Parenthood

HCJ 781-15

v.

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 20^th 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 (3^rd 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 13^th 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 (cf.  Sessions 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).

Ruth Nahmani v

1.            Daniel Nahmani

2.            Attorney-General

3.            Assuta Ltd

CFH 2401/95

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

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

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

Y. Türkel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Basic Laws cited:

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

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

Statutes cited:

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

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

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

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

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

Land Law, 5729-1969, s. 10.

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

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

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

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

Regulations cited:

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

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

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

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

[1993] IsrSC 47(5) 441.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

170.

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

90.

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

IsrSJ 7 109.

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

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

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

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

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

[1990] IsrSC 44(3) 353.

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

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

[1993] IsrSC 47(5) 189.

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

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

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

[1992-4] IsrLR 478.

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

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

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

[1986] IsrSC 40(3) 235.

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

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

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

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

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

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

Israeli District Court cases cited:

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

Australian cases cited:

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

American cases cited:

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

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

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

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

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

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

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

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

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

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

English cases cited:

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

Jewish Law sources cited:

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

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

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

[61]        Mishnah, Tractate Yevamot 6, 6.

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

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

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

[65]        Genesis 1, 28; 30, 1.

[66]        Bereishit Rabba 79, 9 on Genesis.

[67]        Jeremiah 22, 10.

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

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

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

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

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

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

[79]        I Samuel 1, 27.

[80]        II Samuel 19, 1.

For the petitioner — Z. Gruber.

For the first respondent — D. Har-Even.

JUDGMENT

Justice T. Strasberg-Cohen

Introduction

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

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

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

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

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

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

Court intervention

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

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

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

The case as an exception

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

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

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

The right of parenthood

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

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

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

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

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

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

Classification of rights

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

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

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

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

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

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

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

Moreover, at p. 513:

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

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

Classification of the right to parenthood

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

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

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

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

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

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

Non-coercion of parenthood

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

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

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

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

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

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

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

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

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

The nature of consent

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

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

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

*             Ibid., at p. 503 {20}.

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

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

The consent of the Nahmani couple

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

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

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

*             Ibid., at p. 507 {26}.

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

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

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

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

Agreement, representation and estoppel

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

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

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

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

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

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

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

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

*             Ibid., at p. 512 {33}.

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

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

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

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

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

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

The need for consent in different legal systems

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

*             Ibid., at p. 522 {48}.

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

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

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

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

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

*             Ibid., at p. 503 {20}.

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

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

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

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

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

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

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

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

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

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

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

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

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

The right to life

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

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

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

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

„Justice‟

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

„just‟ solution to a particular problem:

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

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

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

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

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

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

He also says:

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

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

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

Conclusion

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

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

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

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

Justice Ts. E. Tal

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

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

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

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

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

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

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

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

†             IsrDC 5754(1) 142.

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

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

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

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

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

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

Development of the law

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

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

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

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

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

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

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

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

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

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

The conflicting interests

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

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

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

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

The legitimate expectations of the parties

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

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

*             Ibid..

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

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

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

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

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

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

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

Policy considerations

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

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

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

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

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

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

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

The right to abort

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Equality

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

*             Ibid..

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

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

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

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

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

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

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

Jewish heritage

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

*             Ibid..

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

Justice D. Dorner

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

The facts

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

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

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

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

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

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

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

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

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

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

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

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

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

HaMishpat, supra, at p. 83:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                                                                                          HCJ 5771/12

Before:                                    The Honorable President A. Grunis

                                    The Honorable Deputy President M. Naor

                                    The Honorable Justice (Ret.) E. Arbel

The Honorable Justice E. Rubinstein

The Honorable Justice S. Joubran

The Honorable Justice E. Hayut

The Honorable Justice H. Melcer

The Petitioners:

1. Liat Moshe
2. Dana Glisko

                                    versus

The Respondents:

1. The Board for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child), 5756-1996
2. The Ministry of Health
3. Knesset of Israel

                                    Response to Order Nisi

Date of sessions:         8th Tishrei 5773; September 24, 2012

                                    5th Kislev 5773; November 19, 2012

                                    18th Iyar 5773; April 28, 2013

                                    14th Elul 5773; August 20, 2013

Adv. Yehuda Resler; Adv. Amir Rosencrantz

                                    on behalf of the Petitioners

Adv. Nahi Ben Or; Adv. Dana Briskman

                                    on behalf of the First and Second Respondents

Adv. Gur Blai

                                    on behalf of the Third Respondent

Justice A. Hayut

The Petitioners are a couple who wish to bring offspring into the world by fertilizing an egg taken from the body of the First Petitioner and implanted in the womb of the Second Petitioner, who will carry the pregnancy and give birth. The Ministry of Health rejected their requests for the necessary authorizations to execute this and therefore filed the petition, which in its amended form challenges different provisions in the Embryo Carrying Agreements Law (Approval  of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the Eggs Donation Law 5770-2010 (Hereinafter: the Eggs Donation Law.)

                  After two hearings in the petition that were held before a panel of three Justices, an  order nisi was issued for the amended petition and it was decided that the hearing for the Respondents’ response would be held before an extended panel. The extended panel heard two hearings and after the second hearing, held on August 20, 2013, a decision rejecting the petition was given without reasons. This was done in order to permit the petitioners to plan their steps and to decide whether to accept the partial solution proposed by the Respondents – which I detail below – and because of the concern that the passing of time may adversely impact the chances of success for the medical procedure that could be done under such proposal (among others, due to the age of the First Petitioner, who is about forty one years old.) Therefore, on September 1, 2013 a decision without reasons that rejects the petition by a majority of the panel (President A. Grunis, Deputy President M. Naor, Justice E. Rubinstein and Justice S. Joubran) and against the dissenting position of Justice E. Arbel, Justice H. Melcer and my own was handed down. Below are detailed the reasons at the base of my dissenting opinion, as noted.

The Factual Background

1. The First Petitioner, Liat Moshe (hereinafter: Liat) was born in 1972 and serves as an officer in the IDF at the rank of Lieutenant Colonel. The Second Petitioner, Dana Glisko (hereinafter: Dana) was born in 1983 and the two have been living together as a couple for about ten years. They even signed a “prenuptial agreement” and a “common law marriage agreement” and drafted mutual wills. Since 2007 the two have attempted to bring a child into the world. For this purpose, during the years 2007-2008 Liat underwent artificial inseminations and hormone treatments, but these have been unsuccessful. Similarly, treatments Liat underwent in 2008-2012 for in vitro fertilization of eggs extracted from her body and then implanted have sadly failed as well.  Medical tests on Liat have not diagnosed a cause for the failure of the many fertilization treatments she had underwent, and the reason may be that her uterus may be unable to carry a pregnancy. Such repeated failures have not weakened Liat’s spirit and she wishes with all her might to bring a child into the world from her own eggs. As a last resort, the couple has tried to bring a child into the world by extracting an egg from Liat’s body, fertilizing it and implanting it in Dana’s uterus, so that Dana would carry the pregnancy and give birth. In such a way, the two emphasize, the child would be “genetically and physically connected to them both.”
2. Only it quickly became clear to the couple that realizing their wish to bring a child into the world in the described method may implicate them and the treating physician, who would perform the necessary medical procedure, in illegal conduct and a criminal sanction. In February 2012, Liat wrote to the Ministry of Health’s Legal Advisor and requested to permit her to donate eggs to her partner, Dana, after their in vitro fertilization. This request relied on earlier decisions by the Ministry of Health that permitted such medical procedure in the past and paved the way, at least in one case, for eggs donations between a female couple. On February 26, 2012 the Ministry of Health’s Legal Advisor, Advocate M. Hivner-Harel, that the procedure requested by the couple is contrary to the Eggs Donation Law, which was passed in 2010, because according to this law eggs donation may be approved only for a woman who may not become pregnant with her own eggs due to a medical problem, or who has a different medical problem that justifies using eggs that are not hers in order to have a child (a condition established in section 11 of the Law.) in this case, Dana – who is intended to receive the eggs donation from Liat – does not suffer, as far as we know, from a medical problem and thus their request is denied.

Liat and Dana did not give up and turned to the national supervisor for surrogacy issues in the Ministry of Health and requested to be permitted to undergo a procedure where Dana would serve as surrogate and carry an embryo from Liat’s fertilized eggs. This request came after in May 2012 the recommendations of the public committee formed by the Ministry of Health to examine legislative regulation of the issue of fertilization and birth in Israel, headed by Professor Shlomo Mor Yossef (hereinafter: the Mor Yossef Committee) were published. The Mor Yossef Committee report concerns, among others, the issue of surrogacy in Israel. Among the Committee’s recommendation was the recommendation to expand the circle of those eligible to undergo a procedure of bringing an offspring into the world via surrogacy that would include also “a single woman who has a medical problem that prevents carrying a pregnancy.” This request by Liat was also denied for the reason that the Surrogacy Law in its current language only permits “intended parents” (defined in section 1 of the law as “a man and a woman who are a couple”) to enter an agreement for embryo carrying with a “carrying mother” whose relationship with the child is severed after the birth. The national supervisor for surrogacy added in her response that a team appointed by the Ministry of Health to explore and implement the Mor Yossef Committee recommendations had yet to complete its work and therefore it was impossible at the time to accept Liat’s request. In light of this and in light of Liat’s age (who at the time had already turned forty years old) – this petition was filed.

The Legal Framework

3.  In their amended petition, the couple relies on two alternative legal paths. First, an interpretation of the Surrogacy Law, or judicial intervention in its provisions on a constitutional basis, that would allow the requested procedure through surrogacy where by Dana would serve as the “carrying mother” for Liat’s fertilized eggs. The second – judicial intervention on a constitutional basis in the Eggs Donation Law and striking down some of its provisions that bar Liat’s eggs donation to Dana. Before we detail the parties’ arguments and the different developments that occurred since the petition was submitted we briefly present the arrangements established in each of the above laws and the obstacles they each present to the couple when they wish to undergo the desired procedure.
4. The Surrogacy Law was passed in 1996 following a report by a public professional committee headed by District Court Judge (Ret.) Shaul Aloni, which in 1994 recommended to permit entering into agreements for carrying embryo  in Israel while regulating the issue in primary legislation. In 1995, before the Law was passed, this Court struck down regulations 11 and 13 of the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: the Fertilization Regulations,) which prohibited implanting a fertilized egg in a woman who would not be the child’s mother as well as prohibited the implantation of an egg taken from a donor unless it was fertilized with the sperm of the woman’s husband (see: HCJ 5087/94, Zebro v. The Minister of Health (July 17, 1995); for detailed discussion of the background for the Law’s legislations, see HCJ 2458/01, New Family v. The Committee for Approval of Embryo Carrying Agreements, The Ministry of Health, IsrSC 57(1) 419, 431-35 (2002) (hereinafter: the New Family case; see also the Embryo Carrying Agreements Bill (Approving Agreements and Status of the Child), 5756-1996, Bills 2456.) as reflected from the explanatory notes  of the Bill, the Surrogacy Law was designed to permit agreements for carrying embryo in Israel “under certain conditions and in a supervised manner.” According to section 1 of the Surrogacy Law, an agreement for carrying an embryo  is made between “intended parents” – who are defined in section 1 as “a man and a woman who are a couple” – and a “carrying mother” who agrees to become pregnant through the implantation of a fertilized egg in her body and to carry a pregnancy for the intended parents. Under section 2 of the Surrogacy Law, the implantation of a fertilized egg in order to impregnate a carrying mother in order to give the child to the intended parents is contingent upon the existence of several conjunctive conditions, including the drafting of a written agreement between the intended parents and the carrying mother, the approval of the agreement by the approving board mentioned in section 3 of the Law, and meeting several additional threshold conditions such as the lack of familial relationships between one of the intended parents and the carrying mother (see HCJ 625/10, Jane Doe v. The Board for Approval of Embryo Carrying Agreements under the Agreements Act, paras. 12-16 (July 26, 2011)). As a rule – except for exceptional cases where the carrying mother wishes to withdraw her  embryo carrying agreement and keep the child under the circumstances detailed in section 13 of the Surrogacy Law – the carrying mother gives the child to the intended parents after the birth, and after a parenting order is issued, they are considered the child’s parents “for all intents and purposes” (section 12 of the surrogacy Law.)

Section 7 of the Surrogacy Law, titled “Performing an Embryo Carrying Agreement” prohibits performing a surrogacy procedure outside of the path and conditions established by the law, as follows:

“An in vitro fertilization and implantation of a fertilized egg shall not be performed except for at a recognized department and on the basis of an agreement for carrying an embryo , which was approved as detailed.”

Section 19(a) of the Surrogacy Law adds a criminal provision whereby anyone implanting a fertilized egg in order to impregnate a carrying mother with the purpose of giving the child not according to the provisions of the law is punishable by one year imprisonment. Therefore the Surrogacy Law creates an arrangement for how agreements for carrying embryo in Israel must be entered into and performed, and under its provisions as detailed above a surrogacy procedure that is inconsistent with its detailed directions cannot be done in Israel (see the New Family case, 438-39.)

5. The Eggs Donation Law, which was passed in 2010, about 14 years after the Surrogacy Law was passed, was designed to “regulate the different aspects involved in extracting and donating eggs in Israel, and the use of such eggs” (see the explanatory notes to the Eggs Donation Bill, 5767-2007, Government Bills 289.) Until the law was passed the possibility to donate eggs in Israel was regulated in the Fertilization Regulations. According to those, it was possible to extract eggs only from a woman who was under medical treatment due to infertility problems if the supervising physician determined that extracting the eggs would advance her treatment. In light of this restriction on the pool of donors, Israel saw a dire shortage of eggs for donation and women who required eggs donation were required to travel to far away countries in order to receive a donation there. The Fertilization Regulations even set various restrictions on the possibility of women to receive eggs donation. For instance, the regulations established that a single woman would not be implanted with a fertilized egg unless the egg is hers and a report from a social worker to support her wishes has been secured. The Eggs Donation Law was meant to expand the circle of donor women to include – alongside the “treated” women (women requiring medical care involved in extracting eggs from their bodies for their own use, and intending the remaining eggs for donation) – also “volunteer donors,” who do not undergo fertilization treatments or other treatments involving extracting eggs from their bodies. Additionally, the Law lifted the restriction on receiving eggs donation that the Fertilization Regulations imposed upon single women.

At the background of the law’s legislation was a painful incident where a doctor was convicted in disciplinary proceedings for a high dosage of hormones he gave women to whom he provided fertility treatments in order to produce a high number of eggs and intend them for treating other women’s infertility. This was done without securing the consent of these women or notifying them (see: the Mor Yossef Committee Report, p. 38; Smadar Kanyun, Eggs Donation – Social, Ethical and Legal Aspects, Medicine and Law 35, 145, 164 (2006); minutes of the 17^th Knesset’s Labor, Welfare and Health Committee meeting, dated February 18, 2008, p. 2.) One of the purposes the law was designed to achieve, aside from expanding the circle of donor women, was then responding to the concern over the trade in eggs and over the exploitation and disrespect for women’s bodies (see minutes of the 17^th Knesset’s Labor, Welfare and Health Committee meeting, dated March 4, 2008, p. 10-12.) therefore the law established various restrictions as to the maximum number of donations that may be received from the same woman and as to the frequency of extraction of eggs from her body; duties regarding the information that must be given to the donating woman and securing her consent for performing procedures in the eggs extracted from her body; and a prohibition on trade in eggs (see articles A and B of the Eggs Donation Law.) Additionally, section 4 of the Eggs Donation Law establishes the exclusivity of the law’s provisions, as such:

“(a) One shall not perform an eggs extraction from a donor, lab treatment of the eggs, allocation of eggs for implantation or research, or implantation of eggs, but according to this law’s provisions.

(b) The provisions of sub-section (a) shall not apply to the extraction of eggs from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of performing an agreement for carrying embryo according to the Agreements Law.”

Therefore, a procedure of extracting eggs from a donor woman and implanting them in the woman who receive the donation is subject to the provisions of the Eggs Donation Law and performing this inconsistently with these provisions is prohibited unless it is done under an agreement for carrying embryo that was entered into according to the Surrogacy Law.

6. Section 12 of the Eggs Donation Law requires the authorization of a special approving board of six members (hereinafter: the approving board) in order to extract eggs from a “volunteer donor.” The approving board is charged with examining the request of a volunteer donor in order to ensure that the intended procedure meets all the conditions detailed in section 12(f) of the Act, and they are:

“(1) The donor is a resident of Israel who is over the age of 21 but is not yet 35;

(2) The donor is not legally incompetent, under guardianship, under arrest or incarcerated;

(3) The donor had signed, before the approving board, a form as instructed by the administration, which includes the information form and her consent to extracting the eggs for their implantation;

(4) The approving board is satisfied that the donor’s consent is given with a sound mind, out of free will, and not out of family, social, economic or other pressure; and in regard to a donor who intended in advance the eggs extracted from her body to a specific recipient – that her consent was given not for financial reward or any other reward, directly or indirectly, from the recipient or her representative; and it may summon for such purposes the recipient, should the eggs be intended to a particular recipient, or any other person as it sees fit.”

In this context the petitioners are seemingly already faced with an obstacle because Liat – the intended donor – was born in 1972 where section 12(f)(1) of the law sets an age limit. However in light of the medical difficulties Liat faced and the many treatments she went through, she may be considered a “treated donor” whose eggs are extracted from her body in the course of medical treatments conducted for her own benefit. Therefore, and under the provision of section 15 of the Eggs Donation law, she is not required to secure the authorization of the approving board for the extraction of her eggs and is thus not subject to such age restrictions.

7. The main relevant restriction here is the restriction on a receiving woman established in section 11 of the Eggs Donation Law. Under this section, only a woman who suffers from a medical condition that prevents her from being impregnated with the eggs in her body or from a medical condition that justifies using another woman’s eggs in order to have a child, may apply to receive an eggs donation. This section stipulates as follows:

“Once a treating physician discovers that a patient who is a resident of Israel who is over the age of 18 but is not yet 54 years old, is incapable of becoming pregnant with eggs in her body due to a medical condition, or that she has another medical condition that justifies using the eggs of another woman in order to have a child, including by implanting the eggs in a carrying mother under the Agreements Law, the physician shall notify the patient that she may apply for an eggs donation. Such an application shall be submitted with the supervising doctor according to the form instructed by the Administration.”

This provision seemingly prevents the petitioning couple to realize their wishes, as it stipulates that in order to receive an eggs donation the receiving woman must present a medical need for the donation, whereas in our case, Dana – the intended recipient – does not suffer, as far as we know, from any medical condition that prevents her from becoming pregnant with the eggs in her body or that justifies using another woman’s eggs to have a child. Liat – who wishes to donate her eggs – is the one who suffers from a medical condition that prevents her from becoming pregnant with the eggs in her body. Section 13 of the law adds the condition that the implantation of the eggs in the receiving woman’s body must be approved by the “supervising doctor” as defined in the law. Under this section the supervising doctor must make sure that, among others, the receiving woman indeed does suffer from a medical condition that justifies the implantation of the eggs in her uterus (section 13(e)(2)). Additionally, the doctor must receive confirmation from the database established under the law that the conditions set in section 13(e)(3), which include the condition that the donor is of the same religion as the recipient and is not her family member and that the donor is not married, are met.

8. To this list of restrictions the provision in section 4(a) of the Eggs Donation Law must be added. This provision mandates, as discussed, the exclusivity of this law’s provisions whereby any procedure of extracting eggs from a donor, lab treatment of the eggs, allocating them and implanting them would be performed only under the provisions of the Law. Section 5 of the Eggs Donation Law adds a prohibition of taking out eggs that have been extracted in Israel – whether they are fertilized or not – for their implantation aboard, unless this was approved by a statutory exceptions committee and the intended implantation is in the body of the woman from whom the eggs were extracted. This section prevents the Petitioners to take eggs extracted from Liat’s body out of Israel to be implanted in Dana’s uterus. Additionally to all this, section 6(b) of the law mandates:

“An implantation of eggs shall not be performed but in the body of the recipient or the body of a carrying mother who entered into an agreement for carrying an embryo with the recipient according to the Agreements Law.”

Similarly to the Surrogacy Law, the legal arrangement established in the Eggs Donation Law, which we detailed above, is also supported by criminal provisions that establish criminal sanctions for an offense under the law’s provisions. Thus, for instance, performing an eggs implantation in a woman in violation of section 6(b) of the Act constitutes an offense punishable with six months incarceration or a fine (see section 41(b)(4) of the Eggs Donation Law.)

9. Still, Title C in Chapter C of the Eggs Donation Law authorizes the Minister of Health to convene a committee for exceptional cases, which would comprise of two doctors, a psychologist, a social worker, an attorney, and a clergy person (hereinafter: the exceptions committee.) The committee is charged with examining the approval of a procedure for eggs donation in particular cases which do not meet the conditions established by the Law. However, the authority of the exceptions committee is narrow and limited to permitting procedures in one of the four case as detailed in section 20(a) of the law:

(-) Approving extraction, allocation or implantation of eggs from a donor who designates, in advance, the eggs extracted from her body to a particular recipient. (section 20(a)(1));

(-) Approving extraction, allocation or implantation of eggs from a married donor (section 20(a)(2));

(-) Approving extraction, allocation or implantation of eggs from a donor who is not a member of the recipient’s religion (section 20(a)(3));

(-) Approving to take eggs outside of Israel in order to be implanted in the body of the woman from whom they were extracted (section 20(a)(4)).

The recipient woman or the “supervising physician” (as the latter is defined in the Eggs Donation Law) may approach the exceptions committee, and under section 21(c) of the law the committee may consider the factors detailed in section 22 of the law, which are:

1. The exceptions committee may approve the extraction, allocation of eggs for implantation or the implantation of eggs, when the recipient intends in advance the eggs extracted from her body to a particular recipient, when it is persuaded that the following has been met, as appropriate under the circumstances:

1. In terms of a donor who intends in advance the eggs extracted from her body to a particular recipient who is her family member – that there are religious reasons that justify such eggs donation.
2. In terms of a donor who intends in advance the eggs extracted from her body to a particular recipient who is not her family member – that there are religious or social reasons that justify such eggs donation.

2. The exceptions committee may approve the extraction, allocation of eggs for implantation or implantation of eggs when the donor is married, when it is satisfied that the following has been met, as appropriate under the circumstances:

1. In terms of a married donor who intends in advance the eggs extracted from her body to a particular recipient – that there are religious reasons that justify such eggs donation.
2. In terms of a married donor who does not intend in advance the eggs extracted from her body to a particular recipient – that the eggs extraction is required for their implantation in a particular recipient who, due to a shortage in suitable eggs from donors who are not married, cannot receive an eggs donation but for from a donor who is married.

3. The Exceptions committee may approve the extraction, allocation of eggs for implantation or extraction of eggs when the recipient is not a member of the donor’s religious and when the eggs have not intended in advance by the donor for a particular recipient, when the committee is satisfied that the recipient’s religion prohibits her from receiving a donation from a woman who is a member of her religion or due to a shortage of eggs from donors of her religion.
4. The exceptions committee may approve the taking of eggs extracted in Israel from a patient’s body for their implantation out of Israel, when it is satisfied that the eggs are intended to be implanted in her body and when there is justification for approving the implantation outside of Israel.

The provisions quoted above clearly express that the authority of the exceptions committee is limited to an exhausted list of the four cases detailed. They also clearly reflect that the matter of the Petitioners is not among these cases and thus approaching the exceptions committee would not be to their benefit. Given all this, the Ministry of Health’s legal advisor believed that the eggs donation route which they wished to take was not available to the Petitioners, which resulted in her response that:

“[…] According to the law, an eggs donation may only be approved for a woman who cannot become pregnant by her own eggs or who has another medical condition that justifies using the eggs of another woman in order to have a child.

According to your letter, your partner, Ms. Glisko, has no medical condition that justifies receiving an eggs donation. Therefore, regretfully, your request may not be approved.”

Developments Since The Petition Was Filed

10. In the amended petition, submitted on October 3, 2012, the Petitioners requested permission to execute their wishes, whether by striking down different provisions of the Surrogacy Law and the Eggs Donation Law or by interpreting the provisions of these statutes differently than the interpretation of the Ministry of Health. After holding a hearing for the amended petition on November 19, 2012 before a panel of three justices, an  order nisi was issued:

“Based on the petition brought before this Court today, the Court issues an order nisi for the Respondents and instructs them to present themselves and justify:

1. Why the Court should not order that the definition of ‘intended parents’ as in section 1 of the Embryo Carrying Agreements Law(Approval of  the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Law) be struck down for unconstitutionality, and why the Court should not instruct the approving board as established by section 3 of the Law to discuss the Petitioners’ request to approve an agreement for carrying embryo on its merits;
2. Why the surrogacy arrangement established by the Law should not be interpreted to include also an arrangement where there is no obligation for disconnecting the ‘carrying mother’ and the child, and/or that it would be possible to perform in vitro fertilization and implantation of a fertilized egg outside of an agreement for carrying embryo between ‘intended parents’ and a ‘carrying mother,’ as defined in section 1 of the Law;
3. Why the Petitioners should not be permitted to perform a procedure of egg donation such that the First Petitioner would donate an egg to the Second Petitioner in order for it to be implanted in her uterus and fertilized according to the provisions of the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law);
4. Why the Court should not order that the exception in section 11 of the Eggs Donation Law, which restrict the possibility of Eggs Donation to cases where the recipient cannot become pregnant with her own eggs due to a medical condition, is struck down for being unconstitutional;
5. Why the language of section 11 of the Eggs Donation Law should not be amended so that the words ‘in a carrying mother’ be struck out of it.”

At the same time, and in an attempt to find a practical resolution for the Petitioners’ problem the Attorney General has been requested to notify the Court its position as to the legal procedures under the Eggs Donation Law that may be taken against the Petitioners or any medical professional, were they to perform in Israel any medical procedures in order to execute the medical process they wish to perform. It was also decided that as long as the Attorney General’s position is that under the circumstances such legal proceedings should not be initiated, there will be no longer a need for a response on behalf of the Respondents to the order nisi that was issued, and that should there be a need to hold a hearing in the response to the order nisi after the Attorney General’s position is received, it would be held before an expanded panel.

