a child originating in their joint genetic material, whose creation was, perhaps, the result of their joint decision. If the man is married to the woman, the woman‟s decision to abort might constitute a breach of legitimate expectations created by the marriage, which is conceived as a framework whose purposes include the bringing of children into the world.

Nonetheless, these considerations do not give the man, even if he is married to the woman, a right equal to hers in making the decision concerning termination of the pregnancy. The woman‟s preference derives from her interests in control over her body. These interests give her absolute discretion whether to initiate a termination of a pregnancy or not‟ (Shifman, Family Law in Israel, vol. 2, at p. 213).

It follows that, were it not for the decisive factor — the embryo being part of the woman‟s body, or in the words of the Rabbis: „An embryo is an organic part of its mother‟ — the woman would not have a right to destroy the embryo against the wishes of her spouse. Therefore, the logical conclusion from the laws of abortion is the opposite of the one that Gans sought to deduce. When not speaking of interference in her body, the woman is not entitled to destroy the embryo without her spouse‟s consent; in exactly the same way, the man is not entitled to destroy the ova against the woman‟s wishes (and is not preventing the use of them the same as destroying them?).

We should decide that the husband is not entitled to destroy the ova against the wife‟s wishes. On the contrary, the wife is entitled to continue the implantation procedure, notwithstanding the husband‟s opposition.

Equality

A substantial part of the majority opinion in CA 5587/93,* the subject of this hearing, was devoted to the principle of equality between the sexes. This is a fundamental legal principle, and therefore we must consider whether the solution proposed here stands up to the test of equality. In other words, do the

 

 

 

*             Ibid..

 

 

considerations and principles proposed hitherto remain unchanged in the opposite case, where the woman is the one who wishes to destroy the fertilized genetic material, and the husband is the one who wishes to continue the implantation process in the womb of a surrogate mother?

Admittedly, there was someone who argued that the advantage that the law gives the woman in the laws of abortion also exists in disputes over the fate of fertilized ova. However, as has been explained above, this position cannot be accepted. The woman‟s advantage in the laws of abortion derives solely from the fact that the embryo is a „part of its mother‟, and where this factor does not exist, there is no reason to depart from the principle of equality.

The answer to our question is clear and unequivocal. In the „opposite‟ case, when the man wishes to continue the procedure by means of another surrogate mother, the woman cannot object. The same considerations apply to the same extent, and it should be held that consent given at the time of fertilization is sufficient, and therefore the husband is entitled to continue the procedure even against the wife‟s wishes, and it need not be said, when this is his only opportunity to bring children into the world. The considerations of justice and proper legal policy then work in favour of the husband:

„There are several forms which a disagreement between progenitors could take. The woman may want the embryo to be brought to term, and the man may want the embryo terminated. In that case, it would seem appropriate for the woman to be allowed to gestate the embryo. The Supreme Court‟s abortion and contraception decisions have indicated that the right of procreation is the right of an individual which does not require the agreement of the individual‟s partner. In particular, the woman has been held to have a right to abort without the husband‟s consent and the right not to abort over the wish of the husband that she abort.

But what if the positions were reversed and the woman wished to terminate the embryo and her male partner wished to have it brought to term? When an embryo conceived naturally is developing within a woman during the first two trimesters, it is clear that the woman‟s decision whether or not to terminate it takes precedence over the desires of the man who provided the sperm… it is at least arguable that the man‟s wishes should be honored when the embryo‟s continued existence need not be

 

 

balanced against the physical and psychological needs of the woman carrying it. The man clearly would not have the right to force the female progenitor to gestate the embryo, but there seems to be no reason not to give him custody of the embryo for gestation in a surrogate mother‟ (L. B. Andrews, „The Legal Status of the Embryo‟, 32 Loy. L. Rev. (1986-87) 357, 406-407).

It follows that the proposed solution stands up to the test of equality and does not discriminate at all between the sexes. On the contrary, it limits the discrimination between the sexes in the laws of abortion merely to those cases where it is relevant, i.e., where the woman‟s autonomy over her body is concerned. But in the field of in-vitro fertilization absolute equality should be applied, and it should be held that the party interested in the implantation of the ova is entitled to do this, notwithstanding the opposition of the spouse.

Jewish heritage

There is no doubt that the fundamental principles of our legal system, according to the Foundations of Justice Law, 5740-1980, include Jewish heritage (see A. Barak, Interpretation in Law, vol. 1, The General Theory of Interpretation supra, at p. 616). Notwithstanding his criticism of the Foundations of Justice Law, Prof. Barak says that the arrangement prescribed therein is preferable to the arrangement that preceded the statute. In his words, „an arrangement that refers to Jewish heritage, which is our heritage, is preferable to an arrangement that refers to a foreign heritage‟ (ibid.).

It should be pointed out that reference to Jewish heritage comes after defining the legal question that requires decision, and the inspiration comes within the framework of this question. In our case, we have defined the question as follows: how should we balance between the value of parenthood and the value of non-parenthood?

Our heritage regards parenthood and having children as one of the highest values. In the Bible, we see that man was blessed:

„And God blessed them and God said to them: be fruitful and multiply, and fill the earth and subdue it…‟ (Genesis 1, 28 [65]).

This value is emphasized many times in the sayings of the Rabbis, and we will limit ourselves to one reference from the Mishnah (Gittin 4, 5 [69]): „The world was created only for being fruitful and multiplying, as it is said (Isaiah 45, 18): “He did not create it empty, he made it to be inhabited”.‟

 

 

It need not be said that non-parenthood is not one of the values of Jewish heritage. On the contrary, we find among the sayings of the Rabbis that:

„It has been taught: Rabbi Eliezer says: whoever does not engage in the commandment of being fruitful and multiplying is as if he spills blood‟ (Babylonian Talmud, Tractate Yevamot 63b [70]).

The Rabbis also explained in the Talmud (Babylonian Talmud, Tractate Berachot 10a [71]), with regard to Isaiah‟s prophecy to King Hezekiah (II Kings 20, 1 [72]): „Give instructions to your house for you are dying and you shall not live‟ that he would die in this world, and he would not have life in the world to come, because he had not engaged in the commandment of being fruitful and multiplying.

In relations between spouses, Jewish law holds that the husband has an obligation to his wife, to help her bring children in to the world. Admittedly, this obligation is not enforceable, but a lack of enforcement is not relevant in our case, since the question of enforcement does not arise at all. The husband is liable to help, and he most certainly is not permitted to sabotage the process. In the judgment in CA 5587/93,* I cited the source for the existence of this obligation, which is in the Talmud (Babylonian Talmud, Tractate Yevamot 65b [70]), to which I refer.

Conclusion

The outcome of this case stems from its beginning. In his decision to hold a further hearing, President Shamgar said that:

„I think, with all due respect, that the questions that arose in Civil Appeal 5587/93 were examined thoroughly, comprehensively and in an illuminating manner, both in the majority opinion and the minority opinion. But the matter is novel and original, and without doubt of special importance in our world which is changing its appearance from a scientific and social perspective.‟

Now, after considering the issues in breadth and depth, it can be seen that the „novelty‟ of the matter did indeed justify a further hearing. It is the nature of a novel and original issue that one cannot understand it fully without revision and additional study.

 

 

 

*             Ibid..

 

 

After such study, I have reached the conclusion that ideally decisions concerning fertilized ova should be made by both spouses and with the consent of both. However, where there is no consent between the parties, as in the case before us, the spouse wishing to continue with the implantation procedure should be allowed to do so, notwithstanding the opposition of the other spouse.

 

Justice D. Dorner

1.            In this dispute between Ruth Nahmani (hereafter — the wife) and her husband Daniel Nahmani (hereafter — the husband) over the fate of their joint genetic material — the fertilized ova — the wife‟s right, in my opinion, take precedence.

The facts

2.            The couple married about twelve years ago. Like most couples, they wanted children. But the wife contracted a dangerous illness, and she was compelled to undergo a hysterectomy. Nevertheless, the couple did not give up their hope of children, and they decided to try in-vitro fertilization. The wife agreed that during the surgery to remove her womb, the surgeon would not harm her ovaries, and he would move them aside in such a way that they would not be damaged by the radiation that was to follow. By doing this, the wife — who fully consulted her husband in her decision — endangered her health.

The surgery was successful. The couple began to search for a „surrogate‟ mother in whom the ova, which would be taken from the wife and fertilized with the husband‟s sperm, could be implanted. But this search failed. The couple discovered that in view of the Public Health (In-vitro Fertilization) Regulations, 5747-1987, it was prohibited to implant fertilized ova in the womb of a „surrogate‟. For lack of any other option, the couple decided to carry out the whole procedure in the United States. For this purpose they flew to the United States and even succeeded, with considerable effort, in raising approximately 30,000 dollars. However, they soon discovered that this amount fell far short of the amount required. This economic obstacle left them with only one possibility. The couple began a legal battle. Their plan was that the fertilization should take place in Israel, whereas the implantation and „surrogacy‟ stages should take place in the United States. When they tried to carry out their plan, Assuta hospital made the fertility treatment conditional on the consent of the Ministry of Health. When this consent was

 

 

not given, the couple petitioned the High Court of Justice. After more than three years, in the middle of 1991, the battle ended. The Ministry of Health agreed to the petitioners‟ plan, and the consent was given the force of a judgment.

Immediately following this, the couple began to carry out their plan. Over eight months, the wife underwent a series of difficult medical procedures, in which ova were removed from her body. Eleven of these were successfully fertilized with the husband‟s sperm, and they were frozen for the purpose of their future implantation. Throughout this entire period, the couple went through the procedure together and the husband supported, encouraged and helped his wife. At the same time, the couple began the procedures for making a contract with a „surrogacy‟ institute in the United States. At the end of January 1992, the wife and the husband signed an agreement with the institute, which dealt with the financial aspects of the procedure. The couple also made payments necessary for the procedure.

While the spouses were at the crucial stage of the procedure, in March 1992 — two months after signing the agreement with the „surrogacy‟ institute — the husband decided to leave home and to move in with his girlfriend. A daughter was also born. He refused to give his consent to the continuation of the procedure and to the implantation of the fertilized ova. The wife has no practical possibility of repeating the procedure.

3.            On the basis of these facts, my colleague Justice Strasberg-Cohen held, in paragraph 33 of her opinion, that there is no doubt that in the balance of harm, the harm to Ruth from not realizing her parenthood is greater than the harm to Daniel if parenthood is forced on him. It would appear, therefore, that even the majority in the judgment that is the subject of this further hearing (hereafter — the Nahmani appeal) do not dispute that in this case the scales of justice in the struggle between the parties are tipped in favour of the wife. But the conclusion of Justice Strasberg-Cohen is that „we should not consider only the specific case before us, and sympathy and understanding for Ruth Nahmani‟s aspiration is insufficient for giving rise to a legal remedy to her problem‟ (paragraph 4), and that there is no proper basis that gives the court power to force parenthood on a person against his will (paragraph 33).

Even Prof. David Hed, who teaches the philosophy of morality at the Hebrew University of Jerusalem, reached the conclusion that in this case a rift exists between the moral duty and the legal duty. He said the following in a newspaper interview:

 

 

„He [the husband] agreed to in-vitro fertilization with his wife. This decision required her to undergo painful treatments that endangered her health, treatments that also gave her great expectations. The price that she paid for the fertility treatment was immeasurably higher than the price that he paid, and this fact imposes on him a moral duty to let her complete the procedure, even if he lives apart from her. That is, so to speak, the price of the divorce. True, the price is enormous, but from a moral perspective I would expect him to bear it. In addition, her chance of having a child, if this ovum is not fertilized, is low… [nonetheless] the law cannot oblige  a  person to be a father against his will… since half of the genetic material of that ovum is his‟ (square parentheses supplied) (Hebrew University of Jerusalem Graduate Newspaper, 1996, 26).

The question that arises before us is whether the husband‟s right not to be a parent, based on his „ownership‟ of half of the genetic material of the ova fertilized with his sperm, really takes precedence over the right of Ruth, who also contributed half of the genetic material of these ova, to be a parent.

4.            Indeed, not every moral duty is a duty in law. But the law must lead to a just result. Prof. Dworkin, who denies the existence of judicial discretion, believes that the court should decide difficult cases on the basis of principles, morality and justice. He wrote as follows:

„I call a “principle” a standard that is to be observed… because it is a requirement of justice or fairness or some other dimension of morality‟ (R. Dworkin, Taking Rights Seriously, London, 1979, at p. 22).

Even according to the approach that advocates the existence of judicial discretion, legal norms must be interpreted on the basis of the principles of morality, justice and human rights. In cases where fundamental principles conflict with one other, the conflict will be resolved by a proper balance between the conflicting values. See Barak, Interpretation in Law, vol. 1, The General Theory of Interpretation, supra, at p. 301. See also D. Lyons, Moral Aspects of Legal Theory, Essays on Law, Justice and Political Responsibility, Cambridge, 1993, at pp. 64-101.

Referring to the relationship between justice and law, Cohn wrote in

HaMishpat, supra, at p. 83:

 

 

„… The law must include an inventory of standards that take their place when other sources of law are insufficient. This does not necessarily concern considerations “beyond the letter of the law”. It would be more accurate to say that justice is a subset of the law, one of its limbs. It falls within the raw material available to the judge when he comes to determine the “law”; and subject to the supremacy of legislation, it influences — and it must influence — not only the creation of the “law” as part of the general law, but also the dispensing of justice between litigants.‟

5.            The aspiration to do justice lies at the basis of the law. This was already discussed by Aristotle, when he wrote:

τὸ γὰρ ἁμάρτημα οὐκ ἐν τῷ νόμῳ οὐδ᾽ ἐν τῷ νομοθέτῃ ἀλλ᾽ ἐν τῇ φύσει τοῦ πράγματός ἐστιν... ὅταν οὖν λέγῃ μὲν ὁ νόμος καθόλου, συμβῇ δ᾽ ἐπὶ τούτου παρὰ τὸ καθόλου, τότε ὀρθῶς ἔχει, ᾗ παραλείπει ὁ νομοθέτης καὶ ἥμαρτεν ἁπλῶς εἰπών, ἐπανορθοῦν τὸ ἐλλειφθέν... διὸ δίκαιον μέν ἐστι, καὶ βέλτιόν τινος δικαίου, οὐ τοῦ ἁπλῶς δὲ ἀλλὰ τοῦ διὰ τὸ ἁπλῶς ἁμαρτήματος.

„… for the error is not in the law nor in the legislator, but in the nature of the case: … Whenever at all events the law speaks in a generality, and thereafter a case arises which is an exception to the generality, it is then right, where the legislator, by speaking in a generality, makes an omission or an error, to correct the omission… Therefore it [equity] is just and better than some justice, not better than the generality, but better than the error resulting from the generality‟ (Aristotle, Nicomachean Ethics, 5, 10, translated by the editor).

Aristotle solved the dilemma by holding that when equity is done by the judge in a case that comes before him, this is a part of justice, even if this is not expressly stipulated in statute.

Sometimes, when it turns out that the law does not achieve justice, the law is changed or adapted to the circumstances that have arisen, in a way that a just outcome is obtained. Thus, for example, the English rules of equity were developed as a result of the need to soften the rigidity of the rules of the common law, which in certain cases led to unjust results. The rules of equity

 

 

allowed a degree of flexibility in implementing the rules of the common law while taking account of the circumstances of each specific case, and they gave relief that was unavailable under the common law.

The doctrine of estoppel is associated with the rules of equity. This doctrine was intended to prevent an unjust result that would apparently be required by the law, by estopping litigants, in certain circumstances, from making in the court legal and factual arguments that are in  themselves correct. See H. G. Hanbury & R. H. Mausty, Modern Equity, London, 13th ed., by J. E. Martin, 1989, at pp. 5-51; G. Spencer Bower and A. K. Turner, The Law Relating To Estoppel By Representation, London, 3rd ed., 1977, at p. 4.

The rules of equity also exist in Jewish law sources. Justice Elon discussed this in HCJ 702/81 Mintzer v. Bar Association Central Committee [11], at p. 18:

„… the principled approach of Jewish law regarding the need for fixed and stable criteria and standards as a rule did not prevent it from requiring the judge trying a case to endeavour to find a solution for an exceptional case, if and when such a solution was required according to the criteria of justice…‟

Rabbi Yaakov ben Asher (Arba‟ah Turim, Hoshen Mishpat 1 [73]) cited the saying of the Rabbis (Babylonian Talmud, Tractate Shabbat 10a [74]) that

„any  judge  who  judges  according  to  the  absolute  truth…‟.  This  was interpreted by Rabbi Yehoshua Falk as meaning:

„Their intention in saying the absolute truth was that one should judge the matter according to the time and place truthfully, and one should not always rule according to the strict law of the Torah, for sometimes the judge should rule beyond the letter of the law according to the time and the matter; and when he does not do this, even though he judges truly, it is not the absolute truth. In this vein the Rabbis said (Babylonian Talmud, Tractate Bava Metzia, 30b) “Jerusalem was only destroyed because they based their rulings on the law of the Torah and not beyond the letter of the law”.‟ (Rabbi Yehoshua ben Alexander HaCohen Falk, Drisha, on Rabbi Yaakov ben Asher, Arba‟ah Turim, Hoshen Mishpat 1, 2 [75]).

The close relationship between the law and justice also finds expression in our case-law. In FH 22/73 Ben-Shahar v. Mahlav [12], at p. 96, it was held —

 

 

contrary to the law in England and the United States — that a litigant should be exempted from complying with his undertaking under a consent judgment, as long as he is in a condition of helplessness. This is what Justice Berinson wrote:

„In Israel, perhaps more than with any other people, law and justice are synonyms, and the concept of just law is very deeply rooted in the nation‟s conscience…

Counsel for the petitioner also referred to the well-known expression that “hard cases make bad law”, since, according to him, in this case, in order to grant relief to the respondent who is in distress, the court innovated a far-reaching rule giving it discretionary power far beyond what courts have appropriated for themselves hitherto, or what has been given to them under any legislation. To this a reply can be made in the words of Lord Blackburn in River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743, 770, that “this is a bad law making hard cases”. I cannot believe that our law is so bad that it cannot help a respondent in great distress that befell him after judgment was given.‟

And in his remarks when retiring from the judiciary, Justice Berinson emphasized:

„… The law and justice are one, if you make proper use and interpretation of the law. Law is law if it is just law… and I have always found that justice is within reach if you wholeheartedly wish to reach it…‟ („Remarks made by Justice Berinson on his Retirement from the Judiciary‟, 8 Mishpatim (1977) 3, 5).

See also I. Zamir, „In Honour of Justice Zvi Berinson‟, 2 Mishpat Umimshal (1994) 325, 327-330.

6.            The issue before us arises because of scientific advances. Human biology, on one hand, and the right of a person to control his body, on the other hand, had hitherto established clear limits for the rights of husband and wife. Until the stage of pregnancy, each of the spouses is free to engage in sexual relations for the purpose of procreation or to refuse to engage in such relations, but from that stage on, the right of the wife carrying the embryo in her womb overrides the right of the husband, in so far as this concerns the relationship between them, and the decision to continue the pregnancy or terminate  it  is  hers,  and  the  husband —  unlike  the  statutory  committee

 

 

empowered to approve the termination of pregnancy — is not entitled to force his will on her. See sections 314-316 of the Penal Law; CA 413/80 A v. B [9], at p. 67.

Scientific-technological advances today allow couples that cannot have children naturally to bring children into the world. The ability of the spouses to interfere in the procreation process, which is being carried out with innovative methods, to influence it and even to stop it has increased. In consequence, the position of the law and its involvement in the disputes surrounding the  use of the  new procreation techniques are sought  more frequently. New areas have even been created where the intervention of the law is required.

The legal issues that are arising are new and fundamental. They involve many principles and factors, from which we must, in a careful process of evaluation, ascertain the correct and fair rules that should be applied. In the words of Justice Witkon in CA 461/62 Zim Israeli Shipping Co. Ltd v. Maziar [13], at p. 1337 {138}:

„… As with most problems in law and in life in general, it is not the choice between good and bad that makes our decision difficult. The difficulty is in choosing between various considerations, all of which are good and deserving of attention, but which conflict with one other, and we must determine which will take precedence.‟

Had the matter before us been governed by an established rule of law, the court would be obliged to interpret it in a way consistent with other principles of the legal system and consistent with the demands of justice. When no such rule exists, the principles of law and justice can operate together to establish the appropriate rule.

7.            In the case before us, we need to balance between the right to be a parent and the right not to be a parent. Today, in cases where couples require a „surrogate‟ mother who will carry their embryo in her womb, the balance is achieved within the framework of the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law (hereafter — „the Agreements Law‟). The Agreements Law restricts the couple‟s autonomy and allows a

„surrogate‟ to be used only if a written agreement is made between the woman intended to carry the embryo and the prospective parents, and that agreement is approved by the Statutory Committee (section 2(1) of the Agreements Law).

 

 

A „surrogacy‟ agreement is therefore not absolutely binding. An agreement made under the Agreements Law is not an ordinary contract. As long as the fertilized ovum has not been implanted in the body of the woman intended to carry the embryos, she is entitled, and the two spouses (jointly) are entitled, to be released from the agreement. Even the statutory committee may stop the fertility procedure as long as the ovum has not been implanted. Nonetheless, neither of the spouses — without the consent of the other — has the power to prevent the implantation after the ovum has been fertilized. Stopping the procedure at this stage requires approval of the statutory committee.

8.            The Agreements Law, which, as aforesaid, was enacted only recently, does not apply to the case before us. The parties also did not make a formal agreement between them. But this has no significance, since, in my opinion, even according to the legal position before the Agreements Law, an agreement with regard to having children is not a contract. Couples are presumed not to be interested in applying the law of contracts to matters of this kind. This presumption has not been rebutted in our case. In any event, even were it proved that the parties had such an intention, they still did not have the power to give the agreement between them the force of a contract, since making a contract to have children is contrary to public policy. Therefore, the contract is void under sections 30 and 31 of the Contracts (General Part) Law, 5733-1973. Note that there is nothing improper in the purpose of the agreement — bringing children into the world — or the means of carrying out the agreement. The impropriety lies in the application of the law of contracts to the agreement, which is contrary to public policy. See and compare D. Freedman, N. Cohen, Contracts, Aviram, vol. 1, 1991, at p. 326;

A. Bendor, „The Law of Political Agreements‟, 3 Mishpat Umimshal (1995) 297, 316.

However, the fact that an agreement to have children is not a contract does not entirely negate the legal significance of the agreement or even of a representation with regard to consent. This is because, within the framework of balancing between the rights of the parties, there are reasons to take into account also the existence of an agreement between them or the existence of a representation with regard to consent. An agreement, like a representation, may lead to expectations and even reliance. These must be taken into account among the other factors affecting the balance. Cf. A. Barak, „Protected Human Rights and Private Law‟, Klinghoffer Book on Public Law (The

 

 

Harry  and  Michael  Sacher  Institute  for  Research  of  Legislation  and Comparative Law), I. Zamir ed., 1993) 163, 169.

It would seem that this principle also applies today with regard to the discretion of the committee acting under the Agreements Law to prevent implantation of a fertilized ovum in the body of a „surrogate‟. We may assume that in many cases the committee will consider the matter at the request of one of the spouses. By exercising the discretion given to it, the committee will take into account, inter alia, any expectation or reliance that the agreement created in the other spouse.

9.            In a conflict between the right of the husband and the right of the wife, the two have equal status with regard to their relationship to the fertilized ova, which contains their joint genetic material. Moreover, I do not think that we should distinguish between a man and a woman with regard to their yearning for parenthood. The proper balance between the rights of the two is therefore unaffected by the sex of the spouse who wants the ova be implanted, or of the spouse opposing this.

One can conceive of three main ways of balancing between the rights of the spouses after the woman‟s ovum has been fertilized with the man‟s sperm and they do not agree upon its implantation in the womb of a „surrogate‟ mother. These are as follows:

The first way, which was the majority opinion in the Nahmani appeal, is to prefer always the spouse who does not want to be a parent. This absolute preference is based on the principle of the autonomy of the individual, which rejects the coercion of parenthood. According to this principle, an agreement to bring children into the world should be regarded as a weak agreement, whose existence — until the implantation of the ova — is conditional on the consent of both spouses. Enforcement of such an agreement will violate a basic human right, and therefore is contrary to public policy. This position has some support in one of two judgments in the United States that considered the issue before us. In Davis v. Davis [47], where the judgment was given by the Supreme Court of the State of Tennessee, it was held that, as a rule, the right not to be a parent should be preferred. Nonetheless, it was held that this rule would not apply in a case where preference of the right not to be a parent would deprive the other spouse absolutely and finally of the possibility of being a parent. Justice Daughtrey wrote as follows, at p. 604:

„Ordinarily,  the  party  wishing  to  avoid  procreation  should prevail,   assuming   that   the   other   party   has   a   reasonable

 

 

possibility of achieving parenthood by means other than the use of the preembryos in question. If no other reasonable alternatives exist, then the argument in favor of using the preembryos to achieve pregnancy should be considered…

… the rule does not contemplate the creation of an automatic veto…‟.

The second way, upon which the approach of my colleague, Justice Kedmi, is based, supports a preference, in all circumstances, of the right to parenthood. This approach is based on the outlook that the point of no-return is not implantation of the ovum in the body of the „surrogate‟, but fertilization of the ovum, which is what creates a new entity. This approach has support in the second American ruling that exists on the question before us, Kass v. Kass [51], which was given by a trial court in the State of New York. In this judgment it was held that a stipulation in an agreement made by the spouses, which said that if they did not reach agreement on how to deal with the fertilized ova they would be used for research, should not be regarded as a waiver by the woman of her right to parenthood. The court disagreed with the ruling in Davis v. Davis, and it held that there was no basis for distinguishing between in-vitro fertilization of an ovum and fertilization of the ovum in the body of the woman, and in both cases, once fertilization has occurred, the husband cannot impose a veto on the continuation of the procedure. Justice Roncallo wrote as follows:

„In my opinion there is no legal, ethical or logical reason why an in vitro fertilization should give rise to additional rights on the part of the husband. From a propositional standpoint it matters little whether the ovum/sperm union takes place in the private darkness of a fallopian tube or the public glare of a petri dish. Fertilization is fertilization and fertilization of the ovum is the inception of the reproductive process. Biological life exists from that moment forward… To deny a husband rights while an embryo develops in the womb and grant a right to destroy while it is in a hospital freezer is to favor situs over substance.‟

The third way, which my colleague Justice Tal advocates, is to balance the rights of the specific parties. In my opinion, this is the correct way, because balancing rights on an abstract level may lead to unjust results. This was discussed by Justice Holmes of the Supreme Court of the United States in Lochner v. New York (1905) [55], at p. 547:

 

 

„General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise.‟

Of course, even a balancing of this kind is not an ad hoc balancing without any guiding principles, but it is made on the basis of rules that are applied to the special circumstances of each case.

This method of balancing — according to which, in our case, the woman‟s right is preferable — was proposed also in three articles written as a result of the Nahmani appeal. See Marmor, „The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟, supra; Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra; S. Davidov-Motola, „A Feminist Judgment? A Further Aspect of the Nahmani Case‟, 20 Iyunei Mishpat (1996) 221.

10.          Freedom in it fullest sense is not merely freedom from external interference of the government or others. It also includes a person‟s ability to direct his lifestyle, to realize his basic desires, and to choose from a variety of possibilities by exercising discretion. In human society, one of the strongest expressions of an aspiration without which many will not regard themselves as free in the fullest sense of the word is the aspiration to parenthood. We are not speaking merely of  a natural-biological need. We are speaking of a freedom which, in human society, symbolizes the uniqueness of man. „Any person who does not have children is considered as a dead person‟ said Rabbi Yehoshua ben Levi (Babylonian Talmud, Tractate Nedarim, 64b [76]). Indeed, whether man or woman, most people regard having children as an existential necessity that gives meaning to their lives.

11.          Against this basic right, which constitutes a central element in the definition of humanity, we must consider the right not to be a parent. The basis of the right not to be a parent is the individual‟s autonomy not to suffer interference of the government in his privacy. This was discussed by Justice Brennan in Eisenstadt v. Baird [49], at p. 453:

„If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.‟

In the conflict of rights before us we are not speaking of relations between the individual and the government, but of relations within the framework of the family unit. Although the autonomy of the individual is also recognized

 

 

within the framework of the family, it seems to me that the right of privacy from the government is in general of greater weight than the right of privacy in the family. In the case before us, the husband does not even insist on his right for reasons of principle that oppose bringing children into the world. After all, he has a daughter from another woman, and he wanted that daughter. His argument is against a parenthood specifically with regard to an embryo created in the fertility procedure that the parties underwent. Moreover, the husband has declared that his objection to parenthood does not derive from a fear of the personal and financial burdens involved. Therefore, the interest not to be liable for personal and financial obligations towards a child born against the parent‟s wishes, which might be a relevant consideration when balancing the interests as a rule, is not relevant in this case.

What, then, is the importance of the freedom expressed in a person‟s knowing that he does not have in the world a child that he does not want? It seems to me that for both men and women this freedom is regarded as limited, conditional, and in essence secondary compared to the right to have children and to create the next generation.

In so far as a man is concerned, once a woman has been impregnated by a man, he has no power to force her to have an abortion even when he is not interested in a child. In so far as a woman is concerned, as a rule she is not entitled to have an abortion. Abortion is permitted only on the basis of a permit from a statutory committee given according to a closed list of grounds. The mere fact that the woman does not want a child is not one of the reasons on the list. A fundamental principle, which applies to both women and men, is therefore that once a woman becomes pregnant, neither she nor her spouse have a right not to be parents.

Another basic principle is that the right of a man or a woman to be a parent does not override the right of the spouses to control over their body, and it does not impose on them positive duties to participate in a procedure that may lead to parenthood.

Subject to these fundamental principles, the balance between the rights of the spouses will be made in each case by taking into account the current stage of the procedure, the representations made by the spouses, the expectations raised by the representations and any reliance on them, and the alternatives that exist for realizing the right of parenthood. I will discuss these considerations in this order.

 

 

12.          The current stage of the procedure: The more advanced the stage of the fertilization procedure, the greater the weight of the right to be a parent. As aforesaid, the right to be a parent and the right not to be a parent are subject to a person‟s right over his body, and in no case can one spouse be compelled to undergo a physical act to realize the right of the other spouse. The situation is different in circumstances where the realization of the right to be a parent does not involve a violation of the other spouse over his body. In our case, it can be said that the right to be a parent has begun the journey from theory to practice, and it is not merely a yearning. On the other hand, the ovum has not yet been implanted, and there is no absolute obstacle to terminating the procedure.

13.          Representations, expectations and reliances: Estoppel by representation prevents a party from denying a representation that he made to another party, if that party relied on the representation reasonably and in good faith and in consequence adversely changed his position. In Israeli law, the doctrine of estoppel — which we received from English law — can be regarded as a facet of the principle of good faith, which is a basic principle in our legal system. See LCA 4298/92 Ezra v. Tel-Mond Local Council [14]. In this regard, the following remarks were written in a review of the judgment in Davis v. Davis:

„… the doctrine of reliance should be applied to resolve a dispute between the gamete providers. The consistent application of a reliance-based theory of contract law to enforce promises to reproduce through IVF will enable IVF participants to asset control over their reproductive choices by enabling them to anticipate their rights and duties, and to know with reasonable certainty that their expectations will be enforced by the courts.‟ (C. D. Ahmen, Comment, „Disputes Over Frozen Embryos: Who Wins, Who Loses, and How Do We Decide?‟ 24 Creighton L. R. (1990-91) 1299, 1302, 1303).

Nonetheless, in my view, the decision between the rights of the parties is not be based on estoppel alone. Representations made by one spouse to another (including their making an agreement) may be a factor in the balance between the rights of the parties, when they created reliances and sometimes even mere expectations. A similar position was adopted in another article reviewing the judgment in Davis v. Davis [47], where it was written:

„One fact is of vital importance in making this judgment: the spouse who opposes implantation wanted a child at one time and

 

 

submitted to the IVF process with that end in mind… the greater injustice would be to deny implantation to the spouse who detrimentally relied on the other‟s words and conduct‟ (Panitch,

„The Davis Dilemma; How to Prevent Battles Over Frozen Preembryos‟, supra, at p. 547).

In our case, as a result of the husband‟s consent to the procedure, including his encouraging the wife to undergo the limited surgery and the fertilization, the wife underwent difficult fertility treatment with his sperm and did not need, for example, an anonymous sperm donation. In his article

„The Frozen Embryos of the Nahmani Couple: a Response to Chaim Gans‟,

supra, Dr. Marmor discusses this, at p. 445:

„By agreeing to begin the fertility and surrogacy procedures, and even more by his conduct during the initial stages of the procedure, there is no doubt that Daniel Nahmani made a representation towards his wife, from which she could conclude that he had no intention of stopping them; there is also no doubt that as a result of this representation, and relying on it reasonably and in good faith, Ruth adversely changed her position, by beginning the procedures with him (and not, as aforesaid, with an anonymous sperm donation).‟

Similar comments were written by Dr Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra, at p. 215, and Ms Davidov-Motola, „A Feminist Judgment? A Further Aspect of the Nahmani Case‟, supra, at p. 299.

This adverse change in the wife‟s position is a major consideration in the balance of interests between the spouses, even if it has not been proved that the husband wanted to become the father of the wife‟s child even if they separate.

14.          Possible Alternatives: A case of refusal to continue a fertility procedure when the spouse can perform it with another partner is not the same as a case where refusal will doom the other spouse to childlessness. The fewer the alternatives available to the spouse wishing to become a parent, the greater the need to protect his right to parenthood, even at the expense of trespassing on the rights of the other spouse. As stated, this was the approach of the court in Davis v. Davis [47]. Prof. Robertson adopted a similar approach:

 

 

„If the right to reproduce and the right to reproduction are in conflict, favoring reproduction is not unreasonable when there is no alternative way for one party to reproduce‟ (J. A. Robertson,

„Prior Agreements for Disposition Of Frozen Embryos‟, 51 Ohio St. L. J. (1990) 407, 420).

This consideration in our case has an additional weight of justice, since the spouse who is not interested in continuing the procedure — the husband — has been blessed with a daughter of his own in another family that he has established.

15.          In our case, the basic principles and considerations which I have mentioned therefore lead to a preference of the wife to be a parent over the right of the husband not to be a parent. As stated, I do not believe that women and men attach different degrees of importance to having children. Therefore, were the positions reversed and were the man, in similar circumstances, to want to continue the procedure and were the woman to refuse, the result I have reached — namely, allowing the implantation of the frozen ova in the womb of a „surrogate‟ mother — would not be different.