11. The Attorney General’s notice from December 26, 2012 stated that there is no possibility of declaring in advance that no legal proceedings would be initiated in terms of the described actions, which as to his understanding are not permitted under the Eggs Donation Law or the Surrogacy Law. The Attorney General explained his position as such: “There is an inherent difficulty to notifying in advance, in a notice that constitutes a pre-ruling of sorts that the general prosecution would refrain from enforcing the law on statutorily prohibited acts.” Thus the First and Second Respondents (hereinafter, jointly: the State) and the Third Respondents (hereinafter: the Knesset) filed response papers in the Petitions, and on April 28, 2013 a first hearing in the objections to the order nisi was held before an extended panel of seven Justices. During the hearing, the State’s lawyer noted that from the State’s perspective there is no restriction on the procedure of extracting Liat’s eggs, fertilizing them and freezing them but that until the necessary statutory amendments are passed they cannot be used to be implanted in Dana, as requested in the Petition (see page 6 of the hearing record dated April 28, 2013, l. 24-35.) The State’s lawyer also noted that the implementation team appointed by the Ministry of Health to examine the recommendations of the Mor Yossef Committee (hereinafter: the implementation team) is expected to complete its work soon and that after that the Minister of Health would consider the possibility of submitting statutory amendment proposals that may resolve the problem the Petitioners face. At the end of the hearing it was decided that the Respondents would submit update notices and on June 30, 2013 the State updated the Court that the implementation team was expected within several days to submit to the Minister of Health a document summarizing its work and that practical steps, including statutory amendments, were expected – according to the assessment of professional bodies – to be brought for discussion before the Knesset’s Labor, Welfare and Health Committee within six months. In an additional notice the State submitted on August 14, 2013 it stated that on July 21, 2013 the Ministry of Health issued a protocol for “taking sperm, eggs or fertilized eggs out from Israel” (hereinafter: the protocol) whose operative meaning, to the extent concerns us, is that the Petitioners would be able, subject to the authorization of the exceptions committee, to follow the route requested – that is to perform the implantation of Liat’s fertilized eggs in Dana’s womb – but to do so outside of Israel. As a result, and in order to flesh out the Petitioners’ position regarding the proposal raised, an additional hearing was held before the extended panel on August 20, 2013, but the Petitioners insisted that they wished to be able to perform the entire medical procedure in Israel. The Petitioners noted in this context the financial burden involved in performing the medical procedure out of Israel; the concern that performing the medical procedure out of Israel would reduce its prospects of success; as well as noted the various restrictions related to the fact that Liat is an officer in the IDF.

As all of the attempts to find a practical solution for the problem raised by the petition have failed, we were required to rule on the arguments the parties called upon us to do, and as noted on September 1, 2013 a judgment without reasons which rejects the petition by a majority was handed down.

The Parties’ Arguments

12.  The Petitioners argue that the arrangements established in the Surrogacy Law and the Eggs Donation Law, which bar them from performing the medical procedure where Liat’s fertilized eggs would be implanted in Dana’s body are arrangements that violate Liat’s right to be a genetic parent and which discriminate against her and Dana compared to other couples. In this context, the Petitioners raise arguments on a constitutional level and on an interpretive level challenging the provisions of the laws mentioned above, and in essence they argue that there is no public interest that must be protected and that justifies barring them from the possibility of conducting the medical procedure which they wish to go through.

To the extent that the petition concerns the Surrogacy Law, the Petitioners argue that the definition of the term “intended parents” in this law as “a man and a woman who are a couple,” is discriminatory and unconstitutional because it does not recognize same sex couples or single people as intended parents for purposes of surrogacy in Israel. The Petitioners rely here on a decision from 2002 in the New Family case, where it was noted that the definition of “intended parents” in the Surrogacy Law violates the principle of equality because it denies a woman who does not have a male partner the possibility to be an “intended mother.” The Petitioners argue that although in the New Family case the Court refrained from striking down the arrangements in the Surrogacy Law, but they believe this was only because the Surrogacy Law was a new statute at the time and because the experience necessary for its way of implementation was yet to be amassed. The Petitioners additionally argue that in the years that passed since the Surrogacy Law was enacted there have been developments in the willingness to recognize “nontraditional families” including same sex families raising children. They claim there is no relevant justification for differentiating between such families and heterosexual couples in terms of surrogacy procedures in Israel. The Petitioners add that the holding in New Family as to the unjustified discrimination created by the Surrogacy Law, creates an estoppel by record in our matter. In relying on the Mor Yossef Committee report, the Petitioners also argue that this report includes a recommendation to expand the circle of those eligible to conduct surrogacy procedures to include unmarried women or women who cannot carry a pregnancy due to a medical condition, and they argue that Liat falls under this recommendation. The Petitioners further argue that many of the concerns involved in the surrogacy process, including the surrogate’s distress after the birth and the concern over her exploitation, do not exist in this case since Dana – who is to serve as surrogate – is the “other half of the family unit into which the child would be brought.” The Petitioners add that striking down the definition of “intended parents” in section 1 of the Surrogacy Law would allow applying the law’s provisions to them, and this although the connection between surrogate carrying the pregnancy and the child would not be severed after birth. In this context the Petitioners note that the Surrogacy Law does not establish a requirement of disconnection between the surrogate and the child and that the separation required is from the “intended parents” and the “carrying mother” is a “secondary aspect” which serves a “secondary purpose” that is irrelevant to their extraordinary case.

As to the Eggs Donation Law, the Petitioners claim that this law was designed to regulate eggs donation while protecting the dignity, rights, and health of the donor woman and the recipient woman and to prevent trade in  eggs. The Petitioners emphasize that the eggs donation in their desired route is not expected to infringe upon any public interests or rights that the law was meant to protect. They also emphasize the case law whereby the State must not intervene in intimate events such as the decision whether and how to bring children into the world. The Petitioners add that the medical procedure they wish to undergo is the only one that ensures Liat can realize her right to parenthood in a way that allows for a genetic relationship with the child, and according to them since there is available suitable technology that enables her to realize that right on one hand and on the other there are no weighty considerations that justify it, they should not be barred from the option they wish to pursue. The Petitioners argue that the requirement of section 11 for the recipient woman’s “medical need” violates their right to parenthood and is inconsistent with the legal state that existed before the Eggs Donation Law was passed, whereby a female couple was permitted to donate eggs to one another. In this context, the Petitioners rely on Attorney General M. Mazuz’s guidelines from 2009 on the issue of eggs donation between a female couple (hereinafter: the Attorney General’s guidelines,) where it was noted that the eggs donation between a female couple must not be seen as an act that is violates the public policy and it must be permitted where appropriate. The Petitioners note that had they wished to do the opposite – that is, to extract Dana’s eggs, fertilize them and implant them in Liat’s uterus – the restriction in section 11 of the Eggs Donation Law would not have been an obstacle because, as noted, Liat suffers from a medical condition that prevents her from becoming pregnant and carrying a pregnancy with her own eggs. Therefore, in their view, their unique situation warrants a remedy that compels the statutory exceptions committee to discuss their request and to approve it. The Petitioners further argue that the Eggs Donation Law must be interpreted in a way that permits them to perform the desired procedure, or alternatively to strike down the exception in section 11 of the Eggs Donation Law. Moreover, the Petitioners maintain that, at the very least, the term “in a carrying mother” which appears in section 11 of the Eggs Donation Law must be deleted from the text, as – under their reading – it limits the implementation of the law’s provision in their case because it folds into it the discriminatory definition of “intended parents” from the Surrogacy Law.

13. The State argues, on the other hand, that though the sincerity of the Petitioners’ desires to realize their right to parenthood in the particular way they wish to follow, the Petition must be denied for lack of cause to intervene in the manner in which the relevant statutory provisions have been interpreted, as well as a lack of constitutional cause to strike down any of them. The State emphasized in its arguments that the Petitioners claims were made generally and that they did not point out to the specific constitutional rights that they maintain have been violated by the laws at the center of this Petition. Further, the State argues that the Petitioners have not proven the existence of an infringement at the core of the right to parenthood and have not shown why they should be permitted to exercise this right particularly in the one and only manner they desire and not in any other way.

That State also maintains that the procedure the Petitioners wish to perform attempts to create a new arrangement of what it terms as “genetic biological co-parenting” that does not at all fit the surrogacy institution as regulated in the Surrogacy Law, and thus the provisions of the Surrogacy Law cannot be applied to it. In this context, the State argues that at the foundation of the arrangements established by the Surrogacy Law is the separation between “the intended parents” and the “carrying mother” who enter into an agreement to carry embryo, as well as severing the relationship between the birthing woman and the child after the birth. However, the State further argues, Dana – who will serve as the carrying mother, according to the Petitioners’ request – is one of the intended mothers and there is no anticipated severing of the relationship between her and the child after the birth. The State claims that recognizing a surrogacy route under these circumstances may open the door for recognizing the surrogate as the mother of the child for all intents and purposes, which threatens the system of balances established in the Surrogacy Law and might harm in the future the child’s best interest and other interests. The State adds that the basic premise of the Surrogacy Law regarding the separation and severance as mentioned were at the basis of the opinion in New Family as well as at the basis of the Mor Yossef Committee’s recommendations, and thus the Petitioners cannot rely on these sources for supporting their position. The State maintains that even should the term “intended parents” be struck out of the Surrogacy Law for being unconstitutional, this would not assist the Petitioners, because their matter does not fall under the Surrogacy Law’s provisions to begin with. Beyond the necessary scope, the State argues that the proposal to change the term “intended parents” in the Surrogacy Law is now under consideration of the relevant bodies in the executive authority in preparation of bringing it before the Knesset. The State believes that completing the work of the implementation team and the legislature’s expected consideration of the amending the Surrogacy Law also support a restrained approach from the Court in terms of intervening in the provisions of the Surrogacy Law at this time.

As for the arguments raised about the constitutionality of the Eggs Donation Law, the State maintains that this is a relatively new statute – enacted in 2010 – and thus the Mor Yossef Commission also refrained from directly considering its provisions. The State adds that there should be no intervention in the limit established in section 11, which conditions egg donation upon the recipient’s medical need. This condition, according to the State, is worthy, reasonable and proportional and reflects the view that “an egg is not a ‘commodity’ – it cannot be traded, and considerations of autonomy and free will, in their ordinary sense, do not apply to it.” The State emphasizes that the “medical need” is a relevant characteristic of the Eggs Donation Law which is meant to protect the woman’s health, to ensure the child’s best interest, and to prevent the possibility that the mechanism of eggs donation would be used, for instance, due to the parents’ desire to have a “high-quality” child in the genetic sense. Therefore the State believes that should we hold that the arrangement in section 11 of the Law infringements upon any fundamental right, then this infringement meets the requirements of the Limitations Clause and it should not be struck down. The State further argues that the Petitioners’ request to require the exceptions committee to consider their matter is contrary to sections 20-22 of the Eggs Donation Law, which limits the discretion of the exceptions committee to limited cases and this is not one of them. The State also argues that accepting this argument would lead to a significant expansion of the exceptions committee’s authorities, against the instructions of the law provisions and against the legislature’s purpose that explicitly avoided granting the exceptions committee more extensive authorities, though according to the bill such a proposal was before it. The State further maintains that the Attorney General’s guideline from 2009 was issued under different circumstances than those arising in this case, and in any event, with the legislation of the Eggs Donation Law a comprehensive legislative response was provided to the issue of the eggs donation, which should not be strayed from. Furthermore the State argues that striking out the words “in a carrying mother” from section 11 of the Eggs Donation Law would not be of assistance to the petitioners and it may create uncertainty as to the possibility of women who received an eggs donation to implant them in a surrogate. Finally, the State claims that this case raises complex precedential issues in the area of fertilization and birth and as such it is best left to the Legislature, who is charged with developing clear rules according to social standards and broad policy considerations.

14. The Knesset, which was joined to the Petition in its amended version, concentrated its response on the constitutional arguments that the Petitioners raise and joined the State’s position in noting that these claims were made by the Petitioners in general and without meaningful substantiation; that the issue of fertilization and birth is a sensitive and complex issue that is best regulated by the Legislature; and that providing a singular solution to the Petitioners’ plight may threaten the stability of the comprehensive arrangement established in the relevant laws. Like the State, the Knesset, too, believes that there is no place to consider the arguments by the Petitioners in terms of the Surrogacy Law because the medical procedure they wish to perform does not fall under surrogacy and thus their arguments in this context – even were they to be accepted – to assist them. Furthermore, the Knesset argues that the Court should not currently intervene in the Surrogacy Law’s provisions because recommendations as to their amendments are on the Government’s agenda in preparation of bringing them before the Knesset.

In the Knesset’s approach, the constitutional protection at the base of the right to parenthood goes to the core of the right – that is the ability to bring children into the world – rather than in realizing the right in a particular way. Therefore, the Knesset argues that a healthy woman like Dana, who is able to realize her parenthood by using her own eggs, cannot be viewed as a holder of a constitutional right to receive an eggs donation in order to be pregnant by another woman’s eggs. The Knesset adds that although there is no “moral objection” to the route which the Petitioners wish to follow, the concern about striking down section 11 of the Law stems from the mere risk in the Court’s intervention in primary legislation in a way that may harm the system of balances between the branches of government in general and the delicate balances involved in the issue of eggs donation in particular. It was also argued that the restriction in section 11 of the Eggs Donation Law does not violate the right to equality, because it creates a reasonable and logical distinction that achieves the purpose of the law that is providing a solution to the recipient woman’s fertilization problems. In any event, the Knesset believes that the purpose of the requirement for medical justification established in section 11 is worthy and consistent with other legislative arrangements in the area of fertilization and birth; that this is a relatively limited restriction that requires that the recipient have some medical condition that warrants the use of another woman’s eggs in order to have a child (rather than specifically a medical condition that prevents her from becoming pregnant by her own eggs); and that the restriction goes to the fringes of the right to parent rather than its core. The Knesset argues further that the section that authorizes the exceptions committee to exercise the provisions of the Eggs Donation Law is not a “blanket section” but a limited section that accurately defines the scope of the committee’s powers. In this contest the Knesset emphasizes that the Eggs Donation Bill originally included a broader exceptions section which was eliminated. In light of all this, the Knesset believes that the order nisi must be revoked and that the petition must be denied.

Discussion

15. The case before us raises human concerns of the highest order, and it again highlights the existing gap between technological advances and the welcome existing medical abilities in the area of fertilization and birth – which enable couples and single people around the world to realize their hearts’ desires and bring children into the world – and between the slow development of the law which trails behind them attempting to establish proper rules for their regulation (on the law’s trailing behind scientific advances and changing social perceptions, see in similar context: HCJ 5785/03, Gadvan v. The State of Israel, The Ministry of Health, IsrSC 58(1) 29, 34 (2003); HCJ 4077/12, Jane Doe v. The Ministry of Health , para. 2 of Justice E. Rubinstein’s judgment and paras. 33-32 of Justice D. Barak-Erez’s judgment (February 5, 2013) (hereinafter: the Jane Doe case); the New Family case, p. 459-60; HCJ 566/11, Magad v. The Ministry of Interior, para. 4 of Justice E. Arbel’s judgment (January 28, 2014) (hereinafter: the Magad case); see also and compare CFH 6407/01, Zahav Channels and Partners v. Tele Event Ltd., IsrSC 58(6) 6, 22-28 (2004); CA 9183/09, The Football Association Premier League Limited v. John Doe, para. 6 of Justice N. Hendel’s judgment (May 13, 2012); LCA 3810/06, I. Dory and Chicovski Construction and Investments Ltd. v. Goldstein, IsrSC 62(3) 175, 196 (2007); Dan Shinman, A Defense Attorney’s View of the Reliance Defense, The Or Book – A Collection of Essays in Honor of Justice Theodore Or 507, 510-12 (Aharon Barak, Ron Sokol and Oded Shaham, Eds., 2013.))

From the outset, I will then say that the complex case before us, underscores the need that modern pieces of legislation that wish to comprehensively regulate such central aspects of people’s lives such as the issue of fertilization and birth, and that when they establish a blanket criminal prohibition against conduct that is inconsistent with them,  also include a built in mechanism that allows the competent authority designated to do so under the arrangement, to examine and approve on a case by case instances that are exceptional and out of the ordinary. This is because reality often surpasses the imagination and the goal to provide a complete, comprehensive and rigid solution in legislation that inherently cannot fully anticipate all the possible variations in the regulated context, may turn positive and law abiding people into criminals, without this serving any public interest and without it advancing the realization of the purpose that stands at the foundation of the discussed statutory arrangement.

16. Liat’s desire to bring a child into the world from her own eggs has not diminished even after the difficult fertilization treatments she had gone through for years. Liat wishes, therefore, to take the last step that may enable her, hopefully, to bring a child who would carry her genetic background into the world. This route is using her eggs through their extraction, fertilization and implantation in Dana’s body, her partner for about a decade. This is a process that involves a complex medical procedure, which is mostly to take place in the bodies of the partners who desire it. The Respondents confirmed in their arguments that the procedure they wish to perform does not elicit any “moral objection.” Still, it is currently prohibited under both the Surrogacy Law and the Eggs Donation Law that even set a criminal sanction to those violating such prohibition. In other words, the extraction of Liat’s eggs, their fertilization and their implantation in Dana’s body is caught in the net of the prohibitions included in the above statutes and may implicate all the people involved (including the attending physician) in criminal offense, only because of the broad and extensive language of these provisions and without an actual violation in the case at hand of any interest which these statutes are designed to protect.

Under these circumstances, it is appropriate to grant the Petitioners any of the remedies they seek?

The Surrogacy Law

17. In their amended petition, the Petitioners wished to find a solution within the institution of surrogacy or alternatively through eggs donation. From the reasons detailed below, I believe that the legal discussion ought to center around the Eggs Donation Law, both because it is clearly the piece of legislation that bars the Petitioners from executing their plan, and because the surrogacy path inherently is unsuitable for their matter.

The obstacle facing the Petitioners in terms of surrogacy is twofold: first, the Petitioners (either of them and both of them together) do not meet the definition of “intended parents” as established in the Surrogacy Law and thus are not eligible to take this route in Israel. Second, it is seriously doubtful whether under the circumstances surrogacy fits their wishes.

The definition established in section 1 of the Surrogacy Law, whereby “intended parents” are: “A woman and a man who are a couple” raises considerable constitutional difficulties, some of which this Court discussed in New Family case (see the position of then Justice M. Cheshin, which was joined by most of the members of the extended panel adjudicating that petition.) The Court noted that this definition unjustifiably discriminated against “single” women compared to a man and a woman who are a couple (there, p. 455-56.) And yet, I see no reason to address in further detail the constitutionality of this definition because it seem that currently real steps are being taken in order to change it, including as a result of the criticism over the Law’s provisions expressed in the decision given in the New Family case (for a critique of the Court’s unwillingness to strike down this definition as early as 2002 in New Family, see Dafna Haker, Beyond ‘Old Maid’ and ‘Sex and the City’: Singlehood as an Important Option for Women and Its Treatment in Israeli Law, Iyunei Mishpat 28, 903, 941-43 (2005); see also HCJ 1078/10, Pinkas v. The Board for Approval of Embryo Carrying Agreements , (June 28, 2010) where the Petitioners withdrew their petition challenging this definition in light of the convening of the Mor Yosef Committee.) As has already been noted, in May 2012 the recommendations of the Mor Yosef Committee, which was appointed by the Director General of the Ministry of Health, were published. The recommendations include a concrete proposal to change the definition of the term “intended parents” to also include an unmarried woman who has a medical condition that prevents her from carrying a pregnancy. Additionally, the commission recommended establishing another route for surrogacy in Israel, which would afford access to surrogacy to men without female partners as well. As reflected from the State’s arguments, the Mor Yosef Committee’s recommendations were passed onto an implementation team established for such purposes in the Ministry of Health, and the fruits of the implementation team’s labor were recently submitted to the Minister of Health in order to process them into a bill for amending the legislation that would be brought before the Knesset. It should also be noted that the 18^th Knesset is also considering the Agreements for Carrying Embryo Bill (Amendment – Intended Parents), 5772-2012 (P/18/4266), which aims to amend the definition of the term “intended parents” to include also “a woman and a woman or a man and a man” (for additional recent developments on this issue see the Memorandum regarding the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child) (Amendment – Definition of Intended Parents and Executing Agreements out of Israel), 5774-2014, which was approved by the Committee of Ministers for Legislative Matters on March 2, 2014). In light of these developments, it seems that to the extent that the Petitioners are faced with obstacles due to the existing definition of “intended parents” in the Surrogacy Law, the Legislature must be allowed to exhaust the legislative processes and we must refrain at this point from judicial intervention in the Surrogacy Law’s provisions (on the self-restraint that binds the Court when asked to intervene in ongoing legislative processes, see and compare: CFH 5161/03, E.S.T Projects and Human Resources Management Ltd. v. The State of Israel, IsrSC 60(2) 196, 206 (2005); HCJ 761/86, Miaari v. The Speaker of the Knesset,  IsrSC 42(4) 868, 873-74 (1989)).

18. However, as noted, even had the Surrogacy Law’s definition of “intended parents” been amended – whether by legislation or by judicial intervention – I seriously doubt whether the institution of surrogacy is the appropriate pate to execute and realize the process which the Petitioners seek (see: Ruth Zafran, There Are Also Two Mothers – The Definition of Motherhood for A Child Born to Same-Sex Female Couples, Din U’Dvarim 3 351, 366-67 (2008) (hereinafter: Zafarn)). This is because as opposed to the well-known and acceptable path of surrogacy which the Surrogacy Law also lays out according to which the relationship between the surrogate and the child is severed upon birth, in our matter Dana (the “carrying mother”) is expected to continue and raise the child alongside Liat (the “intended mother”) as she is, as the Petitioners put it, “the other half of the family unit into which the child would be brought.” The State and the Knesset emphasized in their arguments that the issue of severing the parenting link between the surrogate (as the “carrying mother”) and the child after birth is a central aspect of the arrangements established by the Surrogacy Law. I accept their approach that without this severance it would be incorrect to see the route the Petitioners wish to take as a surrogacy process. Though the Surrogacy Law regulates the exceptional cases where the court may approve the surrogate’s withdrawal from the surrogacy agreement into which she had entered, while establishing her status as mother and guardian over the child (see section 13 of the Law,) but these cases are irrelevant to our matter, which to begin with does not fit any of the characteristics of the institution of surrogacy, in light of the Petitioner’s declared intentions to raise the child together in the family unit they started.

As I have found that the surrogacy path is not the right path to examine the Petitioners’ claims, this means that should my opinion be heard, the Petition ought to be denied in terms of section 1 and 2 of the issued order nisi.

The Eggs Donation Law

19. The Eggs Donation Law creates different obstacles for the Petitioners. Under section 11 of the Law, a woman who has a medical condition that prevents her from becoming pregnant with the eggs in her body or any other medical condition that justifies using the eggs of another woman in order to have a child is entitled to submit a request to receive an eggs donation. The Eggs Donation Law also stipulates that a child born as a result of an egg donation would be the child of the recipient mother for all intents and purposes, and that the donor woman would have none of the authorities granted parents vis-à-vis their children (section 42 of the Law.) Therefore a woman needing an eggs donation is, as a general rule, a woman who cannot become pregnant by her own eggs because of fertility difficulties or a woman who fears passing on a genetic defect to her children (see Zafran, p. 362.) The woman who donates the eggs does not take, as a general rule, any part of raising the child carried by the recipient woman.

In our case, the Petitioners wish to use a “donation” due to a medical condition that the donating woman (Liat) has, rather than the recipient woman (Dana). This is coupled by the fact that they are a couple who wishes to raise together the child whom they bring into the world together, so that it has genetic ties to one of them and biological ties to the other. As we can see, Dana and Liat do not meet the requirements in the Eggs Donation Law and thus the prohibition in section 4(a) of the Eggs Donation Law, which mandates that “no one shall perform the extraction of eggs from a donor […] or the implantation of eggs, unless according to the provisions of this Law” applies to them, along with the criminal sanction set in section 41 of the Law which can be expected by anyone violating the Law’s provisions.

The Background for The Eggs Donation Law’s Legislation

20. As noted above, the case before us is not the first case where the Ministry of Health was requested to allow a female couple to bring a child into the world via egg donation from one female partner to the other. Indeed, in July 2006, T.Z. and N.Z., a female couple, approached the legal advisor of the Ministry of Health with a request to approve a medical procedure whereby the eggs of one of them (T.Z.) be extracted, fertilized and implanted in the uterus of the other (N.Z.) who has reproductive difficulties (the facts of the case were detailed in FA (Tel Aviv) 60320/07, T.Z. v. The Attorney General – State Attorney, District of Tel Aviv (March 4, 2012) (hereinafter: the T.Z. case,) where the court discussed a motion to establish the legal motherhood of the egg donor.) The case took place before the legislation of the Eggs Donation Law, and therefore the relevant legislative framework for examining the request was mainly the Fertilization  Regulations and regulation 4 there (in its version then) which prohibited extracting eggs from a woman who is not undergoing medical treatment for fertility difficulties. Despite such prohibition, as described in the decision in T.Z., the couple’s request was accepted by attorney Hibner-Harel, as following:

“We do not see any bar for performing the medical procedure mentioned in your letter. The Regulations require that egg be extracted from a woman who is undergoing medical treatment for infertility, however considering that you and your partner are a family unit – I believe it is sufficient that the fertility treatments are a result of a fertility difficulty of both of you, even if it is not the woman from whom the egg is extracted” (there, paras. 3 and 26.)

Therefore, the Ministry of Health has accepted the request from the female couple to extract eggs from T.Z. even though she did not go through fertility treatments because it considered the couple a family unit and thus was satisfied by the fact that one of them had fertility difficulties. As a result of this position of the Ministry of Health, in that case the necessary medical procedure was performed in September 2006 and in June 2007 the minor D.Z. was born. The case received wide publicity (see Zafran, p. 352) and consequently in July 2008 and April 2009 two additional requests were received by the legal advisor of the Ministry of Health from female couples who wished to be permitted to donate egg to one another. In light of the issue’s sensitivity it was decided to bring it to then Attorney General M. Mazuz and in a discussion held in the matter on September 6, 2009 the Attorney General decided that “where a donation between a female couple is concerned […] this must not be seen as an act that violates public policy, and the donation must be permitted” (see document dated November 24, 2009, entitled “Discussion Summary – Eggs Donation between Female Partners,” Annexure R/4 of the State’s response dated November 12, 2012.) Still, and given that regulation 4 of the Fertilization Regulations establishes an exclusive procedure for extracting eggs, it was decided that it was impossible to permit extracting egg from a woman who does not meet the requirements of the regulation – that is, that is not under medical treatment for fertility difficulties. The Attorney General added that the current legal situation is unsatisfactory and that there are additional circumstances that would justify eggs donation that are out of the regulation’s scope. The Attorney General also noted that the Eggs Donation Bill, which was already being contemplated, must be advanced.

21. Prior to the legislation of the Eggs Donation Law, then, at least one case of an egg donation between women partners was permitted, and this was since the Ministry of Health considering the couple a family unit that merited accepting their request in light of the circumstances of their shared lives. In addition the Attorney General noted that such donation must not be seen as an infringement of the public policy, and called upon the legislature to make an effort to advance the Eggs Donation Bill and through it resolve such cases as well. And indeed, after the Eggs Donation Bill 5767-2007 had passed in the Knesset at first reading, the Knesset’s Labor, Welfare and Health Committee took its time between 2008-2010 and poured over different proposed languages for the provisions. The Bill included, among others, different conditions which only when they are met it was possible to receive an eggs donation. They included presenting a “medical need” by the recipient; expanding the circle of donors to include also “volunteer donors” not receiving fertility treatments; and establishing the exceptions committee authorized to approve donations even if certain conditions detailed in the law were not met. On the latter, section 18 of the Bill stipulates:

“Approval in Exceptional Cases:

18. When any condition of the conditions for approving the extraction of eggs, approving the allocation of eggs or approving the implantation of eggs under sections 12, 14 or 16, respectively, are not met but the supervising physician believes there are exceptional and unique circumstances that merit the approval even without that particular condition, the physician may approach the exceptions committee with a request to secure such approval.”

And section 21 of the Bill, which addresses the exceptions committee’s authorities and the scope of its discretion, instructs generally as follows:

“Approval by the Exceptions Committee

21. […]

(e) The exceptions committee may approve the extraction of eggs, allocation of eggs or implantation of eggs, per the request of a supervising physician under section 18, should it believe that under the circumstances there are exceptional and unique reasons to justify doing so.”

The explanatory notes to the Bill addressed these sections and noted that they were designed to allow the exceptions committee to consider an eggs donation even with the different conditions detailed in the law are not met “in cases that justify doing so and that are impossible to anticipate in advance, and without this requiring an amendment to the law.” The Ministry of Health’s legal advisor, Adv. M. Hibner-Harel had even explained the need for sections 18 and 21(e) above to the members of the sub-committee that was convened in order to supervise the Bill’s advancement, saying that:

“[…] I would like there to be some section for an exit strategy. There are things in life that I don’t anticipate today. I would like to qualify this exit section. I’m not here to climb mountains or to start revolutions, but I need a section because of the problems I see in the course of my position, because of problems that we did not anticipate in the legislation and then I have do diverge from the law and from the courts notes, but we do it because it must be done” (see minutes of meeting Labor, Welfare and Health Sub-Committee for Supervising the Eggs Donation Bill, 5769-2008, dated November 3, 2008, p. 47.)

Some of the members of the sub-committee expressed their concern that these sections would make circumventing the other conditions in the law possible, and after discussing the necessity of the above “basket sections” the mentioned  sub-committee members decided to remove them from the Bill noting that “this could be left to the courts.” This followed comments by Rabbi Dr. Mordechai Halperin, representative of the Ministry of Health’s Bioethics Committee, who told the committee members that:

“It is better to remove section 18 and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is explicitly in violation of the law” (there, p. 50-51.)

And in the exchange between the sub-committee chair, Member of Knesset A. Eldad and Rabbi Halperin, it was also said:

“Chair Aryeh Eldad: The court cannot act in violation of the law. Maybe we should add here a basket provision that authorizes the court to act as an exception of an exception.

[…]

Mordechai Halperin: But this does not to be written. The court does this anyway, regardless of a basket section. So we do not need it.” (There, p. 49.)

22. This puzzling and mistaken reasoning is that lead to the removal of the said “basket” sections from the Bill and as a result the Eggs Donation Law, which was passed in 2010, was left without a flexible route to allow considering exceptions from the law’s requirements in the unique cases that may not be anticipated in advance, including, for instance, a case such as the one before us where the recipient has no “medical need” for the eggs donation but there are other reasons that justify permitting the donation. The language of the law in the version that passed allows the exceptions committee limited authority that was restricted only to the cases detailed in section 20(a) of the law and only when the conditions detailed in section 22 of the law are met for each of those instances. The Petitioners’ case is not among those detailed there and thus they cannot find a solution in turning to the exceptions committee.

Do the law’s provisions in their current state violate the constitutional rights of the Petitioners to an extent that merits judicial intervention?

The Eggs Donation Law’s Violation of Constitutional Rights

23. Since the legislation of Basic Law: Human Dignity and Liberty in 1992, Israeli law had identified a string of basic rights from the right to dignity, including: the right to equality, to autonomy, to family life, to parenting and to free expression. Do the provisions of the Eggs Donation Law infringe upon the Petitioners’ basic right to dignity and its derivative rights? This is the first question that must be examined in order to exercise judicial review over the law’s constitutionality. To the extent that we find the answer to be in the affirmative, we must continue and examine whether this infringement meets the requirements of the Limitations Clause of section 8 of Basic Law: Human Dignity and Liberty, and which outlines the scope of protection granted to these basic rights, as relative rights. Finally, to the extent that we may find the infringement by the Eggs Donation Law upon the Petitioners’ basic rights to violate the Limitations Clause the consequences of this unconstitutionality must explored, along with ways to cure it (for the three step constitutional analysis and the relativity of constitutional rights, see HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset, IsrSC 61(1) 619, 669-670 (2006); HCJ 7052/03, Adalla – Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Interior, IsrSC 61(2) 202, 281-82 (2006) (hereinafter: the Adalla case); HCJ 10662/04, Hassan v. the National Insurance Institute of Israel, para. 24 of President D. Beinisch’s judgment (February 28, 2012) (hereinafter: the Hassan case); HCJ 7146/12, Adam v. The Knesset, paras. 68-69 of Justice E. Arbel’s judgment (September 16, 2013); Aharon Barak, Proportionality in Law – the Infringement of a Constitutional Right and its Limits, 51-53, 56-57 (2010) (hereinafter: Barak, Proportionality)).
24. The Eggs Donation Law prohibits, as discussed, the Petitioners by criminal sanctions from performing egg extraction from Liat’s body and implant that same egg in Dana’s uterus after it has been fertilized. Does this amount to a violation of the Petitioners’ constitutional rights?

The right to autonomy which encompasses one’s right over their body is at the “hard core” of the constitutional right to dignity (see CLA 1412/94, The Hadassah Medical Organization Ein Kerem v. Gilad, IsrSC 49(2) 516, 525 (1995); CA 2781/93, Daaka v. “Carmel” Hospital, Haifa, IsrSC 53(4) 526, 571 (1999) (hereinafter: the Daaka case); CA 10064/02, “Migdal” Insurance Company Ltd. v. Abu Hana, 60(3) 13, 48 (2005); CA 4576/08, Ben-Zvi v. Hiss, para. 25 of Deputy President E. Rivlin’s judgment (July 7, 2011); CA 10085/08, Tnuvah – Co-operational Center v. Estate of Raabi, para. 33 (December 4, 2011); CA 1303/09, Kadosh v. Bikur Holim Hospital, para. 31 (March 5, 2012.)) So, for instance, in Daaka it was decided that the basic right to autonomy over one’s body means that the patient’s informed consent is necessary in order to perform any medical treatment on them, and as Justice T. Or wrote there:

“This right of a person to determine their life and fate holds within it all the central aspects of their life – where they may live; what may be their occupation; who they may live with; what they may believe. It is central to the existence of each and every individual in society. It expresses the recognition of each and every individual’s value as a world unto themselves. It is essential to each individual’s self-determination in the sense that the entirety of our choices defines our personality and our life […]

An individual’s right to autonomy is not exhausted  in this narrow sense, of the possibility to choose. It also includes another aspect – a physical one – of the right to autonomy which goes to one’s right to be left alone […] This right means, among others, that every person must be free of intervention in their body without their consent” (there, p. 570-71.)

Justice H. Ben-Ito discussed the autonomy a woman has over her body in terms of intimate decisions involving reproduction and birth, in CA 413/80, Jane Dow v. John Doe, IsrSC 35(3) 57, 81 (1981), as follows:

“Impregnation, pregnancy and birth are intimate events, which are wholly within the private sphere; the State cannot intervene in this area unless there are weighty considerations stemming from the need to protect an individual right or a serious public interest” (and see also CA 1326/09, Hamer v. Amit, para. 71 of Deputy President E. Rivlin’s judgment (May 28, 2012.)

Regulating the area of eggs donation in legislation that establishes what may or may not be done with a woman’s eggs, therefore, on its face infringes a woman’s autonomy to determine what may be done with her body. From the donor’s perspective, this is an intervention in her ability to realize her wishes to donate an egg to another woman. From the recipient’s perspective this is an intervention in her ability to receive in her uterus a fertilized egg and to carry the resulting pregnancy. The law infringes, then, upon the liberty of these two women to choose how they lead their lives free of any external intervention in decisions involving their bodies (see Meir Shamgar, Issues of fertilization and Birth, Hapraclit 39 21, 27, 31-32 (1989)). However, one’s autonomy over their body and the liberty to make decisions involving the body are not absolute rights, and as any other right they must be balanced against conflicting rights or limited in some instances. Therefore, as to the extent that infringing upon the Petitioners’ autonomy is concerned, it is necessary to go on and examine whether this infringement meets the requirements of the Limitations Clause.

25. An additional right is infringed under the circumstances  and it is also a derivative of the constitutional right to dignity. It is the Petitioners’ right to a family life and to designing their family unit as they choose (see CA 5587/93, Nahmani v. Nahmani, IsrSC 49(1) 485, 499 (1995); CA 7155/96, John Doe v. The Attorney General, IsrSC 51(1) 160, 175 (1997); the Adalla case p. 296, 400, 465, 474, 496-97, 523; HCJ 466/07, MK Zehava Galon – Meretz-Yahad v. The Attorney General, para. 10 of Justice E. Rubinstein’s judgment (January 11, 2012); Yaniv Ron-El, The Limits of Fertility Freedom from a Liberal Perspective: the Case of Selecting the Child’s Sex, Iyunei Mishpat 32 391, 451 (2010) (hereinafter: Ron-El)). Justice A. Procaccia discussed the right to family life in HCJ 7444/03, Dakka v. The Minister of Interior, (February 22, 2010) saying:

“One’s right to family is one of the foundations of human existence. Its realization is required for fulfillment and purpose in life. It is a condition to one’s self-realization and their ability to tie their life to their partner and to their children in true partnership of fate. It reflects the essence of one’s being and the realization of their heart’s desires. The right to family is located at the top of the list of human rights. Taking away from this right is possible only where it conflicts an opposing value of special force and importance” (there, para. 15.)

The Petitioners wish to have a child together and to expand their family unit. Such a meaningful decision by a couple that goes to having children expresses in full force not only the Petitioners right to autonomy but also their right to family life. In this case the right to family life encompasses an additional important right, which is the right to parenthood (see CA 451/88, Does v. The State of Israel, IsrSC 44(1) 330, 337 (1990); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 719 (1996) (hereinafter: the Nahmani case); HCJ 2245/06, Dovrin v. Israel Prison Service, para. 12 (June 13, 2006); The Jane Doe case, paras 26-27 of Justice E. Rubinstein’s judgment; The Magad case, para. 41 of Deputy President M. Naor’s judgment; Pinhas Shifman Family Law in Israel vol. 2 139 (1989); Yossi Green In Vitro Fertilization From A Consent Perspective 66 (1995) (hereinafter: Green.))

There are those who consider the right to parenthood to be the meaning of life, but even if this approach is not universally accepted, it seems the right to parenthood cannot be overstated (see Vardit Rabitzki, The Right to Parenthood in the Age of Technological Fertilization, Dilemmas in Medical Ethics 137, 145-147 (Rephael Cohen-Almagor, ed. 2002) (hereinafter: Rabitzki); on the “reproductive freedom” included within the right to parenthood, see Shulamit Almog and Ariel Bendor, Reproductive Freedom as a Basic Right, A Different Kind of Pregnancy 115, 116-17 (Shulamit Almog and Avinoam Ben Zeev, eds. 1996) (hereinafter: Almog and Bendor); the right to parenthood is also mentioned in section 16 of the United Nations’ Universal Declaration of Human Rights from 1948 (“Men and women of full age, without any limitations due to race, nationality or religion, have the right to marry and to found a family”) as well as in other declarations or treaties, see: Almog and Bendor, p. 117; Rabitzki, p. 137-38; the Adalla case p. 470-73.) Indeed, the desire for parenthood follows humans since the dawn of history and scholar P. Shifman notes that while in the past the ability to bring children into the world was in the hands of fate, one of the characteristics of the modern age is that fulfilling such desire is subject to a large extent to one’s choice and free will (see P. Shifman, On the New Family: Notes to Start A Discussion, Iyunei Mishpat 28 643, 661 (2005)).

Professor D. Barak-Erez discussed the statues of the right to parenthood, noting:

“The right to parenthood is an independent right, rather than a reflection of autonomy of free will. Realizing the option of parenthood is not just a possible way of life, but it is also rooted in human existence. Some may find it to be a cure for loneliness; others may use it to cope with awareness of death […] The choice of parenthood is not just a choice about a way of life – it has weight beyond this in human existence. It expresses a fundamental existential need. In addition, the decision to become a parent also solidifies self-realization, particularly in modern society that emphasizes self-realization as a value. However the right to parenthood does not only stem from self-realization. The right to life is an independent fundamental right, rather than merely a derivative of the autonomy of will, and so is the right to parenthood.” (Daphne Barak-Erez, On Symmetry and Neutrality: Following the Nahmani cases, Iyunei Mishpat 20 197, 199-200 (1996)).

In her emotional arguments before us, Liat expressed her desire to be a parent and to have a child who carries her genetic code, as well as the grave pain and frustration she experiences after years of unsuccessful fertilization treatments. All this led Liat to conclude that she will likely be unable to fulfill her wishes unless implanting her fertilized eggs in the uterus of another woman who would carry the pregnancy would become possible. The natural choice for this is of course her partner, Dana, who expressed her wishes to take part in the process as someone interested in expanding their common family unit in this way. In this sense the obstacles mounted by the Eggs Donation Law infringe Liat’s right to parenthood, whereas it seems this is a different level of infringement in terms of Dana’s right to parenthood.

26. Indeed, the case law and literature discussed the facets of the right to parenthood and have distinguished between the core of the right – such as the “practical ability to bring children into the world” – and facets that are at the periphery of the right – such as “one’s ability to choose how to exercise their natural right” (see the Jane Doe case, paras. 27-32 of Justice E. Rubinstein’s judgment and para. 11 of Justice D. Barak-Erez’s judgment; see also Ruth Zafran, The Range of Legitimacy in Choosing the Genetic Characteristics of the Child by the Parents – Choosing the Sex of the Child for Social Reasons as a Case Study” Mishpat V’Asakim 6 451, 460-61 (2007); Green, p. 68-69; Almog and Bendor, p. 118.) Categorizing each case along this distinction influences the force of the infringed right and the way the right to parenthood must be balanced against other rights and interests that relate to, for instance, the potential child’s best interest, the public interest, and the different requirements by the bodies participating in the reproductive process such as sperm donors, egg donors, doctors and treating institutions (see Rabitzki, p. 151-59). In this context, for example, in the Jane Doe case it was held that a woman’s wishes to bring children into the world who would all have the same genetic father by once more using the sperm donation of the same donor she used for her first child is not in the core of the right to parenthood and it must be balanced against the refusal of that same anonymous donor for additional uses of his sperm and against his right not to be a parent.

Therefore, the arrangement established in Eggs Donation Law which restricts extraction and implantation of eggs and prohibits through criminal prohibition performing these acts unless they meet the requirements in the law, infringes the Petitioners’ constitutional rights to autonomy, family life and parenting. As a result we must continue and examine whether this infringement meets the requirements of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty.

The Eggs Donations Law and the Requirements of the Limitations Clause

27. The Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty sets four conjunctive requirements that must be met in order to justify infringing upon a constitutional right that is protected by the Basic Law. The infringement must be done through legislation (or by explicit authorization in legislation); the law must fit the values of the State of Israel; it must be for a worthy purpose ; and the infringement of the right must be to extent not greater than necessary. In our case, there is no dispute that the infringement of the Petitioners’ rights is done through legislation – the Eggs Donation Law, and to the extent that this law is concerned the Petitioners have not argued in terms of its fit with the values of the State of Israel. It is possible, then, to focus the discussion in terms of the Limitations Clause on the question of the worthiness of the law’s purpose and the proportionality of its arrangements.

Worthy Purpose

28. Section 1 of the law states:

“The purpose of this law  is to regulate eggs donation for the purposes of reproduction and birth, while achieving maximum protection for the dignity, rights and health of the donor woman and the recipient woman, as well as to regulate the use of eggs for research purposes, all while protecting women.”

In stating so the law informs that it is designed to regulate the use of technology for extraction and implantation of eggs primarily for the purposes of reproduction, but also for the purposes of research. This purpose is of course worthy and welcome. It advances an important social causes and facilitates the realization of many women’s basic, natural and understandable desire for a child while using advance technologies developed in this field and that allow overcoming medical conditions and bringing children into the world (see minutes from meeting of the 17^th Knesset's Labor, Welfare and Health Committee, dated February 18, 2008, p. 5.) Still, it is important to remember that the legislative arrangement regarding eggs donation, like other legislative arrangements (see and compare: the Organ Implantation Law, 5768-2008) trails behind the technological advances that were achieved and have been implemented in medicine for many years before the law was legislated. The need for an arrangement was born, therefore, in order to establish what was and was not to be permitted in this complex and sensitive area in order for it not to remain open for exploitation by different bodies. This explains the emphasis at the end of section 1 that the law was meant to “regulate eggs donation for the purposes of reproduction and birth, while achieving maximum protection for the dignity, rights and health of the donor woman and the recipient woman (emphasis added.)”

Examining the purpose of the law must focus then on the rationales behind its various restrictions and prohibitions. The premise that must guide us in this examination is similar in its essence to the premise that then Justice M. Cheshin outlined in the New Family case when he discussed the Surrogacy Law:

“A main aspect of this human need – the need to exist and to survive – in a woman’s desire, a desire to the end, for a fruit of her womb, a child that is a flesh of her flesh. Previously, man knew only one way to realize this wish, and this is how the family unit was created. Currently, when technology may assist people where nature fails it, a material rationale is required in order to bar a woman from using this technology” (there, p. 447.)

In other words, the force of the reasons and rationales necessary to limit birth with the assistance of technology must essentially be on par with the force of the reasons and rationales required to limit natural reproduction (see Rabitzki, p. 149-51.)

Reviewing the restrictions and prohibitions established in the Eggs Donation Law indicates that they were meant, generally, to ensure the protection of the health of women involved in the process as well as the health of the child. The law was also intended to prevent trade in eggs and exploitation of women (see, for instance, section 12 and 14 of the Eggs Donation Law which set age limits for a “volunteer donor”, restrictions on the number of eggs that may be extracted each time and on the frequency of the extraction process; see also the prohibition on trading and mediations eggs established in section 8 and 9 of the law.) The restriction in section 11 whereby the eligibility for an eggs donation under the law is contingent upon the recipient being “unable due to a medical condition to become pregnant with the eggs in her body, or has another medical problem justifying using another woman’s eggs in order to have a child” was designed to prevent using fertilization and implantation technology for purposes which the legislature considers, and rightly so, as antisocial. This was discussed by scholar Ruth Zafran who noted that the condition in terms of the necessary medical condition of the recipient was meant to prevent using the eggs for eugenics reasons – that is, experimenting with “improving” the genes of the offspring (see Zafran, p. 362.) The resulting conclusion is that the arrangement established by the Legislature in the Eggs Donation Law was for a worthy purpose. Therefore we must further examine whether the means taken by the Legislature to achieve the law’s purposes are proportional.

The Proportionality of the Arrangement in the Eggs Donation Law.

29. The proportionality issue may be examined under three sub tests established by the case law. They are: the existence of a rational link between the chosen means and the desired end; a lack of a least restrictive alternative; and proportionality between the benefit achieved by the statute and its different arrangements and the harm caused by its virtue (see, out of many: HCJ 1715/97, Israel Investment Managers Guild v. The Minister of Finance, IsrSC 51(4) 367, 385-86 (1997); HCJ 3648/97, Stamka v. The Minister of Interior, IsrSC 53(2) 728, 776 (1999) (hereinafter: the Stamka case); HCJ 1661/05, Gaza Beach Regional Council v. Knesset of Israel, IsrSC 59(2) 481, 549-550 (2005) and the many sources there; HCJ 2442/11, Stanger v. Speaker of the Knesset, paras. 41-42 of President A. Grunis’ judgment (June 26, 2013); Barak, Proportionality, p. 169-72.)

The rational connection test is designed to detect the existence of the probability that the means chosen by the statutes would indeed lead to achieving the end for which it was enacted. Under this test it is not necessary that the statute ensures fully achieving that end, but it must point to a real link to accomplishing it. In my view, regulating the issue of eggs donation in Israel while imposing different limitations and prohibitions on the possibility to donate and receive eggs, including a criminal prohibition designed to deter and enforce these restrictions, may lead to achieving the purposes of the statute, as we described them above. The fact that as a result of a statute’s broad language the possibility of an eggs donation is prohibited even in cases that the law did not attempt to prevent, such as this case, cannot in and of itself sever the rational link between the prohibition and the purpose the law was meant to achieve (Barak, Proportionality, p. 376-78, 411-12.) The matter of the arrangement’s proportionality in light of the fact that its restrictions catch in their net cases where there is no concern for harming any of the interests the law wishes to protect, should therefore be explored under the second sub test which poses the question whether there is an alternative means to achieving the law’s purpose in a manner that is less restrictive.

30. Indeed, the tight knit net the law casts caught even the Petitioning couple’s heart desire, though it is undisputed that it carries no moral flaws and though it is universally clear that it does not harm any other individual or any of the social and public interests which the law wishes to protect. The Respondents raised many good reasons to justify the conditions and restrictions set by the Eggs Donation Law, but they cannot point even to one meaningful reason to justify preventing the Petitioners from going ahead with the extraction, fertilization and implantation procedure they wish to perform, apart from the fact that the law – due to is broad and expansive language – prohibits doing so. It should be emphasized that since we are concerned with the elimination of the Petitioners’ basic rights, the prohibition in the law is that which requires justification (see New Family, p. 444-45, 448-49) and given the force of the infringed rights and their nature as “negative rights” whose exercise does not impose on the state any duties (see Ravitzki, p. 141; Ron-El, p. 445-448), it seem the strength of the justification for the expansive means chosen, must meet a higher bar.
31. I am afraid that the fact that the Eggs Donation Law (as opposed to its Bill) does not authorize the exceptions committee it forms the general power to examine exceptional and unusual cases leads to the conclusion that the means established by the arrangements included in the law to realize the worthy purposes for which it was enacted, are disproportional and rigid and may cause – as was the case here – arbitrary harm to women whose right to use relevant assisted reproductive technology in order to have a child the law never intended to infringe.

The need to set an exceptions mechanism to allow the examination of particular cases that were impossible to anticipate in advance, particularly where the Legislature established an extensive arrangement that infringes upon basic rights, was discussed by this Court, among others, when analyzing the second sub test of the proportionality requirement in the Adalla case (and see also: HCJ 2150/07, Head of Beit Sirah Village Council v. The Minister of Defense, para. 5 of Justice E. E. Levi judgment (December 29, 2009); HCJ 10533/04, Weis v. The Minister of Interior, para. 43 (June 28, 2011); the Hassan case, para. 68 of President D. Beinisch’s judgment.) And in the words of President A. Barak:

“The exceptions mechanism may reduce the law’s infringement of rights, without compromising the achievement of the worthy purpose. Therefore, creating such a mechanism is an obvious outcome of the second sub test which addresses identifying a less restrictive alternative. Indeed, just as it is the duty of any administrative authority to exercise judgment on a case by case basis and to recognize the exceptions to the established rules and instructions when circumstances call for doing so […] so is it the duty of the Legislature, when setting an arrangement whose outcome is broad infringement of rights, to consider the establishment of an exceptions mechanism that would allow resolution in special cases when the circumstances justify it.” (The Adalla case, p. 329; see also Barak, Proportionality, p. 407-09.)

Although President A. Barak remained in the minority in Adalla, but it seems that on this particular issue, Deputy President (Ret.) M. Cheshin was of the same opinion as Barak (there, p. 455.) Then Justice M. Cheshin’s words as to the exceptions mechanism’s necessity from a different case are apt here as well:

“A policy lacking exceptions is like an engine without oil for lubrication. Just as the latter will burn out soon and stop operating, so is the fate of the policy.” (The Stamka case, p. 794.)

32. The Eggs Donation Law does include a mechanism to examine exceptions, but as was explained in detail above, the authority of this committee is limited and restricted to only four sets of circumstances, as detailed in sections 20 and 22 of the law. In my view this limited and narrow mechanism is insufficient because it does not at all resolve the unjustified infringement on the basic rights of women – such as the Petitioners or others – in those cases where they cannot all be anticipated in advance and do not fall under one of these four sets of circumstances.

To summarize so far – the law in its current version infringes disproportionately upon the rights of the Petitioners and other women whose circumstances are unusual and warrant resolution, and thus because of the limited and unsatisfactory mechanism the law sets to examine and approve exceptional cases. In the absence of a more flexible mechanism to explore exceptional cases that may not be anticipated in advance, the law is flawed for a lack of a proportional means, which is less restrictive on basic rights.