I have read the opinion of my colleague Justice Goldberg, and I agree with his remarks (except for what he says in paragraph 5 of his opinion with regard to the scope of the powers of the committee acting under the Agreements Law, a question that does not need to be decided in this case).

My opinion, therefore, is that the petition should be granted, the judgment in the Nahmani appeal should be cancelled, and the judgment of the District Court should be reinstated.

 
full text (continued): 

Justice E. Goldberg

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

 

 

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

36) is also, in my opinion, improper.

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

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

„Realizing the option of parenthood is not merely a possible way of life, but it is rooted in human existence. There are some who will regard it as cure for loneliness; others will use it to deal with the thought of death… It expresses a basic existential need‟ (Barak-Erez, „On Symmetry and Neutrality: Reflections on the Nahmani Case‟, supra, at p. 200).

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

 

 

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

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

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

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

 

 

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

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

I would therefore grant the petition.

 

Justice Y. Kedmi

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

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

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

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

 

 

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

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

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

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

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

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

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

 

Justice Y. Kedmi

 

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

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

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

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

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

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

 

 

wishing to complete the „creation‟ of the work of art overrides the other‟s right to destroy it, so too the right of the spouse wishing to complete the process of bringing the child into the world overrides the right of the one wishing to destroy the fertilized ovum.

 

Justice Y. Türkel

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

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

3.            Elsewhere I have said:

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

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

 

 

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

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

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

„is it possible, because of the great importance of parenthood, to force parenthood on someone who does not want it, and to use the machinery of the legal system to achieve such coercion?‟

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

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

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

 

 

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

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

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

This has been the case since antiquity.

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

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

 

 

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

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

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

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

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

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

 

 

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

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

8.            Justice Zamir distinguishes between law and justice:

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

In my opinion, the petition should be granted.

 

Justice G. Bach

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

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

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

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

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

 

 

 

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

 

 

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

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

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

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

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

 

 

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

4.            Here I agree with the opinion of my colleagues, who believe that in the situation before us, where there is no express statute that can guide us, we must avail ourselves of our sense of justice, and make our ruling according to what seems to us to be more just, in view of all the circumstances of the case before us. I expressed my view as to finding a just solution in the absence of legislation that dictates an express solution, in my opinion in CA 499/81 Odeh v. Haduri [21], at pp. 739-740.  My opinion  in that judgment  was admittedly in the minority, but my remarks regarding the issue of considerations of justice remain unchanged. I wrote there, inter alia:

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

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

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

And further on, at p. 740:

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

My esteemed colleague, Justice Strasberg-Cohen, writes:

„Realizing the right of someone who wants parenthood by imposing an obligation on someone who does not want it conflicts with the essence of the freedom [i.e., the freedom of someone who is not prepared to undertake parenthood] and deals it a mortal blow‟ (parentheses supplied).

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

 

 

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

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

„Is it really the case that Ruth is making no demands of Daniel? I suspect that the opposite is true. She demands that his opinion should not be taken into account, that he should be removed from the picture and that his refusal should be ignored. She demands that she should be allowed use of the genetic material against his will in order to bring a child into the world. She demands that the court should give consent instead of Daniel and instruct the hospital to give her the ova so that she can continue a procedure that will lead to the birth of her and Daniel‟s joint child, without his consent. To this end she asks that his consent to fertilization should be interpreted as consent to bringing a child into the world against his will, even if he will not raise the child.‟

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

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

 

 

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

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

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

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

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

 

 

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

„The law does not require a person to have children with his spouse even if he promised to do so and changed his mind. A person who breaks a promise causes disappointment and frustration to the other. His behaviour is not “just”, but the law will not require him to keep his promise in the name of “justice”.‟

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

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

p. 574, upon which Justice Tal relies:

„One fact is of vital importance in making this judgment; the spouse who opposes implantation wanted a child at one time and submitted to the IVF process with that end in mind. The two spouses once agreed on this issue and initiated the IVF procedure in reliance on that mutual wish. Given this background, the greater injustice would be to deny implantation to the spouse who detrimentally relied on the other‟s words and conduct.

Protection against this sort of injustice is recognized by the well established doctrine of estoppel…‟

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

 

 

6.            Conclusion:

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

 

Justice E. Mazza

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

Deciding between rights

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

 

 

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

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

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

 

 

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

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

A comparison with other accepted distinctions

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

 

 

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

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

Restrictions on rights

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

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

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

 

 

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

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

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

 

 

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

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

 

 

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

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

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

The extent of the violation of the right

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

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

 

 

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

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

 

 

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

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

Classification of the competing rights in the Nahmani case

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

 

 

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

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

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

 

 

 

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

 

 

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

Deciding between the rights

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

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

 

 

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

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

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

 

 

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

A decision where there is no norm and no fault

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

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

 

 

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

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

Qualification of the decision

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

 

 

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

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

 

Justice T. Or

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

 

 

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

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

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

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

 

 

 

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

†             Ibid.

 

 

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

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

The result whereby cooperation and consent of both spouses is required for each of the stages is also supported by another provision of the Agreements Law. The Law revolves around the surrogacy agreement. The agreements is between the prospective parents and the surrogate mother. The prospective parents are the couple who are entering into a contract with the surrogate mother. The agreement requires the approval of a statutory committee. Under section 5(c) of the law, this committee —

„may reconsider an approval that was given if the facts, circumstances or conditions that served as a basis for its decision have undergone a substantive change, as long as the fertilized ova have not been implanted in the surrogate mother…‟.

In my opinion, even this provision shows the legislator‟s policy with regard to the issue before us. It clarifies that the status of a consent — even one that is incorporated in an agreement that received the approval of a special statutory body — is not absolute until the implantation stage. That is the decisive stage. Until this stage, a change in circumstances may lead to a termination of the procedure. In my opinion, the breakdown of the relationship between the two spouses constitutes a significant change in the circumstances for this purpose. The relationship between the two spouses is a fundamental element of the surrogacy agreement. The prospective parents must be „a man and a woman who are spouses‟ (section 1 of the law). The pregnancy of the surrogate mother is done for the „prospective parents‟ (ibid.). The statutory arrangement assumes, therefore, a relationship between the spouses. The breakdown of the relationship before implantation of the

 

 

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

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

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

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

 

 

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

I agree with these remarks.

 

 

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

 

Justice I. Zamir

On just law

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

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

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

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

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

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

 

 

 

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

On the law

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

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

Now I will go into detail.

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

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

 

 

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

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

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

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

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

 

 

*             IsrDC 5754(1) 142, 153.

 

 

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

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

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

(c)           Consent under these regulations —

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

 

 

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

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

And what about justice?

On justice

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

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

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

 

 

 

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

 

 

approve exceptions to the fundamental requirement of ongoing consent. Notwithstanding, the Commission had difficulty in conceiving of considerations that would justify departing from the aforesaid principle. The Commission considered the possibility that the genetic mother or the genetic father would have no other way of realizing genetic parenthood. But giving permission to have a child in such a situation, without joint consent, means forcing fatherhood or motherhood, both from the legal viewpoint and from the emotional viewpoint, in that there will be a child who is born without their consent. The commission was of the opinion that a man or woman should not be forced to be a father or mother against their will, even if they initially consented to this… Therefore the commission recommends that in the absence of joint and continuing consent, no use should be made of the fertilized ova that were frozen until the end of the freezing period agreed by the spouses, but consent that was given at the beginning of the treatment shall be deemed to continue as long as neither of the spouses revokes it in writing‟.

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

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

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

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

 

 

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

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

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

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

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

 

 

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

 

 

 

 

 

President A. Barak

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

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

 

 

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

 

 

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

 

 

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

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

 

 

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

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

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

 

 

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

28 Elul 5756

12 September 1996.

Moshe v. The Board for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements Law

Case/docket number: 
HCJ 5771/12
Date Decided: 
Thursday, September 18, 2014
Decision Type: 
Original
Abstract: 

The Petitioners are a female couple who wish to bring into the world a child by fertilizing an egg extracted from the body of the First Petitioner and implanted in the uterus of the Second Petitioner, who would carry the pregnancy and give birth. The Ministry of Health rejected their requests for the approvals of performing this procedure in Israel. Hence this Petition, which challenges various provisions in the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law). It should be noted that during the deliberations the Ministry of Health issued a new protocol, which allows the Petitioners to take the eggs out from Israel, perform the implantation abroad and be recognized as genetic biological co parents in Israel, but the Petitioners seek legal recognition to perform the entire procedure in Israel.

 

The High Court of Justice, by extended panel of seven Justices, rejected the petitions by a majority (President Grunis, Deputy President M. Naor and Justices E. Rubinstein and S. Joubran, against the dissenting opinions of Justices E. Arbel, E. Hayut and H. Melcer) for the following reasons:

 

According to the majority’s position – in an opinion written by Justice Rubinstein – the current legal situation existing today does not permit what the Petitioners request, because the Surrogacy Law and the Eggs Donation Law do not apply to such a case.

 

In regard to the Surrogacy Law, and as discussed in Justice Hayut’s opinion, the obstacle the Petitioners face in terms of surrogacy is twofold. First, the Petitioners do not meet the definition of “intended parents” as established by the Surrogacy Law, whereby “intended parents” are “a man and a woman who are a couple” and thus they are not eligible to take this avenue in Israel. In this regard, the entire panel believes that the existence of current legislative processes to expand the circle of eligibility existing in the Surrogacy Law calls for judicial restraint and abstaining from judicial intervention in the provisions of the Surrogacy Law. Second, there is substantial doubt whether under the circumstances of this case the avenue of surrogacy – at the heart of which, currently, is severance of the relationship between the surrogate and the intended parents – fits their objectives. Here, Justice Rubinstein adds that referring the First Petitioner under the current state of the law to exercise her rights outside of Israel according to the new protocol, with all the inconvenience involved, does not automatically lead to unconstitutional violations of her right. To the extent concerning the Eggs Donation Law, the obstacle before the Petitioners is created by the demand that the recipient of the donation (the woman receiving the eggs) have a medical need for a donation, a requirement indicated by the legislative history, the purpose of the law and the primacy given by the Eggs Donation Law to physiological parenthood, whereas the recipient of the donation in our case, as far as known, is a healthy woman.

 

Justice Hayut and Arbel are united in the opinion about the inherent inconsistencies between the avenue regulated by the Surrogacy Law and the medical procedure requested by the Petitioners. However they believe the Petitioners’ wishes must be granted following other legal paths, as to which their opinions differ. Justice Hayut, who believes that the restrictions set in the Eggs Donation Law in this regard, do not meet the tests of the Limitation Clause in section 8 of Basic Law: Human Dignity and Liberty), proposed a constitutional remedy of reading into the Eggs Donation Law a general catch all section that authorizes, in addition to the exceptional cases detailed in the law, the exceptions committee to approve an egg donation when the committee has been satisfied that “under the circumstances there are exceptional and special reasons that justify doing so” and thus to permit what the Petitioners request. Justice Arbel, on the other hand, who believes that both the Eggs Donation Law and The Surrogacy Law do not apply to the case at hand, utilizes here the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter the IVF Regulations) in a similar manner as to the T.Z. case.

 

As for the constitutional position of Justice Hayut, the majority believes that the power Justice Hayut wishes to extend the exceptions committee, which makes it possible to approve an egg donation even to a recipient of a donation who has not demonstrated a medical need for the donation, and this inconsistently with section 11 of the Eggs Donation Law. This is an authority that the Legislature did not confer and the history of the Exceptions committee also makes it difficult to support this position and this even if to Justice Rubinstein’s approach the Legislature (as opposed to the Court) should revisit granting the exceptions committee broader authorities than it has done. As for Justice Arbel’s position, Justice Rubinstein distinguishes between this case and the T.Z. case in the fundamental element about the medical need of the recipient of the donation. In any event it was held that the IVF Regulations do not currently fit what is requested, following the legislation of the Eggs Donation Law.

 

Still, the majority opinion clarified that indeed removing the requirement for a medical need established in section 11 of the Eggs Donation Law should be considered in order to expand the circle of men and women eligible for an egg donation. However, such an expansion is first and foremost in the hands of the Legislature. The current state of the law, until amended legislation is passed cannot tolerate more than to which the State is willing to agree, that is – taking the eggs out from Israel without sanction.

 

Justice Melcer’s position, according to which approving the Petitioner’s request could have been resolved within the authority of the Exceptions committee under section 22(a)(2) of the Eggs Donation Law, did not receive detailed consideration by the majority. However, in light of his position being rejected, Justice Melcer joins the paths suggested by Justices Hayut and Arbel.  

Voting Justices: 
Primary Author
majority opinion
Non-writer
majority opinion
Author
concurrence
Author
concurrence
Author
dissent
Author
dissent
Author
dissent
Full text of the opinion: 

 

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

 

                                                                                                                          HCJ 5771/12

 

Before:                                    The Honorable President A. Grunis

                                    The Honorable Deputy President M. Naor

                                    The Honorable Justice (Ret.) E. Arbel

The Honorable Justice E. Rubinstein

The Honorable Justice S. Joubran

The Honorable Justice E. Hayut

The Honorable Justice H. Melcer

           

 

The Petitioners:

 

  1. Liat Moshe
  2. Dana Glisko

 

 

                                    versus

 

The Respondents:

 

  1. The Board for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child), 5756-1996
  2. The Ministry of Health
  3. Knesset of Israel

                                   

                                    Response to Order Nisi

 

Date of sessions:         8th Tishrei 5773; September 24, 2012

                                    5th Kislev 5773; November 19, 2012

                                    18th Iyar 5773; April 28, 2013

                                    14th Elul 5773; August 20, 2013

 

Adv. Yehuda Resler; Adv. Amir Rosencrantz

                                    on behalf of the Petitioners

 

Adv. Nahi Ben Or; Adv. Dana Briskman

                                    on behalf of the First and Second Respondents

 

Adv. Gur Blai

                                    on behalf of the Third Respondent

 

Justice A. Hayut

The Petitioners are a couple who wish to bring offspring into the world by fertilizing an egg taken from the body of the First Petitioner and implanted in the womb of the Second Petitioner, who will carry the pregnancy and give birth. The Ministry of Health rejected their requests for the necessary authorizations to execute this and therefore filed the petition, which in its amended form challenges different provisions in the Embryo Carrying Agreements Law (Approval  of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the Eggs Donation Law 5770-2010 (Hereinafter: the Eggs Donation Law.)

                  After two hearings in the petition that were held before a panel of three Justices, an  order nisi was issued for the amended petition and it was decided that the hearing for the Respondents’ response would be held before an extended panel. The extended panel heard two hearings and after the second hearing, held on August 20, 2013, a decision rejecting the petition was given without reasons. This was done in order to permit the petitioners to plan their steps and to decide whether to accept the partial solution proposed by the Respondents – which I detail below – and because of the concern that the passing of time may adversely impact the chances of success for the medical procedure that could be done under such proposal (among others, due to the age of the First Petitioner, who is about forty one years old.) Therefore, on September 1, 2013 a decision without reasons that rejects the petition by a majority of the panel (President A. Grunis, Deputy President M. Naor, Justice E. Rubinstein and Justice S. Joubran) and against the dissenting position of Justice E. Arbel, Justice H. Melcer and my own was handed down. Below are detailed the reasons at the base of my dissenting opinion, as noted.

The Factual Background

  1. The First Petitioner, Liat Moshe (hereinafter: Liat) was born in 1972 and serves as an officer in the IDF at the rank of Lieutenant Colonel. The Second Petitioner, Dana Glisko (hereinafter: Dana) was born in 1983 and the two have been living together as a couple for about ten years. They even signed a “prenuptial agreement” and a “common law marriage agreement” and drafted mutual wills. Since 2007 the two have attempted to bring a child into the world. For this purpose, during the years 2007-2008 Liat underwent artificial inseminations and hormone treatments, but these have been unsuccessful. Similarly, treatments Liat underwent in 2008-2012 for in vitro fertilization of eggs extracted from her body and then implanted have sadly failed as well.  Medical tests on Liat have not diagnosed a cause for the failure of the many fertilization treatments she had underwent, and the reason may be that her uterus may be unable to carry a pregnancy. Such repeated failures have not weakened Liat’s spirit and she wishes with all her might to bring a child into the world from her own eggs. As a last resort, the couple has tried to bring a child into the world by extracting an egg from Liat’s body, fertilizing it and implanting it in Dana’s uterus, so that Dana would carry the pregnancy and give birth. In such a way, the two emphasize, the child would be “genetically and physically connected to them both.”
  2. Only it quickly became clear to the couple that realizing their wish to bring a child into the world in the described method may implicate them and the treating physician, who would perform the necessary medical procedure, in illegal conduct and a criminal sanction. In February 2012, Liat wrote to the Ministry of Health’s Legal Advisor and requested to permit her to donate eggs to her partner, Dana, after their in vitro fertilization. This request relied on earlier decisions by the Ministry of Health that permitted such medical procedure in the past and paved the way, at least in one case, for eggs donations between a female couple. On February 26, 2012 the Ministry of Health’s Legal Advisor, Advocate M. Hivner-Harel, that the procedure requested by the couple is contrary to the Eggs Donation Law, which was passed in 2010, because according to this law eggs donation may be approved only for a woman who may not become pregnant with her own eggs due to a medical problem, or who has a different medical problem that justifies using eggs that are not hers in order to have a child (a condition established in section 11 of the Law.) in this case, Dana – who is intended to receive the eggs donation from Liat – does not suffer, as far as we know, from a medical problem and thus their request is denied.

Liat and Dana did not give up and turned to the national supervisor for surrogacy issues in the Ministry of Health and requested to be permitted to undergo a procedure where Dana would serve as surrogate and carry an embryo from Liat’s fertilized eggs. This request came after in May 2012 the recommendations of the public committee formed by the Ministry of Health to examine legislative regulation of the issue of fertilization and birth in Israel, headed by Professor Shlomo Mor Yossef (hereinafter: the Mor Yossef Committee) were published. The Mor Yossef Committee report concerns, among others, the issue of surrogacy in Israel. Among the Committee’s recommendation was the recommendation to expand the circle of those eligible to undergo a procedure of bringing an offspring into the world via surrogacy that would include also “a single woman who has a medical problem that prevents carrying a pregnancy.” This request by Liat was also denied for the reason that the Surrogacy Law in its current language only permits “intended parents” (defined in section 1 of the law as “a man and a woman who are a couple”) to enter an agreement for embryo carrying with a “carrying mother” whose relationship with the child is severed after the birth. The national supervisor for surrogacy added in her response that a team appointed by the Ministry of Health to explore and implement the Mor Yossef Committee recommendations had yet to complete its work and therefore it was impossible at the time to accept Liat’s request. In light of this and in light of Liat’s age (who at the time had already turned forty years old) – this petition was filed.

The Legal Framework

  1.  In their amended petition, the couple relies on two alternative legal paths. First, an interpretation of the Surrogacy Law, or judicial intervention in its provisions on a constitutional basis, that would allow the requested procedure through surrogacy where by Dana would serve as the “carrying mother” for Liat’s fertilized eggs. The second – judicial intervention on a constitutional basis in the Eggs Donation Law and striking down some of its provisions that bar Liat’s eggs donation to Dana. Before we detail the parties’ arguments and the different developments that occurred since the petition was submitted we briefly present the arrangements established in each of the above laws and the obstacles they each present to the couple when they wish to undergo the desired procedure.
  2. The Surrogacy Law was passed in 1996 following a report by a public professional committee headed by District Court Judge (Ret.) Shaul Aloni, which in 1994 recommended to permit entering into agreements for carrying embryo  in Israel while regulating the issue in primary legislation. In 1995, before the Law was passed, this Court struck down regulations 11 and 13 of the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: the Fertilization Regulations,) which prohibited implanting a fertilized egg in a woman who would not be the child’s mother as well as prohibited the implantation of an egg taken from a donor unless it was fertilized with the sperm of the woman’s husband (see: HCJ 5087/94, Zebro v. The Minister of Health (July 17, 1995); for detailed discussion of the background for the Law’s legislations, see HCJ 2458/01, New Family v. The Committee for Approval of Embryo Carrying Agreements, The Ministry of Health, IsrSC 57(1) 419, 431-35 (2002) (hereinafter: the New Family case; see also the Embryo Carrying Agreements Bill (Approving Agreements and Status of the Child), 5756-1996, Bills 2456.) as reflected from the explanatory notes  of the Bill, the Surrogacy Law was designed to permit agreements for carrying embryo in Israel “under certain conditions and in a supervised manner.” According to section 1 of the Surrogacy Law, an agreement for carrying an embryo  is made between “intended parents” – who are defined in section 1 as “a man and a woman who are a couple” – and a “carrying mother” who agrees to become pregnant through the implantation of a fertilized egg in her body and to carry a pregnancy for the intended parents. Under section 2 of the Surrogacy Law, the implantation of a fertilized egg in order to impregnate a carrying mother in order to give the child to the intended parents is contingent upon the existence of several conjunctive conditions, including the drafting of a written agreement between the intended parents and the carrying mother, the approval of the agreement by the approving board mentioned in section 3 of the Law, and meeting several additional threshold conditions such as the lack of familial relationships between one of the intended parents and the carrying mother (see HCJ 625/10, Jane Doe v. The Board for Approval of Embryo Carrying Agreements under the Agreements Act, paras. 12-16 (July 26, 2011)). As a rule – except for exceptional cases where the carrying mother wishes to withdraw her  embryo carrying agreement and keep the child under the circumstances detailed in section 13 of the Surrogacy Law – the carrying mother gives the child to the intended parents after the birth, and after a parenting order is issued, they are considered the child’s parents “for all intents and purposes” (section 12 of the surrogacy Law.)

Section 7 of the Surrogacy Law, titled “Performing an Embryo Carrying Agreement” prohibits performing a surrogacy procedure outside of the path and conditions established by the law, as follows:

“An in vitro fertilization and implantation of a fertilized egg shall not be performed except for at a recognized department and on the basis of an agreement for carrying an embryo , which was approved as detailed.”

Section 19(a) of the Surrogacy Law adds a criminal provision whereby anyone implanting a fertilized egg in order to impregnate a carrying mother with the purpose of giving the child not according to the provisions of the law is punishable by one year imprisonment. Therefore the Surrogacy Law creates an arrangement for how agreements for carrying embryo in Israel must be entered into and performed, and under its provisions as detailed above a surrogacy procedure that is inconsistent with its detailed directions cannot be done in Israel (see the New Family case, 438-39.)

  1. The Eggs Donation Law, which was passed in 2010, about 14 years after the Surrogacy Law was passed, was designed to “regulate the different aspects involved in extracting and donating eggs in Israel, and the use of such eggs” (see the explanatory notes to the Eggs Donation Bill, 5767-2007, Government Bills 289.) Until the law was passed the possibility to donate eggs in Israel was regulated in the Fertilization Regulations. According to those, it was possible to extract eggs only from a woman who was under medical treatment due to infertility problems if the supervising physician determined that extracting the eggs would advance her treatment. In light of this restriction on the pool of donors, Israel saw a dire shortage of eggs for donation and women who required eggs donation were required to travel to far away countries in order to receive a donation there. The Fertilization Regulations even set various restrictions on the possibility of women to receive eggs donation. For instance, the regulations established that a single woman would not be implanted with a fertilized egg unless the egg is hers and a report from a social worker to support her wishes has been secured. The Eggs Donation Law was meant to expand the circle of donor women to include – alongside the “treated” women (women requiring medical care involved in extracting eggs from their bodies for their own use, and intending the remaining eggs for donation) – also “volunteer donors,” who do not undergo fertilization treatments or other treatments involving extracting eggs from their bodies. Additionally, the Law lifted the restriction on receiving eggs donation that the Fertilization Regulations imposed upon single women.

At the background of the law’s legislation was a painful incident where a doctor was convicted in disciplinary proceedings for a high dosage of hormones he gave women to whom he provided fertility treatments in order to produce a high number of eggs and intend them for treating other women’s infertility. This was done without securing the consent of these women or notifying them (see: the Mor Yossef Committee Report, p. 38; Smadar Kanyun, Eggs Donation – Social, Ethical and Legal Aspects, Medicine and Law 35, 145, 164 (2006); minutes of the 17th Knesset’s Labor, Welfare and Health Committee meeting, dated February 18, 2008, p. 2.) One of the purposes the law was designed to achieve, aside from expanding the circle of donor women, was then responding to the concern over the trade in eggs and over the exploitation and disrespect for women’s bodies (see minutes of the 17th Knesset’s Labor, Welfare and Health Committee meeting, dated March 4, 2008, p. 10-12.) therefore the law established various restrictions as to the maximum number of donations that may be received from the same woman and as to the frequency of extraction of eggs from her body; duties regarding the information that must be given to the donating woman and securing her consent for performing procedures in the eggs extracted from her body; and a prohibition on trade in eggs (see articles A and B of the Eggs Donation Law.) Additionally, section 4 of the Eggs Donation Law establishes the exclusivity of the law’s provisions, as such:

“(a) One shall not perform an eggs extraction from a donor, lab treatment of the eggs, allocation of eggs for implantation or research, or implantation of eggs, but according to this law’s provisions.

(b) The provisions of sub-section (a) shall not apply to the extraction of eggs from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of performing an agreement for carrying embryo according to the Agreements Law.”

Therefore, a procedure of extracting eggs from a donor woman and implanting them in the woman who receive the donation is subject to the provisions of the Eggs Donation Law and performing this inconsistently with these provisions is prohibited unless it is done under an agreement for carrying embryo that was entered into according to the Surrogacy Law.

  1. Section 12 of the Eggs Donation Law requires the authorization of a special approving board of six members (hereinafter: the approving board) in order to extract eggs from a “volunteer donor.” The approving board is charged with examining the request of a volunteer donor in order to ensure that the intended procedure meets all the conditions detailed in section 12(f) of the Act, and they are:

“(1) The donor is a resident of Israel who is over the age of 21 but is not yet 35;

(2) The donor is not legally incompetent, under guardianship, under arrest or incarcerated;

(3) The donor had signed, before the approving board, a form as instructed by the administration, which includes the information form and her consent to extracting the eggs for their implantation;

(4) The approving board is satisfied that the donor’s consent is given with a sound mind, out of free will, and not out of family, social, economic or other pressure; and in regard to a donor who intended in advance the eggs extracted from her body to a specific recipient – that her consent was given not for financial reward or any other reward, directly or indirectly, from the recipient or her representative; and it may summon for such purposes the recipient, should the eggs be intended to a particular recipient, or any other person as it sees fit.”

In this context the petitioners are seemingly already faced with an obstacle because Liat – the intended donor – was born in 1972 where section 12(f)(1) of the law sets an age limit. However in light of the medical difficulties Liat faced and the many treatments she went through, she may be considered a “treated donor” whose eggs are extracted from her body in the course of medical treatments conducted for her own benefit. Therefore, and under the provision of section 15 of the Eggs Donation law, she is not required to secure the authorization of the approving board for the extraction of her eggs and is thus not subject to such age restrictions.

  1. The main relevant restriction here is the restriction on a receiving woman established in section 11 of the Eggs Donation Law. Under this section, only a woman who suffers from a medical condition that prevents her from being impregnated with the eggs in her body or from a medical condition that justifies using another woman’s eggs in order to have a child, may apply to receive an eggs donation. This section stipulates as follows:

“Once a treating physician discovers that a patient who is a resident of Israel who is over the age of 18 but is not yet 54 years old, is incapable of becoming pregnant with eggs in her body due to a medical condition, or that she has another medical condition that justifies using the eggs of another woman in order to have a child, including by implanting the eggs in a carrying mother under the Agreements Law, the physician shall notify the patient that she may apply for an eggs donation. Such an application shall be submitted with the supervising doctor according to the form instructed by the Administration.”

This provision seemingly prevents the petitioning couple to realize their wishes, as it stipulates that in order to receive an eggs donation the receiving woman must present a medical need for the donation, whereas in our case, Dana – the intended recipient – does not suffer, as far as we know, from any medical condition that prevents her from becoming pregnant with the eggs in her body or that justifies using another woman’s eggs to have a child. Liat – who wishes to donate her eggs – is the one who suffers from a medical condition that prevents her from becoming pregnant with the eggs in her body. Section 13 of the law adds the condition that the implantation of the eggs in the receiving woman’s body must be approved by the “supervising doctor” as defined in the law. Under this section the supervising doctor must make sure that, among others, the receiving woman indeed does suffer from a medical condition that justifies the implantation of the eggs in her uterus (section 13(e)(2)). Additionally, the doctor must receive confirmation from the database established under the law that the conditions set in section 13(e)(3), which include the condition that the donor is of the same religion as the recipient and is not her family member and that the donor is not married, are met.

  1. To this list of restrictions the provision in section 4(a) of the Eggs Donation Law must be added. This provision mandates, as discussed, the exclusivity of this law’s provisions whereby any procedure of extracting eggs from a donor, lab treatment of the eggs, allocating them and implanting them would be performed only under the provisions of the Law. Section 5 of the Eggs Donation Law adds a prohibition of taking out eggs that have been extracted in Israel – whether they are fertilized or not – for their implantation aboard, unless this was approved by a statutory exceptions committee and the intended implantation is in the body of the woman from whom the eggs were extracted. This section prevents the Petitioners to take eggs extracted from Liat’s body out of Israel to be implanted in Dana’s uterus. Additionally to all this, section 6(b) of the law mandates:

“An implantation of eggs shall not be performed but in the body of the recipient or the body of a carrying mother who entered into an agreement for carrying an embryo with the recipient according to the Agreements Law.”

Similarly to the Surrogacy Law, the legal arrangement established in the Eggs Donation Law, which we detailed above, is also supported by criminal provisions that establish criminal sanctions for an offense under the law’s provisions. Thus, for instance, performing an eggs implantation in a woman in violation of section 6(b) of the Act constitutes an offense punishable with six months incarceration or a fine (see section 41(b)(4) of the Eggs Donation Law.)

  1. Still, Title C in Chapter C of the Eggs Donation Law authorizes the Minister of Health to convene a committee for exceptional cases, which would comprise of two doctors, a psychologist, a social worker, an attorney, and a clergy person (hereinafter: the exceptions committee.) The committee is charged with examining the approval of a procedure for eggs donation in particular cases which do not meet the conditions established by the Law. However, the authority of the exceptions committee is narrow and limited to permitting procedures in one of the four case as detailed in section 20(a) of the law:

(-) Approving extraction, allocation or implantation of eggs from a donor who designates, in advance, the eggs extracted from her body to a particular recipient. (section 20(a)(1));

(-) Approving extraction, allocation or implantation of eggs from a married donor (section 20(a)(2));

(-) Approving extraction, allocation or implantation of eggs from a donor who is not a member of the recipient’s religion (section 20(a)(3));

(-) Approving to take eggs outside of Israel in order to be implanted in the body of the woman from whom they were extracted (section 20(a)(4)).

The recipient woman or the “supervising physician” (as the latter is defined in the Eggs Donation Law) may approach the exceptions committee, and under section 21(c) of the law the committee may consider the factors detailed in section 22 of the law, which are:

  1. The exceptions committee may approve the extraction, allocation of eggs for implantation or the implantation of eggs, when the recipient intends in advance the eggs extracted from her body to a particular recipient, when it is persuaded that the following has been met, as appropriate under the circumstances:
  1. In terms of a donor who intends in advance the eggs extracted from her body to a particular recipient who is her family member – that there are religious reasons that justify such eggs donation.
  2. In terms of a donor who intends in advance the eggs extracted from her body to a particular recipient who is not her family member – that there are religious or social reasons that justify such eggs donation.
  1. The exceptions committee may approve the extraction, allocation of eggs for implantation or implantation of eggs when the donor is married, when it is satisfied that the following has been met, as appropriate under the circumstances:
  1. In terms of a married donor who intends in advance the eggs extracted from her body to a particular recipient – that there are religious reasons that justify such eggs donation.
  2. In terms of a married donor who does not intend in advance the eggs extracted from her body to a particular recipient – that the eggs extraction is required for their implantation in a particular recipient who, due to a shortage in suitable eggs from donors who are not married, cannot receive an eggs donation but for from a donor who is married.
  1. The Exceptions committee may approve the extraction, allocation of eggs for implantation or extraction of eggs when the recipient is not a member of the donor’s religious and when the eggs have not intended in advance by the donor for a particular recipient, when the committee is satisfied that the recipient’s religion prohibits her from receiving a donation from a woman who is a member of her religion or due to a shortage of eggs from donors of her religion.
  2. The exceptions committee may approve the taking of eggs extracted in Israel from a patient’s body for their implantation out of Israel, when it is satisfied that the eggs are intended to be implanted in her body and when there is justification for approving the implantation outside of Israel.

The provisions quoted above clearly express that the authority of the exceptions committee is limited to an exhausted list of the four cases detailed. They also clearly reflect that the matter of the Petitioners is not among these cases and thus approaching the exceptions committee would not be to their benefit. Given all this, the Ministry of Health’s legal advisor believed that the eggs donation route which they wished to take was not available to the Petitioners, which resulted in her response that:

“[…] According to the law, an eggs donation may only be approved for a woman who cannot become pregnant by her own eggs or who has another medical condition that justifies using the eggs of another woman in order to have a child.

According to your letter, your partner, Ms. Glisko, has no medical condition that justifies receiving an eggs donation. Therefore, regretfully, your request may not be approved.”

Developments Since The Petition Was Filed

  1. In the amended petition, submitted on October 3, 2012, the Petitioners requested permission to execute their wishes, whether by striking down different provisions of the Surrogacy Law and the Eggs Donation Law or by interpreting the provisions of these statutes differently than the interpretation of the Ministry of Health. After holding a hearing for the amended petition on November 19, 2012 before a panel of three justices, an  order nisi was issued:

“Based on the petition brought before this Court today, the Court issues an order nisi for the Respondents and instructs them to present themselves and justify:

  1. Why the Court should not order that the definition of ‘intended parents’ as in section 1 of the Embryo Carrying Agreements Law(Approval of  the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Law) be struck down for unconstitutionality, and why the Court should not instruct the approving board as established by section 3 of the Law to discuss the Petitioners’ request to approve an agreement for carrying embryo on its merits;
  2. Why the surrogacy arrangement established by the Law should not be interpreted to include also an arrangement where there is no obligation for disconnecting the ‘carrying mother’ and the child, and/or that it would be possible to perform in vitro fertilization and implantation of a fertilized egg outside of an agreement for carrying embryo between ‘intended parents’ and a ‘carrying mother,’ as defined in section 1 of the Law;
  3. Why the Petitioners should not be permitted to perform a procedure of egg donation such that the First Petitioner would donate an egg to the Second Petitioner in order for it to be implanted in her uterus and fertilized according to the provisions of the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law);
  4. Why the Court should not order that the exception in section 11 of the Eggs Donation Law, which restrict the possibility of Eggs Donation to cases where the recipient cannot become pregnant with her own eggs due to a medical condition, is struck down for being unconstitutional;
  5. Why the language of section 11 of the Eggs Donation Law should not be amended so that the words ‘in a carrying mother’ be struck out of it.”