33. In light of this conclusion, there is no longer any need to discuss the third sub test – the narrow proportionality test. In this context I will note, beyond the necessary scope, that expanding the circle of donors, preventing the trade in eggs, and protecting the health of donating and receiving women certainly are important purposes that highly benefit society. Still, the harm incidentally caused to the Petitioners and other women like them whose right to form their family unit and exercise the most meaningful choices in their life are compromised by the law, cannot be justified. This is particularly in the absence of a social or public interest whose protection justifies such infringement, and given the fact that realizing their rights to autonomy, to family life and to parenthood as they wish to does not infringe in any way upon the rights of any other person. The fact that in this case Liat has no other actual way to have a child to bear her genetic code – other than the method the couple wishes to pursue – only serves to emphasize and exacerbate the unjustified harm to them (compare with the Jane Doe case, para. 6 of Justice D. Barak-Erez’s judgment.) Indeed the biological genetic link between a parent and child is not the end all be all. Of no less significance (and often of more) “ingredient” to building and shaping the relationship between parents and children is the emotional connection and commitment to the child’s well-being and upbringing (see and compare CFH 6211/13, The Attorney General – The Ministry of Welfare and Social Services v. Jane Doe, paras. 27-28 of Deputy President M. Naor judgment (December 23, 2013); the Magad case, para. 14 of Justice S. Joubran’s judgment.) Still, and as already noted, there must be real and meaningful justification to denying a person the possibility to exercise the right to parenthood in a way that includes blood ties between them and the child. In our case it has not been argued, and in any event, it has not been proven that the added value achieved through the blanket prohibition in the Eggs Donation Law is greater than benefit achieved had the law included a mechanism for individual examination of exceptional cases. It cannot be denied – tight prohibitions that have defined in general and all-encompassing provisions present advantages. They facilitate efficiency and efficacy in enforcing the law. However, the main disadvantage of general and extensive language of statutory provisions is the inability to anticipate in advance all those situations that would be caught in the wide and tight net of the prohibition. Therefore, once the legislature chose to cast this tight knit net it must at the same time also establish what Justice M. Cheshin called in Stamka “oil for lubrication.” In other words, there must be a flexible mechanism that would allow resolution in exceptional cases that justify not applying the prohibition in the law. In this case, and as we are concerned with the Eggs Donations Law, which addresses one of the most sensitive and meaningful issues in human society, the importance of such flexible mechanism that would allow the exceptions committee to perform its function in an appropriate manner cannot be overrated. Sadly, such a mechanism did not find its way into the Eggs Donation Law.

To complete the picture, I will note that in later stages of the adjudication before us, and in an honest effort to find a practical solution, among others, to the Petitioners’ problem, the State presented the “Taking of Semen, Eggs or Fertilized Eggs out of Israel” protocol accepted in July 2013. This protocol somewhat opens the door in the strict and extensive prohibition against implanting eggs in violation of the law as established by the Legislature in the Egg Donations Law. Under the protocol it may have been possible, seemingly, to permit the Petitioners to take eggs extracted from Liat’s body out from Israel in order for them to be implanted in Dana’s uterus abroad. Only this partial solution is not a real response to the constitutional difficulties created by the law. It does not permit the implantation to be done in Israel. It places a serious financial burden on the petitioners because of the requirement to perform the implantation overseas and all that may be involved in this, and according to the Petitioners, it also reduced the prospects of the procedure’s success. Therefore, following this protocol is of some solution to the Petitioners’ concrete plight, but it is only a partial fix which forces the Petitioners and others in their situation to leave for overseas in order to find a remedy for their troubles there, without any real justification.

34. Therefore, the legislative arrangement in the Eggs Donations Law includes conditions to perform the extraction and implantation of eggs in Israel and a blanket prohibition against performing these procedures where such conditions are not met. This is without granting the exceptions committee the sufficiently flexible authority to consider individual exceptional cases that justify diverging from the provisions of the law. This arrangement is unconstitutional because it infringes the basic rights of the Petitioners in a way that is consistent with the requirements of the Limitations Clause. The criminal prohibition established in section 41 of the Eggs Donation Law exacerbates the law’s violation of these rights because it paints the human desire to have a child in criminal colors, and this without any obvious reason or justification.

In light of all this, we must consider the outcomes of unconstitutionality – that is the question of relief.

The Outcomes of Unconstitutionality

35. Finding that the Eggs Donation Law unconstitutionally violates the Petitioners’ basic rights and those of others like them, does not necessarily mean that the law must be struck down. When we come to decide which constitutional relief is appropriate, we must strive as much as possible for a fit between that relief and the harm to be cured. As professor A. Barak wrote in his book about interpretation in the law “the nature of the relief is related to the nature of the harm and the reason it is unconstitutional” (Aharon Barak, Interpretation in the Law, Vol. 3 – Constitutional Interpretation, 732, 767-68 (1994) (hereinafter: Barak, Interpretation in the Law.) Once we have held that arrangements established in the Eggs Donation Law are for a worthy purpose but infringe upon the Petitioners’ rights to an extent more than is necessary, we must continue and examine whether there are appropriate means to relieve the infringement or mitigate it without the Court having to strike down the law or any part of it (as to the careful manner in which the Court is required to act before striking down a statute, see HCJ 7111/95, The Center for Local Government v. The Knesset, IsrSC 50(3) 485, 496 (1996); HCJ 2605/05, The Academic Center for Law and Business v. Minister of Finance, IsrSC 63(2) 545, 592-94 (2009.)) In our case, there is no reason to strike down the entire Eggs Donation Law, or even to strike down section 4(a) of the law which prohibits performing extraction and implantation of eggs in violation of the law, because such a move would create a significant “statutory void” which would leave the area of eggs donation unregulated and would cause more harm than good. Striking down section 11 of the Eggs Donation Law, all of it or part of it, would also fail to achieve the outcome desired by the Petitioners because that would mean removing an essential and justified requirement, generally, in terms of the necessity of a recipient’s woman medical need as a prerequisite for receiving an eggs donation without resolving the problem of many others who face additional rigid restrictions set by the law. Under the circumstances, I believe that the appropriate solution can be found in the mechanism of the exceptions committee. Were my opinion be heard, we shall read into the Eggs Donation Law an additional sub section, that would follow section 20(a)(4), whereby the exceptions committee would be authorized to approve an eggs donation “where it believes that under the circumstances there are special and exceptional circumstances that justify doing so.”
36. This remedy, of “reading into the statute” is well known in the Israeli and foreign case law and literature, and it aims to read into the unconstitutional statutory arrangement provisions that would remove the flaw and alleviate the need for striking down the statute (see Barak, Interpretation in the Law, p. 763.) So, for instance, this remedy is designed to address situations where the statutory provision grants benefits to members of one group, but does not grant that same benefit to members of a different group that is entitled to the same rights. In this situation the blanket striking down of the benefit due to its infringement upon equality would not be the appropriate remedy, because this would undermine the worthy purpose of the statute while harming the members of the group that lawfully enjoy the existing benefit. Therefore courts in the United States and in Canada have developed an appropriate remedy that would expand the scope of the existing arrangement and thus remove the unconstitutional harm it includes, while preserving the statute and protecting the purposes it is meant to achieve (for a comprehensive comparative review see: Barak, Interpretation in the Law, p. 759-65; Imanuel Gross, Constitutional Remedies, Mishpat U’Mimshal 4 433, 458-59 (1998) (hereinafter: Gross); Igal Marzel, Suspending Invalidity Declaration, Mishpat U’Mimshal 9 39, 62-63 (2005)). In that way, American courts have recognized the possibility of “extension” – the possibility to extend the scope of the statute where appropriate to do so as a constitutional remedy that is preferable to striking down the statute (see Welsh v. United States, 398 U.S. 333, 361 (1970), where Justice Harlen, in a dissenting opinion, first proposed the doctrine which became precedent later in Califano v. Westcott, 443 U.S. 76, 79 (1979); see also Ruth Bader Ginsburg, Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation, 28 Clev. St. L. Rev. 301 (1979); Evan H. Caminker, A Norm-Based Remedial Model for Under Inclusive Statutes, 95 Yale L. J. 1185 (1986)). The Canadian Supreme Court similarly developed the Reading In doctrine which means reading provisions into the statute that negate its unconstitutionality (see Schachter v. Canada, [1992] 2 S.C.R. 679; see also Vriend v. Alberta [1998] 1 S.C.R. 493; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers [2013] S.C.C. 62). The Canadian Court has held, however, that the court would not opt for the remedy of reading into the arrangement while intervening in the statute’s framework in every case, and that in order to read in the court must consider, among others, the scope of the necessary extension, whether the extension is simple to execute, the budgetary cost of extension and whether it preserves the basic fabric of the statute (see Schachter, p. 19-21.)
37. The reading in doctrine has been absorbed into Israeli law. It was first raised in HCJ 721/94, El Al Israel Airlines v. Danilovitz, IsrSC 48(5) 749, 767-69 (1994), where the Court noted, though it was unnecessary for purposes of the decision, that this remedy should have been used on the constitutional level because it advances the purpose underlying the statutory arrangement and alleviates the need to strike down the legislation (id., p. 769.) The case in which this Court found it appropriate to apply the doctrine was HCJ 8300/02, Nasser v. The Government of Israel (May 22, 2012,) where the Court considered a mechanism of tax benefits established by section 11 (b) of the Income Tax Ordinance [New Version], which detailed a particular list of localities whose residents were entitled to reductions in income tax payments. This list of localities, for the most part, was not defined by any particular criteria and the entitlement for the tax benefit was granted through explicitly noting the names of the localities in the said section. Once it held that the list of localities detailed in section 11(b) of the Ordinance was discriminatory, the Court ordered that the appropriate constitutional remedy would be granting the same benefits to the residents of three Arab and Druze localities that were discriminated against in comparison to the Jewish residents in the nearby localities. The Court then read into the Ordinance the names of the additional localities noting that this move is not inconsistent with the exceptions established in comparative law (see there, paras. 57-59 of President (Ret.) D. Beinisch’s judgment; for other cases where the possible use of the Reading In doctrine was discussed, see HCJ 3809/08, The Association of Civil Rights in Israel v. The Israel Police, para. 15 of President (Ret.) D. Beinisch’s judgment (May 28, 2012); HCJ 3734/11, Davidian v. The Knesset of Israel, para. 59 (August 15, 2012.)) In the New Family case, too, where the constitutionality of the Surrogacy Law’s narrow definition of “intended parents” was discussed, Deputy President S. Levin noted that “the Petitioners [wish] to expand the small opening created by the law in order to resolve the plight of several tens of couples and expand it based on the principle of equality. This technique is permitted through the principles of constitutional interpretation of reading in, but we do not apply it in cases where it deals a complex issue that its consequences are unclear and where by nature warrant regulation by the Legislature (see New Family, p. 468.)
38. In my opinion, the constitutional remedy appropriate in this case is, again, reading a sub-section into section 20(a), as proposed in paragraph 35 above, whereby the exceptions committee would be granted, in addition to the limited powers it currently has, the general and flexible authority to approve an eggs donation where it finds “there are special and exceptional reasons that justify doing so.” This remedy leaves the entirety of the arrangements in the law as they are. It preserves the “fabric of the legislation” and does not at all compromise the worthy purposes that the legislature wished to realized through the law. It removes the unconstitutionality of the law’s arrangements by allowing, alongside the blanket criminal prohibition in the law, a flexible mechanism that is not bound only to the four case detailed in section 20(a)(1)-(4), and it permits individual examination of cases where the donating or recipient women do not meet (one or more) of the conditions set by the law, but where there may still be special and exceptional reasons that justify approving the donation (for justifying the application of the reading in doctrine, particularly in order to develop exceptions to criminal responsibility, see Gross p. 466-67.) Reading this arrangement into the law does not involve, as I understand, additional budgetary costs, and as discussed, in the proposed version it is intended to cover only unique and exceptional cases that merit it. Nor does the proposed addition pose a significant change to the law’s provisions and it is merely a specific extension of the narrow opening left by the legislature when limiting the exceptions committee to the four cases detailed in section 20(a) of the law.

It is important to recall – and I discussed this above in paragraph 21 – that the Bill included an exception clause in the very same language that I propose to read into the law, but it was removed from the final version of the law that was passed after Rabbi Halperin noted to the members of the sub-committee that discussed the Bill, that the section is redundant and that petitioners that do not fall under sections 20(a)(1)-(4) (as marked in the law’s final version) that would turn to courts in their distress and present to them special and exceptional circumstances would be granted remedies there. And as Rabbi Halperin said there:

“It is better to remove section 18 and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is explicitly in violation of the law” (Minutes of meeting of the Sub Committee of the Labor, Welfare and Health Committee for Supervising the Eggs Donation Bill 2008, dated November 3, 2008, p. 50-51.)

These things by Rabbi Halperin are unfounded, with all due respect, and they are which ultimately led to removing the general exceptions clause that initially was included in the Bill from the final version that was passed. This caused the final version to be unconstitutional and in order to remedy this flaw I propose reinstating the section that was removed, particularly because it is abundantly clear that removing it was rooted in reasons that are mistaken on their face.

Before concluding, I will note that the State’s argument that the Eggs Donation Law is a new statute legislated about three years ago and therefore, similarly to the approach the Court took in New Family, intervention in its provisions should be avoided and its application and consequent developments that would follow incrementally should be permitted to take their course, has not escaped me. Indeed in New Family the Court believed that though it was found that the Petitioner was unconstitutionally discriminated against there was no place to intervene in the Surrogacy Law because this was “a new and complex issue, and issue with many unknowns that we have yet to experience to the fullest.” Instead of intervening in the legislation, the Court therefore opted in that case to call upon the Legislature to contemplate the plight of single women as petitioners and weightily consider applying the law to them. I do not believe that such a move fits the case before us. Since the legislation of the Surrogacy Law about 18 years have passed and still to this day a resolution has yet to be found for petitioners such as the petitioner in New Family, though recently and as detailed above, a certain glimmer of hope has been created in this context. Such long wait for action by the legislature requires those whose basic rights have been infringed upon as a result of the current version of the law to hold their breath. Given the nature and substance of these infringed rights, and given the medical procedure required for eggs donations, which must attribute significant – even determinative – weight to the “ticking” of the biological clock, I do not believe that it is proper to adopt here the path walked by this Court in New Family.

Conclusion

39. Had my opinion been heard, we would make the order nisi permanent and hold that the Eggs Donation Law disproportionately violates the Petitioners’ constitutional rights to autonomy over their bodies, to family life and to parenthood. We would further find that in order to cure this violation we must read into the provisions of the Eggs Donation Law an additional section – section 20(a)(5) – that would authorize the exceptions committee formed under the law to approve the extraction of eggs, their allocation and their implantation in the body of a recipient woman, should the committee be satisfied that under the circumstances there are special and exceptional reasons that justify doing so. We would also find that the Petitioners be permitted to come before the exceptions committee and seek its approval according to such section to perform the extraction of Liat’s eggs, their fertilization and implantation in Dana’s uterus in order to make it possible for them to bring into their family unit a child that would have a genetic link to Liat and a biological link to Dana, as all of Liat’s attempts over the years to become pregnant herself have been unsuccessful. As my opinion remains in the dissent, I see no need to expand about the consequences of section 42(c) of the law for the status of Liat as the child’s mother, had the donation been permitted. But it seems that to the extent we are concerned with approval that excepts the procedure from the law not just for Liat’s inability to become pregnant herself, but also because of the characteristics of the family unit created by Liat and Dana as a couple, it would have been possible to find a reasonable and proper solution on this issue as well.

                                                                        Justice

Justice E. Arbel (Ret.)

“And Rachel saw that she did not bear a child with Jacob, and Rachel was envious of her sister and said to Jacob ‘Give me sons, or I shall die.’” (Genesis 30, 1.)

1. Our issue in this case concerns the desire for a child, which we hear with an open heart and a forthcoming spirit and try to realize it if only it were possible.

After having read the comprehensive and impressive judgment by my colleague, Justice E. Hayut, I join wholeheartedly with the outcome whereby the Petition must be accepted. However, I intend to propose an additional but different way to reach this outcome, and will detail it below. Since the chain of events and the parties’ arguments were presented at length in my colleague’s opinion, I can begin at the stage of discussion and decision.

Introduction

2. As my colleague Justice E. Hayut noted, in recent years we witness significant scientific and technological advances in birth and reproductive techniques. These developments open the door to many people, women, couples and families for many additional possibilities to bring children into the world and realize their desires to become parents. All the while our time is also characterized by social developments that create new types of families that were not acceptable in the past. The combination of technological and social advances presents a real challenge for the law, which is constantly required to face unique situations that were not previously known (see HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 2 of justice Rubinstein’s judgment (February 5, 2013) (hereinafter: the Sperm Bank case); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 694 (1996) (hereinafter: the Nahmani case); Pinhas Shiffman, On the New Family: Introductory Notes, Iyunei Mishpat 28, 643 (2005) (hereinafter: Shiffman)). The Expectation is that the Legislature regulates the use of different reproductive techniques. The main difficulty is caused by the great gap between the time it takes to legislate and legally regulate the use of each reproductive technique and the rate of technological advances (see Ruth Zafran, There Can Be Two Mothers – The Definition of Motherhood to A Child Born of A Same Sex Couple, Din U’Dvarim 3 351, 397 (2008) hereinafter: Zafarn – There Can Be Two Mothers.); Ruth Zafran, The Family in the Genetic Age - the Definition of Parenthood under the Circumstances of Artificial Reproduction as a Case Study, Din U’Dvarim 2 223, 230 (2006) (hereinafter: Zafarn – The Family in the Genetic Age.)) This gap leads to situations where the knowledge and technological capabilities to turn people into parents exist, but cannot be permitted to be used without legal and legislative regulation, even when the State has no general objection to realizing parenthood in this way by this couple. This is also our case here. Before us are two women, a couple, where the implantation of one’s eggs in the other’s uterus may realize their wishes and desires to parenthood. The technological route exists. The State declared it had no general objection to this move, and it should be noted that in the past the State did in fact permit women partners to perform this procedure. Still, the State now argues that there is nothing in the law to regulate the desired procedure, and thus executing the technological possibility cannot be permitted.
3. In my view, this Court has a role in bridging this gap, at least in part. Indeed the Court does not act as a substitute for the Legislature. And obviously the Court must accept and apply the legislative arrangements in place, as long as there is no constitutional reason to intervene in them. However, the Court can assist those who approach it in two ways. One is through the tool of purposive interpretation of legislation. Interpreting an existing legislative arrangement in the field of reproduction and birth must consider the basic human desire of singles and couples to realize their right to parenthood and to have a child. Of course, this purposive interpretation would only be possible when some anchor is found in the language to lay down the foundation for the interpretation and when the considerations and interests existing in the matter justify such interpretation. Another tool at the Court’s disposal is finding normative solutions to situations that have yet to be regulated in legislation (see Nahmani). Because of the issue’s sensitivity and the severe harm to couples and singles who cannot realize their right to parenthood merely due to the Legislature taking its time in forming a legislative arrangement, I believe that the Court must roll up its sleeves and find resolutions for the interim period before the proper arrangements are completed by the Legislature. This in the acceptable manner of developing the law and according to the Foundations of Law 5740-1980 (and see in this regard the different positions by the Justices in Nahmani, p. 694, 719, 723, 756.) there is no dispute that at a later stage the Legislature may form a different legal arrangement than that arrived at by the case law. It is its duty and its authority. And thus summarized Deputy President M. Cheshin:

“It is true: courts have forever been required to handle gaps formed between yesterday’s legislation and jurisprudence and today’s life phenomena. The law and legislation are always the law and legislation of yesterday and their progress is slow to advance, it is careful and calculated. Whereas reality, it changes and flows constantly, often at warp speed. So are the reality and the disputes that arise against its backdrop…

Only that for the most part the law is wise to adapt to changing reality, and even as a gap is formed between the language of the law and reality we take the interpretive tools in our hands and use them to catch up and have the law cover the advances of reality…

And indeed, courts have always done so, and do what they can – within the boundaries of language – to cast the written law’s net over phenomena coming into the world after the law’s enactment, and this even when at the time of legislation the legislature could not have anticipated the existence of such phenomena. The court’s first duty is to effect justice between the litigants that come before it, and in performing this duty the court must do whatever possible within the confines of the existing law even if the solution at which it arrives is not the best solution” (CFH 6407/01, Arutzei Zahav and Co. v. Tele Event Ltd., IsrSC 58(6) 6, 23-24 (2004)).

4. Two statutes must be examined in the matter before us: one is the Embryo Carrying Agreements  Law (the Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the other is the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law.) But before I turn to reviewing these statutes, their interpretation and their ramifications for the case at hand, I wish to discuss two important principles that will influence the interpretive process: the right to parenthood and the principle of equality.

The Right to Parenthood

If only I had a son! A little child,

With black curls and smart.

To hold his hand and walk slowly

Along the garden’s paths

A little. Child.

…

I will be bitter as our Mother Rachel.

I will pray as Hannah in Shiloh.

I will wait

For him.

5. A woman’s (or man’s) desire to a child of their own is a common and deep sentiment rooted in human existence and deriving from the desire for self-realization since the dawn of time to this day. It was expressed in the Tanach repeatedly, books and songs were written about it (one of the best known is “Akarah” – “barren” or “infertile”, eds. note – by the poet Rachel.) the desire to have and hold a child of one’s own body is a fundamental and natural desire that is common to humanity in its entirety. Whatever the explanation for it – biological, psychological or other – most people have a significant, strong and deep wish to become parents. Indeed people go to great lengths and make huge investments – financial, physical and emotional – and are willing to suffer greatly in order to realize their desire for a child even when it is impossible in the natural sense. And in the words of Deputy President M. Cheshin in HCJ 2458/01, New Family v. the Committee for Approving Agreements for Carrying Embryo, Ministry of Health, IsrSC 57(1) 419, 445 (2002) (hereinafter: the New Family case)):

“The core of the issue is the heart’s desire for a child, that deep, primordial emotional need to parenthood that burns in the woman’s soul and does not expire. The core of the issue is the human’s survival instinct and need for continuation, if you will. The need and desire to parenthood is inherent to humans.”

And Justice Dorner expressed this in Nahmani as following, on page 714:

“In human society, one of the strong expressions for the desire, without whose realization, many cannot see themselves as fully free, is the desire to be a parent. This is not merely a natural, biological need. We are concerned with choices that in human society signify one’s individuality and uniqueness. ‘Any man who has no children is seen as dead’ said Rabbi Yehoshua Ben Levi (Nedarim, 64, 2.) And indeed, for both man and woman, most people see having offspring an existential need that gives meaning to their lives.”

(see also Daphne Barak-Erez, On Symmetry and Neutrality: After The Nahmani Case, Iyunei Mishpat 20 197, 200-01 (1996); Shiffman, p. 664.)

The emotional need to become parents received legal recognition through the right to parenthood. It appears that in the State of Israel there is particular sensitivity to this right, in light of Israeli society’s approach to the value of family and the value of having children as central and weighty values (see New Family, p. 466.)

6. The right to parenthood, therefore, is generally recognized in Israeli law, both in terms of one’s reproductive freedom and in terms of the right to realize the relationship with the child (see Zafran – There Can Be Two Mothers, p. 381-82; the Sperm Bank case, para. 26 of Justice Rubinstein’s judgment.) “Every person has the right to parenthood and the right to raise and inculcate a child” (HCJ 11437/05, Kav La’Oved v. Ministry of Interior, para. 38 of Justice Procaccia’s judgment (April 13, 2011.)) Different aspects of the right to parenthood were even enshrined as a constitutional right in Basic Law: Human Dignity and Liberty. Though a comprehensive and exhaustive discussion of the range of the aspects and entire scope of this important and meaningful right has yet to take place, it is in any event clear that the practical possibility to bring children into the world is at the core of the right to parenthood, and thus the State may not infringe on these possibilities without weighty reasons (see 2245/06, Dovrin v. The Prison Service, para. 15 of Justice Procaccia’s judgment (June 13, 2006) (hereinafter: the Dovrin case.)) The Court distinguished between two levels of the right to parenthood, in terms of reproductive and birth freedoms, with the first level being the possibility to exercise one’s reproductive abilities and become a parent, whereas the second level goes to the way in which one’s natural right to become a parent is realized. This level, it was said there, is in the periphery of the right to parenthood and it protects values such as the right to privacy, the right to autonomy and the like (see the Sperm Bank case, para. 29 of Justice Rubinstein’s judgment.) Beyond the scope necessary for a decision in our case, I will comment that in my view this case falls under the first level of the right to parenthood rather than the second level, as the State attempts to argue. It is no wonder that for the First Petitioner realizing her right to parenthood is by having a child who carries her genetic code. It seems to me that this desire, which is indeed a natural and understandable human desire, warrants recognition within the core of the right to parenthood, even if today, in the modern age, a genetic relationship is not the end all be all (see the Sperm Bank case, paras. 43-45 of Justice Rubinstein’s judgment; Zafran – the Family in the Genetic Age, p. 233 onward; Shiffman, p. 668.) therefore the State’s proposal to turn the tables – so that the Second Petitioner’s eggs be extracted and implanted in the First Petitioner’s uterus is not “comparable” in terms of the ranking of rights to the First Petitioner’s request to extract eggs from her and implant them in the Second Petitioner’s uterus (see Nahmani, p. 753, and compare with the Sperm Bank case.) and this is true even without considering the probability, which is closer to a near certainty, as to the physical, medical inability of the First Petitioner to carry a pregnancy in her uterus.
7. The right to parenthood was recognized by this Court in the context of using artificial reproductive techniques (see the Sperm Bank case, para. 6 of Justice Barak-Erez’s judgment and the references there) as well. The current times have opened many avenues for hope to bring a genetic child into the world for those who cannot have children. There are also the possibilities for adopting non biological children. These possibilities repeatedly inspire dilemmas that involve the development of the right to parenthood and exploring its place within the existing legislative framework. Of course, this is not an absolute right. Often times, examining reproductive techniques raises questions of morality and conflict between rights. Thus, for instance, when there is concern for harm to surrogate mothers or women who wish to donate eggs. In these cases, balance is of course required between the different rights and the conflicting interests. In any event, the importance of the right to parenthood and its high status among rights must influence the interpretation of statutes that address the relevant field. It is usually the primary goal of these statutes and thus it must be respected within the purposeful interpretation of the legislation on the matter.