At the same time, and in an attempt to find a practical resolution for the Petitioners’ problem the Attorney General has been requested to notify the Court its position as to the legal procedures under the Eggs Donation Law that may be taken against the Petitioners or any medical professional, were they to perform in Israel any medical procedures in order to execute the medical process they wish to perform. It was also decided that as long as the Attorney General’s position is that under the circumstances such legal proceedings should not be initiated, there will be no longer a need for a response on behalf of the Respondents to the order nisi that was issued, and that should there be a need to hold a hearing in the response to the order nisi after the Attorney General’s position is received, it would be held before an expanded panel.

  1. The Attorney General’s notice from December 26, 2012 stated that there is no possibility of declaring in advance that no legal proceedings would be initiated in terms of the described actions, which as to his understanding are not permitted under the Eggs Donation Law or the Surrogacy Law. The Attorney General explained his position as such: “There is an inherent difficulty to notifying in advance, in a notice that constitutes a pre-ruling of sorts that the general prosecution would refrain from enforcing the law on statutorily prohibited acts.” Thus the First and Second Respondents (hereinafter, jointly: the State) and the Third Respondents (hereinafter: the Knesset) filed response papers in the Petitions, and on April 28, 2013 a first hearing in the objections to the order nisi was held before an extended panel of seven Justices. During the hearing, the State’s lawyer noted that from the State’s perspective there is no restriction on the procedure of extracting Liat’s eggs, fertilizing them and freezing them but that until the necessary statutory amendments are passed they cannot be used to be implanted in Dana, as requested in the Petition (see page 6 of the hearing record dated April 28, 2013, l. 24-35.) The State’s lawyer also noted that the implementation team appointed by the Ministry of Health to examine the recommendations of the Mor Yossef Committee (hereinafter: the implementation team) is expected to complete its work soon and that after that the Minister of Health would consider the possibility of submitting statutory amendment proposals that may resolve the problem the Petitioners face. At the end of the hearing it was decided that the Respondents would submit update notices and on June 30, 2013 the State updated the Court that the implementation team was expected within several days to submit to the Minister of Health a document summarizing its work and that practical steps, including statutory amendments, were expected – according to the assessment of professional bodies – to be brought for discussion before the Knesset’s Labor, Welfare and Health Committee within six months. In an additional notice the State submitted on August 14, 2013 it stated that on July 21, 2013 the Ministry of Health issued a protocol for “taking sperm, eggs or fertilized eggs out from Israel” (hereinafter: the protocol) whose operative meaning, to the extent concerns us, is that the Petitioners would be able, subject to the authorization of the exceptions committee, to follow the route requested – that is to perform the implantation of Liat’s fertilized eggs in Dana’s womb – but to do so outside of Israel. As a result, and in order to flesh out the Petitioners’ position regarding the proposal raised, an additional hearing was held before the extended panel on August 20, 2013, but the Petitioners insisted that they wished to be able to perform the entire medical procedure in Israel. The Petitioners noted in this context the financial burden involved in performing the medical procedure out of Israel; the concern that performing the medical procedure out of Israel would reduce its prospects of success; as well as noted the various restrictions related to the fact that Liat is an officer in the IDF.

As all of the attempts to find a practical solution for the problem raised by the petition have failed, we were required to rule on the arguments the parties called upon us to do, and as noted on September 1, 2013 a judgment without reasons which rejects the petition by a majority was handed down.

 

 

The Parties’ Arguments

  1.  The Petitioners argue that the arrangements established in the Surrogacy Law and the Eggs Donation Law, which bar them from performing the medical procedure where Liat’s fertilized eggs would be implanted in Dana’s body are arrangements that violate Liat’s right to be a genetic parent and which discriminate against her and Dana compared to other couples. In this context, the Petitioners raise arguments on a constitutional level and on an interpretive level challenging the provisions of the laws mentioned above, and in essence they argue that there is no public interest that must be protected and that justifies barring them from the possibility of conducting the medical procedure which they wish to go through.

To the extent that the petition concerns the Surrogacy Law, the Petitioners argue that the definition of the term “intended parents” in this law as “a man and a woman who are a couple,” is discriminatory and unconstitutional because it does not recognize same sex couples or single people as intended parents for purposes of surrogacy in Israel. The Petitioners rely here on a decision from 2002 in the New Family case, where it was noted that the definition of “intended parents” in the Surrogacy Law violates the principle of equality because it denies a woman who does not have a male partner the possibility to be an “intended mother.” The Petitioners argue that although in the New Family case the Court refrained from striking down the arrangements in the Surrogacy Law, but they believe this was only because the Surrogacy Law was a new statute at the time and because the experience necessary for its way of implementation was yet to be amassed. The Petitioners additionally argue that in the years that passed since the Surrogacy Law was enacted there have been developments in the willingness to recognize “nontraditional families” including same sex families raising children. They claim there is no relevant justification for differentiating between such families and heterosexual couples in terms of surrogacy procedures in Israel. The Petitioners add that the holding in New Family as to the unjustified discrimination created by the Surrogacy Law, creates an estoppel by record in our matter. In relying on the Mor Yossef Committee report, the Petitioners also argue that this report includes a recommendation to expand the circle of those eligible to conduct surrogacy procedures to include unmarried women or women who cannot carry a pregnancy due to a medical condition, and they argue that Liat falls under this recommendation. The Petitioners further argue that many of the concerns involved in the surrogacy process, including the surrogate’s distress after the birth and the concern over her exploitation, do not exist in this case since Dana – who is to serve as surrogate – is the “other half of the family unit into which the child would be brought.” The Petitioners add that striking down the definition of “intended parents” in section 1 of the Surrogacy Law would allow applying the law’s provisions to them, and this although the connection between surrogate carrying the pregnancy and the child would not be severed after birth. In this context the Petitioners note that the Surrogacy Law does not establish a requirement of disconnection between the surrogate and the child and that the separation required is from the “intended parents” and the “carrying mother” is a “secondary aspect” which serves a “secondary purpose” that is irrelevant to their extraordinary case.

As to the Eggs Donation Law, the Petitioners claim that this law was designed to regulate eggs donation while protecting the dignity, rights, and health of the donor woman and the recipient woman and to prevent trade in  eggs. The Petitioners emphasize that the eggs donation in their desired route is not expected to infringe upon any public interests or rights that the law was meant to protect. They also emphasize the case law whereby the State must not intervene in intimate events such as the decision whether and how to bring children into the world. The Petitioners add that the medical procedure they wish to undergo is the only one that ensures Liat can realize her right to parenthood in a way that allows for a genetic relationship with the child, and according to them since there is available suitable technology that enables her to realize that right on one hand and on the other there are no weighty considerations that justify it, they should not be barred from the option they wish to pursue. The Petitioners argue that the requirement of section 11 for the recipient woman’s “medical need” violates their right to parenthood and is inconsistent with the legal state that existed before the Eggs Donation Law was passed, whereby a female couple was permitted to donate eggs to one another. In this context, the Petitioners rely on Attorney General M. Mazuz’s guidelines from 2009 on the issue of eggs donation between a female couple (hereinafter: the Attorney General’s guidelines,) where it was noted that the eggs donation between a female couple must not be seen as an act that is violates the public policy and it must be permitted where appropriate. The Petitioners note that had they wished to do the opposite – that is, to extract Dana’s eggs, fertilize them and implant them in Liat’s uterus – the restriction in section 11 of the Eggs Donation Law would not have been an obstacle because, as noted, Liat suffers from a medical condition that prevents her from becoming pregnant and carrying a pregnancy with her own eggs. Therefore, in their view, their unique situation warrants a remedy that compels the statutory exceptions committee to discuss their request and to approve it. The Petitioners further argue that the Eggs Donation Law must be interpreted in a way that permits them to perform the desired procedure, or alternatively to strike down the exception in section 11 of the Eggs Donation Law. Moreover, the Petitioners maintain that, at the very least, the term “in a carrying mother” which appears in section 11 of the Eggs Donation Law must be deleted from the text, as – under their reading – it limits the implementation of the law’s provision in their case because it folds into it the discriminatory definition of “intended parents” from the Surrogacy Law.

  1. The State argues, on the other hand, that though the sincerity of the Petitioners’ desires to realize their right to parenthood in the particular way they wish to follow, the Petition must be denied for lack of cause to intervene in the manner in which the relevant statutory provisions have been interpreted, as well as a lack of constitutional cause to strike down any of them. The State emphasized in its arguments that the Petitioners claims were made generally and that they did not point out to the specific constitutional rights that they maintain have been violated by the laws at the center of this Petition. Further, the State argues that the Petitioners have not proven the existence of an infringement at the core of the right to parenthood and have not shown why they should be permitted to exercise this right particularly in the one and only manner they desire and not in any other way.

That State also maintains that the procedure the Petitioners wish to perform attempts to create a new arrangement of what it terms as “genetic biological co-parenting” that does not at all fit the surrogacy institution as regulated in the Surrogacy Law, and thus the provisions of the Surrogacy Law cannot be applied to it. In this context, the State argues that at the foundation of the arrangements established by the Surrogacy Law is the separation between “the intended parents” and the “carrying mother” who enter into an agreement to carry embryo, as well as severing the relationship between the birthing woman and the child after the birth. However, the State further argues, Dana – who will serve as the carrying mother, according to the Petitioners’ request – is one of the intended mothers and there is no anticipated severing of the relationship between her and the child after the birth. The State claims that recognizing a surrogacy route under these circumstances may open the door for recognizing the surrogate as the mother of the child for all intents and purposes, which threatens the system of balances established in the Surrogacy Law and might harm in the future the child’s best interest and other interests. The State adds that the basic premise of the Surrogacy Law regarding the separation and severance as mentioned were at the basis of the opinion in New Family as well as at the basis of the Mor Yossef Committee’s recommendations, and thus the Petitioners cannot rely on these sources for supporting their position. The State maintains that even should the term “intended parents” be struck out of the Surrogacy Law for being unconstitutional, this would not assist the Petitioners, because their matter does not fall under the Surrogacy Law’s provisions to begin with. Beyond the necessary scope, the State argues that the proposal to change the term “intended parents” in the Surrogacy Law is now under consideration of the relevant bodies in the executive authority in preparation of bringing it before the Knesset. The State believes that completing the work of the implementation team and the legislature’s expected consideration of the amending the Surrogacy Law also support a restrained approach from the Court in terms of intervening in the provisions of the Surrogacy Law at this time.

As for the arguments raised about the constitutionality of the Eggs Donation Law, the State maintains that this is a relatively new statute – enacted in 2010 – and thus the Mor Yossef Commission also refrained from directly considering its provisions. The State adds that there should be no intervention in the limit established in section 11, which conditions egg donation upon the recipient’s medical need. This condition, according to the State, is worthy, reasonable and proportional and reflects the view that “an egg is not a ‘commodity’ – it cannot be traded, and considerations of autonomy and free will, in their ordinary sense, do not apply to it.” The State emphasizes that the “medical need” is a relevant characteristic of the Eggs Donation Law which is meant to protect the woman’s health, to ensure the child’s best interest, and to prevent the possibility that the mechanism of eggs donation would be used, for instance, due to the parents’ desire to have a “high-quality” child in the genetic sense. Therefore the State believes that should we hold that the arrangement in section 11 of the Law infringements upon any fundamental right, then this infringement meets the requirements of the Limitations Clause and it should not be struck down. The State further argues that the Petitioners’ request to require the exceptions committee to consider their matter is contrary to sections 20-22 of the Eggs Donation Law, which limits the discretion of the exceptions committee to limited cases and this is not one of them. The State also argues that accepting this argument would lead to a significant expansion of the exceptions committee’s authorities, against the instructions of the law provisions and against the legislature’s purpose that explicitly avoided granting the exceptions committee more extensive authorities, though according to the bill such a proposal was before it. The State further maintains that the Attorney General’s guideline from 2009 was issued under different circumstances than those arising in this case, and in any event, with the legislation of the Eggs Donation Law a comprehensive legislative response was provided to the issue of the eggs donation, which should not be strayed from. Furthermore the State argues that striking out the words “in a carrying mother” from section 11 of the Eggs Donation Law would not be of assistance to the petitioners and it may create uncertainty as to the possibility of women who received an eggs donation to implant them in a surrogate. Finally, the State claims that this case raises complex precedential issues in the area of fertilization and birth and as such it is best left to the Legislature, who is charged with developing clear rules according to social standards and broad policy considerations.

  1. The Knesset, which was joined to the Petition in its amended version, concentrated its response on the constitutional arguments that the Petitioners raise and joined the State’s position in noting that these claims were made by the Petitioners in general and without meaningful substantiation; that the issue of fertilization and birth is a sensitive and complex issue that is best regulated by the Legislature; and that providing a singular solution to the Petitioners’ plight may threaten the stability of the comprehensive arrangement established in the relevant laws. Like the State, the Knesset, too, believes that there is no place to consider the arguments by the Petitioners in terms of the Surrogacy Law because the medical procedure they wish to perform does not fall under surrogacy and thus their arguments in this context – even were they to be accepted – to assist them. Furthermore, the Knesset argues that the Court should not currently intervene in the Surrogacy Law’s provisions because recommendations as to their amendments are on the Government’s agenda in preparation of bringing them before the Knesset.

In the Knesset’s approach, the constitutional protection at the base of the right to parenthood goes to the core of the right – that is the ability to bring children into the world – rather than in realizing the right in a particular way. Therefore, the Knesset argues that a healthy woman like Dana, who is able to realize her parenthood by using her own eggs, cannot be viewed as a holder of a constitutional right to receive an eggs donation in order to be pregnant by another woman’s eggs. The Knesset adds that although there is no “moral objection” to the route which the Petitioners wish to follow, the concern about striking down section 11 of the Law stems from the mere risk in the Court’s intervention in primary legislation in a way that may harm the system of balances between the branches of government in general and the delicate balances involved in the issue of eggs donation in particular. It was also argued that the restriction in section 11 of the Eggs Donation Law does not violate the right to equality, because it creates a reasonable and logical distinction that achieves the purpose of the law that is providing a solution to the recipient woman’s fertilization problems. In any event, the Knesset believes that the purpose of the requirement for medical justification established in section 11 is worthy and consistent with other legislative arrangements in the area of fertilization and birth; that this is a relatively limited restriction that requires that the recipient have some medical condition that warrants the use of another woman’s eggs in order to have a child (rather than specifically a medical condition that prevents her from becoming pregnant by her own eggs); and that the restriction goes to the fringes of the right to parent rather than its core. The Knesset argues further that the section that authorizes the exceptions committee to exercise the provisions of the Eggs Donation Law is not a “blanket section” but a limited section that accurately defines the scope of the committee’s powers. In this contest the Knesset emphasizes that the Eggs Donation Bill originally included a broader exceptions section which was eliminated. In light of all this, the Knesset believes that the order nisi must be revoked and that the petition must be denied.

Discussion

  1. The case before us raises human concerns of the highest order, and it again highlights the existing gap between technological advances and the welcome existing medical abilities in the area of fertilization and birth – which enable couples and single people around the world to realize their hearts’ desires and bring children into the world – and between the slow development of the law which trails behind them attempting to establish proper rules for their regulation (on the law’s trailing behind scientific advances and changing social perceptions, see in similar context: HCJ 5785/03, Gadvan v. The State of Israel, The Ministry of Health, IsrSC 58(1) 29, 34 (2003); HCJ 4077/12, Jane Doe v. The Ministry of Health , para. 2 of Justice E. Rubinstein’s judgment and paras. 33-32 of Justice D. Barak-Erez’s judgment (February 5, 2013) (hereinafter: the Jane Doe case); the New Family case, p. 459-60; HCJ 566/11, Magad v. The Ministry of Interior, para. 4 of Justice E. Arbel’s judgment (January 28, 2014) (hereinafter: the Magad case); see also and compare CFH 6407/01, Zahav Channels and Partners v. Tele Event Ltd., IsrSC 58(6) 6, 22-28 (2004); CA 9183/09, The Football Association Premier League Limited v. John Doe, para. 6 of Justice N. Hendel’s judgment (May 13, 2012); LCA 3810/06, I. Dory and Chicovski Construction and Investments Ltd. v. Goldstein, IsrSC 62(3) 175, 196 (2007); Dan Shinman, A Defense Attorney’s View of the Reliance Defense, The Or Book – A Collection of Essays in Honor of Justice Theodore Or 507, 510-12 (Aharon Barak, Ron Sokol and Oded Shaham, Eds., 2013.))

From the outset, I will then say that the complex case before us, underscores the need that modern pieces of legislation that wish to comprehensively regulate such central aspects of people’s lives such as the issue of fertilization and birth, and that when they establish a blanket criminal prohibition against conduct that is inconsistent with them,  also include a built in mechanism that allows the competent authority designated to do so under the arrangement, to examine and approve on a case by case instances that are exceptional and out of the ordinary. This is because reality often surpasses the imagination and the goal to provide a complete, comprehensive and rigid solution in legislation that inherently cannot fully anticipate all the possible variations in the regulated context, may turn positive and law abiding people into criminals, without this serving any public interest and without it advancing the realization of the purpose that stands at the foundation of the discussed statutory arrangement.

  1. Liat’s desire to bring a child into the world from her own eggs has not diminished even after the difficult fertilization treatments she had gone through for years. Liat wishes, therefore, to take the last step that may enable her, hopefully, to bring a child who would carry her genetic background into the world. This route is using her eggs through their extraction, fertilization and implantation in Dana’s body, her partner for about a decade. This is a process that involves a complex medical procedure, which is mostly to take place in the bodies of the partners who desire it. The Respondents confirmed in their arguments that the procedure they wish to perform does not elicit any “moral objection.” Still, it is currently prohibited under both the Surrogacy Law and the Eggs Donation Law that even set a criminal sanction to those violating such prohibition. In other words, the extraction of Liat’s eggs, their fertilization and their implantation in Dana’s body is caught in the net of the prohibitions included in the above statutes and may implicate all the people involved (including the attending physician) in criminal offense, only because of the broad and extensive language of these provisions and without an actual violation in the case at hand of any interest which these statutes are designed to protect.

Under these circumstances, it is appropriate to grant the Petitioners any of the remedies they seek?

The Surrogacy Law

  1. In their amended petition, the Petitioners wished to find a solution within the institution of surrogacy or alternatively through eggs donation. From the reasons detailed below, I believe that the legal discussion ought to center around the Eggs Donation Law, both because it is clearly the piece of legislation that bars the Petitioners from executing their plan, and because the surrogacy path inherently is unsuitable for their matter.

The obstacle facing the Petitioners in terms of surrogacy is twofold: first, the Petitioners (either of them and both of them together) do not meet the definition of “intended parents” as established in the Surrogacy Law and thus are not eligible to take this route in Israel. Second, it is seriously doubtful whether under the circumstances surrogacy fits their wishes.

The definition established in section 1 of the Surrogacy Law, whereby “intended parents” are: “A woman and a man who are a couple” raises considerable constitutional difficulties, some of which this Court discussed in New Family case (see the position of then Justice M. Cheshin, which was joined by most of the members of the extended panel adjudicating that petition.) The Court noted that this definition unjustifiably discriminated against “single” women compared to a man and a woman who are a couple (there, p. 455-56.) And yet, I see no reason to address in further detail the constitutionality of this definition because it seem that currently real steps are being taken in order to change it, including as a result of the criticism over the Law’s provisions expressed in the decision given in the New Family case (for a critique of the Court’s unwillingness to strike down this definition as early as 2002 in New Family, see Dafna Haker, Beyond ‘Old Maid’ and ‘Sex and the City’: Singlehood as an Important Option for Women and Its Treatment in Israeli Law, Iyunei Mishpat 28, 903, 941-43 (2005); see also HCJ 1078/10, Pinkas v. The Board for Approval of Embryo Carrying Agreements , (June 28, 2010) where the Petitioners withdrew their petition challenging this definition in light of the convening of the Mor Yosef Committee.) As has already been noted, in May 2012 the recommendations of the Mor Yosef Committee, which was appointed by the Director General of the Ministry of Health, were published. The recommendations include a concrete proposal to change the definition of the term “intended parents” to also include an unmarried woman who has a medical condition that prevents her from carrying a pregnancy. Additionally, the commission recommended establishing another route for surrogacy in Israel, which would afford access to surrogacy to men without female partners as well. As reflected from the State’s arguments, the Mor Yosef Committee’s recommendations were passed onto an implementation team established for such purposes in the Ministry of Health, and the fruits of the implementation team’s labor were recently submitted to the Minister of Health in order to process them into a bill for amending the legislation that would be brought before the Knesset. It should also be noted that the 18th Knesset is also considering the Agreements for Carrying Embryo Bill (Amendment – Intended Parents), 5772-2012 (P/18/4266), which aims to amend the definition of the term “intended parents” to include also “a woman and a woman or a man and a man” (for additional recent developments on this issue see the Memorandum regarding the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child) (Amendment – Definition of Intended Parents and Executing Agreements out of Israel), 5774-2014, which was approved by the Committee of Ministers for Legislative Matters on March 2, 2014). In light of these developments, it seems that to the extent that the Petitioners are faced with obstacles due to the existing definition of “intended parents” in the Surrogacy Law, the Legislature must be allowed to exhaust the legislative processes and we must refrain at this point from judicial intervention in the Surrogacy Law’s provisions (on the self-restraint that binds the Court when asked to intervene in ongoing legislative processes, see and compare: CFH 5161/03, E.S.T Projects and Human Resources Management Ltd. v. The State of Israel, IsrSC 60(2) 196, 206 (2005); HCJ 761/86, Miaari v. The Speaker of the Knesset,  IsrSC 42(4) 868, 873-74 (1989)).

  1. However, as noted, even had the Surrogacy Law’s definition of “intended parents” been amended – whether by legislation or by judicial intervention – I seriously doubt whether the institution of surrogacy is the appropriate pate to execute and realize the process which the Petitioners seek (see: Ruth Zafran, There Are Also Two Mothers – The Definition of Motherhood for A Child Born to Same-Sex Female Couples, Din U’Dvarim 3 351, 366-67 (2008) (hereinafter: Zafarn)). This is because as opposed to the well-known and acceptable path of surrogacy which the Surrogacy Law also lays out according to which the relationship between the surrogate and the child is severed upon birth, in our matter Dana (the “carrying mother”) is expected to continue and raise the child alongside Liat (the “intended mother”) as she is, as the Petitioners put it, “the other half of the family unit into which the child would be brought.” The State and the Knesset emphasized in their arguments that the issue of severing the parenting link between the surrogate (as the “carrying mother”) and the child after birth is a central aspect of the arrangements established by the Surrogacy Law. I accept their approach that without this severance it would be incorrect to see the route the Petitioners wish to take as a surrogacy process. Though the Surrogacy Law regulates the exceptional cases where the court may approve the surrogate’s withdrawal from the surrogacy agreement into which she had entered, while establishing her status as mother and guardian over the child (see section 13 of the Law,) but these cases are irrelevant to our matter, which to begin with does not fit any of the characteristics of the institution of surrogacy, in light of the Petitioner’s declared intentions to raise the child together in the family unit they started.

As I have found that the surrogacy path is not the right path to examine the Petitioners’ claims, this means that should my opinion be heard, the Petition ought to be denied in terms of section 1 and 2 of the issued order nisi.

The Eggs Donation Law

  1. The Eggs Donation Law creates different obstacles for the Petitioners. Under section 11 of the Law, a woman who has a medical condition that prevents her from becoming pregnant with the eggs in her body or any other medical condition that justifies using the eggs of another woman in order to have a child is entitled to submit a request to receive an eggs donation. The Eggs Donation Law also stipulates that a child born as a result of an egg donation would be the child of the recipient mother for all intents and purposes, and that the donor woman would have none of the authorities granted parents vis-à-vis their children (section 42 of the Law.) Therefore a woman needing an eggs donation is, as a general rule, a woman who cannot become pregnant by her own eggs because of fertility difficulties or a woman who fears passing on a genetic defect to her children (see Zafran, p. 362.) The woman who donates the eggs does not take, as a general rule, any part of raising the child carried by the recipient woman.

In our case, the Petitioners wish to use a “donation” due to a medical condition that the donating woman (Liat) has, rather than the recipient woman (Dana). This is coupled by the fact that they are a couple who wishes to raise together the child whom they bring into the world together, so that it has genetic ties to one of them and biological ties to the other. As we can see, Dana and Liat do not meet the requirements in the Eggs Donation Law and thus the prohibition in section 4(a) of the Eggs Donation Law, which mandates that “no one shall perform the extraction of eggs from a donor […] or the implantation of eggs, unless according to the provisions of this Law” applies to them, along with the criminal sanction set in section 41 of the Law which can be expected by anyone violating the Law’s provisions.

The Background for The Eggs Donation Law’s Legislation

  1. As noted above, the case before us is not the first case where the Ministry of Health was requested to allow a female couple to bring a child into the world via egg donation from one female partner to the other. Indeed, in July 2006, T.Z. and N.Z., a female couple, approached the legal advisor of the Ministry of Health with a request to approve a medical procedure whereby the eggs of one of them (T.Z.) be extracted, fertilized and implanted in the uterus of the other (N.Z.) who has reproductive difficulties (the facts of the case were detailed in FA (Tel Aviv) 60320/07, T.Z. v. The Attorney General – State Attorney, District of Tel Aviv (March 4, 2012) (hereinafter: the T.Z. case,) where the court discussed a motion to establish the legal motherhood of the egg donor.) The case took place before the legislation of the Eggs Donation Law, and therefore the relevant legislative framework for examining the request was mainly the Fertilization  Regulations and regulation 4 there (in its version then) which prohibited extracting eggs from a woman who is not undergoing medical treatment for fertility difficulties. Despite such prohibition, as described in the decision in T.Z., the couple’s request was accepted by attorney Hibner-Harel, as following:

“We do not see any bar for performing the medical procedure mentioned in your letter. The Regulations require that egg be extracted from a woman who is undergoing medical treatment for infertility, however considering that you and your partner are a family unit – I believe it is sufficient that the fertility treatments are a result of a fertility difficulty of both of you, even if it is not the woman from whom the egg is extracted” (there, paras. 3 and 26.)

Therefore, the Ministry of Health has accepted the request from the female couple to extract eggs from T.Z. even though she did not go through fertility treatments because it considered the couple a family unit and thus was satisfied by the fact that one of them had fertility difficulties. As a result of this position of the Ministry of Health, in that case the necessary medical procedure was performed in September 2006 and in June 2007 the minor D.Z. was born. The case received wide publicity (see Zafran, p. 352) and consequently in July 2008 and April 2009 two additional requests were received by the legal advisor of the Ministry of Health from female couples who wished to be permitted to donate egg to one another. In light of the issue’s sensitivity it was decided to bring it to then Attorney General M. Mazuz and in a discussion held in the matter on September 6, 2009 the Attorney General decided that “where a donation between a female couple is concerned […] this must not be seen as an act that violates public policy, and the donation must be permitted” (see document dated November 24, 2009, entitled “Discussion Summary – Eggs Donation between Female Partners,” Annexure R/4 of the State’s response dated November 12, 2012.) Still, and given that regulation 4 of the Fertilization Regulations establishes an exclusive procedure for extracting eggs, it was decided that it was impossible to permit extracting egg from a woman who does not meet the requirements of the regulation – that is, that is not under medical treatment for fertility difficulties. The Attorney General added that the current legal situation is unsatisfactory and that there are additional circumstances that would justify eggs donation that are out of the regulation’s scope. The Attorney General also noted that the Eggs Donation Bill, which was already being contemplated, must be advanced.

  1. Prior to the legislation of the Eggs Donation Law, then, at least one case of an egg donation between women partners was permitted, and this was since the Ministry of Health considering the couple a family unit that merited accepting their request in light of the circumstances of their shared lives. In addition the Attorney General noted that such donation must not be seen as an infringement of the public policy, and called upon the legislature to make an effort to advance the Eggs Donation Bill and through it resolve such cases as well. And indeed, after the Eggs Donation Bill 5767-2007 had passed in the Knesset at first reading, the Knesset’s Labor, Welfare and Health Committee took its time between 2008-2010 and poured over different proposed languages for the provisions. The Bill included, among others, different conditions which only when they are met it was possible to receive an eggs donation. They included presenting a “medical need” by the recipient; expanding the circle of donors to include also “volunteer donors” not receiving fertility treatments; and establishing the exceptions committee authorized to approve donations even if certain conditions detailed in the law were not met. On the latter, section 18 of the Bill stipulates:

“Approval in Exceptional Cases:

18. When any condition of the conditions for approving the extraction of eggs, approving the allocation of eggs or approving the implantation of eggs under sections 12, 14 or 16, respectively, are not met but the supervising physician believes there are exceptional and unique circumstances that merit the approval even without that particular condition, the physician may approach the exceptions committee with a request to secure such approval.”

And section 21 of the Bill, which addresses the exceptions committee’s authorities and the scope of its discretion, instructs generally as follows:

“Approval by the Exceptions Committee

21. […]

(e) The exceptions committee may approve the extraction of eggs, allocation of eggs or implantation of eggs, per the request of a supervising physician under section 18, should it believe that under the circumstances there are exceptional and unique reasons to justify doing so.”

The explanatory notes to the Bill addressed these sections and noted that they were designed to allow the exceptions committee to consider an eggs donation even with the different conditions detailed in the law are not met “in cases that justify doing so and that are impossible to anticipate in advance, and without this requiring an amendment to the law.” The Ministry of Health’s legal advisor, Adv. M. Hibner-Harel had even explained the need for sections 18 and 21(e) above to the members of the sub-committee that was convened in order to supervise the Bill’s advancement, saying that:

“[…] I would like there to be some section for an exit strategy. There are things in life that I don’t anticipate today. I would like to qualify this exit section. I’m not here to climb mountains or to start revolutions, but I need a section because of the problems I see in the course of my position, because of problems that we did not anticipate in the legislation and then I have do diverge from the law and from the courts notes, but we do it because it must be done” (see minutes of meeting Labor, Welfare and Health Sub-Committee for Supervising the Eggs Donation Bill, 5769-2008, dated November 3, 2008, p. 47.)

Some of the members of the sub-committee expressed their concern that these sections would make circumventing the other conditions in the law possible, and after discussing the necessity of the above “basket sections” the mentioned  sub-committee members decided to remove them from the Bill noting that “this could be left to the courts.” This followed comments by Rabbi Dr. Mordechai Halperin, representative of the Ministry of Health’s Bioethics Committee, who told the committee members that:

“It is better to remove section 18 and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is explicitly in violation of the law” (there, p. 50-51.)

And in the exchange between the sub-committee chair, Member of Knesset A. Eldad and Rabbi Halperin, it was also said:

Chair Aryeh Eldad: The court cannot act in violation of the law. Maybe we should add here a basket provision that authorizes the court to act as an exception of an exception.

[…]

Mordechai Halperin: But this does not to be written. The court does this anyway, regardless of a basket section. So we do not need it.” (There, p. 49.)

  1. This puzzling and mistaken reasoning is that lead to the removal of the said “basket” sections from the Bill and as a result the Eggs Donation Law, which was passed in 2010, was left without a flexible route to allow considering exceptions from the law’s requirements in the unique cases that may not be anticipated in advance, including, for instance, a case such as the one before us where the recipient has no “medical need” for the eggs donation but there are other reasons that justify permitting the donation. The language of the law in the version that passed allows the exceptions committee limited authority that was restricted only to the cases detailed in section 20(a) of the law and only when the conditions detailed in section 22 of the law are met for each of those instances. The Petitioners’ case is not among those detailed there and thus they cannot find a solution in turning to the exceptions committee.

Do the law’s provisions in their current state violate the constitutional rights of the Petitioners to an extent that merits judicial intervention?

The Eggs Donation Law’s Violation of Constitutional Rights

  1. Since the legislation of Basic Law: Human Dignity and Liberty in 1992, Israeli law had identified a string of basic rights from the right to dignity, including: the right to equality, to autonomy, to family life, to parenting and to free expression. Do the provisions of the Eggs Donation Law infringe upon the Petitioners’ basic right to dignity and its derivative rights? This is the first question that must be examined in order to exercise judicial review over the law’s constitutionality. To the extent that we find the answer to be in the affirmative, we must continue and examine whether this infringement meets the requirements of the Limitations Clause of section 8 of Basic Law: Human Dignity and Liberty, and which outlines the scope of protection granted to these basic rights, as relative rights. Finally, to the extent that we may find the infringement by the Eggs Donation Law upon the Petitioners’ basic rights to violate the Limitations Clause the consequences of this unconstitutionality must explored, along with ways to cure it (for the three step constitutional analysis and the relativity of constitutional rights, see HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset, IsrSC 61(1) 619, 669-670 (2006); HCJ 7052/03, Adalla – Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Interior, IsrSC 61(2) 202, 281-82 (2006) (hereinafter: the Adalla case); HCJ 10662/04, Hassan v. the National Insurance Institute of Israel, para. 24 of President D. Beinisch’s judgment (February 28, 2012) (hereinafter: the Hassan case); HCJ 7146/12, Adam v. The Knesset, paras. 68-69 of Justice E. Arbel’s judgment (September 16, 2013); Aharon Barak, Proportionality in Law – the Infringement of a Constitutional Right and its Limits, 51-53, 56-57 (2010) (hereinafter: Barak, Proportionality)).
  2. The Eggs Donation Law prohibits, as discussed, the Petitioners by criminal sanctions from performing egg extraction from Liat’s body and implant that same egg in Dana’s uterus after it has been fertilized. Does this amount to a violation of the Petitioners’ constitutional rights?