The Principle of Equality

8. Discrimination is the unequal treatment of equals, when there is no relevant difference between them. We cannot ignore the fact that the case before us involves a same sex couple. A reality was created where heterosexual couples are able to use a variety of methods in order to become pregnant and bring a child into the world – from the natural method, through use of eggs donation, surrogacy agreements and the like. On the other hand, same sex couples are limited in the ways they can bring children into the world, both for biological reasons and for legal reasons (see judgment by Justice Joubran in HCJ 566/11, Mamat-Magad v. The Minister of Interior (January 28, 2014.)) Indeed there may be cases where it could be argued that there is indeed a relevant difference resulting from the biological difference (such as the need of male couples to use surrogacy arrangements even when neither of them has a medical condition, which can raise the concern of over use of the method of surrogate women, when arguments are made about the harm, medical injuries or exploitation of these women or some of them. see in this regard the recommendations by the public committee for examining the legislative arrangement of fertility and reproduction in Israel, 2012 (the Mor-Yosef Report) p. 57-62; in a different context, see regarding the consideration of the role of existing social attitudes in the best interest of the child: CA 10280/01, Yarus-Hakak v. The Attorney General, IsrSC 59(5) 64, 107 (2005) (hereinafter: the Yarus-Hakak case)). Still, in many cases it was impossible to point out to such a relevant difference. The social reality is that there are many same sex couples now. Indeed, this is an issue that is not yet a social consensus, but we cannot nevertheless ignore from the reality as it exists both as a matter of fact and a matter of law (see the New Family case, p. 450-51; and see also Zafran – There Can Be Two Mothers, p. 380; HCJ 273/97, The Association for Protecting Individual Rights v. The Minister of Education, Culture and Sport, IsrSC 51(5) 822 (1997); Hanan Goldschmit, The Missed Identification Card of the Israeli Family – The Legal Consequences of Case Law Regarding Adoption by Same Sex Couples, HaMishpat 7, 217, 237 (2012); Shiffman, p. 645.) Many same sex couples raise children, whether through arrangements permitted out of Israel, or through arrangements permitting having children in Israel itself (such as a sperm donation for a female couple.) It should still be emphasized that the Court does not purport here in this context to go into questions about the status of same sex couples and to decide on the value based discussion taking place on the matter (see, the Yarus-Haka case, p. 114; HCJ 3045/05, Ben-Ari v. Director of the Population Administrator, para. 22 of President Barak’s judgment (November 21, 2006) (hereinafter: the Ben Ari case.)) Nor do I propose in this opinion to decide on the question of same sex couples’ constitutional right to have equal access to artificial reproductive techniques as heterosexual couples (see AAA 343/09, The Jerusalem Open House for Pride and Tolerance v. The Municipality of Jerusalem, para. 40 (September 14, 2010) (hereinafter: The Open House case.)) Still, to the extent that we are concerned with the interpretation of a legislative arrangement, or the lack of any arrangement at all, we must assume that any legislative arrangement would be interpreted or established to fit the principle of equality and prevent discrimination on the basis of sexual orientation, as long as there is not explicit instruction from the Legislature to the contrary (see also, Ifat Biton, The Influence of Basic Law: Human Dignity and Liberty on the Status of Same Sex Couples, Kiryat HaMishpat 2 401 (2002); Michal Tamir (Itzhaki), The Right to Equality of Homosexuals and Lesbians, HaPraclit 45 94, (2000-2001)).
9. The above approach also fits the existing legislative arrangements that indicated the Legislature’s negative view of discrimination on the basis of sexual orientation. Some of these arrangements were added to legislation in recent years and can teach us about the present view of the Legislature in the matter. Thus, for example, it was established that in certain cases one who has committed an offense motivated by animus based on sexual orientation they are punishable at double the penalty set for that same offense (section 144F of the Penal Law 5737-1977.) An employer is prohibited from discriminating between its employees or candidates for employment on the basis of their sexual orientation (section 2(1) of the Equal Opportunities in Employment Law 5748-1988). Similarly it is prohibited to discriminate in public accommodations, supplying products or access to public services because of sexual orientation (section 3(a) of the Prohibition of Discrimination in Products, services and Entrance to Entertainment Establishments and Public Places Law 5761-2000). Caretakers and medical institutions may not discrimination between patients based on their sexual orientation (section 4(a) of the Patient’s Rights Law 5756-1996.) It was additionally legislated that committees for admission to community towns cannot refuse a candidate for reasons of sexual orientation (section 6C of the Cooperative Associations Ordinance.) Those obligated to run tenders are prohibited from discriminating among candidates because of their sexual orientation (section 2(b) of the Tender Obligations Law 5752-1992). And this is only a partial list.
10. Courts, too, throughout all their levels, when coming to interpret legislative arrangements contemplated the principle of equality between heterosexuals and homosexuals, both as single people and as couples. In one case, President Barak reviewed a long list of judgments where it was held that homosexual couples are granted rights under specific statutes and arrangements (see, the Ben Ari case, para. 19 of President Barak’s judgment, and see also The Open House case, para. 54.) It should be noted that in the matter of Ben Ari, the State itself declared that it recognized that the shared life of a homosexual couple constitutes “a social unit with some legal implications.” Since that review, this list expanded to include additional judgments walking in the same direction (see, for instance, CA (Nazareth) 3245/03, A.M. v. The Attorney General in the Custodian General, (November 11, 2004); AP (Tel Aviv Yaffo) 1255/05, Garcia v. The Ministry of Interior (August 17, 2008.) And indeed it was held:

“The law in Israel regarding the LGBT community and its members reflects the changes that took place over the years in Israeli society. The position of Israeli society is that the law must be indifferent to sexual orientation, just as it must be indifferent to other traits in one’s identity or a group – such as age, race, nationality, sex and others. Similarly there is a wide agreement that members of the LGBT community must not be restricted or discriminated against. This position is also expressed both in the case law and in the legislation that prohibits discrimination on the basis of sexual orientation…” (The Open House case, para. 54.)

It was even noted that “it seems these are no longer ‘islands’ of rights, but a comprehensive constitutional concept of a right not to be discriminated against because of sexual orientation.” (The Open House case, para. 56.)

Without addressing the constitutional issue or establishing a new status, it appears then that legislative arrangements must be interpreted to conform with the principle of equality that requires the equal treatment of same sex couples.

Fertilization Treatments

11. For the purposes of the discussion before us, a woman’s fertility difficulties may be schematically divided into two categories: the first is difficulties related to the woman’s eggs that make it impossible to use them for having a child. The second is a medical difficulty to carry a pregnancy. Therefore, there may be four potential situations: a woman with healthy eggs who is able to carry a pregnancy and give birth, a woman with healthy eggs but who is unable to carry a pregnancy; a woman with unhealthy eggs who is able to carry a pregnancy and a woman with unhealthy eggs who is unable to carry a pregnancy. These distinctions will be helpful below as we interpret the legislative arrangements in effect in the field of reproductive techniques.

The Agreements for Carrying Embryo Law

12. As my colleague, Justice E. Hayut, noted, the Surrogacy Law was enacted in Israel in 1996 as a result of the work of a public committee headed by Judge (Ret.) Shaul Aloni that was set up to explore the issue. The law was first to regulate couples’ assistance from  a surrogate in order to have a child. Under the law, the surrogacy procedure involves the implantation of a fertilized egg in order to impregnate the carrying mother so that she can give the child born as a result to the intended parents (see section 2 of the Surrogacy Law.) The fertilized egg would be, under the Surrogacy Law, an egg that is not from the surrogate. In other words, the egg may be from the intended mother who solicits the surrogacy, or from a donor that is not the intended mother or the carrying mother (see section 2(4) of the Surrogacy Law; section 11 of the Eggs Donation Law.) The sperm fertilizing the egg must be from the intended father (section 2(4) of the Surrogacy Law.) During the surrogacy process the fertilized egg is implanted in the uterus of the surrogate woman who in effect has not genetic relationship to the fertilized egg. After birth, the surrogate is supposed to give the child to the intended parents (see New Family, p. 429.) The Surrogacy Law includes many arrangements regarding the procedure, including the conditions for entering into agreements with a surrogate, the conditions for approving an agreement between the intended parents and the surrogate, the status of the child after birth and so on. It should also be noted that the intended parents are defined by the Surrogacy Law as “a man and a woman who are a couple and who enter into an agreement with a carrying mother in order to have a child” (section 1 of the Surrogacy Law.)

It is important to emphasize that the Surrogacy Law does not address the stage of in vitro fertilization, which is regulated by the People’s Health Regulations (In Vitro Fertilization) 5747-1987 (hereinafter: the People’s Health Regulations.) The law only addresses the stage after fertilized eggs have been created, when the couple seeks the approval of an agreement to implant the eggs with a surrogate (see New Family, p. 435.)

13. As the State argues, the Surrogacy Law is irrelevant to the matter before us and does not apply to it. The law clearly distinguishes between the surrogate mother and the intended parents. As mentioned, after the birth no legal link is meant to exist between the surrogate mother and the child. The physical handing over of the child into the custody of the intended parents must be done as soon as possible after the birth. The welfare administrator is the child’s guardian until the intended parents are granted a parenting order. The request of a surrogate mother to renege on the agreement with the intended parents and to keep the child would not, as a general rule, be approved unless by a court and under circumstances that justify it while considering the child’s best interest (see chapter C of the Surrogacy Law.) In the case before us, the Petitioners request that the Second Petitioner serve both as a surrogate mother and as an intended mother. This situation is not included in the Surrogacy Law and is beyond its purpose and provisions. The arrangements covered by the Surrogacy Law have nothing to do with the procedure the Petitioners wish to perform. The conclusion is that this law does not apply to the case at hand and does not at all assist in regulating it.

The Eggs Donation Law

14. The second statute related to the issue, which the parties address, is the Eggs Donation Law, enacted in 2010. This law came to resolve the difficulties caused by a shortage of eggs for donation in Israel, a fact that created obstacles to many women requiring fertility treatments where the eggs in their bodies could not be used for these treatments. As emphasized in the explanatory notes  to the law, the law’s main concern is to regulate the eggs donation in Israel for purposes of having a child, as well as for purposes of research (see the Eggs Donation Bill, 5767- 2007, Bills 292 (hereinafter: the Bill.)) the law concerns two phases in the donation process – the phase of receiving the donation and its designation, and the stage after the birth of the child born as a result of the donation (see the explanatory notes to the Bill, p. 292.) The State argues that the law does not permit the First Petitioner to donate eggs to the Second Petitioner, because under section 11 of the law, the recipient in whose body the egg is implanted must have a medical condition that justifies using the eggs of another woman. The Second Petitioner does not meet this definition because she has not medical condition, as detailed at length in my colleague’s judgment. Indeed, these things cannot be disputed. Moreover, I do not believe we must intervene in the medical condition requirement of section 11 of the law. Still, this is not the end of our road, because in my opinion the Eggs Donation Law is not at all relevant to our matter, does not regulate it, and in fact is silent about it without creating a negative arrangement for this case. I shall clarify my position.
15. The Eggs Donation Law, as its name indicated, was designed to regulate the donation of eggs in Israel for women, who due to a medical condition, need to use another woman’s eggs in order to have a child (this alongside the research purposes regulated in the law that are irrelevant to our case.) Should we return to the schematic distinction we articulated above (para. 11) then the law applies to two categories of women: the one is the woman with unhealthy eggs who can carry a pregnancy and the other is the woman with unhealthy eggs who cannot carry a pregnancy. In the first case, the woman can use the assistance of an egg donation under the Eggs Donation Law, an egg that would then be implanted in her own uterus. In the second case the woman is assisted by both the Eggs Donation Law and the Surrogacy Law, when the egg received from the donor is fertilized and implanted in the uterus of a surrogate mother.

The law, however, according to is purpose and provisions, does not concern the case that do not involve an egg donation. The meaning of donation in this context is the giving of an egg to another woman in order for that woman to use the egg, fertilize it and become the mother of the child born out of the fertilized egg. The meaning of donation includes the giving of something to someone, rather to the donor themselves. Therefore, this is different from someone who extracts eggs in order to become herself the mother of the child born out of those fertilized eggs. In such a case it cannot be said that this is a donation, and thus the Eggs Donation Law would not apply to such circumstances. Such, for instance, is a woman who extracts eggs in order to fertilize the eggs, return them into her uterus and become the child’s mother. In such a case that is not a donation, because the egg is intended to turn the egg owner into the future child’s mother. Indeed, such a case is not covered by the Eggs Donation Law and the People’s Health Regulations in terms of in vitro fertilization would instead apply. Similarly, as well, the Eggs Donation Law does not apply to cases of egg extracted from a woman in order to fertilize them and implant them in the uterus of a surrogate (see section 4(b) of the Eggs Donation Law.) This, too, is not a donation, because the owner of the egg intends to be the mother of the child born from the fertilized egg (see the explanatory notes to the Bill, p. 295, which clarify that in this case the extraction of the eggs is not done for the purposes of donation.) Similarly, a woman who extracts eggs in order to implant them in her partner’s uterus intends to be the mother of the child born of the fertilized egg and to raise that child. Here too it cannot be said that there is a donor and a recipient, and thus the Eggs Donation Law is irrelevant to it. One cannot donate something to himself because then it would not consider a donation. I should not that the use of the term “mother” in this context refers to the social role and the woman’s subjective intent rather than to the legal determination regarding who shall be registered and recognized as the child’s mother (see on this point Zafran – There Can Be Two Mothers. In any event, I will note that the registration of two women as mothers of a child was made possible through adoption in Israel or abroad: see the Yarus-Hakak case as well as HCJ 1779/99, Jane Doe v. The Minister of Interior, IsrSC 54(2) 368 (2000); and through a parenting order: FA (Tel Aviv) 60320/07, T.Z. v. The Attorney General, State Attorney – District of Tel Aviv  (March 4, 2012) (hereinafter: the T.Z. case.))

16. The Act’s sections must be read and understood in light of the above, and according to this purpose. Indeed, the law wishes to make its provisions exclusive and limit the use of eggs donation to comport with its provisions alone. Section 4 of the Egg Donation Law stipulates as follows:

“4. Exclusivity of the Law’s Provisions:

(a) One shall not perform an eggs extraction from a donor, lab treatment of the eggs, allocation of eggs for implantation or research, or implantation of eggs, but according to this law’s provisions.

(b) The provisions of sub-section (a) shall not apply to the extraction of eggs from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of performing an agreement for carrying embryo according to the Agreements Law.”

Additionally, section 6(b) of the Eggs Donation Law mandates that:

“6. Restrictions on the Extraction and Implantation of Eggs

(a) No one shall perform medical treatment on a volunteer donor in order to prepare eggs for extraction to be implanted, unless after securing the approval of the eggs’ extraction from the donor’s body according to section 12.

(b)An implantation of eggs shall not be performed but in the body of the recipient or the body of a carrying mother who entered into an agreement for carrying embryo with the recipient according to the Agreements Law.”

17. These sections must be read, as noted, in light of the purpose of the Eggs Donation Law and in the context of its other sections. They must therefore be understood as excluding the law’s provisions to any case in terms of eggs donation, that is cases where a woman gives her eggs to another person in order for that person, rather than the donor herself would become the parent of the child born from the donated egg and would be the person raising that child. This interpretation is consistent with the language of the law, its provisions, and its purpose. An alternative interpretation, a more comprehensive one, which requires the application of the law’s provision to any extraction and implantation of any egg, would have led to an absurd outcome where in vitro fertilizations would be impossible for women whose eggs are completely healthy, and who wish to extract those eggs and implant them in their uterus in order to become mothers of the child, because then section 11 of the Eggs Donation Law would not apply to them. Certainly, such interpretation cannot be accepted.

The conclusion that the matter at hand, where the First Petitioner wishes to extract her own healthy eggs, fertilize them, and implant them in her partner’s uterus, without requiring a donation but in order for the First Petitioner to raise herself the child that would be born (along with the Second Petitioner, who would give birth to the child) – such a case is not included in the Eggs Donation Law and the law does not create a negative arrangement in its regard.

Interim Conclusion

18. Our conclusion is that a case where a woman wishes to extract eggs in order to fertilize them and implant them in her partner’s uterus, with both women serving as mothers to the child (at least “mothers” in the social sense and in terms of their intent to raise the child together), falls neither under the Surrogacy Law nor the Eggs Donation Law. This case is neither regulated by either of these laws nor prohibited by them. But we are still left with the question which statutory arrangement does cover this case? In my view, the answer to this is simple. Since neither of these statutes applies to this case, the arrangement that would apply is the same as that which applied until now, at least according to the position of the State and the Attorney General. This arrangement combines the norms established by the People’s Health Regulations, and the authorization created by the absence of any legal regulation in the matter. I shall explain.

The People’s Health Regulations

19. The People’s Health Regulations of 1987 regulate the conditions for in vitro fertilizations. Section 2 prohibits the extraction of eggs, their fertilization, freezing or implantation unless done in a recognized hospital unit and according to the Regulations’ mandates. Section 2A details instructions for eggs extracted and fertilized out of Israel. Sections 3 and 4 stipulate as follows:

“3. Exclusivity of Purpose of Egg Extraction

The Extraction of eggs will be done only for the purpose of in vitro fertilization and its implantation after fertilization.

4. Restricting the Extraction of Eggs

Eggs shall be extracted only from a woman who meets one of the following conditions:

(1) She is undergoing fertility treatments and a supervising physician has determined that the eggs extraction would advance her treatment.”

These Regulations have regulated the matter of eggs donations before the Eggs Donation Law was legislated. It should be noted that today eggs donation, as understood according to our interpretation above, cannot be done unless according to these Regulations or the arrangements of the Eggs Donation Law.

20. As for the implantation of a woman’s eggs in her partner, the Regulations do not explicitly address this situation, but in my view their arrangements may be applied to it without difficulty, and indeed this was done in the past (see, for example, the T.Z. case.) Extracting the egg will be done only from a woman who is undergoing fertility treatments, and only for the purpose of implanting them after their fertilization (section 3 and 4 of the People’s Health Regulations.) The egg would be fertilized by the sperm of a donor and implanted in the partner’s uterus, in the absence of any prohibition in the Regulations and where the Surrogacy Law does not apply as the birth mother is also one of the intended mothers. And indeed, an instruction by the Attorney General from November 30, 2009 in terms of eggs donations between female partners establishes as follows:

“Following a discussion recently held by the Attorney General on the issue of eggs donations between female couples, the Attorney General instructed the Ministry of Health that the donation of an egg extracted from a woman under the In Vitro Fertilization Regulations (in the course of fertility treatments that she is undergoing) must not prohibited or restricted, unless under circumstances where there is concern that doing so would violate the public policy, such as where there is concern that this is done in exploitation or for the purposes of trade eggs.

Accordingly, the Attorney General instructs that as a general rule, the donation of an egg extracted from a woman in a lawful procedure under these Regulations, and that is intended for her female partner, with whom she shares a common household, must not be prohibited or restricted. Such donation must not be seen as an act that violates the public policies.

The discussion in the matter was convened following several requests received by the Ministry of Health to approve the donation and implantation of egg donated by a woman to her  female partner. At the end of the discussion the Attorney General decided, among others, as following:

• The legal point of departure is that imposing restriction by the State on eggs donations requires an authorization under law. Therefore, since the only restriction in the Regulations on our matter is that the extraction of eggs must be in the course of medical treatment due to the donor’s fertility difficulties and only when the extraction is to advance her treatment, then once the eggs have been extracted under these circumstances the Regulations include no lawful anchor for prohibiting their use as a donation to another woman.
• Still, the use of eggs may be prohibited, even when extracted according to the procedure established by the Regulations, where this violates the "public policy," such as when it is done to exploit or for the purposes of trade eggs.
• Where a donation between female partners is concerned, such as the case involving the request to the Ministry of Health, this cannot be viewed as a case that violates public policies, and the donation must be approved.
• The Attorney General emphasized, as was previously made clear in terms of other issues concerning the rights of same sex couples, that this position should not be seen as the creation or recognition of a new family status. Matters of status must be determined and regulated by the Legislature.

...”

And indeed, under this instruction, the implantation of a woman’s eggs in her female partner was made possible where the former is undergoing fertility treatments. This instruction by the Attorney General is proper and correct, and in my view, still in effect in light of my conclusion that there is no other legislative arrangement that applies or prohibits the situation before us.

21. It should be noted that in the course of the petitions that have previously submitted the difficulty in establishing meaningful and sensitive regulations in terms of reproductive techniques in regulations rather than in primary legislation were acknowledged. So, for instance, a petition was submitted to challenged regulations 11 and 13 of the People’s Health Regulations, which effectively lifted the prohibition against using a surrogate mother in Israel in order to bring a child into the world, and impose restrictions on the implantation of eggs from a donor. The State agreed to striking down these Regulations. I will further note that voiding the regulations was stayed for a certain period of time that would enable the issue’s regulation in primary legislation (see HCJ 5087/94, Zabro v. The Minister of Health (July 17, 1995); and HCJ 1237/91, Nahmani v. The Minister of Health (unreported,) where the State ultimately permitted the Nahmani couple to perform in vitro fertilization in Israel in order to implant it in the body of a surrogate abroad.) In an additional petition section 8(b) of the People’s Health Regulations, which distinguished between the requirements in terms of implanting an egg in a married woman and the requirements in terms of implanting an egg in a single woman, was challenged. With the State’s consent, this regulation, too, was struck down and it was held that a single, egalitarian arrangement would apply (see HCJ 998/96, Yarus-Hakak v. The Director General of the Ministry of Health (February 11, 1997.)) In the Sperm Bank case, the Court’s harsh criticism was expressed over the issue of sperm donations and the sperm bank is not regulated in primary legislation (the Sperm Bank case, para. 38 of Justice Rubinstein’s judgment, para. 33 of Justice Barak-Erez’s judgment.)
22. Therefore, the general approach of this Court has been that the use of artificial reproductive techniques must be regulated in primary legislation. Certainly this takes stronger force in terms of issues that have not been regulated at all, in primary or secondary legislation. Still, it seems the Court’s general approach has also been to permit the use of artificial reproductive technologies as long as there is no primary legislative arrangement prohibiting so, and where the rights of no third party or other considerable interests are infringed. “Nowadays, when technology may assist people where nature has failed them, a determinative consideration is necessary in order to prevent a woman from using that technology” (New Family, p. 447.) And Justice Procaccia emphasized this in terms of a prisoner’s right to perform artificial fertilization with his partner:

“The premise of the petition is that in order for a competent authority to permit a prisoner to perform a procedure of artificial fertilization with his partner, explicit authorization in a statute is required and without it, such permission is outside of the powers granted to it by law. This premise is fundamentally mistaken, and it turns the order of things on their head and undermines foundations of public and constitutional law. Once one has a right, certainly a basic constitutional right, a public authority need not a lawful authorization in order to exercise the right and respect it, the opposite is true. It needs a lawful authorization to limit and violate it, and where the violation limits or prohibits exercising that human right it must pass muster under the tests of the Limitation Clause as a condition to its validity and application.” (The Dovrin case, para. 16 of Justice Procaccia’s judgment.)

This position has been applied in the Attorney General’s instruction, and thus I, too, support it in terms of the situation before us. Therefore, I shall briefly detail the remaining considerations that support a holding whereby the procedure requested by the Petitioners must be approved in the absence of any lawful arrangement to prohibit it.

23. First, the principles I detailed above about the right to parenthood and the principle of equality must be woven into the relevant considerations in the matter. These principles of course support permitting the requested procedure in the absence of instructions from the Legislature to the contrary. Second, the arrangement does not raise a concern for infringing the rights of third parties, as it does not involve third parties beyond the couple that is interested in the procedure and participates in it. There is no involvement of a surrogate mother or an egg donor, so there is no concern for their rights or exploitation (see the New Family case, p. 453, 464.) Neither does the arrangement raise other typical concerns such as creating an offspring with no genetic link to his parents or caregivers, or the use of medical techniques for the purposes of the child’s genetic modification (see Zafran – There Can Be Two Mothers, p. 363.) Third, when a couple of women with no fertility difficulties are concerned, they would be able to bring a child into the world with a sperm donation without difficulty, and there is no restriction here. I see no reason why such a couple should be treated differently than an unlucky couple who is unable to bring children into the world in this way (see New Family, p. 442.) Fourth, the State’s position is not founded on principled objection to the procedure requested by the Petitioners, and no claim has been raised regarding a harm to public policy or any other meaningful argument. And indeed, as noted, the Ministry of Health has in the past approved the requested procedure. Additionally, the State emphasizes that the procedure would have been permitted in the converse – that is it would have been possible to permit the Second Petitioner to extract eggs in order to implant it in the uterus of the First Petitioner. There is no logic in approving the procedure in only one direction, when no legal arrangement prohibits the opposite direction. Finally, I will note that this is not about bringing a child into a single person’s family unit, which undisputedly is a different matter than bringing a child into the family unit of a couple (see New Family, p. 453.) And I will note that no research was brought before us to indicate that children benefit from being raised in heterosexual families, and it seems there is research to deny this assumption (see, for example: Zafran – There Can Be Two Mothers, p. 376 and the references there: see also additional research on this issue that substantiate the assumption that there is no correlation between parents’ sexual orientation and the children’s social and psychological function, and which refute the findings of research claiming otherwise: Nanette Gartrell and Henny Bos “U.S. National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents” Pediatrics 2010, 126:1 28-36; Carlos A. Ball “Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective”, 21 Wm. & Mary Bill Rts. J. 691 (2012-2013); Andrew J. Perrin, Philip N. Cohen & Neal Caren “Are children of parents who had same sex relationships disadvantaged? A scientific evaluation of the no-difference Hypothesis”, Journal of Gay & Lesbian Mental Health, 17:3 327-336 (2013). See also Justice Procaccia’s on the difficulties created by the issue of when the child’s best interest consideration may justify preventing the child’s birth and when the law may intervene in the matter: “The question when may the child’s best interest justify preventing the child’s birth is a deep question in the areas of ethics and philosophy. The question of when the law may intervene in this and when a public authority may have the power to intervene in one’s right to have a child for reasons of the child’s best interest and other reasons is highly difficult and complex. The right to have a child and the right to be born are concepts that are very much within the purview of the extra-legal areas of morality and ethics” (the Dovrin case, p. 17 of her judgment.))

Conclusion

24.  The picture created by the categorization we mapped out above, then, is as follows: a woman with unhealthy eggs who can carry a pregnancy may be assisted by an eggs donation under the Eggs Donation Law; a woman with unhealthy eggs who cannot carry a pregnancy can be assisted by both an eggs donation under the Eggs Donation Law and by the Surrogacy Law for purposes of implanting the fertilized egg (with the sperm of the intended father) in the uterus of a surrogate mother; a woman with healthy eggs who is able to carry a pregnancy can be assisted by in vitro fertilization when experiencing fertility difficulties under the People’s Health Regulations; a woman with healthy eggs who is unable to carry a pregnancy may too perform in vitro fertilization under the People’s Health Regulations. The implantation of the eggs in another woman can be done according to the Surrogacy Law(when the other woman is a surrogate) or according to the People’s Health Regulations (when the other woman is the partner who is also intended to be the child’s parent.)

My conclusion, as that of my colleague’s E. Hayut, but by a different rationale and reasons, whereby had my opinion been heard we were to accept the Petition and order the State to permit the First Petitioner to extract eggs, fertilize them, and implant them in the uterus of the Second Petitioner.

                                                                              Justice (Ret.)

Justice E. Rubinstein:

"Then [God - eds. note] remembered her way of integrity [Mother Rachel - eds. note],

a fetus was exchanged in [her - eds. note] sister's womb"

(Even Chug Piyut, attributed to Rabi Eleazar Ha-Kalir, from Rosh Hashana's first morning prayer's liturgical poems)   

Background and Essence

1. The First Petitioner – Liat Moshe (hereinafter: “Liat” or “the First Petitioner”) – wishes to bring a genetic child into the world through the Second Petitioner – Dana Glisko (hereinafter: “Dana” or “the Second Petitioner”) – her life partner for about a decade now. The difficulty at the basis of this Petition is rooted – it seems – in the difficulties in carrying a pregnancy by the First Petitioner, and the Petition is for eggs from her body be implanted in the uterus of the Second Petitioner so that the child be linked to them both – a genetic link to the First Petitioner, and a physiological link to the Second Petitioner – and thus both of their motherhoods be realized. Once again this Court is called upon to pronounce upon an issue that is not one our fathers and mothers anticipated as there was no real possibility, only few decades ago, that the medical and technological advances would lead to it (HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 1 of my judgment (2013) (hereinafter: the Sperm Bank case.))
2. On September 1, 2013 we decided (by majority) to reject the Petitioners’ request – to implant an egg taken from the First Petitioner’s body, fertilized and then implanted in the uterus of the Second Petitioner – and thus in light of the current state of the law. So that the Petitioners know where they stand without delay, the decision was handed down without reasons, by the majority comprised of President A. Grunis, Deputy President M. Naor, Justice S. Joubran and myself, against the dissenting opinions of Justice E. Arbel, Justice E. Hayut and Justice H. Melcer. The facts of the case and the parties’ arguments were broadly detailed in the opinion of my colleague Justice Hayut, the core of her position will be presented below, and the same outcome, but by a different reasoning was reached by my colleague Justice Arbel. It so happened that the majority opinion in this judgment was not written in the regular order, but only after the dissenting opinions. With all best intentions to find in favor of the Petitioners, we believe that the significant strides made by the State, including during the deliberation in this case, as detailed by Justice Hayut is the best possible without legislative amendments; despite the appealing proposals of our colleagues. Therefore we present immediately below the reasons that led us – the majority justices – to reject the petition.
3. The essence of our reasons is that the current state of Israeli law, on the level of existing law, does not permit what the Petitioners request, and this because the Embryo Carrying Agreements Law (Approval of  the Agreement and the Status of the Child) 5756-1996 (hereinafter: the Surrogacy Law) does not apply on such circumstances, as will be briefly detailed below, and effectively even our colleagues do not dispute this. The Eggs Donation Law 5770-2010 (hereinafter: the Eggs Donation Law) does not apply either, in our opinion, and we did not see it fit to join the constitutional position of our colleague Justice Hayut, who “reads into” the exceptions committee’s powers under the law (article C in chapter C) the authority in this case as well, an authority which the legislature did not grant, and explicitly so, perhaps due to advice from a governmental body which itself is not acceptable to us under the circumstances. This advice, as we will show below, highlights the tension between the words of the Legislature and the powers of the Court. Finally, the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: the IVF Regulations,) which our colleague Justice Arbel wishes to use are no longer suitable, in our view, to what is requested, following the legislation of the Eggs Donation Law. There is therefore no lawful way currently to assist the Petitioners beyond what the State was prepared to do after the negotiation and changes in its position.
4. In this context let us recall, as Justice Hayut noted in paragraph 11, during the long hearings in this Petition (four time before an extended panel of this Court) the Ministry of Health issued on July 21, 2013 a protocol regarding “The Taking of Sperm, Eggs or Fertilized Eggs Out of Israel” which permits the Petitioners to perform the requested implantation outside of the country. This protocol allows the taking out of eggs extracted in Israel, among others, “for the purposes of realizing parenting… for the woman from whom the eggs were extracted,” with the approval of the exceptions committee. In a notice by the State (dated August 17, 2013) it was also said that the implementation team for the recommendations of the Mor Yossef Committee, which – as noted by Justice Hayut in paragraph 2 – recommended to extend the circle of those eligible to bring children into the world through surrogacy by including “single women who have medical conditions preventing them from creating a pregnancy” prepared a summarizing document in anticipation of legislative amendments.
5. And now for further detail. We will first note that in the medical world the procedure requested by the Petitioners is termed “Partner Assisted Reproduction/ Reciprocal IVF” (hereinafter: Reciprocal IVF.) Reciprocal IVF has become over the years fairly common in fertility clinics around the world for female same sex couples despite its high cost compared to “regular” IVF. This is because it allows both partners to participate in the process of creating the child, through dividing the “maternal function” between the partner who furnishes the egg (hereinafter: the genetic mother) and the partner who carries the pregnancy (hereinafter: the physiological mother) (see Lilith Ryiah, The G.I.F.T of Two Biological and Legal Mothers, 9 AM. U.J. GENDER SOC. POL’Y & L. 207 (2001); Dorothy A. Greenfield and Emre Seli, Assisted Reproduction in Same Sex Couple, 289, 291 Principles of Oocyte and Embryo Donation (Mark V. Sauer ed., 2013)).
6. In their amended petition, the Petitioners challenge two pieces of legislation that regulate the use of artificial reproductive technologies: the first is the Surrogacy Law, and the second is the Eggs Donation Law, as mentioned. My colleagues, Justices Hayut and Arbel, agree about the inherent misfit between the routes regulated in the Surrogacy Law and the medical procedure requested by the Petitioners. But they believe we should accommodate them through other legal paths, and as to those their opinions differ, as discussed.
7. In a realistic world, there are three potential scenarios where the State may be called upon to approve the medical procedure of reciprocal IVF between women partners: couple 1 – where both partners have healthy eggs and are able to carry a pregnancy; couple 2 – where one partner has healthy eggs but is unable to carry a pregnancy; couple 3 – where one partner has unhealthy eggs but is able to carry a pregnancy. Still, when one partner has unhealthy eggs and is unable to carry a pregnancy there is inherently no realistic possibility to initiate a process of reciprocal IVF. These scenarios before us when we examine the different statutes and the purposes behind them. We now move on to review the paths in which my colleagues walked in searching for a lawful route to realize the Petitioners’ wishes to bring into the world a child, who would be genetically linked to Liat, together with her partner – Dana – who is meant to carry the pregnancy with Liat’s fertilized eggs (and a sperm donation, of course), as well as to explain why our views differ. We will then address the Petitioners' arguments regarding the unconstitutionality of the Surrogacy Law, while the fundamental position as to its inapplicability is acceptable to us all, both majority and minority justices.

Accepting the Petition through the Eggs Donation Law?

8. Justice Hayut identifies section 11 of the Eggs Donation Law as the primary obstacle to realizing the Petitioners’ wishes, in light of the demand that the recipient be a woman who “cannot due to a medical condition become pregnant with the eggs in her body, or who has another medical condition which justifies using another woman’s eggs in order to have a child” (emphasis added – E.R.). Once my colleague reached the conclusion that the Eggs Donation Law infringes the Petitioners’ constitutional rights to autonomy (para. 24), to family life and to parenthood (para. 25), the constitutionality of the infringement was examined. It was said that the arrangement in the Eggs Donation Law was for a worthy purpose, but does not meet the proportionality requirements, because article C of the Eggs Donation Law creates an exception committee under the law, but “without granting the committee a sufficiently flexible authority to consider individual and exceptional cases that warrant diverging from the law’s provisions” (para. 34, and see also paras. 30-32.) Justice Hayut therefore suggest constitutional relief of reading into the Eggs Donation Law an additional sub-section – section 20(a)(5) – that would authorize the exceptions committee to approve eggs donation in circumstances where there are “exceptional and special reasons to do so” (para. 35.)
9. Justice Hayut therefore proposes that the Eggs Donation Law would allow the exceptions committee to approve an eggs donation for a recipient who had not pointed to a medical need for donation. Unlike the content of section 11 of the Eggs Donation Law, according to which – in the words of its heading – “a request for donation for the purposes of birth” may be submitted by a woman who is unable due to medical reasons to become pregnant with the eggs in her body and for using another woman’s eggs including for surrogacy. As much as we would like to, the history of the exceptions committee makes it difficult to support this position, though I do believe the Legislature would do well to consider authorizing the committee to consider exceptional cases on a broader basis than it has. The current state of the law, until the “amended” legislation is in effect cannot, in our view, encompass more than what the State is willing to agree to, that is, taking the eggs out from the country without penalty as detailed above (para. 4.)
10. Until the Eggs Donation Law was passed in 2010, eggs donation was regulated by the IVF Regulations which permitted eggs donation only from a woman who was “undergoing fertility treatment and where a supervising physician determined that the extraction of eggs advances her treatment” (reg. 4(1)). The restriction in the IVF Regulations on the identity of the donor created a national shortage in the pool of eggs for donation. In 2000, a public professional committee, headed by Rabbi Dr. Mordechai Halperin of the Ministry of Health, was convened in order to study the issue of eggs donation in Israel (hereinafter: the Halperin Committee). The Halperin Committee recommended to make eggs donation possible also from women who are not undergoing fertility treatments, and this only for the purposes of fertilization and in return for “comprehensive compensation” (sections 7(a) and 9(b) of the Halperin Committee’s recommendations.) It should be noted, that in the Committee’s recommendations there was no explicit demand that the recipient would have a medical need for donation. And so, in section 4(2) of the recommendations it was said that the donation recipient would be “a woman past the age of minority and an Israeli citizen whose age at the time of the eggs’ implantation in her body is under 51 years” – this and no more. Still, it is important to note that the recommendations of the Halperin Committee were not presented as is to the Knesset as a bill (see Mordechai Halperin, Eggs Donation in Israel – Dilemmas and Recommendations, Medicine and Law – The Jubilee Book 165 (2001)).
11. In 2007, the Eggs Donation Bill, 5767-2007 was published in Government Bills 289, p. 292 (hereinafter: the Bill ) and it matured into legislation only in 2010. As was said in the explanatory notes:

“The proposed statute is intended to regulate the different aspects involved in extraction and donation of eggs in Israel, and the use of these eggs. The essence of the proposed statute is to regulate eggs donation for the purposes of having children, but it also includes provisions that allow, under certain circumstances, use of donated eggs as described, for the purposes of research as well.”

As opposed to the Halperin Committee’s recommendations, section 11 of the Bill proposed to limit donations to a recipient who points to a medical condition (for a review of the many differences between the Halperin Committee’s recommendations and the Eggs Donation Bill, 5767-2007, see Smadar Noy, Daniel Mishori and Yali Hashesh, Gold Eggs Laying Geese – The Eggs Donation Bill 5767, Refu’a U’Mishpat 36, 161, 175-79 (2007)). The explanatory notes for section 11 clarify that the requesting woman may also point to the existence of “other justifying reasons” (there, p. 297, emphasis added – E.R.). Additionally, in section 21(e) of the Bill it was proposed to grant the exceptions committee the following powers:

“To approve the extraction of eggs, the allocation of eggs or the implantation of eggs, according to the request of a supervising physician as defined in section 18, should the committee be satisfied that under the circumstances there are exceptional  and special reasons to do so.”

The explanatory notes clarified that the unique reasons are those “which cannot be anticipated in advance, and this without requiring an amendment to the statute” (there, p. 304, emphasis added – E.R.) The catch all section that aimed to authorize the exceptions committee to consider “exceptional and special reasons” was deliberately removed by the sub-committee of the Labor, Welfare and Health Committee that discussed the statue. This removal was criticized in my colleague Justice Hayut’s opinion (paras. 21-22, 38.) A question remains, on the “legislative intent” level, whether even had the catch all section been enacted into the Eggs Donation Law, was there place under the circumstances before us for the exceptions committee to have approved egg donation where the recipient does not demonstrate any medical need, because we are concerned with a case where it is seemingly clear that the law did not have in mind in its origin. We shall review the legislative history in order to uncover this.

12. The minutes of the meetings of the sub-committee of the Labor, Welfare and Health Committee reveal that the Ministry of Health’s legal advisor, Adv. M. Hibner Harel, wished to create through the catch all section “an exit strategy, there are things in life I do not anticipate today” (sub-committee meeting, dated November 3, 2008.) Things to this effect were quoted by Justice Hayut in paragraph 21. And indeed justice Hayut believes that the catch all section should have covered “cases such as the one before us where the recipient has no medical need for an eggs donation but there are other reasons the justify permitting the donation” (para. 22.) However, were we to take a closer look at the sub committee’s discussions from November 3, 2008 we find – it seems – that the catch all section, before it was removed, was not designed to resolve such cases. During the discussion Rabbi Dr. Halperin expressed his concern that “the catch all section makes everything else redundant. It compromises anonymity, infringes the woman’s rights, infringes the man’s rights. It is a section that violates all the rights.” Adv. M. Hivner Harel clarified that “this section was actually born out of the shortage in eggs donation for research… this section was written for catastrophes. It was not born as a catch all section for cases that are not catastrophes” (there, p. 46, emphasis added – E.R.) Is the scenario of partners wishing to perform a procedure of reciprocal in vitro fertilization one that is a “catastrophe”? I doubt it. Let us recall that the medical procedure – reciprocal IVF – as requested by the Petitioners was anticipated and familiar to professional bodies, including in FA (Tel Aviv Dis.) 60320/07, T.Z. v. The Attorney General, State Attorney – District of Tel Aviv (2012) (hereinafter: the T.Z. case.) This was a case where in 2006 a lesbian couple secured the approval of the Ministry of Health’s legal advisor herself to perform the procedure of reciprocal IVF. I will later discuss the distinctions between that case and ours. It is therefore doubtful whether, it was actually proposed to legislate the catch all section in order to provide a solution for the procedure the petitioners request to perform.
13. The foreseeability of the procedure requested by the Petitioners is seemingly also inferred from the sub-committee’s discussions in regards to the drafting of section 22(a)(2) which addresses the designation of a donation from particular donor to a particular recipient for “religious or social” reasons:

“Chair Aryeh Eldad:

If there is an opening for lesbians, there is also an opening for the best friend. It is unclear what it is, but there is opening for the exceptions committee to discuss and say she can’t. This is a good opening.” (Minutes of sub-committee of the Labor, Welfare and Health Committee for Reviewing the Eggs Donation Bill, 5769-2008 (November 3, 2008.)) (emphases added – E.R.)

It seems that in the committee there was the opinion that saw section 22(a)(2) of the Eggs Donation Law the door to the exceptions committee for permitting lesbian couples non anonymous donations of eggs from one partner to the other who needs the donation for “a medical need” (couple number 3 in the scenarios presented in paragraph 7 above.)

14. My colleague Justice Hayut quoted extensively (para. 21) things from the discussion of the sub-committee, though at the end of the day it was decided not to include a catch all section, as a result of Rabbi Dr. Halperin noting during the discussion that “It is better to remove section 18 (approval in special cases – E.R.) and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is in violation of the explicit law.” And in response to the comment by the Chair, Professor Eldad, that “the court cannot operate in violation of the law, maybe we can add here a catch all section that authorizes the court as an exception to the exception,” Rabbi Dr. Halperin replied “but this does not need to be written. The court does that anyway even without catch all sections. So we do not need this.”

My colleague criticizes these things as “puzzling and mistaken reasoning.” I regret that Dr. Halperin, who is a rabbi, a gynecologist and a legal expert, and an author of many works in medicine, and in particularly in the field of fertility “a symptomatic dysfunction” – that is, the conventional wisdom common in different circles as if the Court does as it wills. No matter what the law is, the Court walks its own path. The law is not a “pick your own adventure” even, and perhaps first and foremost, to the Court. The Court’s role is to interpret, and often the law is subject to different interpretations between which the Court must decide (on the issue of interpretation see – for instance – the series of books by Professor Aharon Barak on Interpretation in the Law, which reviews all aspects of the issue.) Moreover, when the legislature “burdens” the court with interpretive duties in matters that are subject to great moral and public debated, such as the phrase “the values of the State of Israel as a Jewish and democratic state” in section 1A of Basic Law: Human Dignity and Liberty and section 2 of Basic Law: Freedom of Occupation. However, where the Legislature’s position is clear, even under the legislative purpose as it the statute was enacted (as opposed to questions of interpretation where a statute is open to interpretation) – the Court must exercise great caution and it is not free to decide as it wishes, even when a worthy cause is at stake – and there the Court must wait for the Legislature.

15. Indeed, even were the proposed catch all section in the Eggs Donation bill enacted into the Eggs Donation Law, and in my view it should have been, the question remains – and I shall leave it for determination in future cases – whether it would have been appropriate to permit the Petitioners’ request, and this in light of the primacy given by the Eggs Donation Law to physiological parenthood over genetic parenthood. In Israeli legislation there are several statutes that address parenthood (for the different models, see Yechezkel Margalit, On the Determination of Legal Parenthood by Consent as a Response to the Challenges of Determining Parenthood in Modern Times, Din U’Dvarim 6, 533 (2012) (hereinafter: Margalit); Mordechai Halperin, "A Woman Conceived Seed and Gave Birth" Biological Parenting and Genetic Parenting, Weekly Parasha – Legal Reviews of Torah Portions, Vayikra 110 (A. HaCohen and M. Vigoda, eds. 2012.)) Section 3(a) of the Woman’s Equal Opportunity Law, 5711-1951 and section 14 of the Legal Competence and Guardianship Law, 5722-1962 reflect approach that bemoan the genetic element, an approach absent from the Adoption Law 5741-1981 and the Eggs Donation Law and even under some views in the Surrogacy Law, where the genetic element is somewhat marginalized and allows the establishment of parenthood not on the basis of clear genetic foundations (see Hagai Kalai, Suspected Parents: Legal Supervision and Control over Non Heteronormative Parents Following HCJ 566/11 Mamat-Magad v. The Minister of Interior, Law in the Net – Human Rights – Decision Commentary Updates 28, 5, 9-13 (2014) (hereinafter: Kalai.)) I will admit that in my eyes genetic parenthood within surrogacy is primary and therefore also the theoretical and moral approval of surrogacy. It should be noted that rulers of Jewish law are split on the question of which woman is considered the mother in the case of surrogacy, and see paragraph 36 below. In any event, in order to fit our case under the confines of such a “catch all section” it would have been necessary to create a model of “inherent constructed co-parenthood” and this remains in question.
16. What is the model of parenthood reflected in the Eggs Donation Law? Section 42 of the law stipulates that the child born of an egg donation shall be the child of the recipient and this without any need for issuing a parenthood order. In other words, through the Eggs Donation Law, despite the genetic link between the egg donor and the child, the physiological contribution of the recipient in creating the child is privileged. The Egg Donations Law, as we detail further in the context of the Surrogacy Law, aimed to “delink” the egg donor from the child and the recipient (see in this context of disconnecting the legal link in section 42(c) of the Eggs Donation Law, which mandates the severance of legal rights and obligations between the donor and the child; see also the references in the Eggs Donation Law in defining an “intended mother” and a “carrying mother” in the definitions section to the Surrogacy Law which at its basis is the view of “delinking” the “intended parents” from the “carrying mother” and in effect from the child and the “carrying mother.”) Only the issue of delinking is similar in both statutes.
17. The purpose of the Eggs Donation Law is expressed in section 1 of the law which stipulates that the law is essentially intended to regulate eggs donation for the purposes of birth for women who cannot realize their parenthood without an eggs donation, and this “while maximum preservation of their dignity, and protection of the rights and the health of the donor and the recipient.” This is also reflected in the legislative history: “realizing parenthood is a paramount value in the State of Israel… We must understand that when the State of Israel approved this Bill it was concerned with the realization of parenthood by women who would be unable to do so without an eggs donation” (Adv. M. Hibner Harel, minutes of discussions in the sub-committee, dated February 18, 2008, emphasis added – E.R.) The goal of realizing parenthood by the recipient, despite the absence or deficiency in genetic material, is also inferred from the medical route to receiving an eggs donation:  “Women who suffer ovarian dysfunction, a lack of ovaries, or reduced ovarian reserves; women who repeatedly produce eggs and/or embryos of compromised quality; women who have failed, after repeated attempts, to become pregnant through IVF treatments; carriers of a severe genetic defect; women over the age of 45” (Orly Loten, Eggs Donation for Fertilization and Research, The Knesset – Center of Research and Information (November 13, 2007)).
18. The fundamental approach of limiting the donation to a recipient with a medical need has, therefore, medical justifications, such as avoiding medical treatment that is unnecessary (Michal Agmon Gonen and Keren Dabach Deutsch, The Physician’s Right To Refuse Providing Fertility Treatments, Refu’a U’Mishpat 33, 13 (2005)), as well as social justifications such as preventing the use of donations for purposes of genetic engineering (Ruth Zafran, There Can Be Two Mothers – The Definition of Motherhood to a Child Born to a Female Same Sex Couple, Din U’Dvarim 3 351, 362 (2008) (hereinafter: Zafran.)) Creating a distinction between recipients who require the donation due to a medical need and recipients who seek the donation without demonstrating a medical need is at its core consistent with the legislative purpose, which is protecting the health of the donor and the recipient involved in eggs donation for the purposes of having a child. We therefore find that the approval granted by the exceptions committee to a donation by the First Petitioner to the Second Petitions would doubtfully, on its face, fit into the harmony within the entire provisions of the law in light of the primacy it affords physiological parenthood in cases where the woman is unable to realize her genetic motherhood. Realizing the desire of a woman, such as in the case before us, to bring into the world a child with genetic code that is similar to hers on its face diverges from the rationale motivating the Eggs Donation Law which was designed to assist women with medical conditions involving their eggs to realize their right to parenthood. Had the law intended for it to be possible to give an eggs donation to a healthy woman due to the medical need of the donor as well, presumably this would have been said explicitly (LCA 5638/95, Migdal Insurance Company Ltd. v. Shamur, IsrSC 49(4) 865, 871 (1996); CA 4100/97, Ridner v. Vizaltier, IsrSC 52(4) 580, 594 (1998); AAA 1721/10,  Ganei Tikva Local Council v. Kopelvitch, para. 12 (2011)).
19. At the basis of the law, therefore, is the giving of an egg donation to a woman who has a medical need for the donation. This realizes the law’s primary objective – to assist women with defects in their eggs to realize their right to parenthood. The distinction the law created between women who have a medical need and women who do not, seemingly does not discriminate against the Second Petitioner, in light of the existing relevant difference (HCJ 4124/00, Yekutieli v. The Minister for Religious Affairs, para. 35 of President Beinisch’s judgment (2010)). Thus, as opposed to my colleague Justice Hayut, I do not believe we are concerned with the constitutional level of examining the Eggs Donation Law, as this law to begin with did not come to cast its net over our case.
20. The opinion of my colleague Justice Hayut emphasized the matter of T.Z., a case from 2006 where the Ministry of Health permitted, before the legislation of the Eggs Donation Law, to women partners to donate eggs to one another. The T.Z. case was brought as evidence that the Ministry of Health “see the female couple a family unit that justifies granting their request while considering the circumstances of their shared lives” (Hayut, para. 21.) However, I am afraid that this case does not constitute evidence. Examining the facts of that case reveals that the receiving partner had a clear medical need for a donation from her partner, unlike the circumstances of the Second Petitioner. In other words, had the Eggs Donation Law already been on the books 2006 when the partners in T.Z. sought approval for an eggs donation, they would have been granted such approval according to the law, as the recipient meets the restriction legislated into section 11 of the law due to her medical need. And the other partner would have been permitted to donate, as the Eggs Donation Law removed the requirement for the donor to be in the midst of reproductive treatments. This route was proposed to the Petitioners during the hearing held on November 19, 2012 – it was suggested that Dana would donate to Liat, who has a proved medical need, a non-anonymous donation, as was also done in T.Z., but this proposal was rejected by the Petitioners.
21. When reciprocal IVF between women partners was approved in the past, before the Eggs Donation Law was legislated, it was done according to medical policy that was later supported through primary legislation. My colleague Justice Hayut described (para. 20) the Attorney General’s Guidelines  from November 24, 2009 (following a discussion dated September 6, 2009) and thus the reason that the approval of the Attorney General was necessary in T.Z. was that the donor in that case was not at the time undergoing fertility treatments, and this limitation was lifted by the Eggs Donation Law, and indeed was not an obstacle for the Petitioners in our case either.

In the absence of the recipient’s “medical need,” even had the Attorney General’s Guidelines from 2009 applied, the Petitioners could not have relied upon it. The novelty in the Attorney General’s Guidelines was lifting the restriction imposed by the IVF Regulations on the identity of the donor, while the hindrance faced by the Petitioners here stems from the requirement that the donor would have a medical need for a donation, a restriction that, as noted, is inferred from the legislative history, the legislative purpose  and the primacy the Eggs Donation Law affords physiological parenthood.

22. Were we to return to the scenarios we presented at the outset of the judgment, the Eggs Donation Law in its present version resolves only the problems of couple number 3, who seeks a procedure of eggs donation from a partner with healthy eggs who wishes to make a non-anonymous donation to her partner who has unhealthy eggs and would carry the pregnancy. By adding the catch all section, my colleague Justice Hayut seeks to additionally allow couple number 2 – where one of the partners has healthy eggs but is unable to carry the pregnancy – to come under the provisions of the law, in order to realize Liat’s wishes to be a genetic parent through her partner. It should be noted, that even had the catch all section been included in the Eggs Donation Law, as my colleague suggests, this would not resolve the problems of couple number 1 – two partners who have no proven medical condition – but still wish to pursue the process of reciprocal IVF in order to create a common genetic physiological child.
23. It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an eggs donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in Laws 8 (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, Moznei Mishpat 7, 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, who is charged with weighting the balances. In any event, and certainly in light of the legislative history on one hand and the partial solution proposed by the State on the other hand, it seems there is no place to authorize the exceptions committee to create medical public policy out of thin air through a catch all section and while eliminating the requirement for medical need in specific cases – this without any guidelines in the form of legislative instructions, which are possible through a not too great legislative effort.