The right to autonomy which encompasses one’s right over their body is at the “hard core” of the constitutional right to dignity (see CLA 1412/94, The Hadassah Medical Organization Ein Kerem v. Gilad, IsrSC 49(2) 516, 525 (1995); CA 2781/93, Daaka v. “Carmel” Hospital, Haifa, IsrSC 53(4) 526, 571 (1999) (hereinafter: the Daaka case); CA 10064/02, “Migdal” Insurance Company Ltd. v. Abu Hana, 60(3) 13, 48 (2005); CA 4576/08, Ben-Zvi v. Hiss, para. 25 of Deputy President E. Rivlin’s judgment (July 7, 2011); CA 10085/08, Tnuvah – Co-operational Center v. Estate of Raabi, para. 33 (December 4, 2011); CA 1303/09, Kadosh v. Bikur Holim Hospital, para. 31 (March 5, 2012.)) So, for instance, in Daaka it was decided that the basic right to autonomy over one’s body means that the patient’s informed consent is necessary in order to perform any medical treatment on them, and as Justice T. Or wrote there:

“This right of a person to determine their life and fate holds within it all the central aspects of their life – where they may live; what may be their occupation; who they may live with; what they may believe. It is central to the existence of each and every individual in society. It expresses the recognition of each and every individual’s value as a world unto themselves. It is essential to each individual’s self-determination in the sense that the entirety of our choices defines our personality and our life […]

An individual’s right to autonomy is not exhausted  in this narrow sense, of the possibility to choose. It also includes another aspect – a physical one – of the right to autonomy which goes to one’s right to be left alone […] This right means, among others, that every person must be free of intervention in their body without their consent” (there, p. 570-71.)

Justice H. Ben-Ito discussed the autonomy a woman has over her body in terms of intimate decisions involving reproduction and birth, in CA 413/80, Jane Dow v. John Doe, IsrSC 35(3) 57, 81 (1981), as follows:

“Impregnation, pregnancy and birth are intimate events, which are wholly within the private sphere; the State cannot intervene in this area unless there are weighty considerations stemming from the need to protect an individual right or a serious public interest” (and see also CA 1326/09, Hamer v. Amit, para. 71 of Deputy President E. Rivlin’s judgment (May 28, 2012.)

Regulating the area of eggs donation in legislation that establishes what may or may not be done with a woman’s eggs, therefore, on its face infringes a woman’s autonomy to determine what may be done with her body. From the donor’s perspective, this is an intervention in her ability to realize her wishes to donate an egg to another woman. From the recipient’s perspective this is an intervention in her ability to receive in her uterus a fertilized egg and to carry the resulting pregnancy. The law infringes, then, upon the liberty of these two women to choose how they lead their lives free of any external intervention in decisions involving their bodies (see Meir Shamgar, Issues of fertilization and Birth, Hapraclit 39 21, 27, 31-32 (1989)). However, one’s autonomy over their body and the liberty to make decisions involving the body are not absolute rights, and as any other right they must be balanced against conflicting rights or limited in some instances. Therefore, as to the extent that infringing upon the Petitioners’ autonomy is concerned, it is necessary to go on and examine whether this infringement meets the requirements of the Limitations Clause.

  1. An additional right is infringed under the circumstances  and it is also a derivative of the constitutional right to dignity. It is the Petitioners’ right to a family life and to designing their family unit as they choose (see CA 5587/93, Nahmani v. Nahmani, IsrSC 49(1) 485, 499 (1995); CA 7155/96, John Doe v. The Attorney General, IsrSC 51(1) 160, 175 (1997); the Adalla case p. 296, 400, 465, 474, 496-97, 523; HCJ 466/07, MK Zehava Galon – Meretz-Yahad v. The Attorney General, para. 10 of Justice E. Rubinstein’s judgment (January 11, 2012); Yaniv Ron-El, The Limits of Fertility Freedom from a Liberal Perspective: the Case of Selecting the Child’s Sex, Iyunei Mishpat 32 391, 451 (2010) (hereinafter: Ron-El)). Justice A. Procaccia discussed the right to family life in HCJ 7444/03, Dakka v. The Minister of Interior, (February 22, 2010) saying:

“One’s right to family is one of the foundations of human existence. Its realization is required for fulfillment and purpose in life. It is a condition to one’s self-realization and their ability to tie their life to their partner and to their children in true partnership of fate. It reflects the essence of one’s being and the realization of their heart’s desires. The right to family is located at the top of the list of human rights. Taking away from this right is possible only where it conflicts an opposing value of special force and importance” (there, para. 15.)

The Petitioners wish to have a child together and to expand their family unit. Such a meaningful decision by a couple that goes to having children expresses in full force not only the Petitioners right to autonomy but also their right to family life. In this case the right to family life encompasses an additional important right, which is the right to parenthood (see CA 451/88, Does v. The State of Israel, IsrSC 44(1) 330, 337 (1990); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 719 (1996) (hereinafter: the Nahmani case); HCJ 2245/06, Dovrin v. Israel Prison Service, para. 12 (June 13, 2006); The Jane Doe case, paras 26-27 of Justice E. Rubinstein’s judgment; The Magad case, para. 41 of Deputy President M. Naor’s judgment; Pinhas Shifman Family Law in Israel vol. 2 139 (1989); Yossi Green In Vitro Fertilization From A Consent Perspective 66 (1995) (hereinafter: Green.))

There are those who consider the right to parenthood to be the meaning of life, but even if this approach is not universally accepted, it seems the right to parenthood cannot be overstated (see Vardit Rabitzki, The Right to Parenthood in the Age of Technological Fertilization, Dilemmas in Medical Ethics 137, 145-147 (Rephael Cohen-Almagor, ed. 2002) (hereinafter: Rabitzki); on the “reproductive freedom” included within the right to parenthood, see Shulamit Almog and Ariel Bendor, Reproductive Freedom as a Basic Right, A Different Kind of Pregnancy 115, 116-17 (Shulamit Almog and Avinoam Ben Zeev, eds. 1996) (hereinafter: Almog and Bendor); the right to parenthood is also mentioned in section 16 of the United Nations’ Universal Declaration of Human Rights from 1948 (“Men and women of full age, without any limitations due to race, nationality or religion, have the right to marry and to found a family”) as well as in other declarations or treaties, see: Almog and Bendor, p. 117; Rabitzki, p. 137-38; the Adalla case p. 470-73.) Indeed, the desire for parenthood follows humans since the dawn of history and scholar P. Shifman notes that while in the past the ability to bring children into the world was in the hands of fate, one of the characteristics of the modern age is that fulfilling such desire is subject to a large extent to one’s choice and free will (see P. Shifman, On the New Family: Notes to Start A Discussion, Iyunei Mishpat 28 643, 661 (2005)).

Professor D. Barak-Erez discussed the statues of the right to parenthood, noting:

“The right to parenthood is an independent right, rather than a reflection of autonomy of free will. Realizing the option of parenthood is not just a possible way of life, but it is also rooted in human existence. Some may find it to be a cure for loneliness; others may use it to cope with awareness of death […] The choice of parenthood is not just a choice about a way of life – it has weight beyond this in human existence. It expresses a fundamental existential need. In addition, the decision to become a parent also solidifies self-realization, particularly in modern society that emphasizes self-realization as a value. However the right to parenthood does not only stem from self-realization. The right to life is an independent fundamental right, rather than merely a derivative of the autonomy of will, and so is the right to parenthood.” (Daphne Barak-Erez, On Symmetry and Neutrality: Following the Nahmani cases, Iyunei Mishpat 20 197, 199-200 (1996)).

In her emotional arguments before us, Liat expressed her desire to be a parent and to have a child who carries her genetic code, as well as the grave pain and frustration she experiences after years of unsuccessful fertilization treatments. All this led Liat to conclude that she will likely be unable to fulfill her wishes unless implanting her fertilized eggs in the uterus of another woman who would carry the pregnancy would become possible. The natural choice for this is of course her partner, Dana, who expressed her wishes to take part in the process as someone interested in expanding their common family unit in this way. In this sense the obstacles mounted by the Eggs Donation Law infringe Liat’s right to parenthood, whereas it seems this is a different level of infringement in terms of Dana’s right to parenthood.

  1. Indeed, the case law and literature discussed the facets of the right to parenthood and have distinguished between the core of the right – such as the “practical ability to bring children into the world” – and facets that are at the periphery of the right – such as “one’s ability to choose how to exercise their natural right” (see the Jane Doe case, paras. 27-32 of Justice E. Rubinstein’s judgment and para. 11 of Justice D. Barak-Erez’s judgment; see also Ruth Zafran, The Range of Legitimacy in Choosing the Genetic Characteristics of the Child by the Parents – Choosing the Sex of the Child for Social Reasons as a Case Study” Mishpat V’Asakim 6 451, 460-61 (2007); Green, p. 68-69; Almog and Bendor, p. 118.) Categorizing each case along this distinction influences the force of the infringed right and the way the right to parenthood must be balanced against other rights and interests that relate to, for instance, the potential child’s best interest, the public interest, and the different requirements by the bodies participating in the reproductive process such as sperm donors, egg donors, doctors and treating institutions (see Rabitzki, p. 151-59). In this context, for example, in the Jane Doe case it was held that a woman’s wishes to bring children into the world who would all have the same genetic father by once more using the sperm donation of the same donor she used for her first child is not in the core of the right to parenthood and it must be balanced against the refusal of that same anonymous donor for additional uses of his sperm and against his right not to be a parent.

Therefore, the arrangement established in Eggs Donation Law which restricts extraction and implantation of eggs and prohibits through criminal prohibition performing these acts unless they meet the requirements in the law, infringes the Petitioners’ constitutional rights to autonomy, family life and parenting. As a result we must continue and examine whether this infringement meets the requirements of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty.

The Eggs Donations Law and the Requirements of the Limitations Clause

  1. The Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty sets four conjunctive requirements that must be met in order to justify infringing upon a constitutional right that is protected by the Basic Law. The infringement must be done through legislation (or by explicit authorization in legislation); the law must fit the values of the State of Israel; it must be for a worthy purpose ; and the infringement of the right must be to extent not greater than necessary. In our case, there is no dispute that the infringement of the Petitioners’ rights is done through legislation – the Eggs Donation Law, and to the extent that this law is concerned the Petitioners have not argued in terms of its fit with the values of the State of Israel. It is possible, then, to focus the discussion in terms of the Limitations Clause on the question of the worthiness of the law’s purpose and the proportionality of its arrangements.

Worthy Purpose

  1. Section 1 of the law states:

“The purpose of this law  is to regulate eggs donation for the purposes of reproduction and birth, while achieving maximum protection for the dignity, rights and health of the donor woman and the recipient woman, as well as to regulate the use of eggs for research purposes, all while protecting women.”

In stating so the law informs that it is designed to regulate the use of technology for extraction and implantation of eggs primarily for the purposes of reproduction, but also for the purposes of research. This purpose is of course worthy and welcome. It advances an important social causes and facilitates the realization of many women’s basic, natural and understandable desire for a child while using advance technologies developed in this field and that allow overcoming medical conditions and bringing children into the world (see minutes from meeting of the 17th Knesset's Labor, Welfare and Health Committee, dated February 18, 2008, p. 5.) Still, it is important to remember that the legislative arrangement regarding eggs donation, like other legislative arrangements (see and compare: the Organ Implantation Law, 5768-2008) trails behind the technological advances that were achieved and have been implemented in medicine for many years before the law was legislated. The need for an arrangement was born, therefore, in order to establish what was and was not to be permitted in this complex and sensitive area in order for it not to remain open for exploitation by different bodies. This explains the emphasis at the end of section 1 that the law was meant to “regulate eggs donation for the purposes of reproduction and birth, while achieving maximum protection for the dignity, rights and health of the donor woman and the recipient woman (emphasis added.)”

Examining the purpose of the law must focus then on the rationales behind its various restrictions and prohibitions. The premise that must guide us in this examination is similar in its essence to the premise that then Justice M. Cheshin outlined in the New Family case when he discussed the Surrogacy Law:

“A main aspect of this human need – the need to exist and to survive – in a woman’s desire, a desire to the end, for a fruit of her womb, a child that is a flesh of her flesh. Previously, man knew only one way to realize this wish, and this is how the family unit was created. Currently, when technology may assist people where nature fails it, a material rationale is required in order to bar a woman from using this technology” (there, p. 447.)

In other words, the force of the reasons and rationales necessary to limit birth with the assistance of technology must essentially be on par with the force of the reasons and rationales required to limit natural reproduction (see Rabitzki, p. 149-51.)

Reviewing the restrictions and prohibitions established in the Eggs Donation Law indicates that they were meant, generally, to ensure the protection of the health of women involved in the process as well as the health of the child. The law was also intended to prevent trade in eggs and exploitation of women (see, for instance, section 12 and 14 of the Eggs Donation Law which set age limits for a “volunteer donor”, restrictions on the number of eggs that may be extracted each time and on the frequency of the extraction process; see also the prohibition on trading and mediations eggs established in section 8 and 9 of the law.) The restriction in section 11 whereby the eligibility for an eggs donation under the law is contingent upon the recipient being “unable due to a medical condition to become pregnant with the eggs in her body, or has another medical problem justifying using another woman’s eggs in order to have a child” was designed to prevent using fertilization and implantation technology for purposes which the legislature considers, and rightly so, as antisocial. This was discussed by scholar Ruth Zafran who noted that the condition in terms of the necessary medical condition of the recipient was meant to prevent using the eggs for eugenics reasons – that is, experimenting with “improving” the genes of the offspring (see Zafran, p. 362.) The resulting conclusion is that the arrangement established by the Legislature in the Eggs Donation Law was for a worthy purpose. Therefore we must further examine whether the means taken by the Legislature to achieve the law’s purposes are proportional.

The Proportionality of the Arrangement in the Eggs Donation Law.

  1. The proportionality issue may be examined under three sub tests established by the case law. They are: the existence of a rational link between the chosen means and the desired end; a lack of a least restrictive alternative; and proportionality between the benefit achieved by the statute and its different arrangements and the harm caused by its virtue (see, out of many: HCJ 1715/97, Israel Investment Managers Guild v. The Minister of Finance, IsrSC 51(4) 367, 385-86 (1997); HCJ 3648/97, Stamka v. The Minister of Interior, IsrSC 53(2) 728, 776 (1999) (hereinafter: the Stamka case); HCJ 1661/05, Gaza Beach Regional Council v. Knesset of Israel, IsrSC 59(2) 481, 549-550 (2005) and the many sources there; HCJ 2442/11, Stanger v. Speaker of the Knesset, paras. 41-42 of President A. Grunis’ judgment (June 26, 2013); Barak, Proportionality, p. 169-72.)

The rational connection test is designed to detect the existence of the probability that the means chosen by the statutes would indeed lead to achieving the end for which it was enacted. Under this test it is not necessary that the statute ensures fully achieving that end, but it must point to a real link to accomplishing it. In my view, regulating the issue of eggs donation in Israel while imposing different limitations and prohibitions on the possibility to donate and receive eggs, including a criminal prohibition designed to deter and enforce these restrictions, may lead to achieving the purposes of the statute, as we described them above. The fact that as a result of a statute’s broad language the possibility of an eggs donation is prohibited even in cases that the law did not attempt to prevent, such as this case, cannot in and of itself sever the rational link between the prohibition and the purpose the law was meant to achieve (Barak, Proportionality, p. 376-78, 411-12.) The matter of the arrangement’s proportionality in light of the fact that its restrictions catch in their net cases where there is no concern for harming any of the interests the law wishes to protect, should therefore be explored under the second sub test which poses the question whether there is an alternative means to achieving the law’s purpose in a manner that is less restrictive.

  1. Indeed, the tight knit net the law casts caught even the Petitioning couple’s heart desire, though it is undisputed that it carries no moral flaws and though it is universally clear that it does not harm any other individual or any of the social and public interests which the law wishes to protect. The Respondents raised many good reasons to justify the conditions and restrictions set by the Eggs Donation Law, but they cannot point even to one meaningful reason to justify preventing the Petitioners from going ahead with the extraction, fertilization and implantation procedure they wish to perform, apart from the fact that the law – due to is broad and expansive language – prohibits doing so. It should be emphasized that since we are concerned with the elimination of the Petitioners’ basic rights, the prohibition in the law is that which requires justification (see New Family, p. 444-45, 448-49) and given the force of the infringed rights and their nature as “negative rights” whose exercise does not impose on the state any duties (see Ravitzki, p. 141; Ron-El, p. 445-448), it seem the strength of the justification for the expansive means chosen, must meet a higher bar.
  2. I am afraid that the fact that the Eggs Donation Law (as opposed to its Bill) does not authorize the exceptions committee it forms the general power to examine exceptional and unusual cases leads to the conclusion that the means established by the arrangements included in the law to realize the worthy purposes for which it was enacted, are disproportional and rigid and may cause – as was the case here – arbitrary harm to women whose right to use relevant assisted reproductive technology in order to have a child the law never intended to infringe.

The need to set an exceptions mechanism to allow the examination of particular cases that were impossible to anticipate in advance, particularly where the Legislature established an extensive arrangement that infringes upon basic rights, was discussed by this Court, among others, when analyzing the second sub test of the proportionality requirement in the Adalla case (and see also: HCJ 2150/07, Head of Beit Sirah Village Council v. The Minister of Defense, para. 5 of Justice E. E. Levi judgment (December 29, 2009); HCJ 10533/04, Weis v. The Minister of Interior, para. 43 (June 28, 2011); the Hassan case, para. 68 of President D. Beinisch’s judgment.) And in the words of President A. Barak:

“The exceptions mechanism may reduce the law’s infringement of rights, without compromising the achievement of the worthy purpose. Therefore, creating such a mechanism is an obvious outcome of the second sub test which addresses identifying a less restrictive alternative. Indeed, just as it is the duty of any administrative authority to exercise judgment on a case by case basis and to recognize the exceptions to the established rules and instructions when circumstances call for doing so […] so is it the duty of the Legislature, when setting an arrangement whose outcome is broad infringement of rights, to consider the establishment of an exceptions mechanism that would allow resolution in special cases when the circumstances justify it.” (The Adalla case, p. 329; see also Barak, Proportionality, p. 407-09.)

Although President A. Barak remained in the minority in Adalla, but it seems that on this particular issue, Deputy President (Ret.) M. Cheshin was of the same opinion as Barak (there, p. 455.) Then Justice M. Cheshin’s words as to the exceptions mechanism’s necessity from a different case are apt here as well:

“A policy lacking exceptions is like an engine without oil for lubrication. Just as the latter will burn out soon and stop operating, so is the fate of the policy.” (The Stamka case, p. 794.)

  1. The Eggs Donation Law does include a mechanism to examine exceptions, but as was explained in detail above, the authority of this committee is limited and restricted to only four sets of circumstances, as detailed in sections 20 and 22 of the law. In my view this limited and narrow mechanism is insufficient because it does not at all resolve the unjustified infringement on the basic rights of women – such as the Petitioners or others – in those cases where they cannot all be anticipated in advance and do not fall under one of these four sets of circumstances.

To summarize so far – the law in its current version infringes disproportionately upon the rights of the Petitioners and other women whose circumstances are unusual and warrant resolution, and thus because of the limited and unsatisfactory mechanism the law sets to examine and approve exceptional cases. In the absence of a more flexible mechanism to explore exceptional cases that may not be anticipated in advance, the law is flawed for a lack of a proportional means, which is less restrictive on basic rights.

  1. In light of this conclusion, there is no longer any need to discuss the third sub test – the narrow proportionality test. In this context I will note, beyond the necessary scope, that expanding the circle of donors, preventing the trade in eggs, and protecting the health of donating and receiving women certainly are important purposes that highly benefit society. Still, the harm incidentally caused to the Petitioners and other women like them whose right to form their family unit and exercise the most meaningful choices in their life are compromised by the law, cannot be justified. This is particularly in the absence of a social or public interest whose protection justifies such infringement, and given the fact that realizing their rights to autonomy, to family life and to parenthood as they wish to does not infringe in any way upon the rights of any other person. The fact that in this case Liat has no other actual way to have a child to bear her genetic code – other than the method the couple wishes to pursue – only serves to emphasize and exacerbate the unjustified harm to them (compare with the Jane Doe case, para. 6 of Justice D. Barak-Erez’s judgment.) Indeed the biological genetic link between a parent and child is not the end all be all. Of no less significance (and often of more) “ingredient” to building and shaping the relationship between parents and children is the emotional connection and commitment to the child’s well-being and upbringing (see and compare CFH 6211/13, The Attorney General – The Ministry of Welfare and Social Services v. Jane Doe, paras. 27-28 of Deputy President M. Naor judgment (December 23, 2013); the Magad case, para. 14 of Justice S. Joubran’s judgment.) Still, and as already noted, there must be real and meaningful justification to denying a person the possibility to exercise the right to parenthood in a way that includes blood ties between them and the child. In our case it has not been argued, and in any event, it has not been proven that the added value achieved through the blanket prohibition in the Eggs Donation Law is greater than benefit achieved had the law included a mechanism for individual examination of exceptional cases. It cannot be denied – tight prohibitions that have defined in general and all-encompassing provisions present advantages. They facilitate efficiency and efficacy in enforcing the law. However, the main disadvantage of general and extensive language of statutory provisions is the inability to anticipate in advance all those situations that would be caught in the wide and tight net of the prohibition. Therefore, once the legislature chose to cast this tight knit net it must at the same time also establish what Justice M. Cheshin called in Stamka “oil for lubrication.” In other words, there must be a flexible mechanism that would allow resolution in exceptional cases that justify not applying the prohibition in the law. In this case, and as we are concerned with the Eggs Donations Law, which addresses one of the most sensitive and meaningful issues in human society, the importance of such flexible mechanism that would allow the exceptions committee to perform its function in an appropriate manner cannot be overrated. Sadly, such a mechanism did not find its way into the Eggs Donation Law.

To complete the picture, I will note that in later stages of the adjudication before us, and in an honest effort to find a practical solution, among others, to the Petitioners’ problem, the State presented the “Taking of Semen, Eggs or Fertilized Eggs out of Israel” protocol accepted in July 2013. This protocol somewhat opens the door in the strict and extensive prohibition against implanting eggs in violation of the law as established by the Legislature in the Egg Donations Law. Under the protocol it may have been possible, seemingly, to permit the Petitioners to take eggs extracted from Liat’s body out from Israel in order for them to be implanted in Dana’s uterus abroad. Only this partial solution is not a real response to the constitutional difficulties created by the law. It does not permit the implantation to be done in Israel. It places a serious financial burden on the petitioners because of the requirement to perform the implantation overseas and all that may be involved in this, and according to the Petitioners, it also reduced the prospects of the procedure’s success. Therefore, following this protocol is of some solution to the Petitioners’ concrete plight, but it is only a partial fix which forces the Petitioners and others in their situation to leave for overseas in order to find a remedy for their troubles there, without any real justification.

  1. Therefore, the legislative arrangement in the Eggs Donations Law includes conditions to perform the extraction and implantation of eggs in Israel and a blanket prohibition against performing these procedures where such conditions are not met. This is without granting the exceptions committee the sufficiently flexible authority to consider individual exceptional cases that justify diverging from the provisions of the law. This arrangement is unconstitutional because it infringes the basic rights of the Petitioners in a way that is consistent with the requirements of the Limitations Clause. The criminal prohibition established in section 41 of the Eggs Donation Law exacerbates the law’s violation of these rights because it paints the human desire to have a child in criminal colors, and this without any obvious reason or justification.

In light of all this, we must consider the outcomes of unconstitutionality – that is the question of relief.

The Outcomes of Unconstitutionality

  1. Finding that the Eggs Donation Law unconstitutionally violates the Petitioners’ basic rights and those of others like them, does not necessarily mean that the law must be struck down. When we come to decide which constitutional relief is appropriate, we must strive as much as possible for a fit between that relief and the harm to be cured. As professor A. Barak wrote in his book about interpretation in the law “the nature of the relief is related to the nature of the harm and the reason it is unconstitutional” (Aharon Barak, Interpretation in the Law, Vol. 3 – Constitutional Interpretation, 732, 767-68 (1994) (hereinafter: Barak, Interpretation in the Law.) Once we have held that arrangements established in the Eggs Donation Law are for a worthy purpose but infringe upon the Petitioners’ rights to an extent more than is necessary, we must continue and examine whether there are appropriate means to relieve the infringement or mitigate it without the Court having to strike down the law or any part of it (as to the careful manner in which the Court is required to act before striking down a statute, see HCJ 7111/95, The Center for Local Government v. The Knesset, IsrSC 50(3) 485, 496 (1996); HCJ 2605/05, The Academic Center for Law and Business v. Minister of Finance, IsrSC 63(2) 545, 592-94 (2009.)) In our case, there is no reason to strike down the entire Eggs Donation Law, or even to strike down section 4(a) of the law which prohibits performing extraction and implantation of eggs in violation of the law, because such a move would create a significant “statutory void” which would leave the area of eggs donation unregulated and would cause more harm than good. Striking down section 11 of the Eggs Donation Law, all of it or part of it, would also fail to achieve the outcome desired by the Petitioners because that would mean removing an essential and justified requirement, generally, in terms of the necessity of a recipient’s woman medical need as a prerequisite for receiving an eggs donation without resolving the problem of many others who face additional rigid restrictions set by the law. Under the circumstances, I believe that the appropriate solution can be found in the mechanism of the exceptions committee. Were my opinion be heard, we shall read into the Eggs Donation Law an additional sub section, that would follow section 20(a)(4), whereby the exceptions committee would be authorized to approve an eggs donation “where it believes that under the circumstances there are special and exceptional circumstances that justify doing so.”
  2. This remedy, of “reading into the statute” is well known in the Israeli and foreign case law and literature, and it aims to read into the unconstitutional statutory arrangement provisions that would remove the flaw and alleviate the need for striking down the statute (see Barak, Interpretation in the Law, p. 763.) So, for instance, this remedy is designed to address situations where the statutory provision grants benefits to members of one group, but does not grant that same benefit to members of a different group that is entitled to the same rights. In this situation the blanket striking down of the benefit due to its infringement upon equality would not be the appropriate remedy, because this would undermine the worthy purpose of the statute while harming the members of the group that lawfully enjoy the existing benefit. Therefore courts in the United States and in Canada have developed an appropriate remedy that would expand the scope of the existing arrangement and thus remove the unconstitutional harm it includes, while preserving the statute and protecting the purposes it is meant to achieve (for a comprehensive comparative review see: Barak, Interpretation in the Law, p. 759-65; Imanuel Gross, Constitutional Remedies, Mishpat U’Mimshal 4 433, 458-59 (1998) (hereinafter: Gross); Igal Marzel, Suspending Invalidity Declaration, Mishpat U’Mimshal 9 39, 62-63 (2005)). In that way, American courts have recognized the possibility of “extension” – the possibility to extend the scope of the statute where appropriate to do so as a constitutional remedy that is preferable to striking down the statute (see Welsh v. United States, 398 U.S. 333, 361 (1970), where Justice Harlen, in a dissenting opinion, first proposed the doctrine which became precedent later in Califano v. Westcott, 443 U.S. 76, 79 (1979); see also Ruth Bader Ginsburg, Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation, 28 Clev. St. L. Rev. 301 (1979); Evan H. Caminker, A Norm-Based Remedial Model for Under Inclusive Statutes, 95 Yale L. J. 1185 (1986)). The Canadian Supreme Court similarly developed the Reading In doctrine which means reading provisions into the statute that negate its unconstitutionality (see Schachter v. Canada, [1992] 2 S.C.R. 679; see also Vriend v. Alberta [1998] 1 S.C.R. 493; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers [2013] S.C.C. 62). The Canadian Court has held, however, that the court would not opt for the remedy of reading into the arrangement while intervening in the statute’s framework in every case, and that in order to read in the court must consider, among others, the scope of the necessary extension, whether the extension is simple to execute, the budgetary cost of extension and whether it preserves the basic fabric of the statute (see Schachter, p. 19-21.)
  3. The reading in doctrine has been absorbed into Israeli law. It was first raised in HCJ 721/94, El Al Israel Airlines v. Danilovitz, IsrSC 48(5) 749, 767-69 (1994), where the Court noted, though it was unnecessary for purposes of the decision, that this remedy should have been used on the constitutional level because it advances the purpose underlying the statutory arrangement and alleviates the need to strike down the legislation (id., p. 769.) The case in which this Court found it appropriate to apply the doctrine was HCJ 8300/02, Nasser v. The Government of Israel (May 22, 2012,) where the Court considered a mechanism of tax benefits established by section 11 (b) of the Income Tax Ordinance [New Version], which detailed a particular list of localities whose residents were entitled to reductions in income tax payments. This list of localities, for the most part, was not defined by any particular criteria and the entitlement for the tax benefit was granted through explicitly noting the names of the localities in the said section. Once it held that the list of localities detailed in section 11(b) of the Ordinance was discriminatory, the Court ordered that the appropriate constitutional remedy would be granting the same benefits to the residents of three Arab and Druze localities that were discriminated against in comparison to the Jewish residents in the nearby localities. The Court then read into the Ordinance the names of the additional localities noting that this move is not inconsistent with the exceptions established in comparative law (see there, paras. 57-59 of President (Ret.) D. Beinisch’s judgment; for other cases where the possible use of the Reading In doctrine was discussed, see HCJ 3809/08, The Association of Civil Rights in Israel v. The Israel Police, para. 15 of President (Ret.) D. Beinisch’s judgment (May 28, 2012); HCJ 3734/11, Davidian v. The Knesset of Israel, para. 59 (August 15, 2012.)) In the New Family case, too, where the constitutionality of the Surrogacy Law’s narrow definition of “intended parents” was discussed, Deputy President S. Levin noted that “the Petitioners [wish] to expand the small opening created by the law in order to resolve the plight of several tens of couples and expand it based on the principle of equality. This technique is permitted through the principles of constitutional interpretation of reading in, but we do not apply it in cases where it deals a complex issue that its consequences are unclear and where by nature warrant regulation by the Legislature (see New Family, p. 468.)
  4. In my opinion, the constitutional remedy appropriate in this case is, again, reading a sub-section into section 20(a), as proposed in paragraph 35 above, whereby the exceptions committee would be granted, in addition to the limited powers it currently has, the general and flexible authority to approve an eggs donation where it finds “there are special and exceptional reasons that justify doing so.” This remedy leaves the entirety of the arrangements in the law as they are. It preserves the “fabric of the legislation” and does not at all compromise the worthy purposes that the legislature wished to realized through the law. It removes the unconstitutionality of the law’s arrangements by allowing, alongside the blanket criminal prohibition in the law, a flexible mechanism that is not bound only to the four case detailed in section 20(a)(1)-(4), and it permits individual examination of cases where the donating or recipient women do not meet (one or more) of the conditions set by the law, but where there may still be special and exceptional reasons that justify approving the donation (for justifying the application of the reading in doctrine, particularly in order to develop exceptions to criminal responsibility, see Gross p. 466-67.) Reading this arrangement into the law does not involve, as I understand, additional budgetary costs, and as discussed, in the proposed version it is intended to cover only unique and exceptional cases that merit it. Nor does the proposed addition pose a significant change to the law’s provisions and it is merely a specific extension of the narrow opening left by the legislature when limiting the exceptions committee to the four cases detailed in section 20(a) of the law.

It is important to recall – and I discussed this above in paragraph 21 – that the Bill included an exception clause in the very same language that I propose to read into the law, but it was removed from the final version of the law that was passed after Rabbi Halperin noted to the members of the sub-committee that discussed the Bill, that the section is redundant and that petitioners that do not fall under sections 20(a)(1)-(4) (as marked in the law’s final version) that would turn to courts in their distress and present to them special and exceptional circumstances would be granted remedies there. And as Rabbi Halperin said there:

“It is better to remove section 18 and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is explicitly in violation of the law” (Minutes of meeting of the Sub Committee of the Labor, Welfare and Health Committee for Supervising the Eggs Donation Bill 2008, dated November 3, 2008, p. 50-51.)

These things by Rabbi Halperin are unfounded, with all due respect, and they are which ultimately led to removing the general exceptions clause that initially was included in the Bill from the final version that was passed. This caused the final version to be unconstitutional and in order to remedy this flaw I propose reinstating the section that was removed, particularly because it is abundantly clear that removing it was rooted in reasons that are mistaken on their face.

Before concluding, I will note that the State’s argument that the Eggs Donation Law is a new statute legislated about three years ago and therefore, similarly to the approach the Court took in New Family, intervention in its provisions should be avoided and its application and consequent developments that would follow incrementally should be permitted to take their course, has not escaped me. Indeed in New Family the Court believed that though it was found that the Petitioner was unconstitutionally discriminated against there was no place to intervene in the Surrogacy Law because this was “a new and complex issue, and issue with many unknowns that we have yet to experience to the fullest.” Instead of intervening in the legislation, the Court therefore opted in that case to call upon the Legislature to contemplate the plight of single women as petitioners and weightily consider applying the law to them. I do not believe that such a move fits the case before us. Since the legislation of the Surrogacy Law about 18 years have passed and still to this day a resolution has yet to be found for petitioners such as the petitioner in New Family, though recently and as detailed above, a certain glimmer of hope has been created in this context. Such long wait for action by the legislature requires those whose basic rights have been infringed upon as a result of the current version of the law to hold their breath. Given the nature and substance of these infringed rights, and given the medical procedure required for eggs donations, which must attribute significant – even determinative – weight to the “ticking” of the biological clock, I do not believe that it is proper to adopt here the path walked by this Court in New Family.

Conclusion

  1. Had my opinion been heard, we would make the order nisi permanent and hold that the Eggs Donation Law disproportionately violates the Petitioners’ constitutional rights to autonomy over their bodies, to family life and to parenthood. We would further find that in order to cure this violation we must read into the provisions of the Eggs Donation Law an additional section – section 20(a)(5) – that would authorize the exceptions committee formed under the law to approve the extraction of eggs, their allocation and their implantation in the body of a recipient woman, should the committee be satisfied that under the circumstances there are special and exceptional reasons that justify doing so. We would also find that the Petitioners be permitted to come before the exceptions committee and seek its approval according to such section to perform the extraction of Liat’s eggs, their fertilization and implantation in Dana’s uterus in order to make it possible for them to bring into their family unit a child that would have a genetic link to Liat and a biological link to Dana, as all of Liat’s attempts over the years to become pregnant herself have been unsuccessful. As my opinion remains in the dissent, I see no need to expand about the consequences of section 42(c) of the law for the status of Liat as the child’s mother, had the donation been permitted. But it seems that to the extent we are concerned with approval that excepts the procedure from the law not just for Liat’s inability to become pregnant herself, but also because of the characteristics of the family unit created by Liat and Dana as a couple, it would have been possible to find a reasonable and proper solution on this issue as well.