Approving the Request through The People’s Health Regulations (In Vitro Fertilization), 5747-1987?

24. My colleague Justice Arbel, believes too that the Petitioners cannot prevail through the Eggs Donation Law, because “one cannot donate something to themselves, because that cannot be considered a donation” (para. 15,) and found that there is no justification to intervene in the requirement for a medical need under section 11 of the Eggs Donation Law (para. 14.) Also she suggested in her opinion an alternative path to the one proposed by Justice Hayut to accomplish a procedure of reciprocal IVF as requested by the Petitioners, through the IVF Regulations (paras. 17-18.) According to Justice Arbel, it is possible to apply the People’s Health Regulations to the situation requested by the Petitioners without difficulty, as it has already been done in the T.Z. case.
25. However, as we have already shown above (para. 20,) the circumstances of T.Z. are greatly different from the circumstances of the Petition before us. It is true that the Attorney General’s Guidelines from November 30, 2009 addresses a donation between women partners, saying that “this should not be seen as an act that violates the public policy.” However, in all the cases detailed as the foundation for this premise, which were presented at the discussion held on November 24, 2009, the recipient partner demonstrated a medical need for the donation from her partner. Meaning, we are concerned with cases that are clearly covered by the current legal arrangement established by the Eggs Donation Law, which is not seemingly the case in the case here.
26. Moreover, the language of regulation 4 of the IVF Regulations can be viewed as evidence for the indispensability of the requirement for a medical need:

“Extraction of an egg shall be done only from a woman who has met one of these conditions: (1) she is undergoing fertility treatments and a supervising physician has determined that extracting the eggs would advance her treatment; (2) she is not undergoing fertility treatments, but is interested in preserving fertility, due to her age…” (Emphasis added – E.R.)

And indeed – the definitions section of the Regulations distinguishes between a procedure of “taking an egg” which involves extracting eggs from a woman and implanting them in her body and a process of “egg donation” which involves taking an egg from a woman and implanting it in the body of another woman. Regulation 3 stipulates that taking eggs will be done only “for the purpose of in vitro fertilization and implantation after its fertilization.” We learn that the taking process, which involves the IVF process of one woman only, cannot be applied to the process of reciprocal IVF as requested by the Petitioners. Indeed “in the past the Ministry of Health approved the requested process” (para. 23), as my colleague Justice Arbel noted, but I fear that now, after the Eggs Donation Law was legislated, we are living in a different legal reality, and it seems the permission granted by the Ministry of Health became obsolete once the Eggs Donation Law was passed, as it regulated what was previously allowed through the Ministry’s approval – a process of non-anonymous donation of an egg from a woman not undergoing fertility treatments to a woman requiring the donation for medical reasons. The Attorney General’s Guidelines from 2009 implicitly exists through the Eggs Donation Law, and thus it is difficult to use the Regulations to approve a procedure where an egg is taken from the First Petitioner's body to be implanted in the Second Petitioner’s uterus. I fear such a procedure has no source in the IVF Regulations. In light of the above regarding the T.Z. case, it is also impossible to say that the law aggravated the circumstances of women like the Petitioners, and of course the Legislature holds the key to any amendments.

Interim Conclusion – Perhaps I Will Build a Family Trough Her (Genesis 16:2)?

27. As mentioned, my colleagues Justices Hayut and Arbel propose to pave a lawful way for the medical procedure requested by the Petitioners be it through the Eggs Donation Law or through the IVF Regulations, respectively. They both rejected applying the Surrogacy Law on the circumstances at hand, due to the absence of the severance element between the carrying mother and the child. Only their proposals create, in effect, a “D tour” of sorts for the Surrogacy Law, only for the sake of offering a solution for this case, and in my view the current state of the law does not support this. It is a good question whether a broad interpretation is appropriate before the Legislature has had its say.
28. I will add several comments: the surrogacy and eggs donation procedures are in effect two aspects of the same medical procedure. In both processes – aside from surrogacy cases where the intended mother requires both the services of a uterus and an eggs donation – the function of motherhood is divided between two different women: the genetic function and the physiological function. In both processes there is Woman A who provides an egg to Woman B in whose body the fertilized egg is implanted. The difference between the procedures stems only from the agreement between the parties that determines who will be the parent of the child born as a result of the medical procedure:

“When egg is retrieved from one woman, fertilized, and then implanted in a second woman, the first woman could be functioning either as an egg donor – with no intention of rearing the child – or, alternatively, as the intended rearing mother. Moreover, the second woman (i.e., the woman who carries the fertilized egg to term) might be functioning as a ‘surrogate’ or, alternatively, as the intended rearing mother. In both situations, the cast of characters is identical. What differentiates the two circumstances is not the functions performed by parties, but rather the intentions of the parties upon entering into the arrangement. These intentions define the roles of the parties and should determine legal maternal status” (Anne Reichman Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 Iowa L. Rev. 265, 277 (1995). (Emphases added – E.R.)

And further:

“An egg donor recipient woman and a gestational surrogate differ only in maternal intent, usually also reflected by legal contract. This ‘only,’ however, yields a cosmos of different contested meanings of motherhood.” (Dion Farquhr, The Other Machine: Discourse and Reproductive Technologies 151 (1996) (Emphasis added – E.R.)

The Agreement between the parties depends on the medical need of the woman who initiates the procedure. When a woman requires an egg donation, the requested process is termed “egg donation” and when she requires assistance in carrying a pregnancy the requested process is termed “surrogacy” – whereas the medical procedure itself essentially remains the same, identical.

29. Evidence for this can be found in sections 4(b) and 6(b) of the Eggs Donation Law:

“4(b) The instruction of section 4(a) would not apply to an eggs extraction from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of executing an agreement for carrying embryo , under the Agreements Law.

…

6(b) There shall be no implantation of eggs but for implantation in the body of a recipient or of a carrying mother who entered into an agreement with a recipient for carrying embryo under the Agreements Law.” (Emphasis added – E.R.)

The identical medical procedure – extracting eggs from Woman A and implanting them in Woman B – is regulated by two different statutes. The root of the differences between the legislative arrangements is in the social agreement between the parties to the procedure and the State. Implanting a fertilized egg in the body of an intended mother according to the Surrogacy Law, is not considered a donation. Section 4(b) and 6(b) of the Eggs Donation Law clarify that there is a social choice in terms of categorizing the same procedure differently according to the medical need motivating the parties. I am afraid, that introducing a catch all section into the Eggs Donation Law, which would allow Woman A to donate an egg to a woman who has no medical need means the de facto creation of a surrogacy route under the Eggs Donation Law. This would require thought and examining legislative harmony. Extracting eggs from Woman A, fertilizing it and implanting it in the uterus of Woman B who herself has no medical need for a donation appears to put us close to a quasi-surrogacy procedure. Even in a surrogacy procedure, the carrying mother has not medical need for an egg donation and the fertilized egg is implanted in her body despite the lack of a medical need, this only if the link is severed after birth. See section 1 of this Law (the definition of “carrying mother”) as well as section 2 which addresses “implantation of fertilized eggs for the purposes of impregnating a carrying mother in order to give away the born child to the intended parents” (emphasis added – E.R.). The obstacle barring the Petitioners from coming under the confines of the Eggs Donation Law – the medical need – does not exist when we are concerned with a surrogacy procedure, thought, it is contingent upon severance, which in this case is the opposite from what the Petitioners seek.

30. The proposal to make use of the IVF Regulations, too, sounds like a “circumventing” of the Surrogacy Law because, indeed as long as the egg extraction is done for the purposes of fertilization in the body of the woman from whom the egg had been extracted, the legal arrangement which applies is the Regulations. However, once the egg is implanted in another woman’s body, the two relevant statutes are the Surrogacy Law and the Eggs Donation Law, and the determination as to the applying statute is examined in light of the intent of the party who requested the procedure in order to realize their parenthood. In our case, the First Petitioner seeks to create a child who will carry her genetic code, through the implantation of a fertilized egg from her body in the uterus of the Second Petitioner who has no medical need for the procedure. This all means that the using of the Eggs Donation Law and the IVF Regulations in order to enable a procedure where an egg is implanted in the Second Petitioner without a proven medical need, is therefore kind of circumvention of the Surrogacy Law and its provisions – an arrangement that allows, in effect, surrogacy where there is already a preexisting relationship between the intended mother and the recipient mother which is the foundation of the surrogacy, and this without applying the Surrogacy Law and the checks and balances included in its provisions, and in violation of the law’s approach in its current version.

Approving the Request through the Surrogacy Law?

31. To complete the picture, I shall address the Petitioners’ argument as to applying the Surrogacy Law which was at the foundation of their Petition from its outset. The State maintains that there are two main barriers in the Petitioners’ way when wishing to rely on the provisions of the Surrogacy Law. The first, that they are not included in the circle of eligible women; and second, the absence of severing the link between the carrying mother and the child after the birth, in light of their declared intent to raise the child together. To the State, the procedure desired by the Petitioners inherently does not fall under the Surrogacy Law, and exceeds its purpose and its provisions because it “creates genetic, biological co-parenting.” This position was general acceptable to the Justices in the extended panel – who saw the Surrogacy Law as an arrangement of severance after birth – and was at the foundation of the decision dated September 24, 2012 to have the Petitioners amend their Petition so that it would address also the Eggs Donation Law.
32. And yet I shall explore the question whether surrogacy in and of itself requires severance between the carrying mother and the child. During the hearing on April 28, 2013 Justice Arbel wondered about this, and I myself raised the question (see the records.) My concern was on the values level, first and foremost. According to the State, the severance between the carrying mother and the “intended parents” is an overarching principle of the institution of surrogacy, whereas recognizing the carrying mother as a legal mother has far reaching consequences, that is, recognizing a surrogate as the child’s mother for all intents and purposes, and doing so against the narrow and balanced arrangement established by section 13 of the Surrogacy Law which allows the carrying mother to renege on the agreement – including severance – in extreme circumstances alone.

And indeed it is seemingly possible to find in the various provisions of the Surrogacy Law evidence for the State’s position. We mentioned section 1 which defines an agreement for carrying embryo as an “agreement between intended parents and a carrying mother whereby the carrying mother agrees to become pregnant via implantation of a fertilized egg and to carry the pregnancy for the intended parents” (emphasis added – E.R.). We also pointed to section 2. Moreover, section 19 of the law stipulates that entering into an agreement to carry an embryo not according to the path laid out in the law is a criminal offense, punishable by incarceration. The law clearly designs the route to be followed by parties entering into an agreement of contractual, commercial surrogacy which involves compensation for the carrying mother ("Commercial Surrogacy") and does not involve regulation as altruistic surrogacy.

33. From the explanatory notes of the Surrogacy Law we learn that the law aims to permit surrogacy agreements “under certain conditions and in a supervised manner” (see the Embryo Carrying Agreements  Bill (Approval of the Agreement and the Status of the Child), 5756- 1995 (Bills 5756 n. 2456, p. 259, December 6, 1995.) The existing limitations in the law are inherent to the design of the surrogacy mechanism in light of the concerns for the exploitation of the surrogate mother. The Surrogacy Law was proposed following a report by a committee headed by Justice (Ret.) Shaul Aloni, and I will concede that reading the law on its face – including reading the explanatory notes to the Bill – resound of surrogacy based on severance. The explanatory notes (there) speak of advance technologies that allow “bringing children into the world… with the assistance of a woman (carrying mother) willing to become pregnant and to carry a pregnancy in her uterus for a couple, with the genetic code of the couple or at least one of them (intending parents) and to give away the child to them upon birth” (emphasis added – E.R.). I will not, however, discussing – beyond the necessary scope, it seems, of the case at hand – a situation where surrogacy does not in itself require complete severance between the carrying mother and the child.

Surrogacy seeks, at its core, to use the ability of a particular woman to carry a pregnancy and this in order to assist another (HCJ 625/10, Jane Doe v. The Committee for Approving Agreements for Carrying Embryo under the Agreements Law, para. 12 of Deputy President Rivlin’s judgment (2011)). Assistance in carrying a pregnancy in itself does not necessarily mean there must be severance, and this may depend on the circumstances, but it does require legislation, and I must say this – with emphasis – at this stage already. It should be noted that in certain countries which opted to permit surrogacy (Britain, Australia and Finland) an altruistic model was selected, rather than contractual, commercial (which our Law is modeled after, as inferred also by its title – the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child), 5756-1996.) The altruistic model, as opposed to the contractual, commercial model, is built on a foundation of a preexisting relationship between the surrogate and the intended parents (Nufar Lipkin and Eti Smama, From Vision to Shelf Product: The Crawling Normativation of Surrogacy in Israel, Mishpat U’Mimshal 15, 435, 449-453 (2013) (hereinafter: Lipkin and Smama)).

34. The normative advantage of the altruistic model is that it allows overcoming the concern as to the exploitation inherent to the paid surrogacy model, a model that the approach at its foundation is that the surrogate mother is but a service provided, while ignoring the uniqueness of the procedure and the costs it involves (Id., p. 489-490.) The existing relationship between the surrogate mother and the intended parents, on the basis of which the agreement is made, may negate and at least decrease the concern for the surrogate’s exploitation. The Israeli Surrogacy Law, which addresses – as noted – commercial surrogacy, was designed with particular emphasis on the interests of the intended parents, who are usually interested in receiving the child without committing to an ongoing relationship with the surrogate. However, this is not necessarily the only way it was possible to shape the relationship created in the framework of the agreement between the intended parents and the carrying mother.
35. It is not unnecessary to note that scholars of Jewish law have theorized that the child in the surrogacy procedure has two mothers and this because of the concern for prohibited relations (see Z. Lev, Test Tube Baby – the Status of the Surrogate Mother, Emek HaHalakha B 163, 169 (1989); David J. Bleich, Contemporary Halakhic Problems 107-108 (1977)). This, as we will see, is the strict position of Rabbi S.Z. Auerbach. This all means that determining whether we are concerned with severance or with a relationship is an epistemological choice resulting from public policy and is not imminent to the medical procedure itself. There are in fact those who would say that surrogacy has environmental consequences that implicate the child. Still, the Surrogacy Law in its current version, which wishes to severe the relationship between the carrying mother and the child and intended parents, leaves a period of “twilight” – between the child’s birth and the grant of the parenting order (sections 10-11 of the Surrogacy Law) – where legal status has yet to be given to the intended parents but the child has already been moved into their custody. In this short period of time, the generic link to the intended parents does not ensure them any legal status, but does ensure them custody, and only the parenting order afterwards is which creates the final severance. It seems that the law as it is, creates a period of time where both women (the carrying and the intended) are tied to the child, at the same time. However, clearly this was not the intention of the law, which was designed to regulate surrogacy on a contractual, commercial basis which is followed by severance. Still, I have decided to examine, in light of the Petitioners' arguments, the constitutionality of the Surrogacy Law in this regard.

Surrogacy – the Jewish Law

36. To the credit of Jewish law I will note that current rulers of Jewish law contemplate and deliberate the question of surrogacy, just as they do many questions of Jewish law that come out of the technological and medical advances prevalent in our times, as well as the new family configurations, whether they are single parents or couples (see Rabbi Z.N. Goldberg, Attributing Motherhood When Implanting An Embryo in the Uterus of Another, Tehumin 5 248 (1984); Rabbi M. Herschler, Halachic Problems of a Test Tube Baby, Halacha and Medicine 1, 307 (1980); Rabbi A Klab, Who is the Child’s Mother – The Parent or the Woman who Gave Birth?, Thumin 5, 260 (1984); Rabbi Y.B. Meir, In Vitro Fertilization – Attributing a Fetus Born to the Surrogate Mother and the Biological Mother, Asya 11, 25 (1986); Rabbi E. Bik, Attributing Motherhood in Embryo Implantation, Thumin 7, 266 (1987); Professor Michael Korinaldi, The Legal Status of a Child Born from Artificial Fertilization with a Sperm or an Egg Donor, Jewish Law Yearly 18-19, 295 (1992-1994); Professor Daniel Sinclair, Artificial Insemination and In Vitro Fertilization in Jewish Law: Comparative, Halachic-Methodological and Moral Perspectives, HaMishpat 9 291 (2004); Rachel Chishlvitz, Surrogacy Coupled with Eggs Donation: Legal and Halachic Perspectives, Refuah U’Mishpat 39, 82, 85 (2008)). Some of the rulers did not consider surrogacy in a positive light as they saw it as confusing and mixing. However, it seems it should be considered, though it is not at the hard of the issue, similarly to artificial insemination that was permitted where there was great need for it (for reservations about surrogacy see Kovetz Yeshurun, 21 535, 537 on behalf of Rabbi Y.S. Elyashiv and Rabbi S.Z. Auerbach; on permitting artificial insemination see Rabbi M. Feinstein following the M.H.R.S.M, Q.A. Igrot Moshe Even Ha’Ezer 1, 10.) What is this great need? Family continuation is seen as the woman’s (for instance, the woman who requests artificial insemination) request for assistance at her old age (“A stick in hand and a shovel for burial”), Bavli Ketubbot 64, 71) and see the Sperm Bank case, in paragraph 27 of my opinion. Is it possible to see the realization of the right to parenthood a great need? This may be an extension of the need “at old age” to a life that is meaningful and satisfactory.

Another question that is somewhat highlighted by our issue, is who is considered the mother of the child – the donor of the egg or the surrogate? Rabbi Yosef Shalom Elyashiv (Nishmat Avraham 4, Even Ha’Ezer 2, 2) believed that the genetic mother – the egg donor – is the mother (Kovetz Yeshurun, p. 535-40) though perhaps later he came to doubt this (Yeshurun 21 (2009)) and see the references in Rabbi Dr. M. Halperin’s book Medicine, Reality, Halacha and the Word of the Medically Wise (2012) 22-23, 294-95. So believed, too, Rabbi I.M. Soloveitchik, The Law of a Test Tube Baby, Or HaMizrach 100, 122-128 (1981); see also Rabbi S. Goren, Implanting Embryo According to Halacha, HaTzofe 17 (1984); Rabbi Dr. E. Warhaftig, Annexure to the Discussion regarding Test Tube Babies, Thumin 5 268-269 (1984)), but for another opinion, Rabbi E.I. Waldenberg (Tzitz Eliezer, part 19, 40; 20, 49) who thought that the eggs do not belong to the body of the surrogate and she therefore would be considered the mother; and see also Rabbi Zalman Nehemia Goldberg, Tehumin 5 270. In his book, Rabbi Halperin presents the contrary position of Rabbi Ovadiah Yosef, Rabbi M. Brandsdorfer and Rabbi S.M. Amar who believe that the genetic mother is the mother (see the sources there, pages 294-295; and there are also opinions that have changed.) For a collection of opinions that essentially tip in favor of the surrogate’s motherhood, see also Olamot (lesson 33, 2009); but see Rabbi Aviad Bartov, Permitted through his Mother – and a Surrogate Mother, Shiurim B’Masechet Beitza, Har-Etzion Yeshiva, which summarizes (and see the references there) as follows: “Today it seems that the common Halachic practice is to say that the status of the fetus born of this arrangement (in vitro fertilization of the surrogate mother – E.R.) must be determined by the status of the mother who is the source of the test tube, rather than the surrogate mother.” The opinion of Rabbi S.Z. Auerbach, as I have heard it from Rabbi Professor Abraham Steinberg, was that there is no clear solution in either direction because there is not satisfactory evidence for full determination and thus both women must be seen “mother in strictness” (which would require, for instance, the conversion of one of them should she not be Jewish.) See also Rabbi Itzhak Shilat Medicine, Halacha and the Tora’s Intentions (2014) 222, 231, who brings from Nishmat Avraham (2 Ed.) Even Ha’Ezer 35. Ultimately in this case there is no need to determine who the mother is, as the goal is complete partnership between the two specific women, though this may come up in matters of singleness or of separation (see K.M. v. E.G., 13 Cal. Rptr. 3d 136 (Ct. App. 2004); Sanja Zgonjanin, What Does It Take To Be A (Lesbian) Parent? On Intent and Genetics 16 Hastings Women’s L. J. 251 (2004-2005)).

Does the Surrogacy Law Infringe upon the Constitutional Right?

37. The Surrogacy Law reflects the social agreement reached whereby “commercial surrogacy” was established for a narrow circle of intended parents who are a heterosexual couple (HCJ 2458/01, New Family v. The Committee for Approving Agreements for Carrying Embryo, IsrSC 57(1) 419, 437-38 (2002) (hereinafter: the New Family case.)) Does the existing arrangement in the Surrogacy Law infringe upon the Petitioners’ right to parenthood? Further, does creating a genetic, biological child within a lesbian relationship  was not in the Legislature’s mind when passing the Surrogacy Law, but since the First Petitioner wishes to realize her right to genetic parenthood by using her partner’s uterus, can her request rely on the Surrogacy Law?

The First Step – Is There an Infringement upon the Right to Parenthood?

38. The right to family life is a sub right that derives from the constitutional right to human dignity (HCJ 7052/03, Adalla Center for Arab Minority Rights in Israel v. The Minister of Interior, IsrSC 61(2) 2002 (2006)). The right to parenthood is a granddaughter right to the right to family life and it encompasses various methods for fertility, reproduction and birth (Aharon Barak, The Constitution of the Family: Constitutional Aspects of Family Law, Mishpat V’Asakim 15, 13, 42 (2014) (hereinafter: Constitution of the Family); Aharon Barak Human Dignity – The Constitutional Right and its Daughters Vol. 2, 662-670 (2014)). There is no dispute that the right to parenthood was recognized repeatedly in the jurisprudence of this Court as a basic constitutional right (CA 5527/93, Nahmani v. Nahmani, IsrSC 49(1) 485, 499 (1995); CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 50(1) 48, 102 (1995); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 775 (1996); the New Family case, p. 445; HCJ 2245/06, Dovrin v. The Prison Service, para. 12 of Justice Procaccia’s judgment (2006); HCJ 4293/01, New Family v. The Minister of Labor and Welfare, paras. 17-21 of Justice Procaccia’s judgment (2009) (hereinafter: HCJ New Family); HCJ 11437/05, Kav L’Oved v. The Minister of Interior, para. 38 of Justice Procaccia’s judgment (2011) (hereinafter: the Kav L’Oved case); the Sperm Bank case, para. 27 of my judgment and para. 8 of Justice Barak-Erez’s judgment (2013)).
39. The right to parenthood was recognized as a right with “negative” and “positive” aspects (HCJ New Family, para. 3 of President Beinisch’s judgment and para. 5 of Deputy President Rivlin’s judgment.) The negative aspect concerns protecting the individual from external intervention in the right and its exercise. The positive aspect goes to the state’s duty to assist the individual in exercising the right (see Aharon Barak, Interpretation in Law 3, 312 (1994); Aharon Barak, Proportionality in Law: Infringement on Constitutional Rights and its Limitations 44 (2010) (hereinafter: Barak, Proportionality)). The right to parenthood was repeatedly considered against technological developments in the area of reproduction. Surrogacy has been recognized as part of the right to parenthood, but was categorized as a process that belongs on the positive level of the right to parenthood (HCJ New Family, para. 23 of Justice Procaccia’s judgment.) For critiques on this categorization, see Kalai, p. 19-20. In any event, by both aspects, the right to parenthood is not absolute (Barak, Proportionality, p. 56-57.)
40. The Petition at hand raises, among others, the question of whether the right to parenthood includes the right to genetic parenthood specifically. This question was not explicitly contemplated in the case law, but the “voice of blood” – the genetic element – has been heard (CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 56(1) 48, 102 (1995); the New Family case, p. 461; Pinhas Shiffman Family Law in Israel 132-133 (1989); the Kav L’Oved case, paras. 38-39 of Justice Procaccia’s judgment; CFH 1892/11, The Attorney General v. Jane Doe, para. 6 of Justice Joubran’s judgment (2011)). In the Sperm Bank case (paras. 43-45) I discussed the weakening of the genetic element, and that genetic parenthood cannot be considered to be the end all be all. This has support in Jewish law, too – “Happy is who does charity, one who raises orphan boys and girls in one’s home and brings them to be married” (Bavli, Ketubbot 50, 71); “Anyone teaching Torah to another’s son as if the child is his” (Bavli, Megila 13, 71); “I know no other father but you, as that who raises one is called father, rather than the only leading to birth” (Shemot Rabba, 46, 5, “and now, God, you are our father”); “Rabbi Hanina says ‘and her neighbors gave him a name that meant he was a child born to Naomi (Ruth 4, 17), as because Naomi gave birth and Ruth gave birth, but Ruth gave birth and Naomi raised he was therefore called for her” (Bavli, Sanhedrin 19, 72); on the model preferring the “social/ functional/ psychological parenthood” see Margalit, p. 576-582.)) Recently this Court considered the general and supplemental issue of a request to establish parenthood based only on a contractual foundation without any genetic element in AA 1118/14, Jane Doe v. The Ministry of Welfare and Social Services (the Petition was denied on July 13, 2014, in a decision that has yet to include reasons.)
41. In the Sperm Bank case, I addressed the two levels of the right to parenthood (para. 29):

“From all of this another distinction is revealed, which goes to the two levels of this right. The first level, which is in itself valuable, is the ability to realize reproduction ability and become a biological mother or father. The second level, which is that at the basis of the right not to be a parent, is one’s ability to choose how to realize their natural right that is the first level. The second level is in the periphery of the right to parenthood, it is not designed to protect the value itself of having children, but other values such as the right to privacy, autonomy and free will with whom, how and when if at all, to bring children into the world (including the ability to plan a family)” (emphases added – E.R.)

The distinction between the two aspects of the right is relevant here. The wise would easily see that on the legal level it is possible to distinguish between the infringement upon the First Petitioner’s right to parenthood and the infringement upon that right of the Second Petitioner’s. While the infringement upon the Second Petitioner is focused essentially on the second level of the right, because she is prevented from realizing the right in a manner she had requested , the infringement upon the First Petitioner is located in the first level of the right to parenthood, because she is barred from the very access for a surrogacy procedure and therefore, realizing her right to genetic parenthood. This categorization of the Second Petitioner’s issue does not negate the actual infringement because “as long as the margins are part of the right, the marginal character of the right's infringement is relevant only to the stage of constitutional review of the infringement, rather than the matter of whether there is in fact an infringement upon the right to human dignity” (The Constitution of the Family, p. 30; Barak, Proportionality, p. 44.)