                                                                        Justice

Justice E. Arbel (Ret.)

“And Rachel saw that she did not bear a child with Jacob, and Rachel was envious of her sister and said to Jacob ‘Give me sons, or I shall die.’” (Genesis 30, 1.)

  1. Our issue in this case concerns the desire for a child, which we hear with an open heart and a forthcoming spirit and try to realize it if only it were possible.

After having read the comprehensive and impressive judgment by my colleague, Justice E. Hayut, I join wholeheartedly with the outcome whereby the Petition must be accepted. However, I intend to propose an additional but different way to reach this outcome, and will detail it below. Since the chain of events and the parties’ arguments were presented at length in my colleague’s opinion, I can begin at the stage of discussion and decision.

Introduction

  1. As my colleague Justice E. Hayut noted, in recent years we witness significant scientific and technological advances in birth and reproductive techniques. These developments open the door to many people, women, couples and families for many additional possibilities to bring children into the world and realize their desires to become parents. All the while our time is also characterized by social developments that create new types of families that were not acceptable in the past. The combination of technological and social advances presents a real challenge for the law, which is constantly required to face unique situations that were not previously known (see HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 2 of justice Rubinstein’s judgment (February 5, 2013) (hereinafter: the Sperm Bank case); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 694 (1996) (hereinafter: the Nahmani case); Pinhas Shiffman, On the New Family: Introductory Notes, Iyunei Mishpat 28, 643 (2005) (hereinafter: Shiffman)). The Expectation is that the Legislature regulates the use of different reproductive techniques. The main difficulty is caused by the great gap between the time it takes to legislate and legally regulate the use of each reproductive technique and the rate of technological advances (see Ruth Zafran, There Can Be Two Mothers – The Definition of Motherhood to A Child Born of A Same Sex Couple, Din U’Dvarim 3 351, 397 (2008) hereinafter: Zafarn – There Can Be Two Mothers.); Ruth Zafran, The Family in the Genetic Age - the Definition of Parenthood under the Circumstances of Artificial Reproduction as a Case Study, Din U’Dvarim 2 223, 230 (2006) (hereinafter: Zafarn – The Family in the Genetic Age.)) This gap leads to situations where the knowledge and technological capabilities to turn people into parents exist, but cannot be permitted to be used without legal and legislative regulation, even when the State has no general objection to realizing parenthood in this way by this couple. This is also our case here. Before us are two women, a couple, where the implantation of one’s eggs in the other’s uterus may realize their wishes and desires to parenthood. The technological route exists. The State declared it had no general objection to this move, and it should be noted that in the past the State did in fact permit women partners to perform this procedure. Still, the State now argues that there is nothing in the law to regulate the desired procedure, and thus executing the technological possibility cannot be permitted.
  2. In my view, this Court has a role in bridging this gap, at least in part. Indeed the Court does not act as a substitute for the Legislature. And obviously the Court must accept and apply the legislative arrangements in place, as long as there is no constitutional reason to intervene in them. However, the Court can assist those who approach it in two ways. One is through the tool of purposive interpretation of legislation. Interpreting an existing legislative arrangement in the field of reproduction and birth must consider the basic human desire of singles and couples to realize their right to parenthood and to have a child. Of course, this purposive interpretation would only be possible when some anchor is found in the language to lay down the foundation for the interpretation and when the considerations and interests existing in the matter justify such interpretation. Another tool at the Court’s disposal is finding normative solutions to situations that have yet to be regulated in legislation (see Nahmani). Because of the issue’s sensitivity and the severe harm to couples and singles who cannot realize their right to parenthood merely due to the Legislature taking its time in forming a legislative arrangement, I believe that the Court must roll up its sleeves and find resolutions for the interim period before the proper arrangements are completed by the Legislature. This in the acceptable manner of developing the law and according to the Foundations of Law 5740-1980 (and see in this regard the different positions by the Justices in Nahmani, p. 694, 719, 723, 756.) there is no dispute that at a later stage the Legislature may form a different legal arrangement than that arrived at by the case law. It is its duty and its authority. And thus summarized Deputy President M. Cheshin:

“It is true: courts have forever been required to handle gaps formed between yesterday’s legislation and jurisprudence and today’s life phenomena. The law and legislation are always the law and legislation of yesterday and their progress is slow to advance, it is careful and calculated. Whereas reality, it changes and flows constantly, often at warp speed. So are the reality and the disputes that arise against its backdrop…

Only that for the most part the law is wise to adapt to changing reality, and even as a gap is formed between the language of the law and reality we take the interpretive tools in our hands and use them to catch up and have the law cover the advances of reality…

And indeed, courts have always done so, and do what they can – within the boundaries of language – to cast the written law’s net over phenomena coming into the world after the law’s enactment, and this even when at the time of legislation the legislature could not have anticipated the existence of such phenomena. The court’s first duty is to effect justice between the litigants that come before it, and in performing this duty the court must do whatever possible within the confines of the existing law even if the solution at which it arrives is not the best solution” (CFH 6407/01, Arutzei Zahav and Co. v. Tele Event Ltd., IsrSC 58(6) 6, 23-24 (2004)).

  1. Two statutes must be examined in the matter before us: one is the Embryo Carrying Agreements  Law (the Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the other is the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law.) But before I turn to reviewing these statutes, their interpretation and their ramifications for the case at hand, I wish to discuss two important principles that will influence the interpretive process: the right to parenthood and the principle of equality.

The Right to Parenthood

If only I had a son! A little child,

With black curls and smart.

To hold his hand and walk slowly

Along the garden’s paths

A little. Child.

I will be bitter as our Mother Rachel.

I will pray as Hannah in Shiloh.

I will wait

For him.

  1. A woman’s (or man’s) desire to a child of their own is a common and deep sentiment rooted in human existence and deriving from the desire for self-realization since the dawn of time to this day. It was expressed in the Tanach repeatedly, books and songs were written about it (one of the best known is “Akarah” – “barren” or “infertile”, eds. note – by the poet Rachel.) the desire to have and hold a child of one’s own body is a fundamental and natural desire that is common to humanity in its entirety. Whatever the explanation for it – biological, psychological or other – most people have a significant, strong and deep wish to become parents. Indeed people go to great lengths and make huge investments – financial, physical and emotional – and are willing to suffer greatly in order to realize their desire for a child even when it is impossible in the natural sense. And in the words of Deputy President M. Cheshin in HCJ 2458/01, New Family v. the Committee for Approving Agreements for Carrying Embryo, Ministry of Health, IsrSC 57(1) 419, 445 (2002) (hereinafter: the New Family case)):

“The core of the issue is the heart’s desire for a child, that deep, primordial emotional need to parenthood that burns in the woman’s soul and does not expire. The core of the issue is the human’s survival instinct and need for continuation, if you will. The need and desire to parenthood is inherent to humans.”

And Justice Dorner expressed this in Nahmani as following, on page 714:

“In human society, one of the strong expressions for the desire, without whose realization, many cannot see themselves as fully free, is the desire to be a parent. This is not merely a natural, biological need. We are concerned with choices that in human society signify one’s individuality and uniqueness. ‘Any man who has no children is seen as dead’ said Rabbi Yehoshua Ben Levi (Nedarim, 64, 2.) And indeed, for both man and woman, most people see having offspring an existential need that gives meaning to their lives.”

(see also Daphne Barak-Erez, On Symmetry and Neutrality: After The Nahmani Case, Iyunei Mishpat 20 197, 200-01 (1996); Shiffman, p. 664.)

The emotional need to become parents received legal recognition through the right to parenthood. It appears that in the State of Israel there is particular sensitivity to this right, in light of Israeli society’s approach to the value of family and the value of having children as central and weighty values (see New Family, p. 466.)

  1. The right to parenthood, therefore, is generally recognized in Israeli law, both in terms of one’s reproductive freedom and in terms of the right to realize the relationship with the child (see Zafran – There Can Be Two Mothers, p. 381-82; the Sperm Bank case, para. 26 of Justice Rubinstein’s judgment.) “Every person has the right to parenthood and the right to raise and inculcate a child” (HCJ 11437/05, Kav La’Oved v. Ministry of Interior, para. 38 of Justice Procaccia’s judgment (April 13, 2011.)) Different aspects of the right to parenthood were even enshrined as a constitutional right in Basic Law: Human Dignity and Liberty. Though a comprehensive and exhaustive discussion of the range of the aspects and entire scope of this important and meaningful right has yet to take place, it is in any event clear that the practical possibility to bring children into the world is at the core of the right to parenthood, and thus the State may not infringe on these possibilities without weighty reasons (see 2245/06, Dovrin v. The Prison Service, para. 15 of Justice Procaccia’s judgment (June 13, 2006) (hereinafter: the Dovrin case.)) The Court distinguished between two levels of the right to parenthood, in terms of reproductive and birth freedoms, with the first level being the possibility to exercise one’s reproductive abilities and become a parent, whereas the second level goes to the way in which one’s natural right to become a parent is realized. This level, it was said there, is in the periphery of the right to parenthood and it protects values such as the right to privacy, the right to autonomy and the like (see the Sperm Bank case, para. 29 of Justice Rubinstein’s judgment.) Beyond the scope necessary for a decision in our case, I will comment that in my view this case falls under the first level of the right to parenthood rather than the second level, as the State attempts to argue. It is no wonder that for the First Petitioner realizing her right to parenthood is by having a child who carries her genetic code. It seems to me that this desire, which is indeed a natural and understandable human desire, warrants recognition within the core of the right to parenthood, even if today, in the modern age, a genetic relationship is not the end all be all (see the Sperm Bank case, paras. 43-45 of Justice Rubinstein’s judgment; Zafran – the Family in the Genetic Age, p. 233 onward; Shiffman, p. 668.) therefore the State’s proposal to turn the tables – so that the Second Petitioner’s eggs be extracted and implanted in the First Petitioner’s uterus is not “comparable” in terms of the ranking of rights to the First Petitioner’s request to extract eggs from her and implant them in the Second Petitioner’s uterus (see Nahmani, p. 753, and compare with the Sperm Bank case.) and this is true even without considering the probability, which is closer to a near certainty, as to the physical, medical inability of the First Petitioner to carry a pregnancy in her uterus.
  2. The right to parenthood was recognized by this Court in the context of using artificial reproductive techniques (see the Sperm Bank case, para. 6 of Justice Barak-Erez’s judgment and the references there) as well. The current times have opened many avenues for hope to bring a genetic child into the world for those who cannot have children. There are also the possibilities for adopting non biological children. These possibilities repeatedly inspire dilemmas that involve the development of the right to parenthood and exploring its place within the existing legislative framework. Of course, this is not an absolute right. Often times, examining reproductive techniques raises questions of morality and conflict between rights. Thus, for instance, when there is concern for harm to surrogate mothers or women who wish to donate eggs. In these cases, balance is of course required between the different rights and the conflicting interests. In any event, the importance of the right to parenthood and its high status among rights must influence the interpretation of statutes that address the relevant field. It is usually the primary goal of these statutes and thus it must be respected within the purposeful interpretation of the legislation on the matter.

The Principle of Equality

  1. Discrimination is the unequal treatment of equals, when there is no relevant difference between them. We cannot ignore the fact that the case before us involves a same sex couple. A reality was created where heterosexual couples are able to use a variety of methods in order to become pregnant and bring a child into the world – from the natural method, through use of eggs donation, surrogacy agreements and the like. On the other hand, same sex couples are limited in the ways they can bring children into the world, both for biological reasons and for legal reasons (see judgment by Justice Joubran in HCJ 566/11, Mamat-Magad v. The Minister of Interior (January 28, 2014.)) Indeed there may be cases where it could be argued that there is indeed a relevant difference resulting from the biological difference (such as the need of male couples to use surrogacy arrangements even when neither of them has a medical condition, which can raise the concern of over use of the method of surrogate women, when arguments are made about the harm, medical injuries or exploitation of these women or some of them. see in this regard the recommendations by the public committee for examining the legislative arrangement of fertility and reproduction in Israel, 2012 (the Mor-Yosef Report) p. 57-62; in a different context, see regarding the consideration of the role of existing social attitudes in the best interest of the child: CA 10280/01, Yarus-Hakak v. The Attorney General, IsrSC 59(5) 64, 107 (2005) (hereinafter: the Yarus-Hakak case)). Still, in many cases it was impossible to point out to such a relevant difference. The social reality is that there are many same sex couples now. Indeed, this is an issue that is not yet a social consensus, but we cannot nevertheless ignore from the reality as it exists both as a matter of fact and a matter of law (see the New Family case, p. 450-51; and see also Zafran – There Can Be Two Mothers, p. 380; HCJ 273/97, The Association for Protecting Individual Rights v. The Minister of Education, Culture and Sport, IsrSC 51(5) 822 (1997); Hanan Goldschmit, The Missed Identification Card of the Israeli Family – The Legal Consequences of Case Law Regarding Adoption by Same Sex Couples, HaMishpat 7, 217, 237 (2012); Shiffman, p. 645.) Many same sex couples raise children, whether through arrangements permitted out of Israel, or through arrangements permitting having children in Israel itself (such as a sperm donation for a female couple.) It should still be emphasized that the Court does not purport here in this context to go into questions about the status of same sex couples and to decide on the value based discussion taking place on the matter (see, the Yarus-Haka case, p. 114; HCJ 3045/05, Ben-Ari v. Director of the Population Administrator, para. 22 of President Barak’s judgment (November 21, 2006) (hereinafter: the Ben Ari case.)) Nor do I propose in this opinion to decide on the question of same sex couples’ constitutional right to have equal access to artificial reproductive techniques as heterosexual couples (see AAA 343/09, The Jerusalem Open House for Pride and Tolerance v. The Municipality of Jerusalem, para. 40 (September 14, 2010) (hereinafter: The Open House case.)) Still, to the extent that we are concerned with the interpretation of a legislative arrangement, or the lack of any arrangement at all, we must assume that any legislative arrangement would be interpreted or established to fit the principle of equality and prevent discrimination on the basis of sexual orientation, as long as there is not explicit instruction from the Legislature to the contrary (see also, Ifat Biton, The Influence of Basic Law: Human Dignity and Liberty on the Status of Same Sex Couples, Kiryat HaMishpat 2 401 (2002); Michal Tamir (Itzhaki), The Right to Equality of Homosexuals and Lesbians, HaPraclit 45 94, (2000-2001)).
  2. The above approach also fits the existing legislative arrangements that indicated the Legislature’s negative view of discrimination on the basis of sexual orientation. Some of these arrangements were added to legislation in recent years and can teach us about the present view of the Legislature in the matter. Thus, for example, it was established that in certain cases one who has committed an offense motivated by animus based on sexual orientation they are punishable at double the penalty set for that same offense (section 144F of the Penal Law 5737-1977.) An employer is prohibited from discriminating between its employees or candidates for employment on the basis of their sexual orientation (section 2(1) of the Equal Opportunities in Employment Law 5748-1988). Similarly it is prohibited to discriminate in public accommodations, supplying products or access to public services because of sexual orientation (section 3(a) of the Prohibition of Discrimination in Products, services and Entrance to Entertainment Establishments and Public Places Law 5761-2000). Caretakers and medical institutions may not discrimination between patients based on their sexual orientation (section 4(a) of the Patient’s Rights Law 5756-1996.) It was additionally legislated that committees for admission to community towns cannot refuse a candidate for reasons of sexual orientation (section 6C of the Cooperative Associations Ordinance.) Those obligated to run tenders are prohibited from discriminating among candidates because of their sexual orientation (section 2(b) of the Tender Obligations Law 5752-1992). And this is only a partial list.
  3. Courts, too, throughout all their levels, when coming to interpret legislative arrangements contemplated the principle of equality between heterosexuals and homosexuals, both as single people and as couples. In one case, President Barak reviewed a long list of judgments where it was held that homosexual couples are granted rights under specific statutes and arrangements (see, the Ben Ari case, para. 19 of President Barak’s judgment, and see also The Open House case, para. 54.) It should be noted that in the matter of Ben Ari, the State itself declared that it recognized that the shared life of a homosexual couple constitutes “a social unit with some legal implications.” Since that review, this list expanded to include additional judgments walking in the same direction (see, for instance, CA (Nazareth) 3245/03, A.M. v. The Attorney General in the Custodian General, (November 11, 2004); AP (Tel Aviv Yaffo) 1255/05, Garcia v. The Ministry of Interior (August 17, 2008.) And indeed it was held:

“The law in Israel regarding the LGBT community and its members reflects the changes that took place over the years in Israeli society. The position of Israeli society is that the law must be indifferent to sexual orientation, just as it must be indifferent to other traits in one’s identity or a group – such as age, race, nationality, sex and others. Similarly there is a wide agreement that members of the LGBT community must not be restricted or discriminated against. This position is also expressed both in the case law and in the legislation that prohibits discrimination on the basis of sexual orientation…” (The Open House case, para. 54.)

It was even noted that “it seems these are no longer ‘islands’ of rights, but a comprehensive constitutional concept of a right not to be discriminated against because of sexual orientation.” (The Open House case, para. 56.)

Without addressing the constitutional issue or establishing a new status, it appears then that legislative arrangements must be interpreted to conform with the principle of equality that requires the equal treatment of same sex couples.

Fertilization Treatments

  1. For the purposes of the discussion before us, a woman’s fertility difficulties may be schematically divided into two categories: the first is difficulties related to the woman’s eggs that make it impossible to use them for having a child. The second is a medical difficulty to carry a pregnancy. Therefore, there may be four potential situations: a woman with healthy eggs who is able to carry a pregnancy and give birth, a woman with healthy eggs but who is unable to carry a pregnancy; a woman with unhealthy eggs who is able to carry a pregnancy and a woman with unhealthy eggs who is unable to carry a pregnancy. These distinctions will be helpful below as we interpret the legislative arrangements in effect in the field of reproductive techniques.

The Agreements for Carrying Embryo Law

  1. As my colleague, Justice E. Hayut, noted, the Surrogacy Law was enacted in Israel in 1996 as a result of the work of a public committee headed by Judge (Ret.) Shaul Aloni that was set up to explore the issue. The law was first to regulate couples’ assistance from  a surrogate in order to have a child. Under the law, the surrogacy procedure involves the implantation of a fertilized egg in order to impregnate the carrying mother so that she can give the child born as a result to the intended parents (see section 2 of the Surrogacy Law.) The fertilized egg would be, under the Surrogacy Law, an egg that is not from the surrogate. In other words, the egg may be from the intended mother who solicits the surrogacy, or from a donor that is not the intended mother or the carrying mother (see section 2(4) of the Surrogacy Law; section 11 of the Eggs Donation Law.) The sperm fertilizing the egg must be from the intended father (section 2(4) of the Surrogacy Law.) During the surrogacy process the fertilized egg is implanted in the uterus of the surrogate woman who in effect has not genetic relationship to the fertilized egg. After birth, the surrogate is supposed to give the child to the intended parents (see New Family, p. 429.) The Surrogacy Law includes many arrangements regarding the procedure, including the conditions for entering into agreements with a surrogate, the conditions for approving an agreement between the intended parents and the surrogate, the status of the child after birth and so on. It should also be noted that the intended parents are defined by the Surrogacy Law as “a man and a woman who are a couple and who enter into an agreement with a carrying mother in order to have a child” (section 1 of the Surrogacy Law.)

It is important to emphasize that the Surrogacy Law does not address the stage of in vitro fertilization, which is regulated by the People’s Health Regulations (In Vitro Fertilization) 5747-1987 (hereinafter: the People’s Health Regulations.) The law only addresses the stage after fertilized eggs have been created, when the couple seeks the approval of an agreement to implant the eggs with a surrogate (see New Family, p. 435.)

  1. As the State argues, the Surrogacy Law is irrelevant to the matter before us and does not apply to it. The law clearly distinguishes between the surrogate mother and the intended parents. As mentioned, after the birth no legal link is meant to exist between the surrogate mother and the child. The physical handing over of the child into the custody of the intended parents must be done as soon as possible after the birth. The welfare administrator is the child’s guardian until the intended parents are granted a parenting order. The request of a surrogate mother to renege on the agreement with the intended parents and to keep the child would not, as a general rule, be approved unless by a court and under circumstances that justify it while considering the child’s best interest (see chapter C of the Surrogacy Law.) In the case before us, the Petitioners request that the Second Petitioner serve both as a surrogate mother and as an intended mother. This situation is not included in the Surrogacy Law and is beyond its purpose and provisions. The arrangements covered by the Surrogacy Law have nothing to do with the procedure the Petitioners wish to perform. The conclusion is that this law does not apply to the case at hand and does not at all assist in regulating it.

The Eggs Donation Law

  1. The second statute related to the issue, which the parties address, is the Eggs Donation Law, enacted in 2010. This law came to resolve the difficulties caused by a shortage of eggs for donation in Israel, a fact that created obstacles to many women requiring fertility treatments where the eggs in their bodies could not be used for these treatments. As emphasized in the explanatory notes  to the law, the law’s main concern is to regulate the eggs donation in Israel for purposes of having a child, as well as for purposes of research (see the Eggs Donation Bill, 5767- 2007, Bills 292 (hereinafter: the Bill.)) the law concerns two phases in the donation process – the phase of receiving the donation and its designation, and the stage after the birth of the child born as a result of the donation (see the explanatory notes to the Bill, p. 292.) The State argues that the law does not permit the First Petitioner to donate eggs to the Second Petitioner, because under section 11 of the law, the recipient in whose body the egg is implanted must have a medical condition that justifies using the eggs of another woman. The Second Petitioner does not meet this definition because she has not medical condition, as detailed at length in my colleague’s judgment. Indeed, these things cannot be disputed. Moreover, I do not believe we must intervene in the medical condition requirement of section 11 of the law. Still, this is not the end of our road, because in my opinion the Eggs Donation Law is not at all relevant to our matter, does not regulate it, and in fact is silent about it without creating a negative arrangement for this case. I shall clarify my position.
  2. The Eggs Donation Law, as its name indicated, was designed to regulate the donation of eggs in Israel for women, who due to a medical condition, need to use another woman’s eggs in order to have a child (this alongside the research purposes regulated in the law that are irrelevant to our case.) Should we return to the schematic distinction we articulated above (para. 11) then the law applies to two categories of women: the one is the woman with unhealthy eggs who can carry a pregnancy and the other is the woman with unhealthy eggs who cannot carry a pregnancy. In the first case, the woman can use the assistance of an egg donation under the Eggs Donation Law, an egg that would then be implanted in her own uterus. In the second case the woman is assisted by both the Eggs Donation Law and the Surrogacy Law, when the egg received from the donor is fertilized and implanted in the uterus of a surrogate mother.

The law, however, according to is purpose and provisions, does not concern the case that do not involve an egg donation. The meaning of donation in this context is the giving of an egg to another woman in order for that woman to use the egg, fertilize it and become the mother of the child born out of the fertilized egg. The meaning of donation includes the giving of something to someone, rather to the donor themselves. Therefore, this is different from someone who extracts eggs in order to become herself the mother of the child born out of those fertilized eggs. In such a case it cannot be said that this is a donation, and thus the Eggs Donation Law would not apply to such circumstances. Such, for instance, is a woman who extracts eggs in order to fertilize the eggs, return them into her uterus and become the child’s mother. In such a case that is not a donation, because the egg is intended to turn the egg owner into the future child’s mother. Indeed, such a case is not covered by the Eggs Donation Law and the People’s Health Regulations in terms of in vitro fertilization would instead apply. Similarly, as well, the Eggs Donation Law does not apply to cases of egg extracted from a woman in order to fertilize them and implant them in the uterus of a surrogate (see section 4(b) of the Eggs Donation Law.) This, too, is not a donation, because the owner of the egg intends to be the mother of the child born from the fertilized egg (see the explanatory notes to the Bill, p. 295, which clarify that in this case the extraction of the eggs is not done for the purposes of donation.) Similarly, a woman who extracts eggs in order to implant them in her partner’s uterus intends to be the mother of the child born of the fertilized egg and to raise that child. Here too it cannot be said that there is a donor and a recipient, and thus the Eggs Donation Law is irrelevant to it. One cannot donate something to himself because then it would not consider a donation. I should not that the use of the term “mother” in this context refers to the social role and the woman’s subjective intent rather than to the legal determination regarding who shall be registered and recognized as the child’s mother (see on this point Zafran – There Can Be Two Mothers. In any event, I will note that the registration of two women as mothers of a child was made possible through adoption in Israel or abroad: see the Yarus-Hakak case as well as HCJ 1779/99, Jane Doe v. The Minister of Interior, IsrSC 54(2) 368 (2000); and through a parenting order: FA (Tel Aviv) 60320/07, T.Z. v. The Attorney General, State Attorney – District of Tel Aviv  (March 4, 2012) (hereinafter: the T.Z. case.))

  1. The Act’s sections must be read and understood in light of the above, and according to this purpose. Indeed, the law wishes to make its provisions exclusive and limit the use of eggs donation to comport with its provisions alone. Section 4 of the Egg Donation Law stipulates as follows:

“4. Exclusivity of the Law’s Provisions:

(a) One shall not perform an eggs extraction from a donor, lab treatment of the eggs, allocation of eggs for implantation or research, or implantation of eggs, but according to this law’s provisions.

(b) The provisions of sub-section (a) shall not apply to the extraction of eggs from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of performing an agreement for carrying embryo according to the Agreements Law.”

Additionally, section 6(b) of the Eggs Donation Law mandates that:

“6. Restrictions on the Extraction and Implantation of Eggs

(a) No one shall perform medical treatment on a volunteer donor in order to prepare eggs for extraction to be implanted, unless after securing the approval of the eggs’ extraction from the donor’s body according to section 12.

(b)An implantation of eggs shall not be performed but in the body of the recipient or the body of a carrying mother who entered into an agreement for carrying embryo with the recipient according to the Agreements Law.”

  1. These sections must be read, as noted, in light of the purpose of the Eggs Donation Law and in the context of its other sections. They must therefore be understood as excluding the law’s provisions to any case in terms of eggs donation, that is cases where a woman gives her eggs to another person in order for that person, rather than the donor herself would become the parent of the child born from the donated egg and would be the person raising that child. This interpretation is consistent with the language of the law, its provisions, and its purpose. An alternative interpretation, a more comprehensive one, which requires the application of the law’s provision to any extraction and implantation of any egg, would have led to an absurd outcome where in vitro fertilizations would be impossible for women whose eggs are completely healthy, and who wish to extract those eggs and implant them in their uterus in order to become mothers of the child, because then section 11 of the Eggs Donation Law would not apply to them. Certainly, such interpretation cannot be accepted.

The conclusion that the matter at hand, where the First Petitioner wishes to extract her own healthy eggs, fertilize them, and implant them in her partner’s uterus, without requiring a donation but in order for the First Petitioner to raise herself the child that would be born (along with the Second Petitioner, who would give birth to the child) – such a case is not included in the Eggs Donation Law and the law does not create a negative arrangement in its regard.

 

Interim Conclusion

  1. Our conclusion is that a case where a woman wishes to extract eggs in order to fertilize them and implant them in her partner’s uterus, with both women serving as mothers to the child (at least “mothers” in the social sense and in terms of their intent to raise the child together), falls neither under the Surrogacy Law nor the Eggs Donation Law. This case is neither regulated by either of these laws nor prohibited by them. But we are still left with the question which statutory arrangement does cover this case? In my view, the answer to this is simple. Since neither of these statutes applies to this case, the arrangement that would apply is the same as that which applied until now, at least according to the position of the State and the Attorney General. This arrangement combines the norms established by the People’s Health Regulations, and the authorization created by the absence of any legal regulation in the matter. I shall explain.

The People’s Health Regulations

  1. The People’s Health Regulations of 1987 regulate the conditions for in vitro fertilizations. Section 2 prohibits the extraction of eggs, their fertilization, freezing or implantation unless done in a recognized hospital unit and according to the Regulations’ mandates. Section 2A details instructions for eggs extracted and fertilized out of Israel. Sections 3 and 4 stipulate as follows:

“3. Exclusivity of Purpose of Egg Extraction

The Extraction of eggs will be done only for the purpose of in vitro fertilization and its implantation after fertilization.

4. Restricting the Extraction of Eggs

Eggs shall be extracted only from a woman who meets one of the following conditions:

(1) She is undergoing fertility treatments and a supervising physician has determined that the eggs extraction would advance her treatment.”

These Regulations have regulated the matter of eggs donations before the Eggs Donation Law was legislated. It should be noted that today eggs donation, as understood according to our interpretation above, cannot be done unless according to these Regulations or the arrangements of the Eggs Donation Law.

  1. As for the implantation of a woman’s eggs in her partner, the Regulations do not explicitly address this situation, but in my view their arrangements may be applied to it without difficulty, and indeed this was done in the past (see, for example, the T.Z. case.) Extracting the egg will be done only from a woman who is undergoing fertility treatments, and only for the purpose of implanting them after their fertilization (section 3 and 4 of the People’s Health Regulations.) The egg would be fertilized by the sperm of a donor and implanted in the partner’s uterus, in the absence of any prohibition in the Regulations and where the Surrogacy Law does not apply as the birth mother is also one of the intended mothers. And indeed, an instruction by the Attorney General from November 30, 2009 in terms of eggs donations between female partners establishes as follows:

“Following a discussion recently held by the Attorney General on the issue of eggs donations between female couples, the Attorney General instructed the Ministry of Health that the donation of an egg extracted from a woman under the In Vitro Fertilization Regulations (in the course of fertility treatments that she is undergoing) must not prohibited or restricted, unless under circumstances where there is concern that doing so would violate the public policy, such as where there is concern that this is done in exploitation or for the purposes of trade eggs.

Accordingly, the Attorney General instructs that as a general rule, the donation of an egg extracted from a woman in a lawful procedure under these Regulations, and that is intended for her female partner, with whom she shares a common household, must not be prohibited or restricted. Such donation must not be seen as an act that violates the public policies.

The discussion in the matter was convened following several requests received by the Ministry of Health to approve the donation and implantation of egg donated by a woman to her  female partner. At the end of the discussion the Attorney General decided, among others, as following:

  • The legal point of departure is that imposing restriction by the State on eggs donations requires an authorization under law. Therefore, since the only restriction in the Regulations on our matter is that the extraction of eggs must be in the course of medical treatment due to the donor’s fertility difficulties and only when the extraction is to advance her treatment, then once the eggs have been extracted under these circumstances the Regulations include no lawful anchor for prohibiting their use as a donation to another woman.
  • Still, the use of eggs may be prohibited, even when extracted according to the procedure established by the Regulations, where this violates the "public policy," such as when it is done to exploit or for the purposes of trade eggs.
  • Where a donation between female partners is concerned, such as the case involving the request to the Ministry of Health, this cannot be viewed as a case that violates public policies, and the donation must be approved.
  • The Attorney General emphasized, as was previously made clear in terms of other issues concerning the rights of same sex couples, that this position should not be seen as the creation or recognition of a new family status. Matters of status must be determined and regulated by the Legislature.

...”

And indeed, under this instruction, the implantation of a woman’s eggs in her female partner was made possible where the former is undergoing fertility treatments. This instruction by the Attorney General is proper and correct, and in my view, still in effect in light of my conclusion that there is no other legislative arrangement that applies or prohibits the situation before us.

  1. It should be noted that in the course of the petitions that have previously submitted the difficulty in establishing meaningful and sensitive regulations in terms of reproductive techniques in regulations rather than in primary legislation were acknowledged. So, for instance, a petition was submitted to challenged regulations 11 and 13 of the People’s Health Regulations, which effectively lifted the prohibition against using a surrogate mother in Israel in order to bring a child into the world, and impose restrictions on the implantation of eggs from a donor. The State agreed to striking down these Regulations. I will further note that voiding the regulations was stayed for a certain period of time that would enable the issue’s regulation in primary legislation (see HCJ 5087/94, Zabro v. The Minister of Health (July 17, 1995); and HCJ 1237/91, Nahmani v. The Minister of Health (unreported,) where the State ultimately permitted the Nahmani couple to perform in vitro fertilization in Israel in order to implant it in the body of a surrogate abroad.) In an additional petition section 8(b) of the People’s Health Regulations, which distinguished between the requirements in terms of implanting an egg in a married woman and the requirements in terms of implanting an egg in a single woman, was challenged. With the State’s consent, this regulation, too, was struck down and it was held that a single, egalitarian arrangement would apply (see HCJ 998/96, Yarus-Hakak v. The Director General of the Ministry of Health (February 11, 1997.)) In the Sperm Bank case, the Court’s harsh criticism was expressed over the issue of sperm donations and the sperm bank is not regulated in primary legislation (the Sperm Bank case, para. 38 of Justice Rubinstein’s judgment, para. 33 of Justice Barak-Erez’s judgment.)
  2. Therefore, the general approach of this Court has been that the use of artificial reproductive techniques must be regulated in primary legislation. Certainly this takes stronger force in terms of issues that have not been regulated at all, in primary or secondary legislation. Still, it seems the Court’s general approach has also been to permit the use of artificial reproductive technologies as long as there is no primary legislative arrangement prohibiting so, and where the rights of no third party or other considerable interests are infringed. “Nowadays, when technology may assist people where nature has failed them, a determinative consideration is necessary in order to prevent a woman from using that technology” (New Family, p. 447.) And Justice Procaccia emphasized this in terms of a prisoner’s right to perform artificial fertilization with his partner:

“The premise of the petition is that in order for a competent authority to permit a prisoner to perform a procedure of artificial fertilization with his partner, explicit authorization in a statute is required and without it, such permission is outside of the powers granted to it by law. This premise is fundamentally mistaken, and it turns the order of things on their head and undermines foundations of public and constitutional law. Once one has a right, certainly a basic constitutional right, a public authority need not a lawful authorization in order to exercise the right and respect it, the opposite is true. It needs a lawful authorization to limit and violate it, and where the violation limits or prohibits exercising that human right it must pass muster under the tests of the Limitation Clause as a condition to its validity and application.” (The Dovrin case, para. 16 of Justice Procaccia’s judgment.)

This position has been applied in the Attorney General’s instruction, and thus I, too, support it in terms of the situation before us. Therefore, I shall briefly detail the remaining considerations that support a holding whereby the procedure requested by the Petitioners must be approved in the absence of any lawful arrangement to prohibit it.

  1. First, the principles I detailed above about the right to parenthood and the principle of equality must be woven into the relevant considerations in the matter. These principles of course support permitting the requested procedure in the absence of instructions from the Legislature to the contrary. Second, the arrangement does not raise a concern for infringing the rights of third parties, as it does not involve third parties beyond the couple that is interested in the procedure and participates in it. There is no involvement of a surrogate mother or an egg donor, so there is no concern for their rights or exploitation (see the New Family case, p. 453, 464.) Neither does the arrangement raise other typical concerns such as creating an offspring with no genetic link to his parents or caregivers, or the use of medical techniques for the purposes of the child’s genetic modification (see Zafran – There Can Be Two Mothers, p. 363.) Third, when a couple of women with no fertility difficulties are concerned, they would be able to bring a child into the world with a sperm donation without difficulty, and there is no restriction here. I see no reason why such a couple should be treated differently than an unlucky couple who is unable to bring children into the world in this way (see New Family, p. 442.) Fourth, the State’s position is not founded on principled objection to the procedure requested by the Petitioners, and no claim has been raised regarding a harm to public policy or any other meaningful argument. And indeed, as noted, the Ministry of Health has in the past approved the requested procedure. Additionally, the State emphasizes that the procedure would have been permitted in the converse – that is it would have been possible to permit the Second Petitioner to extract eggs in order to implant it in the uterus of the First Petitioner. There is no logic in approving the procedure in only one direction, when no legal arrangement prohibits the opposite direction. Finally, I will note that this is not about bringing a child into a single person’s family unit, which undisputedly is a different matter than bringing a child into the family unit of a couple (see New Family, p. 453.) And I will note that no research was brought before us to indicate that children benefit from being raised in heterosexual families, and it seems there is research to deny this assumption (see, for example: Zafran – There Can Be Two Mothers, p. 376 and the references there: see also additional research on this issue that substantiate the assumption that there is no correlation between parents’ sexual orientation and the children’s social and psychological function, and which refute the findings of research claiming otherwise: Nanette Gartrell and Henny Bos “U.S. National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents” Pediatrics 2010, 126:1 28-36; Carlos A. Ball “Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective”, 21 Wm. & Mary Bill Rts. J. 691 (2012-2013); Andrew J. Perrin, Philip N. Cohen & Neal Caren “Are children of parents who had same sex relationships disadvantaged? A scientific evaluation of the no-difference Hypothesis”, Journal of Gay & Lesbian Mental Health, 17:3 327-336 (2013). See also Justice Procaccia’s on the difficulties created by the issue of when the child’s best interest consideration may justify preventing the child’s birth and when the law may intervene in the matter: “The question when may the child’s best interest justify preventing the child’s birth is a deep question in the areas of ethics and philosophy. The question of when the law may intervene in this and when a public authority may have the power to intervene in one’s right to have a child for reasons of the child’s best interest and other reasons is highly difficult and complex. The right to have a child and the right to be born are concepts that are very much within the purview of the extra-legal areas of morality and ethics” (the Dovrin case, p. 17 of her judgment.))

Conclusion

  1.  The picture created by the categorization we mapped out above, then, is as follows: a woman with unhealthy eggs who can carry a pregnancy may be assisted by an eggs donation under the Eggs Donation Law; a woman with unhealthy eggs who cannot carry a pregnancy can be assisted by both an eggs donation under the Eggs Donation Law and by the Surrogacy Law for purposes of implanting the fertilized egg (with the sperm of the intended father) in the uterus of a surrogate mother; a woman with healthy eggs who is able to carry a pregnancy can be assisted by in vitro fertilization when experiencing fertility difficulties under the People’s Health Regulations; a woman with healthy eggs who is unable to carry a pregnancy may too perform in vitro fertilization under the People’s Health Regulations. The implantation of the eggs in another woman can be done according to the Surrogacy Law(when the other woman is a surrogate) or according to the People’s Health Regulations (when the other woman is the partner who is also intended to be the child’s parent.)

My conclusion, as that of my colleague’s E. Hayut, but by a different rationale and reasons, whereby had my opinion been heard we were to accept the Petition and order the State to permit the First Petitioner to extract eggs, fertilize them, and implant them in the uterus of the Second Petitioner.

 

                                                                              Justice (Ret.)

 

Justice E. Rubinstein:

"Then [God - eds. note] remembered her way of integrity [Mother Rachel - eds. note],

a fetus was exchanged in [her - eds. note] sister's womb"

(Even Chug Piyut, attributed to Rabi Eleazar Ha-Kalir, from Rosh Hashana's first morning prayer's liturgical poems)   

Background and Essence

  1. The First Petitioner – Liat Moshe (hereinafter: “Liat” or “the First Petitioner”) – wishes to bring a genetic child into the world through the Second Petitioner – Dana Glisko (hereinafter: “Dana” or “the Second Petitioner”) – her life partner for about a decade now. The difficulty at the basis of this Petition is rooted – it seems – in the difficulties in carrying a pregnancy by the First Petitioner, and the Petition is for eggs from her body be implanted in the uterus of the Second Petitioner so that the child be linked to them both – a genetic link to the First Petitioner, and a physiological link to the Second Petitioner – and thus both of their motherhoods be realized. Once again this Court is called upon to pronounce upon an issue that is not one our fathers and mothers anticipated as there was no real possibility, only few decades ago, that the medical and technological advances would lead to it (HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 1 of my judgment (2013) (hereinafter: the Sperm Bank case.))
  2. On September 1, 2013 we decided (by majority) to reject the Petitioners’ request – to implant an egg taken from the First Petitioner’s body, fertilized and then implanted in the uterus of the Second Petitioner – and thus in light of the current state of the law. So that the Petitioners know where they stand without delay, the decision was handed down without reasons, by the majority comprised of President A. Grunis, Deputy President M. Naor, Justice S. Joubran and myself, against the dissenting opinions of Justice E. Arbel, Justice E. Hayut and Justice H. Melcer. The facts of the case and the parties’ arguments were broadly detailed in the opinion of my colleague Justice Hayut, the core of her position will be presented below, and the same outcome, but by a different reasoning was reached by my colleague Justice Arbel. It so happened that the majority opinion in this judgment was not written in the regular order, but only after the dissenting opinions. With all best intentions to find in favor of the Petitioners, we believe that the significant strides made by the State, including during the deliberation in this case, as detailed by Justice Hayut is the best possible without legislative amendments; despite the appealing proposals of our colleagues. Therefore we present immediately below the reasons that led us – the majority justices – to reject the petition.
  3. The essence of our reasons is that the current state of Israeli law, on the level of existing law, does not permit what the Petitioners request, and this because the Embryo Carrying Agreements Law (Approval of  the Agreement and the Status of the Child) 5756-1996 (hereinafter: the Surrogacy Law) does not apply on such circumstances, as will be briefly detailed below, and effectively even our colleagues do not dispute this. The Eggs Donation Law 5770-2010 (hereinafter: the Eggs Donation Law) does not apply either, in our opinion, and we did not see it fit to join the constitutional position of our colleague Justice Hayut, who “reads into” the exceptions committee’s powers under the law (article C in chapter C) the authority in this case as well, an authority which the legislature did not grant, and explicitly so, perhaps due to advice from a governmental body which itself is not acceptable to us under the circumstances. This advice, as we will show below, highlights the tension between the words of the Legislature and the powers of the Court. Finally, the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: the IVF Regulations,) which our colleague Justice Arbel wishes to use are no longer suitable, in our view, to what is requested, following the legislation of the Eggs Donation Law. There is therefore no lawful way currently to assist the Petitioners beyond what the State was prepared to do after the negotiation and changes in its position.
  4. In this context let us recall, as Justice Hayut noted in paragraph 11, during the long hearings in this Petition (four time before an extended panel of this Court) the Ministry of Health issued on July 21, 2013 a protocol regarding “The Taking of Sperm, Eggs or Fertilized Eggs Out of Israel” which permits the Petitioners to perform the requested implantation outside of the country. This protocol allows the taking out of eggs extracted in Israel, among others, “for the purposes of realizing parenting… for the woman from whom the eggs were extracted,” with the approval of the exceptions committee. In a notice by the State (dated August 17, 2013) it was also said that the implementation team for the recommendations of the Mor Yossef Committee, which – as noted by Justice Hayut in paragraph 2 – recommended to extend the circle of those eligible to bring children into the world through surrogacy by including “single women who have medical conditions preventing them from creating a pregnancy” prepared a summarizing document in anticipation of legislative amendments.
  5. And now for further detail. We will first note that in the medical world the procedure requested by the Petitioners is termed “Partner Assisted Reproduction/ Reciprocal IVF” (hereinafter: Reciprocal IVF.) Reciprocal IVF has become over the years fairly common in fertility clinics around the world for female same sex couples despite its high cost compared to “regular” IVF. This is because it allows both partners to participate in the process of creating the child, through dividing the “maternal function” between the partner who furnishes the egg (hereinafter: the genetic mother) and the partner who carries the pregnancy (hereinafter: the physiological mother) (see Lilith Ryiah, The G.I.F.T of Two Biological and Legal Mothers, 9 AM. U.J. GENDER SOC. POL’Y & L. 207 (2001); Dorothy A. Greenfield and Emre Seli, Assisted Reproduction in Same Sex Couple, 289, 291 Principles of Oocyte and Embryo Donation (Mark V. Sauer ed., 2013)).
  6. In their amended petition, the Petitioners challenge two pieces of legislation that regulate the use of artificial reproductive technologies: the first is the Surrogacy Law, and the second is the Eggs Donation Law, as mentioned. My colleagues, Justices Hayut and Arbel, agree about the inherent misfit between the routes regulated in the Surrogacy Law and the medical procedure requested by the Petitioners. But they believe we should accommodate them through other legal paths, and as to those their opinions differ, as discussed.
  7. In a realistic world, there are three potential scenarios where the State may be called upon to approve the medical procedure of reciprocal IVF between women partners: couple 1 – where both partners have healthy eggs and are able to carry a pregnancy; couple 2 – where one partner has healthy eggs but is unable to carry a pregnancy; couple 3 – where one partner has unhealthy eggs but is able to carry a pregnancy. Still, when one partner has unhealthy eggs and is unable to carry a pregnancy there is inherently no realistic possibility to initiate a process of reciprocal IVF. These scenarios before us when we examine the different statutes and the purposes behind them. We now move on to review the paths in which my colleagues walked in searching for a lawful route to realize the Petitioners’ wishes to bring into the world a child, who would be genetically linked to Liat, together with her partner – Dana – who is meant to carry the pregnancy with Liat’s fertilized eggs (and a sperm donation, of course), as well as to explain why our views differ. We will then address the Petitioners' arguments regarding the unconstitutionality of the Surrogacy Law, while the fundamental position as to its inapplicability is acceptable to us all, both majority and minority justices.

Accepting the Petition through the Eggs Donation Law?

  1. Justice Hayut identifies section 11 of the Eggs Donation Law as the primary obstacle to realizing the Petitioners’ wishes, in light of the demand that the recipient be a woman who “cannot due to a medical condition become pregnant with the eggs in her body, or who has another medical condition which justifies using another woman’s eggs in order to have a child” (emphasis added – E.R.). Once my colleague reached the conclusion that the Eggs Donation Law infringes the Petitioners’ constitutional rights to autonomy (para. 24), to family life and to parenthood (para. 25), the constitutionality of the infringement was examined. It was said that the arrangement in the Eggs Donation Law was for a worthy purpose, but does not meet the proportionality requirements, because article C of the Eggs Donation Law creates an exception committee under the law, but “without granting the committee a sufficiently flexible authority to consider individual and exceptional cases that warrant diverging from the law’s provisions” (para. 34, and see also paras. 30-32.) Justice Hayut therefore suggest constitutional relief of reading into the Eggs Donation Law an additional sub-section – section 20(a)(5) – that would authorize the exceptions committee to approve eggs donation in circumstances where there are “exceptional and special reasons to do so” (para. 35.)
  2. Justice Hayut therefore proposes that the Eggs Donation Law would allow the exceptions committee to approve an eggs donation for a recipient who had not pointed to a medical need for donation. Unlike the content of section 11 of the Eggs Donation Law, according to which – in the words of its heading – “a request for donation for the purposes of birth” may be submitted by a woman who is unable due to medical reasons to become pregnant with the eggs in her body and for using another woman’s eggs including for surrogacy. As much as we would like to, the history of the exceptions committee makes it difficult to support this position, though I do believe the Legislature would do well to consider authorizing the committee to consider exceptional cases on a broader basis than it has. The current state of the law, until the “amended” legislation is in effect cannot, in our view, encompass more than what the State is willing to agree to, that is, taking the eggs out from the country without penalty as detailed above (para. 4.)
  3. Until the Eggs Donation Law was passed in 2010, eggs donation was regulated by the IVF Regulations which permitted eggs donation only from a woman who was “undergoing fertility treatment and where a supervising physician determined that the extraction of eggs advances her treatment” (reg. 4(1)). The restriction in the IVF Regulations on the identity of the donor created a national shortage in the pool of eggs for donation. In 2000, a public professional committee, headed by Rabbi Dr. Mordechai Halperin of the Ministry of Health, was convened in order to study the issue of eggs donation in Israel (hereinafter: the Halperin Committee). The Halperin Committee recommended to make eggs donation possible also from women who are not undergoing fertility treatments, and this only for the purposes of fertilization and in return for “comprehensive compensation” (sections 7(a) and 9(b) of the Halperin Committee’s recommendations.) It should be noted, that in the Committee’s recommendations there was no explicit demand that the recipient would have a medical need for donation. And so, in section 4(2) of the recommendations it was said that the donation recipient would be “a woman past the age of minority and an Israeli citizen whose age at the time of the eggs’ implantation in her body is under 51 years” – this and no more. Still, it is important to note that the recommendations of the Halperin Committee were not presented as is to the Knesset as a bill (see Mordechai Halperin, Eggs Donation in Israel – Dilemmas and Recommendations, Medicine and Law – The Jubilee Book 165 (2001)).
  4. In 2007, the Eggs Donation Bill, 5767-2007 was published in Government Bills 289, p. 292 (hereinafter: the Bill ) and it matured into legislation only in 2010. As was said in the explanatory notes:

“The proposed statute is intended to regulate the different aspects involved in extraction and donation of eggs in Israel, and the use of these eggs. The essence of the proposed statute is to regulate eggs donation for the purposes of having children, but it also includes provisions that allow, under certain circumstances, use of donated eggs as described, for the purposes of research as well.”

As opposed to the Halperin Committee’s recommendations, section 11 of the Bill proposed to limit donations to a recipient who points to a medical condition (for a review of the many differences between the Halperin Committee’s recommendations and the Eggs Donation Bill, 5767-2007, see Smadar Noy, Daniel Mishori and Yali Hashesh, Gold Eggs Laying Geese – The Eggs Donation Bill 5767, Refu’a U’Mishpat 36, 161, 175-79 (2007)). The explanatory notes for section 11 clarify that the requesting woman may also point to the existence of “other justifying reasons” (there, p. 297, emphasis added – E.R.). Additionally, in section 21(e) of the Bill it was proposed to grant the exceptions committee the following powers:

“To approve the extraction of eggs, the allocation of eggs or the implantation of eggs, according to the request of a supervising physician as defined in section 18, should the committee be satisfied that under the circumstances there are exceptional  and special reasons to do so.”

The explanatory notes clarified that the unique reasons are those “which cannot be anticipated in advance, and this without requiring an amendment to the statute” (there, p. 304, emphasis added – E.R.) The catch all section that aimed to authorize the exceptions committee to consider “exceptional and special reasons” was deliberately removed by the sub-committee of the Labor, Welfare and Health Committee that discussed the statue. This removal was criticized in my colleague Justice Hayut’s opinion (paras. 21-22, 38.) A question remains, on the “legislative intent” level, whether even had the catch all section been enacted into the Eggs Donation Law, was there place under the circumstances before us for the exceptions committee to have approved egg donation where the recipient does not demonstrate any medical need, because we are concerned with a case where it is seemingly clear that the law did not have in mind in its origin. We shall review the legislative history in order to uncover this.

  1. The minutes of the meetings of the sub-committee of the Labor, Welfare and Health Committee reveal that the Ministry of Health’s legal advisor, Adv. M. Hibner Harel, wished to create through the catch all section “an exit strategy, there are things in life I do not anticipate today” (sub-committee meeting, dated November 3, 2008.) Things to this effect were quoted by Justice Hayut in paragraph 21. And indeed justice Hayut believes that the catch all section should have covered “cases such as the one before us where the recipient has no medical need for an eggs donation but there are other reasons the justify permitting the donation” (para. 22.) However, were we to take a closer look at the sub committee’s discussions from November 3, 2008 we find – it seems – that the catch all section, before it was removed, was not designed to resolve such cases. During the discussion Rabbi Dr. Halperin expressed his concern that “the catch all section makes everything else redundant. It compromises anonymity, infringes the woman’s rights, infringes the man’s rights. It is a section that violates all the rights.” Adv. M. Hivner Harel clarified that “this section was actually born out of the shortage in eggs donation for research… this section was written for catastrophes. It was not born as a catch all section for cases that are not catastrophes” (there, p. 46, emphasis added – E.R.) Is the scenario of partners wishing to perform a procedure of reciprocal in vitro fertilization one that is a “catastrophe”? I doubt it. Let us recall that the medical procedure – reciprocal IVF – as requested by the Petitioners was anticipated and familiar to professional bodies, including in FA (Tel Aviv Dis.) 60320/07, T.Z. v. The Attorney General, State Attorney – District of Tel Aviv (2012) (hereinafter: the T.Z. case.) This was a case where in 2006 a lesbian couple secured the approval of the Ministry of Health’s legal advisor herself to perform the procedure of reciprocal IVF. I will later discuss the distinctions between that case and ours. It is therefore doubtful whether, it was actually proposed to legislate the catch all section in order to provide a solution for the procedure the petitioners request to perform.
  2. The foreseeability of the procedure requested by the Petitioners is seemingly also inferred from the sub-committee’s discussions in regards to the drafting of section 22(a)(2) which addresses the designation of a donation from particular donor to a particular recipient for “religious or social” reasons:

Chair Aryeh Eldad:

If there is an opening for lesbians, there is also an opening for the best friend. It is unclear what it is, but there is opening for the exceptions committee to discuss and say she can’t. This is a good opening.” (Minutes of sub-committee of the Labor, Welfare and Health Committee for Reviewing the Eggs Donation Bill, 5769-2008 (November 3, 2008.)) (emphases added – E.R.)

It seems that in the committee there was the opinion that saw section 22(a)(2) of the Eggs Donation Law the door to the exceptions committee for permitting lesbian couples non anonymous donations of eggs from one partner to the other who needs the donation for “a medical need” (couple number 3 in the scenarios presented in paragraph 7 above.)

  1. My colleague Justice Hayut quoted extensively (para. 21) things from the discussion of the sub-committee, though at the end of the day it was decided not to include a catch all section, as a result of Rabbi Dr. Halperin noting during the discussion that “It is better to remove section 18 (approval in special cases – E.R.) and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is in violation of the explicit law.” And in response to the comment by the Chair, Professor Eldad, that “the court cannot operate in violation of the law, maybe we can add here a catch all section that authorizes the court as an exception to the exception,” Rabbi Dr. Halperin replied “but this does not need to be written. The court does that anyway even without catch all sections. So we do not need this.”

My colleague criticizes these things as “puzzling and mistaken reasoning.” I regret that Dr. Halperin, who is a rabbi, a gynecologist and a legal expert, and an author of many works in medicine, and in particularly in the field of fertility “a symptomatic dysfunction” – that is, the conventional wisdom common in different circles as if the Court does as it wills. No matter what the law is, the Court walks its own path. The law is not a “pick your own adventure” even, and perhaps first and foremost, to the Court. The Court’s role is to interpret, and often the law is subject to different interpretations between which the Court must decide (on the issue of interpretation see – for instance – the series of books by Professor Aharon Barak on Interpretation in the Law, which reviews all aspects of the issue.) Moreover, when the legislature “burdens” the court with interpretive duties in matters that are subject to great moral and public debated, such as the phrase “the values of the State of Israel as a Jewish and democratic state” in section 1A of Basic Law: Human Dignity and Liberty and section 2 of Basic Law: Freedom of Occupation. However, where the Legislature’s position is clear, even under the legislative purpose as it the statute was enacted (as opposed to questions of interpretation where a statute is open to interpretation) – the Court must exercise great caution and it is not free to decide as it wishes, even when a worthy cause is at stake – and there the Court must wait for the Legislature.

  1. Indeed, even were the proposed catch all section in the Eggs Donation bill enacted into the Eggs Donation Law, and in my view it should have been, the question remains – and I shall leave it for determination in future cases – whether it would have been appropriate to permit the Petitioners’ request, and this in light of the primacy given by the Eggs Donation Law to physiological parenthood over genetic parenthood. In Israeli legislation there are several statutes that address parenthood (for the different models, see Yechezkel Margalit, On the Determination of Legal Parenthood by Consent as a Response to the Challenges of Determining Parenthood in Modern Times, Din U’Dvarim 6, 533 (2012) (hereinafter: Margalit); Mordechai Halperin, "A Woman Conceived Seed and Gave Birth" Biological Parenting and Genetic Parenting, Weekly Parasha – Legal Reviews of Torah Portions, Vayikra 110 (A. HaCohen and M. Vigoda, eds. 2012.)) Section 3(a) of the Woman’s Equal Opportunity Law, 5711-1951 and section 14 of the Legal Competence and Guardianship Law, 5722-1962 reflect approach that bemoan the genetic element, an approach absent from the Adoption Law 5741-1981 and the Eggs Donation Law and even under some views in the Surrogacy Law, where the genetic element is somewhat marginalized and allows the establishment of parenthood not on the basis of clear genetic foundations (see Hagai Kalai, Suspected Parents: Legal Supervision and Control over Non Heteronormative Parents Following HCJ 566/11 Mamat-Magad v. The Minister of Interior, Law in the Net – Human Rights – Decision Commentary Updates 28, 5, 9-13 (2014) (hereinafter: Kalai.)) I will admit that in my eyes genetic parenthood within surrogacy is primary and therefore also the theoretical and moral approval of surrogacy. It should be noted that rulers of Jewish law are split on the question of which woman is considered the mother in the case of surrogacy, and see paragraph 36 below. In any event, in order to fit our case under the confines of such a “catch all section” it would have been necessary to create a model of “inherent constructed co-parenthood” and this remains in question.
  2. What is the model of parenthood reflected in the Eggs Donation Law? Section 42 of the law stipulates that the child born of an egg donation shall be the child of the recipient and this without any need for issuing a parenthood order. In other words, through the Eggs Donation Law, despite the genetic link between the egg donor and the child, the physiological contribution of the recipient in creating the child is privileged. The Egg Donations Law, as we detail further in the context of the Surrogacy Law, aimed to “delink” the egg donor from the child and the recipient (see in this context of disconnecting the legal link in section 42(c) of the Eggs Donation Law, which mandates the severance of legal rights and obligations between the donor and the child; see also the references in the Eggs Donation Law in defining an “intended mother” and a “carrying mother” in the definitions section to the Surrogacy Law which at its basis is the view of “delinking” the “intended parents” from the “carrying mother” and in effect from the child and the “carrying mother.”) Only the issue of delinking is similar in both statutes.
  3. The purpose of the Eggs Donation Law is expressed in section 1 of the law which stipulates that the law is essentially intended to regulate eggs donation for the purposes of birth for women who cannot realize their parenthood without an eggs donation, and this “while maximum preservation of their dignity, and protection of the rights and the health of the donor and the recipient.” This is also reflected in the legislative history: “realizing parenthood is a paramount value in the State of Israel… We must understand that when the State of Israel approved this Bill it was concerned with the realization of parenthood by women who would be unable to do so without an eggs donation” (Adv. M. Hibner Harel, minutes of discussions in the sub-committee, dated February 18, 2008, emphasis added – E.R.) The goal of realizing parenthood by the recipient, despite the absence or deficiency in genetic material, is also inferred from the medical route to receiving an eggs donation:  “Women who suffer ovarian dysfunction, a lack of ovaries, or reduced ovarian reserves; women who repeatedly produce eggs and/or embryos of compromised quality; women who have failed, after repeated attempts, to become pregnant through IVF treatments; carriers of a severe genetic defect; women over the age of 45” (Orly Loten, Eggs Donation for Fertilization and Research, The Knesset – Center of Research and Information (November 13, 2007)).
  4. The fundamental approach of limiting the donation to a recipient with a medical need has, therefore, medical justifications, such as avoiding medical treatment that is unnecessary (Michal Agmon Gonen and Keren Dabach Deutsch, The Physician’s Right To Refuse Providing Fertility Treatments, Refu’a U’Mishpat 33, 13 (2005)), as well as social justifications such as preventing the use of donations for purposes of genetic engineering (Ruth Zafran, There Can Be Two Mothers – The Definition of Motherhood to a Child Born to a Female Same Sex Couple, Din U’Dvarim 3 351, 362 (2008) (hereinafter: Zafran.)) Creating a distinction between recipients who require the donation due to a medical need and recipients who seek the donation without demonstrating a medical need is at its core consistent with the legislative purpose, which is protecting the health of the donor and the recipient involved in eggs donation for the purposes of having a child. We therefore find that the approval granted by the exceptions committee to a donation by the First Petitioner to the Second Petitions would doubtfully, on its face, fit into the harmony within the entire provisions of the law in light of the primacy it affords physiological parenthood in cases where the woman is unable to realize her genetic motherhood. Realizing the desire of a woman, such as in the case before us, to bring into the world a child with genetic code that is similar to hers on its face diverges from the rationale motivating the Eggs Donation Law which was designed to assist women with medical conditions involving their eggs to realize their right to parenthood. Had the law intended for it to be possible to give an eggs donation to a healthy woman due to the medical need of the donor as well, presumably this would have been said explicitly (LCA 5638/95, Migdal Insurance Company Ltd. v. Shamur, IsrSC 49(4) 865, 871 (1996); CA 4100/97, Ridner v. Vizaltier, IsrSC 52(4) 580, 594 (1998); AAA 1721/10,  Ganei Tikva Local Council v. Kopelvitch, para. 12 (2011)).
  5. At the basis of the law, therefore, is the giving of an egg donation to a woman who has a medical need for the donation. This realizes the law’s primary objective – to assist women with defects in their eggs to realize their right to parenthood. The distinction the law created between women who have a medical need and women who do not, seemingly does not discriminate against the Second Petitioner, in light of the existing relevant difference (HCJ 4124/00, Yekutieli v. The Minister for Religious Affairs, para. 35 of President Beinisch’s judgment (2010)). Thus, as opposed to my colleague Justice Hayut, I do not believe we are concerned with the constitutional level of examining the Eggs Donation Law, as this law to begin with did not come to cast its net over our case.
  6. The opinion of my colleague Justice Hayut emphasized the matter of T.Z., a case from 2006 where the Ministry of Health permitted, before the legislation of the Eggs Donation Law, to women partners to donate eggs to one another. The T.Z. case was brought as evidence that the Ministry of Health “see the female couple a family unit that justifies granting their request while considering the circumstances of their shared lives” (Hayut, para. 21.) However, I am afraid that this case does not constitute evidence. Examining the facts of that case reveals that the receiving partner had a clear medical need for a donation from her partner, unlike the circumstances of the Second Petitioner. In other words, had the Eggs Donation Law already been on the books 2006 when the partners in T.Z. sought approval for an eggs donation, they would have been granted such approval according to the law, as the recipient meets the restriction legislated into section 11 of the law due to her medical need. And the other partner would have been permitted to donate, as the Eggs Donation Law removed the requirement for the donor to be in the midst of reproductive treatments. This route was proposed to the Petitioners during the hearing held on November 19, 2012 – it was suggested that Dana would donate to Liat, who has a proved medical need, a non-anonymous donation, as was also done in T.Z., but this proposal was rejected by the Petitioners.
  7. When reciprocal IVF between women partners was approved in the past, before the Eggs Donation Law was legislated, it was done according to medical policy that was later supported through primary legislation. My colleague Justice Hayut described (para. 20) the Attorney General’s Guidelines  from November 24, 2009 (following a discussion dated September 6, 2009) and thus the reason that the approval of the Attorney General was necessary in T.Z. was that the donor in that case was not at the time undergoing fertility treatments, and this limitation was lifted by the Eggs Donation Law, and indeed was not an obstacle for the Petitioners in our case either.

In the absence of the recipient’s “medical need,” even had the Attorney General’s Guidelines from 2009 applied, the Petitioners could not have relied upon it. The novelty in the Attorney General’s Guidelines was lifting the restriction imposed by the IVF Regulations on the identity of the donor, while the hindrance faced by the Petitioners here stems from the requirement that the donor would have a medical need for a donation, a restriction that, as noted, is inferred from the legislative history, the legislative purpose  and the primacy the Eggs Donation Law affords physiological parenthood.

  1. Were we to return to the scenarios we presented at the outset of the judgment, the Eggs Donation Law in its present version resolves only the problems of couple number 3, who seeks a procedure of eggs donation from a partner with healthy eggs who wishes to make a non-anonymous donation to her partner who has unhealthy eggs and would carry the pregnancy. By adding the catch all section, my colleague Justice Hayut seeks to additionally allow couple number 2 – where one of the partners has healthy eggs but is unable to carry the pregnancy – to come under the provisions of the law, in order to realize Liat’s wishes to be a genetic parent through her partner. It should be noted, that even had the catch all section been included in the Eggs Donation Law, as my colleague suggests, this would not resolve the problems of couple number 1 – two partners who have no proven medical condition – but still wish to pursue the process of reciprocal IVF in order to create a common genetic physiological child.
  2. It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an eggs donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in Laws 8 (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, Moznei Mishpat 7, 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, who is charged with weighting the balances. In any event, and certainly in light of the legislative history on one hand and the partial solution proposed by the State on the other hand, it seems there is no place to authorize the exceptions committee to create medical public policy out of thin air through a catch all section and while eliminating the requirement for medical need in specific cases – this without any guidelines in the form of legislative instructions, which are possible through a not too great legislative effort.

Approving the Request through The People’s Health Regulations (In Vitro Fertilization), 5747-1987?

  1. My colleague Justice Arbel, believes too that the Petitioners cannot prevail through the Eggs Donation Law, because “one cannot donate something to themselves, because that cannot be considered a donation” (para. 15,) and found that there is no justification to intervene in the requirement for a medical need under section 11 of the Eggs Donation Law (para. 14.) Also she suggested in her opinion an alternative path to the one proposed by Justice Hayut to accomplish a procedure of reciprocal IVF as requested by the Petitioners, through the IVF Regulations (paras. 17-18.) According to Justice Arbel, it is possible to apply the People’s Health Regulations to the situation requested by the Petitioners without difficulty, as it has already been done in the T.Z. case.
  2. However, as we have already shown above (para. 20,) the circumstances of T.Z. are greatly different from the circumstances of the Petition before us. It is true that the Attorney General’s Guidelines from November 30, 2009 addresses a donation between women partners, saying that “this should not be seen as an act that violates the public policy.” However, in all the cases detailed as the foundation for this premise, which were presented at the discussion held on November 24, 2009, the recipient partner demonstrated a medical need for the donation from her partner. Meaning, we are concerned with cases that are clearly covered by the current legal arrangement established by the Eggs Donation Law, which is not seemingly the case in the case here.
  3. Moreover, the language of regulation 4 of the IVF Regulations can be viewed as evidence for the indispensability of the requirement for a medical need:

“Extraction of an egg shall be done only from a woman who has met one of these conditions: (1) she is undergoing fertility treatments and a supervising physician has determined that extracting the eggs would advance her treatment; (2) she is not undergoing fertility treatments, but is interested in preserving fertility, due to her age…” (Emphasis added – E.R.)

And indeed – the definitions section of the Regulations distinguishes between a procedure of “taking an egg” which involves extracting eggs from a woman and implanting them in her body and a process of “egg donation” which involves taking an egg from a woman and implanting it in the body of another woman. Regulation 3 stipulates that taking eggs will be done only “for the purpose of in vitro fertilization and implantation after its fertilization.” We learn that the taking process, which involves the IVF process of one woman only, cannot be applied to the process of reciprocal IVF as requested by the Petitioners. Indeed “in the past the Ministry of Health approved the requested process” (para. 23), as my colleague Justice Arbel noted, but I fear that now, after the Eggs Donation Law was legislated, we are living in a different legal reality, and it seems the permission granted by the Ministry of Health became obsolete once the Eggs Donation Law was passed, as it regulated what was previously allowed through the Ministry’s approval – a process of non-anonymous donation of an egg from a woman not undergoing fertility treatments to a woman requiring the donation for medical reasons. The Attorney General’s Guidelines from 2009 implicitly exists through the Eggs Donation Law, and thus it is difficult to use the Regulations to approve a procedure where an egg is taken from the First Petitioner's body to be implanted in the Second Petitioner’s uterus. I fear such a procedure has no source in the IVF Regulations. In light of the above regarding the T.Z. case, it is also impossible to say that the law aggravated the circumstances of women like the Petitioners, and of course the Legislature holds the key to any amendments.

Interim Conclusion – Perhaps I Will Build a Family Trough Her (Genesis 16:2)?

  1. As mentioned, my colleagues Justices Hayut and Arbel propose to pave a lawful way for the medical procedure requested by the Petitioners be it through the Eggs Donation Law or through the IVF Regulations, respectively. They both rejected applying the Surrogacy Law on the circumstances at hand, due to the absence of the severance element between the carrying mother and the child. Only their proposals create, in effect, a “D tour” of sorts for the Surrogacy Law, only for the sake of offering a solution for this case, and in my view the current state of the law does not support this. It is a good question whether a broad interpretation is appropriate before the Legislature has had its say.
  2. I will add several comments: the surrogacy and eggs donation procedures are in effect two aspects of the same medical procedure. In both processes – aside from surrogacy cases where the intended mother requires both the services of a uterus and an eggs donation – the function of motherhood is divided between two different women: the genetic function and the physiological function. In both processes there is Woman A who provides an egg to Woman B in whose body the fertilized egg is implanted. The difference between the procedures stems only from the agreement between the parties that determines who will be the parent of the child born as a result of the medical procedure:

“When egg is retrieved from one woman, fertilized, and then implanted in a second woman, the first woman could be functioning either as an egg donor – with no intention of rearing the child – or, alternatively, as the intended rearing mother. Moreover, the second woman (i.e., the woman who carries the fertilized egg to term) might be functioning as a ‘surrogate’ or, alternatively, as the intended rearing mother. In both situations, the cast of characters is identical. What differentiates the two circumstances is not the functions performed by parties, but rather the intentions of the parties upon entering into the arrangement. These intentions define the roles of the parties and should determine legal maternal status” (Anne Reichman Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 Iowa L. Rev. 265, 277 (1995). (Emphases added – E.R.)

And further:

“An egg donor recipient woman and a gestational surrogate differ only in maternal intent, usually also reflected by legal contract. This ‘only,’ however, yields a cosmos of different contested meanings of motherhood.” (Dion Farquhr, The Other Machine: Discourse and Reproductive Technologies 151 (1996) (Emphasis added – E.R.)

The Agreement between the parties depends on the medical need of the woman who initiates the procedure. When a woman requires an egg donation, the requested process is termed “egg donation” and when she requires assistance in carrying a pregnancy the requested process is termed “surrogacy” – whereas the medical procedure itself essentially remains the same, identical.

  1. Evidence for this can be found in sections 4(b) and 6(b) of the Eggs Donation Law:

“4(b) The instruction of section 4(a) would not apply to an eggs extraction from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of executing an agreement for carrying embryo , under the Agreements Law.

6(b) There shall be no implantation of eggs but for implantation in the body of a recipient or of a carrying mother who entered into an agreement with a recipient for carrying embryo under the Agreements Law.” (Emphasis added – E.R.)

The identical medical procedure – extracting eggs from Woman A and implanting them in Woman B – is regulated by two different statutes. The root of the differences between the legislative arrangements is in the social agreement between the parties to the procedure and the State. Implanting a fertilized egg in the body of an intended mother according to the Surrogacy Law, is not considered a donation. Section 4(b) and 6(b) of the Eggs Donation Law clarify that there is a social choice in terms of categorizing the same procedure differently according to the medical need motivating the parties. I am afraid, that introducing a catch all section into the Eggs Donation Law, which would allow Woman A to donate an egg to a woman who has no medical need means the de facto creation of a surrogacy route under the Eggs Donation Law. This would require thought and examining legislative harmony. Extracting eggs from Woman A, fertilizing it and implanting it in the uterus of Woman B who herself has no medical need for a donation appears to put us close to a quasi-surrogacy procedure. Even in a surrogacy procedure, the carrying mother has not medical need for an egg donation and the fertilized egg is implanted in her body despite the lack of a medical need, this only if the link is severed after birth. See section 1 of this Law (the definition of “carrying mother”) as well as section 2 which addresses “implantation of fertilized eggs for the purposes of impregnating a carrying mother in order to give away the born child to the intended parents” (emphasis added – E.R.). The obstacle barring the Petitioners from coming under the confines of the Eggs Donation Law – the medical need – does not exist when we are concerned with a surrogacy procedure, thought, it is contingent upon severance, which in this case is the opposite from what the Petitioners seek.

  1. The proposal to make use of the IVF Regulations, too, sounds like a “circumventing” of the Surrogacy Law because, indeed as long as the egg extraction is done for the purposes of fertilization in the body of the woman from whom the egg had been extracted, the legal arrangement which applies is the Regulations. However, once the egg is implanted in another woman’s body, the two relevant statutes are the Surrogacy Law and the Eggs Donation Law, and the determination as to the applying statute is examined in light of the intent of the party who requested the procedure in order to realize their parenthood. In our case, the First Petitioner seeks to create a child who will carry her genetic code, through the implantation of a fertilized egg from her body in the uterus of the Second Petitioner who has no medical need for the procedure. This all means that the using of the Eggs Donation Law and the IVF Regulations in order to enable a procedure where an egg is implanted in the Second Petitioner without a proven medical need, is therefore kind of circumvention of the Surrogacy Law and its provisions – an arrangement that allows, in effect, surrogacy where there is already a preexisting relationship between the intended mother and the recipient mother which is the foundation of the surrogacy, and this without applying the Surrogacy Law and the checks and balances included in its provisions, and in violation of the law’s approach in its current version.

Approving the Request through the Surrogacy Law?

  1. To complete the picture, I shall address the Petitioners’ argument as to applying the Surrogacy Law which was at the foundation of their Petition from its outset. The State maintains that there are two main barriers in the Petitioners’ way when wishing to rely on the provisions of the Surrogacy Law. The first, that they are not included in the circle of eligible women; and second, the absence of severing the link between the carrying mother and the child after the birth, in light of their declared intent to raise the child together. To the State, the procedure desired by the Petitioners inherently does not fall under the Surrogacy Law, and exceeds its purpose and its provisions because it “creates genetic, biological co-parenting.” This position was general acceptable to the Justices in the extended panel – who saw the Surrogacy Law as an arrangement of severance after birth – and was at the foundation of the decision dated September 24, 2012 to have the Petitioners amend their Petition so that it would address also the Eggs Donation Law.
  2. And yet I shall explore the question whether surrogacy in and of itself requires severance between the carrying mother and the child. During the hearing on April 28, 2013 Justice Arbel wondered about this, and I myself raised the question (see the records.) My concern was on the values level, first and foremost. According to the State, the severance between the carrying mother and the “intended parents” is an overarching principle of the institution of surrogacy, whereas recognizing the carrying mother as a legal mother has far reaching consequences, that is, recognizing a surrogate as the child’s mother for all intents and purposes, and doing so against the narrow and balanced arrangement established by section 13 of the Surrogacy Law which allows the carrying mother to renege on the agreement – including severance – in extreme circumstances alone.

And indeed it is seemingly possible to find in the various provisions of the Surrogacy Law evidence for the State’s position. We mentioned section 1 which defines an agreement for carrying embryo as an “agreement between intended parents and a carrying mother whereby the carrying mother agrees to become pregnant via implantation of a fertilized egg and to carry the pregnancy for the intended parents” (emphasis added – E.R.). We also pointed to section 2. Moreover, section 19 of the law stipulates that entering into an agreement to carry an embryo not according to the path laid out in the law is a criminal offense, punishable by incarceration. The law clearly designs the route to be followed by parties entering into an agreement of contractual, commercial surrogacy which involves compensation for the carrying mother ("Commercial Surrogacy") and does not involve regulation as altruistic surrogacy.

  1. From the explanatory notes of the Surrogacy Law we learn that the law aims to permit surrogacy agreements “under certain conditions and in a supervised manner” (see the Embryo Carrying Agreements  Bill (Approval of the Agreement and the Status of the Child), 5756- 1995 (Bills 5756 n. 2456, p. 259, December 6, 1995.) The existing limitations in the law are inherent to the design of the surrogacy mechanism in light of the concerns for the exploitation of the surrogate mother. The Surrogacy Law was proposed following a report by a committee headed by Justice (Ret.) Shaul Aloni, and I will concede that reading the law on its face – including reading the explanatory notes to the Bill – resound of surrogacy based on severance. The explanatory notes (there) speak of advance technologies that allow “bringing children into the world… with the assistance of a woman (carrying mother) willing to become pregnant and to carry a pregnancy in her uterus for a couple, with the genetic code of the couple or at least one of them (intending parents) and to give away the child to them upon birth” (emphasis added – E.R.). I will not, however, discussing – beyond the necessary scope, it seems, of the case at hand – a situation where surrogacy does not in itself require complete severance between the carrying mother and the child.

Surrogacy seeks, at its core, to use the ability of a particular woman to carry a pregnancy and this in order to assist another (HCJ 625/10, Jane Doe v. The Committee for Approving Agreements for Carrying Embryo under the Agreements Law, para. 12 of Deputy President Rivlin’s judgment (2011)). Assistance in carrying a pregnancy in itself does not necessarily mean there must be severance, and this may depend on the circumstances, but it does require legislation, and I must say this – with emphasis – at this stage already. It should be noted that in certain countries which opted to permit surrogacy (Britain, Australia and Finland) an altruistic model was selected, rather than contractual, commercial (which our Law is modeled after, as inferred also by its title – the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child), 5756-1996.) The altruistic model, as opposed to the contractual, commercial model, is built on a foundation of a preexisting relationship between the surrogate and the intended parents (Nufar Lipkin and Eti Smama, From Vision to Shelf Product: The Crawling Normativation of Surrogacy in Israel, Mishpat U’Mimshal 15, 435, 449-453 (2013) (hereinafter: Lipkin and Smama)).

  1. The normative advantage of the altruistic model is that it allows overcoming the concern as to the exploitation inherent to the paid surrogacy model, a model that the approach at its foundation is that the surrogate mother is but a service provided, while ignoring the uniqueness of the procedure and the costs it involves (Id., p. 489-490.) The existing relationship between the surrogate mother and the intended parents, on the basis of which the agreement is made, may negate and at least decrease the concern for the surrogate’s exploitation. The Israeli Surrogacy Law, which addresses – as noted – commercial surrogacy, was designed with particular emphasis on the interests of the intended parents, who are usually interested in receiving the child without committing to an ongoing relationship with the surrogate. However, this is not necessarily the only way it was possible to shape the relationship created in the framework of the agreement between the intended parents and the carrying mother.
  2. It is not unnecessary to note that scholars of Jewish law have theorized that the child in the surrogacy procedure has two mothers and this because of the concern for prohibited relations (see Z. Lev, Test Tube Baby – the Status of the Surrogate Mother, Emek HaHalakha B 163, 169 (1989); David J. Bleich, Contemporary Halakhic Problems 107-108 (1977)). This, as we will see, is the strict position of Rabbi S.Z. Auerbach. This all means that determining whether we are concerned with severance or with a relationship is an epistemological choice resulting from public policy and is not imminent to the medical procedure itself. There are in fact those who would say that surrogacy has environmental consequences that implicate the child. Still, the Surrogacy Law in its current version, which wishes to severe the relationship between the carrying mother and the child and intended parents, leaves a period of “twilight” – between the child’s birth and the grant of the parenting order (sections 10-11 of the Surrogacy Law) – where legal status has yet to be given to the intended parents but the child has already been moved into their custody. In this short period of time, the generic link to the intended parents does not ensure them any legal status, but does ensure them custody, and only the parenting order afterwards is which creates the final severance. It seems that the law as it is, creates a period of time where both women (the carrying and the intended) are tied to the child, at the same time. However, clearly this was not the intention of the law, which was designed to regulate surrogacy on a contractual, commercial basis which is followed by severance. Still, I have decided to examine, in light of the Petitioners' arguments, the constitutionality of the Surrogacy Law in this regard.

Surrogacy – the Jewish Law

  1. To the credit of Jewish law I will note that current rulers of Jewish law contemplate and deliberate the question of surrogacy, just as they do many questions of Jewish law that come out of the technological and medical advances prevalent in our times, as well as the new family configurations, whether they are single parents or couples (see Rabbi Z.N. Goldberg, Attributing Motherhood When Implanting An Embryo in the Uterus of Another, Tehumin 5 248 (1984); Rabbi M. Herschler, Halachic Problems of a Test Tube Baby, Halacha and Medicine 1, 307 (1980); Rabbi A Klab, Who is the Child’s Mother – The Parent or the Woman who Gave Birth?, Thumin 5, 260 (1984); Rabbi Y.B. Meir, In Vitro Fertilization – Attributing a Fetus Born to the Surrogate Mother and the Biological Mother, Asya 11, 25 (1986); Rabbi E. Bik, Attributing Motherhood in Embryo Implantation, Thumin 7, 266 (1987); Professor Michael Korinaldi, The Legal Status of a Child Born from Artificial Fertilization with a Sperm or an Egg Donor, Jewish Law Yearly 18-19, 295 (1992-1994); Professor Daniel Sinclair, Artificial Insemination and In Vitro Fertilization in Jewish Law: Comparative, Halachic-Methodological and Moral Perspectives, HaMishpat 9 291 (2004); Rachel Chishlvitz, Surrogacy Coupled with Eggs Donation: Legal and Halachic Perspectives, Refuah U’Mishpat 39, 82, 85 (2008)). Some of the rulers did not consider surrogacy in a positive light as they saw it as confusing and mixing. However, it seems it should be considered, though it is not at the hard of the issue, similarly to artificial insemination that was permitted where there was great need for it (for reservations about surrogacy see Kovetz Yeshurun, 21 535, 537 on behalf of Rabbi Y.S. Elyashiv and Rabbi S.Z. Auerbach; on permitting artificial insemination see Rabbi M. Feinstein following the M.H.R.S.M, Q.A. Igrot Moshe Even Ha’Ezer 1, 10.) What is this great need? Family continuation is seen as the woman’s (for instance, the woman who requests artificial insemination) request for assistance at her old age (“A stick in hand and a shovel for burial”), Bavli Ketubbot 64, 71) and see the Sperm Bank case, in paragraph 27 of my opinion. Is it possible to see the realization of the right to parenthood a great need? This may be an extension of the need “at old age” to a life that is meaningful and satisfactory.

Another question that is somewhat highlighted by our issue, is who is considered the mother of the child – the donor of the egg or the surrogate? Rabbi Yosef Shalom Elyashiv (Nishmat Avraham 4, Even Ha’Ezer 2, 2) believed that the genetic mother – the egg donor – is the mother (Kovetz Yeshurun, p. 535-40) though perhaps later he came to doubt this (Yeshurun 21 (2009)) and see the references in Rabbi Dr. M. Halperin’s book Medicine, Reality, Halacha and the Word of the Medically Wise (2012) 22-23, 294-95. So believed, too, Rabbi I.M. Soloveitchik, The Law of a Test Tube Baby, Or HaMizrach 100, 122-128 (1981); see also Rabbi S. Goren, Implanting Embryo According to Halacha, HaTzofe 17 (1984); Rabbi Dr. E. Warhaftig, Annexure to the Discussion regarding Test Tube Babies, Thumin 5 268-269 (1984)), but for another opinion, Rabbi E.I. Waldenberg (Tzitz Eliezer, part 19, 40; 20, 49) who thought that the eggs do not belong to the body of the surrogate and she therefore would be considered the mother; and see also Rabbi Zalman Nehemia Goldberg, Tehumin 5 270. In his book, Rabbi Halperin presents the contrary position of Rabbi Ovadiah Yosef, Rabbi M. Brandsdorfer and Rabbi S.M. Amar who believe that the genetic mother is the mother (see the sources there, pages 294-295; and there are also opinions that have changed.) For a collection of opinions that essentially tip in favor of the surrogate’s motherhood, see also Olamot (lesson 33, 2009); but see Rabbi Aviad Bartov, Permitted through his Mother – and a Surrogate Mother, Shiurim B’Masechet Beitza, Har-Etzion Yeshiva, which summarizes (and see the references there) as follows: “Today it seems that the common Halachic practice is to say that the status of the fetus born of this arrangement (in vitro fertilization of the surrogate mother – E.R.) must be determined by the status of the mother who is the source of the test tube, rather than the surrogate mother.” The opinion of Rabbi S.Z. Auerbach, as I have heard it from Rabbi Professor Abraham Steinberg, was that there is no clear solution in either direction because there is not satisfactory evidence for full determination and thus both women must be seen “mother in strictness” (which would require, for instance, the conversion of one of them should she not be Jewish.) See also Rabbi Itzhak Shilat Medicine, Halacha and the Tora’s Intentions (2014) 222, 231, who brings from Nishmat Avraham (2 Ed.) Even Ha’Ezer 35. Ultimately in this case there is no need to determine who the mother is, as the goal is complete partnership between the two specific women, though this may come up in matters of singleness or of separation (see K.M. v. E.G., 13 Cal. Rptr. 3d 136 (Ct. App. 2004); Sanja Zgonjanin, What Does It Take To Be A (Lesbian) Parent? On Intent and Genetics 16 Hastings Women’s L. J. 251 (2004-2005)).

Does the Surrogacy Law Infringe upon the Constitutional Right?

  1. The Surrogacy Law reflects the social agreement reached whereby “commercial surrogacy” was established for a narrow circle of intended parents who are a heterosexual couple (HCJ 2458/01, New Family v. The Committee for Approving Agreements for Carrying Embryo, IsrSC 57(1) 419, 437-38 (2002) (hereinafter: the New Family case.)) Does the existing arrangement in the Surrogacy Law infringe upon the Petitioners’ right to parenthood? Further, does creating a genetic, biological child within a lesbian relationship  was not in the Legislature’s mind when passing the Surrogacy Law, but since the First Petitioner wishes to realize her right to genetic parenthood by using her partner’s uterus, can her request rely on the Surrogacy Law?

The First Step – Is There an Infringement upon the Right to Parenthood?

  1. The right to family life is a sub right that derives from the constitutional right to human dignity (HCJ 7052/03, Adalla Center for Arab Minority Rights in Israel v. The Minister of Interior, IsrSC 61(2) 2002 (2006)). The right to parenthood is a granddaughter right to the right to family life and it encompasses various methods for fertility, reproduction and birth (Aharon Barak, The Constitution of the Family: Constitutional Aspects of Family Law, Mishpat V’Asakim 15, 13, 42 (2014) (hereinafter: Constitution of the Family); Aharon Barak Human Dignity – The Constitutional Right and its Daughters Vol. 2, 662-670 (2014)). There is no dispute that the right to parenthood was recognized repeatedly in the jurisprudence of this Court as a basic constitutional right (CA 5527/93, Nahmani v. Nahmani, IsrSC 49(1) 485, 499 (1995); CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 50(1) 48, 102 (1995); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 775 (1996); the New Family case, p. 445; HCJ 2245/06, Dovrin v. The Prison Service, para. 12 of Justice Procaccia’s judgment (2006); HCJ 4293/01, New Family v. The Minister of Labor and Welfare, paras. 17-21 of Justice Procaccia’s judgment (2009) (hereinafter: HCJ New Family); HCJ 11437/05, Kav L’Oved v. The Minister of Interior, para. 38 of Justice Procaccia’s judgment (2011) (hereinafter: the Kav L’Oved case); the Sperm Bank case, para. 27 of my judgment and para. 8 of Justice Barak-Erez’s judgment (2013)).
  2. The right to parenthood was recognized as a right with “negative” and “positive” aspects (HCJ New Family, para. 3 of President Beinisch’s judgment and para. 5 of Deputy President Rivlin’s judgment.) The negative aspect concerns protecting the individual from external intervention in the right and its exercise. The positive aspect goes to the state’s duty to assist the individual in exercising the right (see Aharon Barak, Interpretation in Law 3, 312 (1994); Aharon Barak, Proportionality in Law: Infringement on Constitutional Rights and its Limitations 44 (2010) (hereinafter: Barak, Proportionality)). The right to parenthood was repeatedly considered against technological developments in the area of reproduction. Surrogacy has been recognized as part of the right to parenthood, but was categorized as a process that belongs on the positive level of the right to parenthood (HCJ New Family, para. 23 of Justice Procaccia’s judgment.) For critiques on this categorization, see Kalai, p. 19-20. In any event, by both aspects, the right to parenthood is not absolute (Barak, Proportionality, p. 56-57.)
  3. The Petition at hand raises, among others, the question of whether the right to parenthood includes the right to genetic parenthood specifically. This question was not explicitly contemplated in the case law, but the “voice of blood” – the genetic element – has been heard (CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 56(1) 48, 102 (1995); the New Family case, p. 461; Pinhas Shiffman Family Law in Israel 132-133 (1989); the Kav L’Oved case, paras. 38-39 of Justice Procaccia’s judgment; CFH 1892/11, The Attorney General v. Jane Doe, para. 6 of Justice Joubran’s judgment (2011)). In the Sperm Bank case (paras. 43-45) I discussed the weakening of the genetic element, and that genetic parenthood cannot be considered to be the end all be all. This has support in Jewish law, too – “Happy is who does charity, one who raises orphan boys and girls in one’s home and brings them to be married” (Bavli, Ketubbot 50, 71); “Anyone teaching Torah to another’s son as if the child is his” (Bavli, Megila 13, 71); “I know no other father but you, as that who raises one is called father, rather than the only leading to birth” (Shemot Rabba, 46, 5, “and now, God, you are our father”); “Rabbi Hanina says ‘and her neighbors gave him a name that meant he was a child born to Naomi (Ruth 4, 17), as because Naomi gave birth and Ruth gave birth, but Ruth gave birth and Naomi raised he was therefore called for her” (Bavli, Sanhedrin 19, 72); on the model preferring the “social/ functional/ psychological parenthood” see Margalit, p. 576-582.)) Recently this Court considered the general and supplemental issue of a request to establish parenthood based only on a contractual foundation without any genetic element in AA 1118/14, Jane Doe v. The Ministry of Welfare and Social Services (the Petition was denied on July 13, 2014, in a decision that has yet to include reasons.)
  4. In the Sperm Bank case, I addressed the two levels of the right to parenthood (para. 29):

“From all of this another distinction is revealed, which goes to the two levels of this right. The first level, which is in itself valuable, is the ability to realize reproduction ability and become a biological mother or father. The second level, which is that at the basis of the right not to be a parent, is one’s ability to choose how to realize their natural right that is the first level. The second level is in the periphery of the right to parenthood, it is not designed to protect the value itself of having children, but other values such as the right to privacy, autonomy and free will with whom, how and when if at all, to bring children into the world (including the ability to plan a family)” (emphases added – E.R.)

The distinction between the two aspects of the right is relevant here. The wise would easily see that on the legal level it is possible to distinguish between the infringement upon the First Petitioner’s right to parenthood and the infringement upon that right of the Second Petitioner’s. While the infringement upon the Second Petitioner is focused essentially on the second level of the right, because she is prevented from realizing the right in a manner she had requested , the infringement upon the First Petitioner is located in the first level of the right to parenthood, because she is barred from the very access for a surrogacy procedure and therefore, realizing her right to genetic parenthood. This categorization of the Second Petitioner’s issue does not negate the actual infringement because “as long as the margins are part of the right, the marginal character of the right's infringement is relevant only to the stage of constitutional review of the infringement, rather than the matter of whether there is in fact an infringement upon the right to human dignity” (The Constitution of the Family, p. 30; Barak, Proportionality, p. 44.)

  1. For purposes of this discussion, I shall assume that the arrangement set in the Surrogacy Law which permits agreements between a man and woman and a surrogate and which requires severance of the relationship between the surrogate, the child and the intended parents upon birth, infringes the Petitioners’ right to parenthood. I will thus examine the constitutionality of this infringement.

The Second Step – Is the Infringement of the Constitutional Right Lawful (Limitations Clause)?

  1. The Limitations Clause includes four conditions, as articulated by the language of section 8 of Basic Law: Human Dignity and Liberty – the infringement must be done in a law or by law under in its explicit authorization; it must be fitting of the values of the State of Israel; it must be for a worthy purpose; and to an extent no greater than necessary. Two main obstacles stand in the Petitioners’ way to be included by the arrangements of the Surrogacy Law. One, the statute’s definition of the term “intended parents,” which is (section 1) “a man and a woman who are a couple, who enter into an agreement with a carrying mother in order to have a child.” Two, the absence of severance between the carrying mother and the intended parents after the birth of the child. We shall address both these pivotal obstacles.

The Constitutionality of the Definition of the Term “Intended Parents”

  1. The narrow circle of eligibility resulting from the definition of “intended parents” in the Surrogacy Law was considered in the New Family case within the issue of the eligibility of a single woman to realize her right to parenthood through a surrogacy procedure. It was held that “the law did not intend to fix the problems of a women without children who has no male partner, it did not even aim at solving the problems of a man without a female partner or any other couple” (Id. p. 439, by Deputy President Cheshin.) In the New Family case, the narrow circle of eligibility was considered constitutional primarily because the law’s novelty at the time. Deputy President Cheshin insisted that in the future, the issue will warrant revisiting, once relevant information was accumulated as to the execution of the surrogacy procedure as well as to its consequences (Id., p. 447-48, 456.) See also Yelena Chechko, On Ripeness and Constitutionality: Following HCJ 3429/11, Alumni of The Orthodox Arab High School v. The Minister of Finance and HCJ 3803/11, Board of Trusties of Israeli Stock Market v. The State of Israel, Mishpatim 43, 419 (2013)).
  2. The Professor Shlomo Mor Yossef Committee – the Public Committee of Examining Legislative Regulation of Reproduction and Birth in Israel (2012) – did indeed recommend to expand the circle of eligibility for surrogacy, so that single women, too, would be able to access the process of commercial surrogacy. The Committee further recommended establishing altruistic surrogacy for single men (for critiques regarding the Committee’s recommendations, see Avraham, chapter 3d.)

Following the publication of the Committee’s recommendations, in June 2012 a team was put together to examine methods of implementing the recommendations, as we have noted above. This year the Memorandum for the Agreements for Carrying Embryo Law (Approval of an Agreement and the Status of the Child) (Amendment – Definition of Intended Parents and Executing an Agreement outside of Israel), 5774-2014 was presented and received the approval of the Ministers Committee for Legislative Matters on March 2, 2014. The memorandum proposes to change the definition of “intended parents” to include in the circle of eligibility single women and single men. That is, it was proposed to expand the circle of eligibility for commercial surrogacy, according to the spirit of the decision in the New Family case. The memorandum does not directly resolve the issue of the Petitioners here under the model they request – only making it possible for the First Petitioner to contract a strange woman as a surrogate, which of course is not the Petitioners’ intention.

  1. In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it won't trail behind the Legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is first and foremost the Legislature, and the existence of advanced legislative processes warrants such judicial restraint.
  2. To conclude so far, the definition of the term “intended parents” in the Surrogacy Law prevents the First Petitioner’s access to surrogacy. The State claims (para. 51) that this issue is merely theoretical in her regard in light of her desire to have the assistance of her partner in order to realize the surrogacy procedure. However, there should be a distinction between barring access to a procedure, on the first level of the First Petitioner’s right to parenthood, and the matter of how the surrogacy procedure will be executed on the second level of the right. We now move to the second bar, which is concerned with how the right to parenthood is exercised.

The Requirement for the Severance of the Relationship between the Carrying Mother and the Intended Parents – Constitutional?

  1. The First Petitioner’s desire to execute the surrogacy procedure through her partner, appears to be, as mentioned above, concerned with the second level of the right to parenthood: the way in which the right it exercised. The First Petitioner wishes to exercise her right to genetic parenthood in a particular way, that is possible on its face in the medical sense – subject to the reservations of the First Petitioner’s treating physician that “there is no conclusive evidence as to whether the problem is the eggs or the pregnancy taking root (uterus-based)” (exhibit P/2 of the Amended Petition dated April 14, 2013), but it is still uncharted land in the legal sense.
  2. Altruistic surrogacy, and at least surrogacy based on a relationship, is not recognized in the current legislative arrangement. Still, in the mentioned law’s memorandum it is possible to find slight hinting at establishing such surrogacy. Thus, it was suggested to change the definition of “relative” in section 1(3) of the Surrogacy Law so that cousins would not be considered relatives and could serve as carrying mothers. In section 2(3)(b) of the Surrogacy Law it was proposed to add an exception to the basic prohibition on the intended parents and the carrying mother being relatives as following: “despite the above, a sister cold use as a carrying mother as long as the sperm fertilizing the eggs implanted in her body is not of her brother.” The desire to increase the pool of candidates for carrying mothers brought the drafters of the memorandum to consider relatives of the intended parents under the assumption that the existence of a relationship would serve as a catalyst for entering into the surrogacy procedure.

In order to examine the proportionality of the demand to severe the relationship between the surrogate and the intended parents we shall consider the three accepted sub tests: first, the fit test – which requires a connection between the worthy purpose and the means selected to accomplishing it. Second, the least restrictive means test – which requires that the means chosen infringes on one’s right as little as possible. The third test concerns the existence of a proper connection between the means and the purpose, and weighs the benefits resulting from the infringing statute against the extent of harm done to the right (HCJ 4769/95, Menachem v. Minister of Transport, IsrSC 57(1) 235, 279-86 (2002); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 545-47 (1994); Barak, Proportionality, p. 373-454.)

  1. Because there is on its fact a rational link between the surrogacy model built around the severance and the achievement of the purpose of the Surrogacy Law, as it currently is, we will move on to the second sub test for proportionality and ask whether there is an alternative which infringes on the right to parenthood less but may still achieve the law’s purpose. The Petitioners justifiably point to a variety of problems and criticisms raised in regard to commercial surrogacy – the exploitation of the surrogate’s financial circumstances, the hardship of severing the relationship with the child, regret for entering into the procedure, and the involvement of a third party in reproductive procedures (Lipkin and Smama, p. 480-85.) They argue that these are negated by an altruistic procedure which they seek. However, the altruistic model is not free of flaws, either. The main concern arising in an altruistic model is the social and familial pressure on the woman, which may lead her to enter into an intrusive and difficult procedure that does not reflect her true wishes (Rakhi Ruparelia, Giving Away the Gift of Life: Surrogacy and the Canadian Assisted Human Reproduction Act 23 Can. J. Fam. L 11, 14; 29; 35-36 (2007); Janice J. Raymond, Women as Wombs: Reproductive Technologies and the Battle over Women’s Freedom, 53-54 (1993)). In the United States, for example, there is a tendency to restrain altruistic agreements between relatives because of the concern for difficulties of disconnection from the child (Lipkin and Smama, p. 450.) An additional problem is the lack of sufficient psychological and scientific knowledge about the altruistic process and its consequences (Id., p. 490.)
  2. Moreover, altruistic surrogacy may also raise, to greater force, the question of the surrogate’s legal status vis-à-vis the child. Ordinarily, in a procedure of surrogacy, once a parenting order is granted the carrying mother loses any legal status toward the child. In the procedure requested by the Petitioners, it is likely that the Second Petitioner who would have carried the child would seek legal recognition as the child’s mother (see also HCJ 566/11, Doron Mamat-Magad v. The Ministry of Interior (January 28, 2014) (hereinafter: the Mamat-Magad case.) Such a request poses significant difficulty to the institution of surrogacy in its current formulation which only recognizes the intended mother as the legal mother (Zafran, p. 388-395.) Legal recognition within the Surrogacy Law of the carrying mother may potentially cause harm to the group of “intended parents” who currently utilize the Surrogacy Law.
  3. In light of all the above, permitting a model of “relationship” within the existing statutory arrangement cannot create an alternative that less infringes upon the constitutional right, which can still accomplish the purposes of the law. Though the establishment of altruistic surrogacy has great potential, the task of setting it up is clearly within the purview of the Legislature in light of the difficulties it presents in the absence of proper and balanced regulation. Establishing a model of altruistic surrogacy requires to create legislative mechanisms that would ensure the free will of the surrogate as well as methods for detection and follow up. Here is a challenge for the Legislature.
  4. The Surrogacy Law therefore restricts the First Petitioner’s right to altruistic surrogacy, as this model has yet to be enacted in a statute. However, the infringement is limited to achieving the purpose of surrogacy through the altruistic model in Israel. The State did not block the First Petitioner’s way from executing the surrogacy procedure along the route she desires abroad. We refereed to the Ministry of Health’s protocol from July 21, 2013 titled “Taking Semen, Eggs or Fertilized Eggs out from Israel,” which enables the First Petitioner to take  fertilized eggs extracted from her body out of Israel, in order for them to be “implanted in the body of the woman from whom the eggs were extracted or in the body of a surrogate woman for the purposes of carrying a pregnancy for the woman from whom the eggs were extracted, or for the purposes of realizing parenthood in alternative means for the women from whom the eggs were extracted.” (Emphasis added – E.R.)

Through the protocol the State avoids defining the requested procedure as a surrogacy procedure, in light of the law’s absence of recognition of the altruistic model, but at the same time removes the obstacle standing in the Petitioners’ way to execute the procedure in other countries in the manner they wish to execute it. In my view, the option given to the First Petitioner to take her genetic material out of Israel meets the requirement of the third sub test (narrow proportionality) which concerns the relation between the infringement upon the constitutional right and the benefit achieved. Since altruistic surrogacy does not exist in Israel, it seems we have a proportional solution that balances the petitioners’ desire to execute the procedure in a specific manner they request and the need to refrain establishing judicial arrangements as a “patch work.” In contrast, allowing the Petitioners to realize their wishes in the specific manner they seek – that is, through altruistic surrogacy in Israel – would result in parts of the Surrogacy law becoming incoherent with each other (for the problems of “patch work” legislation, see HCJ 7691/95, Sagi v. The Government of Israel, IsrSC 52(5) 577, 587-88 (1998); LCA 418/03, Ossem Food Industries Ltd. v. Smaja, IsrSC 59(3) 541, 552-54 (2004); CrimA 4783/09, Shulstein v. The Antitrust Authority, para. 1 (2010)).

Finally, referring the First Petitioner under today’s state of the law to exercise her right out of Israel, with all the inconvenience involved, does not automatically cause unconstitutional infringement upon her right (HCJ 466/07, Galon v. The Attorney General, para. 8 of (then) Justice Naor's judgment (2012) (hereinafter: the Galon case.) Executing the procedure, in the specific manner requested, out of Israel constitutes a proportionate solution for the First Petitioner, as long as there is no existing legislative regulation of altruistic surrogacy. Executing the procedure allows the State to assist the Petitioners without causing disharmony to the existing statute. Indeed, there is discomfort with the State referring its citizens to realize their dreams and rights in other countries (the Mamat Magad case, paras. 5-10 of Justice Joubran’s judgment,) yet in the absence of a legislative arrangement that allows surrogacy along the route the Petitioners request, the solution suggested by the State through the protocol is proportionate, because “at times even the exercise of a constitutional right yields to the public interest” (see Galon, para. 11 of (then) Justice Naor's judgment) and in our case – to harmony in the system of parenthood arrangements and the balances between them. Interpretation such as the Petitioners requested stands, as my colleague Justice Hayut noted as well (para. 18), in contrast to the core of the existing arrangement, which focuses on severance between the surrogate and the intended parents.

  1. Under the circumstances – as we have not accepted the Petition – it is unnecessary to delve into the issue of the legal recognition of the carrying mother (the Second Petitioner.) However, to the extent that the Petitioners chose or will choose to execute the procedure abroad, it seems the solution proposed by the District Court in T.Z. (paras. 31 and 34) – issuing a judicial parenting order (after conducting a review to support the petition for a parenting order) – and which comes out also of the Mamat Magad case (para. 43 of Deputy President Naor’s judgment, para. 11 of my judgment) could seemingly work in favor of the Petitioners here, because the State expressed no general objection to a family unit of “co mothers” which the Petitioners wish to contract, but only to the legal route in which they seek to construct it (on the legal recognition of two mothers in the United States, see Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J.C.R. & C.L 201 (2009)).
  2. As to the future regulation of altruistic surrogacy within the general Surrogacy Law which currently only regulates commercial surrogacy, the Legislature must explore the possibility of establishing a route for altruistic surrogacy, which would operate in parallel to the commercial route where the law’s different parts would not conflict with one another, but complement each other. See – and this is only brought as an example – the proposal by the “Woman to Woman” Center in regard to introducing elements of a “relationship” into contractual commercial surrogacy as well, and this based on psychological research demonstrating that the human relationships formed are the primary benefit that the surrogate enjoys in the process (Nufar Lipkin and Eti Smama, Surrogacy in Israel – 2010 Snapshot and Proposal for Legislative Amendments – Report by ‘Woman to Woman-Feminist Center, Haifa’ 65, 80-82 (2010), Elly Teman, Birthing a Mother: The Surrogate Body and the Pregnant Self (2010)).

Conclusion and Final Words

  1. At the end of the day, we did not see it fit to intervene in the State’s latest proposal, which meets the Petitioners significantly closer, though not exactly at their desired point. In our view, under the current state of the law it is impossible to fully assist the Petitioners, and doing so is up to the Legislature. As we have demonstrated, the dissenting opinion’s suggestions – as appealing as they may be – are not acceptable to us on the legal level. Hence our position not to accept the petition. There is no order as to costs.

 

                                                                                                Justice

President A. Grunis:

I agree with the judgment of my colleague, Justice E. Rubinstein.

 

                                                                                                President

Deputy President M. Naor:

  1. I am among the majority Justices who have found the Petition must be denied.
  2. The right to parenthood received recognition as a fundamental right, which expresses the natural desires of women and men for continuance in future generations (HCJ 566/11, Mamat-Magad v. The Ministry of Interior, para. 41 of my judgment (January 28, 2014); HCJ 4077/12, Jane Doe v. The Ministry of Health, paras. 25-29 of my colleague Justice E. Rubinstein’s judgment (February 5, 2013) (hereinafter: the Jane Doe case)); dismissing a motion for further hearing – HCJFH 1403/13, Jane Doe v. The Ministry of Health (June 6, 2013.)) The right to parenthood, as other rights in our law, has different aspects. At the core of the right to parenthood is the right of each man or woman to bring children into the world through natural reproduction, free of state intervention. It is also accepted that at the heart of the right is “the practical ability to enter the ‘group of parents’ and bring a child into the world (Id., para. 33). Another question, a more complex one, is what is the level of protection that must be given to one’s demand that the State assist him in creating genetic, physiological or legal parenthood. This, in light of the medical, technological advances that make creating parenthood by artificial means possible. These things found expression in the jurisprudence of this Court. See, for example: HCJ 4293/01, New Family v. The Minister of Labor and Welfare (March, 24, 2009), which addressed, among others, the question whether there is a constitutional right to adopt. Justice A. Procaccia discussed there the complexity inherent in the question whether one has a right to require the State to assist in the process of creating parenthood:

“The question from a different angle is whether the constitutional right to family life and parenthood, which is granted to any person, gives rise also to the right to require the state to take action in order to make it possible where one is not able, or does not wish, to exercise it naturally – for instance through adoption, through surrogacy or through in vitro fertilization. Does the state’s failure to act amount to an ‘infringement’ whose constitutionality is examined according to the Limitations Clause? Such questions are complex and multi-faceted. They go to the link between the constitutional right and the means one has to exercise that right. They raise issues with broad normative, moral, social and other ramifications. The approaches to resolving them are subject to the influences of time, place and circumstances…

… The question to what extent the state must assist the individual and grant the means necessary to assist reproductive processes through artificial reproductive techniques is difficult and complex. The greater the need for intervention of external factors in the reproduction processes, the farther we travel from the hard core of the right to parenthood as based on the individual’s autonomy and his independent right to make decisions that determine his fate without external intervention. The scope of the duty of the state to assist the individual through active steps to realize his natural parenthood through artificial means is difficult and has many aspects.” (Paras. 22-23.)

In that same matter, President D. Beinisch commented that the right to parenthood should not be interpreted as merely a negative right, but added that were there a constitutional right to parenthood through adoption, it would have been necessary to distinguish between the scope and the force of the constitutional protection given to the relevant right in different contexts (para. 3; see also the position of Deputy President E. Rivlin there, who believed that there is a liberty to adopt, and that restricting this liberty must be done in consideration of competing interests. See also, Aharon Barak, Human Dignity: the Constitutional Right and its Daughters, vol. 2, 667 (2014)). As my colleagues pointed out, alongside the right to parenthood, the best interest of third parties who are at times involved in the process of artificial reproduction as well as medical, social, and other ethical considerations must all come into account. These considerations may lead to the limitation of the means to realize the right to parenthood, as well as declining to recognize certain types of parenthood (see and compare: our decision without reasons in LFA 1118/14, Jane Doe v. The Ministry of Welfare and Social Services (July 13, 2014.)) The mere fact that there are various ways to become a parent does not mean that the State must allow their execution in any way that science and technology allow. A similar approach was expressed in the matter of Jane Doe, where Justice D. Barak-Erez discussed the fact that the protection of the right to parenthood must be distinguished from the protection for the goal to exercise the right to parenthood “in a particular way” (para. 11), and that “these situations continue to raise the question whether when a certain course of action is available, as a scientific and technological matter, would this mean that there is also a right to make use of it, and that the way the right is exercises cannot be restricted.” (Para. 32.)

  1. In the case before us, the Petitioners wish to bring a common child into the world, in a manner where the child will be born of the Second Petitioner’s uterus and will carry the genetic code of the First Petitioner. According to the Petitioners, the Respondents have not indicated there was a moral flaw, or any other consideration that justifies preventing them from exercising their right to parenthood in this way. Although their plight is touching, my opinion was that the Petition must be dismissed.
  2. My colleagues have demonstrated at length, and I shall not repeat, that under the system of statutes existing currently, what the Petitioners wish to do is impermissible and may even lead to a criminal sanction, including for the treating physician.
  3. My colleague Justice Hayut in her humane and sensitive judgment wishes to find remedy for the Petitioners and their desires through the doctrine of “reading in.” In her view, this way allows authorizing the exceptions committee already exists under the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law) to approve eggs donation when the committee is satisfied that under the circumstances there are exceptional and special reasons that justify doing so. This language appeared in the Bill, but was removed as a result of Rabbi Halperin’s suggestion to leave this to the court because “the court permits things that the law prohibits.” My colleague points out that these things by Rabbi Halperin have no foundation. Indeed, as opposed to Rabbi Halperin’s suggestion, the courts do not do as they see fit with statutes and law, and they do not permit what the statute has prohibited. The way of courts is the way of interpretation, and when necessary – and when the court sees it to be justified – it takes the exceptional step of judicial intervention. Still, in my opinion, even were we to expand the powers of the exceptions committee, as my colleague suggests, there was no case before us that was necessarily suitable to apply the exception to the principles established in the Eggs Donation Law. On this point, I join the words of my colleague Justice Rubinstein in paras. 16-23 of his judgment. The arrangements in terms of eggs donation, which were described in detail, emphasize the physiological connection between the mother and the fetus. In this way, section 42(a) of the Eggs Donation Law, mandates that a child born of an egg donation would be the child of the recipient for all intents and purposes. Without devaluing the importance of the genetic connection, I believe this is an infringement upon a particular way to realize the right to parenthood, and thus its force is diminished in my eyes. Accepting the Petition may shift the weight to the genetic relationship between the child and the recipient, and thus impact the definitions of parenthood resulting from an eggs donation, as well. There is no moral flaw to the Petitioners request, but accepting it may implicate other issues and destabilize the balances established in the legislation of reproduction and birth. It should also be noted that the restrictions set in the Eggs Donation Law are not concerned with the sexual preference of the recipient or the donor but with resolving the recipient woman’s reproductive difficulties. As a result there is no prohibition against the Second Petitioner donating eggs to the First Petitioner. Additionally, that the legislation regulating egg donation is actually recent and that during the hearing before the extended panel held on April 28, 2013 the Respondents expressed their willingness to examine the need to amend it must also be factored in.

5.               The circumstances described above, along with the possibility open to the Petitioners to realize their wished outside of Israel leads to a conclusion that there is no justification, at this time, to intervene in primary legislation. In this case, taking the extraordinary step of reading into the law amounts, almost, to instructing the exceptions committee to stray from the law in the Petitioners’ case, under circumstances that have no justification for doing so. Another difficulty in taking this step is that expanding the powers of the exceptions committee, as proposed by me colleague, may have wide consequences outside of the individual case of the Petitioners and couples like them. This is, in my view, a substantive and significant change to the law, and I doubt whether it is proper to make in the way of “reading in.”

6.               Moreover, even were to intervene in the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756- 1996 (hereinafter: the Surrogacy Law,) and find that the term “intended parents” in this law includes not only couples who are a man and a woman but also a woman and a woman (and I am inclined to find as such; see also Memorandum regarding the Agreements to Carry Embryo Law (Approval of an Agreement and the Status of the Child) (Amendment – definition of Intended Parents and Executing an Agreement out of Israel), 5774-2014), this would not benefit the Petitioners. The Surrogacy Law reflects a model where the relationship between the surrogate and the child is severed upon birth, whereas the Petitioners wish to realize a different type of parenthood, where the woman carrying the pregnancy, along with the genetic mother, will together serve as mothers to the child. The Surrogacy Law is not the appropriate avenue for the Petitioners’ matter.

7.               My colleague, Justice Arbel emphasized in her sensitive opinion the First Petitioner’s desire for a child of her own. As to the legal route taken by Justice Arbel, I join the words of Justice Rubinstein in paragraphs 24-26 of his opinion.

8.               In conclusion: with all the empathy to the Petitioners’ desire to bring a child into the world in the particular way they suggest, including performing the entire procedure in Israel, I find it impossible to accept their petition. They are able, however, to take the route to which the Ministry of Health was willing to agree.

 

                                                                                                Deputy President

Justice S. Joubran:

  1. The issue before us is not easy to decide. On one hand it touches the heart of human existence – the desire to be a parent; on the other hand it touches the heart of society’s existence – regulating its conduct through the law. The Amended Petition aims to challenge different provisions in two statutes, which according to the Petitioners, limit their ability to realize their will to be genetic and biological co parents by using artificial reproductive technologies. The first statute is the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law). The other statute is the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law). The dispute is, in short, whether it is possible under the circumstances of the case to allow the Petitioners to have their wish and this despite the limitations of the law.
  2. I join the judgment of my colleague Justice Rubinstein, according to which we cannot permit the Petitioners’ request. Like my colleague, I too believe that there is currently no lawful avenue to fulfill their hearts’ desires, and I shall add but several short comments.
  3. First as to the Surrogacy Law. I accept the position that the case before us does not fall under this law. The Second Petitioner – the “surrogate” mother – wishes to carry the embryo in her uterus and give birth to it and is intended additionally to be the co parent of the child. In order for the law to apply to the Petitioner, a central element of the Surrogacy Law must exist. This is the element of post birth severance. The current outline of the Surrogacy Law requires as a general rule, aside from exceptional cases that are detailed in section 13 of the law, severance between the carrying mother and the child and the intended parents after birth. It seems that the existing Surrogacy Law does not regulate situations where the mother who carries a fetus in her uterus and gives birth to it would also be the child’s mother, and thus the law does not exist in the case before us. This is true at least under the Israeli Surrogacy Law. It appears there are possible other outlines for surrogacy different than that in the law in its current version. The definition of surrogacy depends on the law and may take many different forms (see primarily paras. 32-33 of my colleague Justice Rubinstein’s judgment.) So, for example, there is altruistic surrogacy and there is contractual commercial surrogacy. However, as said, the current state of the law in our country indeed does not permit under any interpretive reading what the Petitioners ask.
  4. Now for the Eggs Donation Law. In the case before us, the recipient who receives the eggs is, as far as we know, a healthy woman. The difficulty in applying the law to her is that the Eggs Donation Law requires that the recipient have a medical condition that requires an eggs donation from another woman (section 11 of the Eggs Donation Law,) and thus this basic condition is not met in the case at hand.
  5. Although section 18 of the Eggs Donation Law authorizes an exceptions committee to approve an eggs donation procedure in certain exceptional case, but these are detailed in an exhaustive list in section 20(a) of the law and the case before us does not fall within the list. My colleague Justice Hayut proposed to use the reading in doctrine in order to read into the Eggs Donation Law a general catch all section, in addition to the list of exceptional cases detailed in the law, which authorizes the exceptions committee to approve an eggs donation “if it is satisfied that under the circumstances there are special and exceptional reasons which justify doing so” and thus permit what is requested by the Petitioners (paras. 35-38 of her judgment.) My position is identical to that of my colleague Justice Rubinstein, that this reading is impossible. The language of the Eggs Donation Bill did include such a catch all section that granted the exceptions committee the power to authorize an eggs donation “if [the committee] was satisfied that under the circumstances there are exceptional and special reasons which justify doing so” (section 21(e) of the Eggs Donation Bill, 5767-2007 Government Bills 289, 292,) and the explanatory notes clarify that the exceptional reasons are those which “were impossible to have anticipated, and this without requiring an amendment to the law” (para. 11 of my colleague Justice Rubinstein’s judgment.) However, the Petitioners’ request was anticipated and known to the professional bodies as well as the sub- committee of the Committee for Labor, Welfare and Health. This particularly in light of FA (Dist. Tel Aviv) 60320/07 T.Z. v. The Attorney General, State Attorney – District of Tel Aviv (March 4, 2012) (hereinafter: the T.Z. case) where a similar matter of a female couple interested in biological genetic co-parenting, but where the recipient woman had a medical need for the eggs donation, was decided. And yet, at the end of the day the Legislature decided not to include in the Eggs Donation Law a general catch all section or a specific exception that permitted a case such as the one before us. Under these circumstances, I doubt whether it is possible for us to read a reading that is inconsistent with the legislative intent. Therefore, it seems this law, too, does not apply to the circumstances of the case before us.
  6. Beyond the necessary scope, the question whether the Eggs Donation Law is at all relevant to the case before us is raised. Indeed, the Eggs Donation Law was designed to assist women who are unable to realize their parenthood in means other than an eggs donation, but in my view – and in this regard my opinion converges with the opinion of my collogue Justice Arbel – this law is not relevant to our matter, both in light of its said purpose and the clarity of its sections which explicitly exclude cases where the woman is able to realize her parenthood even without the eggs donation, and in light of the fact that in effect this is not a “donation” in our case, as my colleague Justice Arbel analyzed in a deep and persuasive manner. I accept the conclusion that the meaning of “donation” is giving to another without receiving any compensation and in our case the “donor” receives the right to be a co mother to the child. In my opinion, this is the reasonable interpretation of this term. Therefore, and in light of my colleague Justice Arbel’s additional reasons, I believe that the Eggs Donation Law is irrelevant to our matter.
  7. My colleague Justice Arbel thus turned to the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: The IVF Regulations) in order to locate a solution to the problem and her position is that these Regulations are relevant to the case at hand, as they were in the case of T.Z.. However, my position is as the position of my colleague Justice Rubinstein. These two cases are distinguishable in the fundamental element of the egg recipient’s medical need. In the case before us there is no such need because the woman seeking to receive the eggs is a healthy woman and thus the T.Z. case, which considered a recipient with a medical need, cannot be analogized. It seems that the guidelines by the Attorney General from November 30, 2009 regarding eggs donation between female partners are irrelevant as well because these guidelines also relied on a case where the receiving partner demonstrated a medical need for a donation from her partner. And in any event, the Eggs Donation Law was enacted after this and regulated the issue in primary legislation.
  8. As to the application of the IVF Regulations to the case at hand, I believe that the procedure requested by the Petitioners lacks any anchor in these Regulations. The IVF Regulations establish, among others, the exclusivity of the purposes for egg extraction as in vitro fertilization of the egg and its consequent implantation (regulation 3,) but they do not address a procedure such as the one sought in this Petition in any way. The reasonable interpretation of these Regulations leads to the conclusion that there were designed to regulate in vitro fertilization of a woman’s egg in order to implant it in her own body rather than the body of another, whether the latter woman is her partner or a stranger. And in any event, as my colleague Justice Arbel emphasizes in section 19 of her opinion, the procedure of eggs donation can currently be done only according to the arrangements of the Eggs Donation Law. Section 4 of the Eggs Donation Law explicitly limits the activity of eggs extraction and implantation to follow only the provisions of this law, unless in cases of surrogacy.
  9. We learn that the procedure where a woman wishes to give her egg to her (healthy) partner in order for it to be implanted in the partner who would give birth to a mutual genetic, biological child is not regulated in Israeli legislation. But had the Eggs Donation Law not include a provision mandates the treatment of eggs to conform solely to this law (section 4 of the Eggs Donation Law,) it seems the Petitioners’ request would have been permissible. However, the explicit prohibition to follow a different path than that set out in the Eggs Donation Law limits the steps of the Petitioners and does not afford them what they request (see and compare HCJ 2458/01, New Family v. The Committee for Approving Agreements for Carrying Embryo, IsrSC 57(1) 419, 445 (2002), in a parallel context of exclusivity of arrangements in the Surrogacy Law.) Therefore, in the case before us I believe that despite our willingness to do so, we cannot assist the Petitioners.
  10. In this context, a central matter that came up in my colleagues positions was the legislative intent while enacting the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law) and the assumption about courts’ intervention in legislation (see the discussion in this regard in my colleague Justice Hayut’s judgment in paras. 21-22, 38 and in my colleague Justice Rubinstein’s judgment in paras. 11-14.) So, for instance, Rabbi Dr. Halperin said that “the court permits things that are prohibited… when there is a real need it finds the way to do so even in violation of express statute” and later “this does not need to be written. The court does this anyway even without a catch all section.” I have but to join the words of my colleagues Justice Hayut and Justice Rubinstein on this issue. The assumption that the court would intervene in legislation even if it were against the law is fundamentally mistaken and undermines the public’s trust in the court system. As emphasized by my colleague Justice Rubinstein, the court sees it fit to intervene in legislation only in extreme cases and it does so with great care. These things are of even more force where the Legislature clarified his position and where the question of the statute’s interpretation does not come up, as in the case before us.
  11. Similarly to the position of my colleague Justice Rubinstein, I, too, believe that the removal of the requirement for the recipient’s medical need as set in section 11 of the Eggs Donation Law must be considered in order to extend the circle of men and women eligible for an eggs donation. Similarly certain aspects or the Surrogacy Law should also be revisited and current gaps in the statutory regime – such as the existence of a procedure of partner assisted reproduction, or reciprocal IVF, which permits eggs donation for healthy women as well, of course with inherent and imminent mechanisms of control and supervision – should be regulated in legislation.
  12. The right to parenthood – as discussed at length in paragraphs 2-3 of my colleague Deputy President M. Naor’s judgment – is an important and fundamental right in our country, a basic constitutional right that stands to each man and woman by virtue of their humanity. However, I agree with the position that the right to parenthood is not the right to parenthood exercised in a particular way (see HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 11 of Justice Barak-Erez’s judgment (February 5, 2013.)) In the case before us, the Petitioners have several options to become parents, even if not all of them make the requested genetic biological co-parenting model possible. Specifically, they have the option, to which the State agreed, to perform the requested procedure abroad and receive recognition of the genetic biological co-parenting in Israel. We must hope that this option will be only temporary for such cases until the Legislature permits performing the procedure in our own country.

 

                                                                                                Justice

Justice H. Melcer:

  1. At the time it was decided – by a majority of four Justices against three – to deny this petition. I was among the minority. The decision was made public with no reasoning so that the Petitioners may calculate their steps according to the outcome and explore whether they are willing to accept the partial solution proposed to them by the Respondents. We took this route in light of the constraints of “the biological clock” which weighed heavy on the Petitioner, and thus we allowed the Petitioners to make an informed decision in their matter as early as possible.

It is time now for giving reasons, and these took shape so that first the opinions of my colleagues in the minority, Justice E. Hayut and Justice (Ret.) E. Arbel were written and the opinions of the majority Justices, headed by the opinion of my colleague Justice E. Rubinstein, then followed. As a result before me is all the comprehensive and studious material and I have but to clarify why I was of the view that the Petition must not be rejected and how it should be upheld. I shall turn to this immediately, but I will open by briefly reviewing the Petition and focusing on the issues in agreement and those in dispute. 

  1. The Petitioners are partners. They wish to bring a child into the world in the following way: an egg taken from the body of the First Petitioner would be fertilized and then implanted in the body of the Second Petitioner. Seemingly, under the statutory situation in our country, the said method is not permitted to be executed in Israel, in light of the different provisions in the Agreements for Carrying Embryo Law (Approval of an Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and in the Eggs Donation Law,5770-2010 (hereinafter: The Eggs Law.) In order for this to be permitted, the Petitioners have therefore raised different arguments on the interpretive and constitutional levels to challenge the restricting provisions. An order nisi was granted in the Petition and it was considered by an extended panel.
  2. My colleague, Justice E. Hayut, described well (and thus I will not repeat): The various legal obstacles in the statutory network that the Petitioners face in realizing their desire to parenthood and the constitutional rights on which they rely in their arguments. Finally, my colleague analyzed the current restrictions in the mentioned statutes against the “Limitations Clause”. In a sharp and concise opinion she reached the conclusion that the arrangement set in the Eggs Donation Law, which restricts extraction, fertilization and implantation of the fertilized eggs and prohibits, under criminal prohibition, the performance of these procedures in the circumstances where the Petitioners find themselves, violates the Petitioners’ constitutional rights to autonomy, to family life and to parenthood. Therefore she found that the limitations in the Eggs Law in this sense do not pass the requirements of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty.

I join all these finding, as it was not said that there is an interpretive avenue that would grant the Petitioners’ wishes without judicial intervention in existing legislation (and I believe that there is such a path.) I additionally share my colleague’s conclusion and the views of the remaining members of the panel that judicial intervention in the Surrogacy Law is not the proper path to examine the arguments of the Petitioners and to find remedy to their plight.

  1. Therefore it appears that the split in opinions between the majority and the minority is on the question whether the restrictions in the Eggs Law which bar the Petitioners from realizing their desires meet the requirements of the Limitations Clause. Together with this difference in opinions, within the minority justices, there is an agreement regarding the outcome (that the Petition should have been accepted), but we do not agree on the method of resolution and as to the legal basis for it.

It is fitting here to note further that even the Respondents, who were also aware of the Petitioners’ distress, proposed during the hearings in the Petition a certain partial solution for the Petitioners – an arrangement that the majority saw fit to accept as satisfactory under the circumstances, and not go beyond.

In the following paragraphs I will attempt to concisely demonstrate why the majority’s position is unsatisfactory, and why the minority position, with its differing aspects, is preferable to me.

  1.  In analyzing the legal problem brought to us two insights should, at least, guide us, in my view:
    1. Technology generally precedes the law. In these cases where the Legislature and the courts are called upon to pour the essence of existing, good, and established fundamental principles into new legal vessels (as if were they wine which gets better with age, which only needs a more modern container. Compare: Stephen Breyer, Active Liberty 64 (2009)). And see my opinion in CA 9183/09, The Football Association Premier League Limited v. John Doe, (May 13, 2012.)
    2. Interpretation is the preferable method to resolve issues which overlap with constitutional questions and this before we reach the last resort of striking down legislation. See: judgments by President A. Barak and then Justices M. Cheshin and D. Beinisch in HCJ 9098/01, Genis v. The Ministry of Construction and Housing, IsrSC 59(4), 241 (2004); HCJ 3809/08, The Association of Civil Rights in Israel v. The Israel Police (May 28, 2012); my judgment in LCA 7204/06, Israela Erlich v. Yehoshua Bertel at para. 40 (August 22, 2012.) Review also comparative law – the judgment of the United States Supreme Court, by Justice Roberts (in majority) in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2593-94 (2012)).

Considering these insights and the distress of the Petitioners’ and others like them, the Respondents notified us in an updated notice that on July 21, 2013 the Ministry of Health published a protocol for the “taking  Sperm, Eggs or Fertilized Eggs out of Israel.” Following the protocol a decision was also made by the exceptions committee, which operates under the Eggs Law. The committee approved the taking of eggs out of Israel in order for them to be implanted abroad under certain circumstances. Such approval is permissible under section 22(d) of the Eggs Law. The protocol and the decision by the exceptions committee both mean that it is now permitted to perform the procedure of extracting eggs from the First Petitioner in Israel and later their fertilization, with their implantation in the Second Petitioners’ bodies to be done out of Israel.

The majority Justices are willing to consider this, under the circumstances, a satisfactory solution to this problem. I, with all due respect, think differently for two reasons:

  1. Section 22(d) of the Eggs Law stipulates as follows:

“The exceptions committee may approve the taking out of eggs extracted in Israel from a patient’s body for the purposes of their implantation out of Israel, if it satisfied that the eggs were intended to be implanted in her body, and that there is justification to approve the eggs’ implantation out of Israel.” (My emphasis – H.M.)

Therefore, it seems, the requirement that the exceptions committee be satisfied that the eggs be intended to be implanted in the patient’s body, in its plain language, is not met here, and thus referring the matter abroad works primarily to “distance and marginalize”. What is more – moving the solution abroad is more burdensome.

  1. Constitutionally, it is neither appropriate nor proportionate to send an Israeli citizen abroad to exercise her constitutional rights. In this context, the Petitioner’s cry (who is also an officer in the IDF) that called upon us from the bottom of her heart not to accept the partial solution proposed to the Petitioners by the Respondents, still rings in my ears, particularly because in my view she is not only correct on an emotional level, but also on a legal level.

What is, then, the right solution? I shall elaborate on this directly below.

  1. It appears to me that granting the Petitioners’ wishes could have come to its resolution within the authority of the exceptions committee under section 22(a)(2) of the Eggs Law, which reads as follows:

“The Exceptions Committee may approve the extraction of eggs for implantation, or implantation of eggs when the donor designates in advance the eggs extracted from her body to a particular recipient, when it is satisfied that the following conditions are met, as appropriate to each case:

…(2) In the case of the donor who designates in advance the eggs extracted from her body to a particular recipient who is not her family member – there are religious or social reasons which justify such an egg donation.”

This sub section has none of the limitations of the type included is section 22(d) of the above Eggs Law. Moreover, the interpretation taken by the majority is much less sound. Furthermore, as demonstrated by my colleague Justice E. Rubinstein in paragraph 12 of his opinion – during the discussions of the Knesset’s sub-committee of Labor, Welfare and Health, which considered the Eggs law’s bill before it was prepared for its second and third reading the sub committee’s chair, MK Professor Ariyeh Eldad commented that this section was a good opening for same sex female couples.

In this way it would have been possible therefore to grant the requested by the Petitioners and accept, in this sense, their petition (there still would have been the issue of the Child’s status under section 42 of the Eggs Law, however this issue could be resolved by finding statutory solutions (see and compare with the situation in Britain – section 42-46 of the Human Fertilization and Embryology Act 2008,) or judicial ones (see the majority opinion in HCJ 566/11, Doron Mamat-Magad v. The Ministry of Interior (January 28, 2014.) Additionally, this issue was not included by the Petitioners in their Petition.)

However, since my colleagues do not accept, to my regret, for some reasons that were not expressed, the interpretive approach based on section 22(a)(2) of the Eggs Law in order to resolve the issue – I am also willing to walk down one of the paths proposed by my colleagues to the minority and in this sense will limit myself only to several short comments.

  1. As to the proposal raised by my colleague Justice E. Hayut (as to the addition of a catch all section for an exception to the Eggs Law) – this solution, in principle, is acceptable to me as I support the approach that legislation should include authorities that enable solutions in “a special particular case,” or to instruct doing so by way of judicial interpretation. See HCJ 2390/10, Ala Halihal v. The Minister of Interior (May 23, 2010) para. 10 of my judgment; APA 9890/09, Nava v. The Ministry of Interior (July 11, 2013), para. 16(d) of my judgment; LAA 7272/10, Jane Doe v. John Doe (January 7, 2014), section 6 of my judgment.)

Furthermore – differently. The read in remedy also seems fitting to me under the circumstances (compare to my opinion in APA 343/09, Jerusalem Open House for Pride and Tolerance v. The Jerusalem Municipality, September 14, 2010, there in para. 5.)

On the apparent difficulty that views the “catch all exception” section to have been initially proposed in the Knesset, but then rejected – indeed this is possible to overcome in light of the mistaken reasoning which led (as my colleagues’ opinions clarify) to the removal of that section from the agenda.

  1.  As for the alternative option, suggested by my colleague Justice (Ret.) E. Arbel, insofar that it is original and creative, which indeed it is – it is also acceptable to me. The reasons for this is that the People’s Health Regulations (In Vitro Fertilization), 5747-1987 were left standing despite the Eggs Law, and thus it is possible that they indeed are supposed to regulate different cases than those covered by the Eggs Law. This solution is not free of flaws either (see regulation 8(b)(1) of these Regulations) however its advantage lies in the possibility that it provides the tools to overcome the provision of section 42 of the Eggs Law.
  2. In conclusion – though the path to resolution which we – my colleagues and I – support is different in its reasoning, we all believe that the Petitioners’ Petition must be accepted. This also validates my general approach that when the consideration of basic legal issues – from different perspectives of the relevant statutes – leads, in every path, to a similar conclusion – this is a sign and indication that from a general legal philosophy the outcome is correct (see my opinion in CA 4244/12, Haaretz Newspaper Publication Ltd. v. Major General Efrayim Bracha (February 19, 2014), there in para. 35.)
  3. As a result, were the minority opinions heard – the Petitioners would not have to travel beyond the sea to realize their desires.

 

                                                                  Justice

For all these reasons it was decided on September 1, 2013 to reject the Petition by a majority of opinions by President A. Grunis, Deputy President M. Naor, Justice E. Rubinstein, and Justice S. Joubran, against the dissenting opinions by Justices E. Arbel, E. Hayut and H. Melcer.

There is no order as to costs.

Reasons given today, September 18, 2014.

 

 

President                                 Deputy President                                Justice (Ret.)

 

 

Justice                                                 Justice                                                 Justice

                 

 

                                                                        Justice

Amir v. The Great Rabbinical Court in Jerusalem

Case/docket number: 
HCJ 8638/03
Date Decided: 
Thursday, April 6, 2006
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

 

The Supreme Court, sitting as the High Court of Justice, granted the petition and held (per Her Honor Justice A. Procaccia, with the concurrence of His Honor Vice President (Ret.) M. Cheshin and His Honor S. Joubran) that –

 

The High Court of Justice's intervention in religious court decisions is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal.  The subject matter of the petition justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it.

 

The Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom, and it has only those jurisdictional powers that the state law has given it.

 

The original powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built of exclusive powers by virtue of the law and powers that are parallel to the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The case law has recognized the existence of the judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the law, and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past.

 

Is the Rabbinical Court vested with jurisdiction to decide a dispute by virtue of the parties' agreement, where such jurisdiction is not in the scope of the statute that empowers the Rabbinical Court or within the ancillary powers that are vested in it? The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement, irrespective of the provisions the Rabbinical Courts Jurisdiction Law; the other, agreement intended to empower the Court to deliberate and decide on a dispute as an arbitrator. A court's jurisdiction is vested by law and it has no power to derive it from the parties' agreement except were the law itself has seen fit to recognize such agreement in certain circumstances as the source of jurisdiction. A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to deliberate and adjudicate a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. The Rabbinical Court does not have power to hear and decide a matter that is not one of those that is within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their agreement to its jurisdiction. According to the same way of thinking, the Rabbinical Court has no power to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter which by its nature is not within its legal jurisdiction.

 

Is the respondent's answer against the petitioner within the bounds of the Rabbinical Court's subject matter jurisdiction? The respondent's cause of action is the enforcement of a contractual indemnity provision concerning property in the divorce agreement that obtained the force of a judgement of the Rabbinical Court, further to which the parties' divorce was completed. The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce in accordance with the Rabbinical Courts Jurisdiction Law does not apply because the subject of the claim is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is not involved. Nor is it a matter "connected with a divorce suit". The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce award, based on a divorce agreement. The Rabbinical Court does not have jurisdiction either by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. Subject matter jurisdiction under section 9 is limited solely to the matters mentioned in it – matters of "personal status" as defined in the Palestine Orders in Council or the Succession Ordinance. In a dispute that does not relate to those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court. The Rabbinical Court therefore has no original jurisdiction to hear the respondent's claim.

 

The Rabbinical Court does not have "ancillary" inherent jurisdiction to try the respondent's claim. In the instant case, the Rabbinical Court's ancillary jurisdiction, insofar as it relates to setting aside a divorce award by reason of a defect in making the divorce agreement, that might have given the Rabbinical Court ancillary jurisdiction to try its revocation, is of no relevance. Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after making the divorce award that justifies setting aside the divorce agreement and the divorce award since the respondent's claim is for the specific performance and enforcement of the divorce agreement. Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction. The second respondent finally and unconditionally adjudicated herein and awarded the force of judgement to the divorce agreement. A property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law.

 

Nor does the Rabbinical Court have jurisdiction to hear the matter by virtue of the doctrine of "continuing jurisdiction". Continuing jurisdiction is vested where an instance has tried a particular matter in the past and in special circumstances need has arisen to set aside or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based.  The claim seeks to enforce the agreement and has no place in the continuing jurisdiction vested in the Rabbinical Court.

 

The Rabbinical Court does not have ancillary jurisdiction to try the new cause arising further to the divorce agreement in order to interpret the agreement. Having completed and exhausted its power to rule on the matter of divorce, it no longer has ancillary power to interpret the divorce agreement or the divorce award. Moreover, in the instant case no question of interpreting the divorce agreement has arisen and a claim for its enforcement has been brought instead.

 

A rabbinical court cannot be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. In the instant case, it also appears from the divorce agreement that its contents cannot be construed as an arbitration clause, equal to "an arbitration agreement" between the parties. The power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. The condition precedent for arbitration is the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement.

 

By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification provision in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the first and second respondents are void.

 

 

 

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

In the Supreme Court

Sitting As the High Court of Justice                                             HCJ 8638/03

 

Before:

His Honor, Vice President (Ret.) M. Cheshin

Her Honor, Justice A. Procaccia

His Honor, Justice S. Joubran

 

 

 

 

 

 

 

 

The Petitioner:

Sima Amir

 

 

 

 

v.

 

 

 

The Respondents:

1. The Great Rabbinical Court in Jerusalem

 

2. The Regional Rabbinical Court in Jerusalem

 

 

3. Yoseph Amir

 

 

 

 

 

 

 

On Behalf of the Petitioner:

Adv. Michael Korinaldi

 

 

 

 

On Behalf of the Third Respondent:

Adv. Nechama Segal

 

 

 

 

On Behalf Of the Rabbinical Courts System:

Adv. S. Jacoby

 

 

 

 

 

JUDGEMENT</