42. For purposes of this discussion, I shall assume that the arrangement set in the Surrogacy Law which permits agreements between a man and woman and a surrogate and which requires severance of the relationship between the surrogate, the child and the intended parents upon birth, infringes the Petitioners’ right to parenthood. I will thus examine the constitutionality of this infringement.

The Second Step – Is the Infringement of the Constitutional Right Lawful (Limitations Clause)?

43. The Limitations Clause includes four conditions, as articulated by the language of section 8 of Basic Law: Human Dignity and Liberty – the infringement must be done in a law or by law under in its explicit authorization; it must be fitting of the values of the State of Israel; it must be for a worthy purpose; and to an extent no greater than necessary. Two main obstacles stand in the Petitioners’ way to be included by the arrangements of the Surrogacy Law. One, the statute’s definition of the term “intended parents,” which is (section 1) “a man and a woman who are a couple, who enter into an agreement with a carrying mother in order to have a child.” Two, the absence of severance between the carrying mother and the intended parents after the birth of the child. We shall address both these pivotal obstacles.

The Constitutionality of the Definition of the Term “Intended Parents”

44. The narrow circle of eligibility resulting from the definition of “intended parents” in the Surrogacy Law was considered in the New Family case within the issue of the eligibility of a single woman to realize her right to parenthood through a surrogacy procedure. It was held that “the law did not intend to fix the problems of a women without children who has no male partner, it did not even aim at solving the problems of a man without a female partner or any other couple” (Id. p. 439, by Deputy President Cheshin.) In the New Family case, the narrow circle of eligibility was considered constitutional primarily because the law’s novelty at the time. Deputy President Cheshin insisted that in the future, the issue will warrant revisiting, once relevant information was accumulated as to the execution of the surrogacy procedure as well as to its consequences (Id., p. 447-48, 456.) See also Yelena Chechko, On Ripeness and Constitutionality: Following HCJ 3429/11, Alumni of The Orthodox Arab High School v. The Minister of Finance and HCJ 3803/11, Board of Trusties of Israeli Stock Market v. The State of Israel, Mishpatim 43, 419 (2013)).
45. The Professor Shlomo Mor Yossef Committee – the Public Committee of Examining Legislative Regulation of Reproduction and Birth in Israel (2012) – did indeed recommend to expand the circle of eligibility for surrogacy, so that single women, too, would be able to access the process of commercial surrogacy. The Committee further recommended establishing altruistic surrogacy for single men (for critiques regarding the Committee’s recommendations, see Avraham, chapter 3d.)

Following the publication of the Committee’s recommendations, in June 2012 a team was put together to examine methods of implementing the recommendations, as we have noted above. This year the Memorandum for the Agreements for Carrying Embryo Law (Approval of an Agreement and the Status of the Child) (Amendment – Definition of Intended Parents and Executing an Agreement outside of Israel), 5774-2014 was presented and received the approval of the Ministers Committee for Legislative Matters on March 2, 2014. The memorandum proposes to change the definition of “intended parents” to include in the circle of eligibility single women and single men. That is, it was proposed to expand the circle of eligibility for commercial surrogacy, according to the spirit of the decision in the New Family case. The memorandum does not directly resolve the issue of the Petitioners here under the model they request – only making it possible for the First Petitioner to contract a strange woman as a surrogate, which of course is not the Petitioners’ intention.

46. In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it won't trail behind the Legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is first and foremost the Legislature, and the existence of advanced legislative processes warrants such judicial restraint.
47. To conclude so far, the definition of the term “intended parents” in the Surrogacy Law prevents the First Petitioner’s access to surrogacy. The State claims (para. 51) that this issue is merely theoretical in her regard in light of her desire to have the assistance of her partner in order to realize the surrogacy procedure. However, there should be a distinction between barring access to a procedure, on the first level of the First Petitioner’s right to parenthood, and the matter of how the surrogacy procedure will be executed on the second level of the right. We now move to the second bar, which is concerned with how the right to parenthood is exercised.

The Requirement for the Severance of the Relationship between the Carrying Mother and the Intended Parents – Constitutional?

48. The First Petitioner’s desire to execute the surrogacy procedure through her partner, appears to be, as mentioned above, concerned with the second level of the right to parenthood: the way in which the right it exercised. The First Petitioner wishes to exercise her right to genetic parenthood in a particular way, that is possible on its face in the medical sense – subject to the reservations of the First Petitioner’s treating physician that “there is no conclusive evidence as to whether the problem is the eggs or the pregnancy taking root (uterus-based)” (exhibit P/2 of the Amended Petition dated April 14, 2013), but it is still uncharted land in the legal sense.
49. Altruistic surrogacy, and at least surrogacy based on a relationship, is not recognized in the current legislative arrangement. Still, in the mentioned law’s memorandum it is possible to find slight hinting at establishing such surrogacy. Thus, it was suggested to change the definition of “relative” in section 1(3) of the Surrogacy Law so that cousins would not be considered relatives and could serve as carrying mothers. In section 2(3)(b) of the Surrogacy Law it was proposed to add an exception to the basic prohibition on the intended parents and the carrying mother being relatives as following: “despite the above, a sister cold use as a carrying mother as long as the sperm fertilizing the eggs implanted in her body is not of her brother.” The desire to increase the pool of candidates for carrying mothers brought the drafters of the memorandum to consider relatives of the intended parents under the assumption that the existence of a relationship would serve as a catalyst for entering into the surrogacy procedure.

In order to examine the proportionality of the demand to severe the relationship between the surrogate and the intended parents we shall consider the three accepted sub tests: first, the fit test – which requires a connection between the worthy purpose and the means selected to accomplishing it. Second, the least restrictive means test – which requires that the means chosen infringes on one’s right as little as possible. The third test concerns the existence of a proper connection between the means and the purpose, and weighs the benefits resulting from the infringing statute against the extent of harm done to the right (HCJ 4769/95, Menachem v. Minister of Transport, IsrSC 57(1) 235, 279-86 (2002); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 545-47 (1994); Barak, Proportionality, p. 373-454.)

50. Because there is on its fact a rational link between the surrogacy model built around the severance and the achievement of the purpose of the Surrogacy Law, as it currently is, we will move on to the second sub test for proportionality and ask whether there is an alternative which infringes on the right to parenthood less but may still achieve the law’s purpose. The Petitioners justifiably point to a variety of problems and criticisms raised in regard to commercial surrogacy – the exploitation of the surrogate’s financial circumstances, the hardship of severing the relationship with the child, regret for entering into the procedure, and the involvement of a third party in reproductive procedures (Lipkin and Smama, p. 480-85.) They argue that these are negated by an altruistic procedure which they seek. However, the altruistic model is not free of flaws, either. The main concern arising in an altruistic model is the social and familial pressure on the woman, which may lead her to enter into an intrusive and difficult procedure that does not reflect her true wishes (Rakhi Ruparelia, Giving Away the Gift of Life: Surrogacy and the Canadian Assisted Human Reproduction Act 23 Can. J. Fam. L 11, 14; 29; 35-36 (2007); Janice J. Raymond, Women as Wombs: Reproductive Technologies and the Battle over Women’s Freedom, 53-54 (1993)). In the United States, for example, there is a tendency to restrain altruistic agreements between relatives because of the concern for difficulties of disconnection from the child (Lipkin and Smama, p. 450.) An additional problem is the lack of sufficient psychological and scientific knowledge about the altruistic process and its consequences (Id., p. 490.)
51. Moreover, altruistic surrogacy may also raise, to greater force, the question of the surrogate’s legal status vis-à-vis the child. Ordinarily, in a procedure of surrogacy, once a parenting order is granted the carrying mother loses any legal status toward the child. In the procedure requested by the Petitioners, it is likely that the Second Petitioner who would have carried the child would seek legal recognition as the child’s mother (see also HCJ 566/11, Doron Mamat-Magad v. The Ministry of Interior (January 28, 2014) (hereinafter: the Mamat-Magad case.) Such a request poses significant difficulty to the institution of surrogacy in its current formulation which only recognizes the intended mother as the legal mother (Zafran, p. 388-395.) Legal recognition within the Surrogacy Law of the carrying mother may potentially cause harm to the group of “intended parents” who currently utilize the Surrogacy Law.
52. In light of all the above, permitting a model of “relationship” within the existing statutory arrangement cannot create an alternative that less infringes upon the constitutional right, which can still accomplish the purposes of the law. Though the establishment of altruistic surrogacy has great potential, the task of setting it up is clearly within the purview of the Legislature in light of the difficulties it presents in the absence of proper and balanced regulation. Establishing a model of altruistic surrogacy requires to create legislative mechanisms that would ensure the free will of the surrogate as well as methods for detection and follow up. Here is a challenge for the Legislature.
53. The Surrogacy Law therefore restricts the First Petitioner’s right to altruistic surrogacy, as this model has yet to be enacted in a statute. However, the infringement is limited to achieving the purpose of surrogacy through the altruistic model in Israel. The State did not block the First Petitioner’s way from executing the surrogacy procedure along the route she desires abroad. We refereed to the Ministry of Health’s protocol from July 21, 2013 titled “Taking Semen, Eggs or Fertilized Eggs out from Israel,” which enables the First Petitioner to take  fertilized eggs extracted from her body out of Israel, in order for them to be “implanted in the body of the woman from whom the eggs were extracted or in the body of a surrogate woman for the purposes of carrying a pregnancy for the woman from whom the eggs were extracted, or for the purposes of realizing parenthood in alternative means for the women from whom the eggs were extracted.” (Emphasis added – E.R.)

Through the protocol the State avoids defining the requested procedure as a surrogacy procedure, in light of the law’s absence of recognition of the altruistic model, but at the same time removes the obstacle standing in the Petitioners’ way to execute the procedure in other countries in the manner they wish to execute it. In my view, the option given to the First Petitioner to take her genetic material out of Israel meets the requirement of the third sub test (narrow proportionality) which concerns the relation between the infringement upon the constitutional right and the benefit achieved. Since altruistic surrogacy does not exist in Israel, it seems we have a proportional solution that balances the petitioners’ desire to execute the procedure in a specific manner they request and the need to refrain establishing judicial arrangements as a “patch work.” In contrast, allowing the Petitioners to realize their wishes in the specific manner they seek – that is, through altruistic surrogacy in Israel – would result in parts of the Surrogacy law becoming incoherent with each other (for the problems of “patch work” legislation, see HCJ 7691/95, Sagi v. The Government of Israel, IsrSC 52(5) 577, 587-88 (1998); LCA 418/03, Ossem Food Industries Ltd. v. Smaja, IsrSC 59(3) 541, 552-54 (2004); CrimA 4783/09, Shulstein v. The Antitrust Authority, para. 1 (2010)).

Finally, referring the First Petitioner under today’s state of the law to exercise her right out of Israel, with all the inconvenience involved, does not automatically cause unconstitutional infringement upon her right (HCJ 466/07, Galon v. The Attorney General, para. 8 of (then) Justice Naor's judgment (2012) (hereinafter: the Galon case.) Executing the procedure, in the specific manner requested, out of Israel constitutes a proportionate solution for the First Petitioner, as long as there is no existing legislative regulation of altruistic surrogacy. Executing the procedure allows the State to assist the Petitioners without causing disharmony to the existing statute. Indeed, there is discomfort with the State referring its citizens to realize their dreams and rights in other countries (the Mamat Magad case, paras. 5-10 of Justice Joubran’s judgment,) yet in the absence of a legislative arrangement that allows surrogacy along the route the Petitioners request, the solution suggested by the State through the protocol is proportionate, because “at times even the exercise of a constitutional right yields to the public interest” (see Galon, para. 11 of (then) Justice Naor's judgment) and in our case – to harmony in the system of parenthood arrangements and the balances between them. Interpretation such as the Petitioners requested stands, as my colleague Justice Hayut noted as well (para. 18), in contrast to the core of the existing arrangement, which focuses on severance between the surrogate and the intended parents.

54. Under the circumstances – as we have not accepted the Petition – it is unnecessary to delve into the issue of the legal recognition of the carrying mother (the Second Petitioner.) However, to the extent that the Petitioners chose or will choose to execute the procedure abroad, it seems the solution proposed by the District Court in T.Z. (paras. 31 and 34) – issuing a judicial parenting order (after conducting a review to support the petition for a parenting order) – and which comes out also of the Mamat Magad case (para. 43 of Deputy President Naor’s judgment, para. 11 of my judgment) could seemingly work in favor of the Petitioners here, because the State expressed no general objection to a family unit of “co mothers” which the Petitioners wish to contract, but only to the legal route in which they seek to construct it (on the legal recognition of two mothers in the United States, see Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J.C.R. & C.L 201 (2009)).
55. As to the future regulation of altruistic surrogacy within the general Surrogacy Law which currently only regulates commercial surrogacy, the Legislature must explore the possibility of establishing a route for altruistic surrogacy, which would operate in parallel to the commercial route where the law’s different parts would not conflict with one another, but complement each other. See – and this is only brought as an example – the proposal by the “Woman to Woman” Center in regard to introducing elements of a “relationship” into contractual commercial surrogacy as well, and this based on psychological research demonstrating that the human relationships formed are the primary benefit that the surrogate enjoys in the process (Nufar Lipkin and Eti Smama, Surrogacy in Israel – 2010 Snapshot and Proposal for Legislative Amendments – Report by ‘Woman to Woman-Feminist Center, Haifa’ 65, 80-82 (2010), Elly Teman, Birthing a Mother: The Surrogate Body and the Pregnant Self (2010)).

Conclusion and Final Words

56. At the end of the day, we did not see it fit to intervene in the State’s latest proposal, which meets the Petitioners significantly closer, though not exactly at their desired point. In our view, under the current state of the law it is impossible to fully assist the Petitioners, and doing so is up to the Legislature. As we have demonstrated, the dissenting opinion’s suggestions – as appealing as they may be – are not acceptable to us on the legal level. Hence our position not to accept the petition. There is no order as to costs.

                                                                                                Justice

President A. Grunis:

I agree with the judgment of my colleague, Justice E. Rubinstein.

                                                                                                President

Deputy President M. Naor:

1. I am among the majority Justices who have found the Petition must be denied.
2. The right to parenthood received recognition as a fundamental right, which expresses the natural desires of women and men for continuance in future generations (HCJ 566/11, Mamat-Magad v. The Ministry of Interior, para. 41 of my judgment (January 28, 2014); HCJ 4077/12, Jane Doe v. The Ministry of Health, paras. 25-29 of my colleague Justice E. Rubinstein’s judgment (February 5, 2013) (hereinafter: the Jane Doe case)); dismissing a motion for further hearing – HCJFH 1403/13, Jane Doe v. The Ministry of Health (June 6, 2013.)) The right to parenthood, as other rights in our law, has different aspects. At the core of the right to parenthood is the right of each man or woman to bring children into the world through natural reproduction, free of state intervention. It is also accepted that at the heart of the right is “the practical ability to enter the ‘group of parents’ and bring a child into the world (Id., para. 33). Another question, a more complex one, is what is the level of protection that must be given to one’s demand that the State assist him in creating genetic, physiological or legal parenthood. This, in light of the medical, technological advances that make creating parenthood by artificial means possible. These things found expression in the jurisprudence of this Court. See, for example: HCJ 4293/01, New Family v. The Minister of Labor and Welfare (March, 24, 2009), which addressed, among others, the question whether there is a constitutional right to adopt. Justice A. Procaccia discussed there the complexity inherent in the question whether one has a right to require the State to assist in the process of creating parenthood:

“The question from a different angle is whether the constitutional right to family life and parenthood, which is granted to any person, gives rise also to the right to require the state to take action in order to make it possible where one is not able, or does not wish, to exercise it naturally – for instance through adoption, through surrogacy or through in vitro fertilization. Does the state’s failure to act amount to an ‘infringement’ whose constitutionality is examined according to the Limitations Clause? Such questions are complex and multi-faceted. They go to the link between the constitutional right and the means one has to exercise that right. They raise issues with broad normative, moral, social and other ramifications. The approaches to resolving them are subject to the influences of time, place and circumstances…

… The question to what extent the state must assist the individual and grant the means necessary to assist reproductive processes through artificial reproductive techniques is difficult and complex. The greater the need for intervention of external factors in the reproduction processes, the farther we travel from the hard core of the right to parenthood as based on the individual’s autonomy and his independent right to make decisions that determine his fate without external intervention. The scope of the duty of the state to assist the individual through active steps to realize his natural parenthood through artificial means is difficult and has many aspects.” (Paras. 22-23.)

In that same matter, President D. Beinisch commented that the right to parenthood should not be interpreted as merely a negative right, but added that were there a constitutional right to parenthood through adoption, it would have been necessary to distinguish between the scope and the force of the constitutional protection given to the relevant right in different contexts (para. 3; see also the position of Deputy President E. Rivlin there, who believed that there is a liberty to adopt, and that restricting this liberty must be done in consideration of competing interests. See also, Aharon Barak, Human Dignity: the Constitutional Right and its Daughters, vol. 2, 667 (2014)). As my colleagues pointed out, alongside the right to parenthood, the best interest of third parties who are at times involved in the process of artificial reproduction as well as medical, social, and other ethical considerations must all come into account. These considerations may lead to the limitation of the means to realize the right to parenthood, as well as declining to recognize certain types of parenthood (see and compare: our decision without reasons in LFA 1118/14, Jane Doe v. The Ministry of Welfare and Social Services (July 13, 2014.)) The mere fact that there are various ways to become a parent does not mean that the State must allow their execution in any way that science and technology allow. A similar approach was expressed in the matter of Jane Doe, where Justice D. Barak-Erez discussed the fact that the protection of the right to parenthood must be distinguished from the protection for the goal to exercise the right to parenthood “in a particular way” (para. 11), and that “these situations continue to raise the question whether when a certain course of action is available, as a scientific and technological matter, would this mean that there is also a right to make use of it, and that the way the right is exercises cannot be restricted.” (Para. 32.)

3. In the case before us, the Petitioners wish to bring a common child into the world, in a manner where the child will be born of the Second Petitioner’s uterus and will carry the genetic code of the First Petitioner. According to the Petitioners, the Respondents have not indicated there was a moral flaw, or any other consideration that justifies preventing them from exercising their right to parenthood in this way. Although their plight is touching, my opinion was that the Petition must be dismissed.
4. My colleagues have demonstrated at length, and I shall not repeat, that under the system of statutes existing currently, what the Petitioners wish to do is impermissible and may even lead to a criminal sanction, including for the treating physician.
5. My colleague Justice Hayut in her humane and sensitive judgment wishes to find remedy for the Petitioners and their desires through the doctrine of “reading in.” In her view, this way allows authorizing the exceptions committee already exists under the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law) to approve eggs donation when the committee is satisfied that under the circumstances there are exceptional and special reasons that justify doing so. This language appeared in the Bill, but was removed as a result of Rabbi Halperin’s suggestion to leave this to the court because “the court permits things that the law prohibits.” My colleague points out that these things by Rabbi Halperin have no foundation. Indeed, as opposed to Rabbi Halperin’s suggestion, the courts do not do as they see fit with statutes and law, and they do not permit what the statute has prohibited. The way of courts is the way of interpretation, and when necessary – and when the court sees it to be justified – it takes the exceptional step of judicial intervention. Still, in my opinion, even were we to expand the powers of the exceptions committee, as my colleague suggests, there was no case before us that was necessarily suitable to apply the exception to the principles established in the Eggs Donation Law. On this point, I join the words of my colleague Justice Rubinstein in paras. 16-23 of his judgment. The arrangements in terms of eggs donation, which were described in detail, emphasize the physiological connection between the mother and the fetus. In this way, section 42(a) of the Eggs Donation Law, mandates that a child born of an egg donation would be the child of the recipient for all intents and purposes. Without devaluing the importance of the genetic connection, I believe this is an infringement upon a particular way to realize the right to parenthood, and thus its force is diminished in my eyes. Accepting the Petition may shift the weight to the genetic relationship between the child and the recipient, and thus impact the definitions of parenthood resulting from an eggs donation, as well. There is no moral flaw to the Petitioners request, but accepting it may implicate other issues and destabilize the balances established in the legislation of reproduction and birth. It should also be noted that the restrictions set in the Eggs Donation Law are not concerned with the sexual preference of the recipient or the donor but with resolving the recipient woman’s reproductive difficulties. As a result there is no prohibition against the Second Petitioner donating eggs to the First Petitioner. Additionally, that the legislation regulating egg donation is actually recent and that during the hearing before the extended panel held on April 28, 2013 the Respondents expressed their willingness to examine the need to amend it must also be factored in.

5.               The circumstances described above, along with the possibility open to the Petitioners to realize their wished outside of Israel leads to a conclusion that there is no justification, at this time, to intervene in primary legislation. In this case, taking the extraordinary step of reading into the law amounts, almost, to instructing the exceptions committee to stray from the law in the Petitioners’ case, under circumstances that have no justification for doing so. Another difficulty in taking this step is that expanding the powers of the exceptions committee, as proposed by me colleague, may have wide consequences outside of the individual case of the Petitioners and couples like them. This is, in my view, a substantive and significant change to the law, and I doubt whether it is proper to make in the way of “reading in.”

6.               Moreover, even were to intervene in the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756- 1996 (hereinafter: the Surrogacy Law,) and find that the term “intended parents” in this law includes not only couples who are a man and a woman but also a woman and a woman (and I am inclined to find as such; see also Memorandum regarding the Agreements to Carry Embryo Law (Approval of an Agreement and the Status of the Child) (Amendment – definition of Intended Parents and Executing an Agreement out of Israel), 5774-2014), this would not benefit the Petitioners. The Surrogacy Law reflects a model where the relationship between the surrogate and the child is severed upon birth, whereas the Petitioners wish to realize a different type of parenthood, where the woman carrying the pregnancy, along with the genetic mother, will together serve as mothers to the child. The Surrogacy Law is not the appropriate avenue for the Petitioners’ matter.

7.               My colleague, Justice Arbel emphasized in her sensitive opinion the First Petitioner’s desire for a child of her own. As to the legal route taken by Justice Arbel, I join the words of Justice Rubinstein in paragraphs 24-26 of his opinion.

8.               In conclusion: with all the empathy to the Petitioners’ desire to bring a child into the world in the particular way they suggest, including performing the entire procedure in Israel, I find it impossible to accept their petition. They are able, however, to take the route to which the Ministry of Health was willing to agree.

                                                                                                Deputy President

Justice S. Joubran:

1. The issue before us is not easy to decide. On one hand it touches the heart of human existence – the desire to be a parent; on the other hand it touches the heart of society’s existence – regulating its conduct through the law. The Amended Petition aims to challenge different provisions in two statutes, which according to the Petitioners, limit their ability to realize their will to be genetic and biological co parents by using artificial reproductive technologies. The first statute is the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law). The other statute is the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law). The dispute is, in short, whether it is possible under the circumstances of the case to allow the Petitioners to have their wish and this despite the limitations of the law.
2. I join the judgment of my colleague Justice Rubinstein, according to which we cannot permit the Petitioners’ request. Like my colleague, I too believe that there is currently no lawful avenue to fulfill their hearts’ desires, and I shall add but several short comments.
3. First as to the Surrogacy Law. I accept the position that the case before us does not fall under this law. The Second Petitioner – the “surrogate” mother – wishes to carry the embryo in her uterus and give birth to it and is intended additionally to be the co parent of the child. In order for the law to apply to the Petitioner, a central element of the Surrogacy Law must exist. This is the element of post birth severance. The current outline of the Surrogacy Law requires as a general rule, aside from exceptional cases that are detailed in section 13 of the law, severance between the carrying mother and the child and the intended parents after birth. It seems that the existing Surrogacy Law does not regulate situations where the mother who carries a fetus in her uterus and gives birth to it would also be the child’s mother, and thus the law does not exist in the case before us. This is true at least under the Israeli Surrogacy Law. It appears there are possible other outlines for surrogacy different than that in the law in its current version. The definition of surrogacy depends on the law and may take many different forms (see primarily paras. 32-33 of my colleague Justice Rubinstein’s judgment.) So, for example, there is altruistic surrogacy and there is contractual commercial surrogacy. However, as said, the current state of the law in our country indeed does not permit under any interpretive reading what the Petitioners ask.
4. Now for the Eggs Donation Law. In the case before us, the recipient who receives the eggs is, as far as we know, a healthy woman. The difficulty in applying the law to her is that the Eggs Donation Law requires that the recipient have a medical condition that requires an eggs donation from another woman (section 11 of the Eggs Donation Law,) and thus this basic condition is not met in the case at hand.
5. Although section 18 of the Eggs Donation Law authorizes an exceptions committee to approve an eggs donation procedure in certain exceptional case, but these are detailed in an exhaustive list in section 20(a) of the law and the case before us does not fall within the list. My colleague Justice Hayut proposed to use the reading in doctrine in order to read into the Eggs Donation Law a general catch all section, in addition to the list of exceptional cases detailed in the law, which authorizes the exceptions committee to approve an eggs donation “if it is satisfied that under the circumstances there are special and exceptional reasons which justify doing so” and thus permit what is requested by the Petitioners (paras. 35-38 of her judgment.) My position is identical to that of my colleague Justice Rubinstein, that this reading is impossible. The language of the Eggs Donation Bill did include such a catch all section that granted the exceptions committee the power to authorize an eggs donation “if [the committee] was satisfied that under the circumstances there are exceptional and special reasons which justify doing so” (section 21(e) of the Eggs Donation Bill, 5767-2007 Government Bills 289, 292,) and the explanatory notes clarify that the exceptional reasons are those which “were impossible to have anticipated, and this without requiring an amendment to the law” (para. 11 of my colleague Justice Rubinstein’s judgment.) However, the Petitioners’ request was anticipated and known to the professional bodies as well as the sub- committee of the Committee for Labor, Welfare and Health. This particularly in light of FA (Dist. Tel Aviv) 60320/07 T.Z. v. The Attorney General, State Attorney – District of Tel Aviv (March 4, 2012) (hereinafter: the T.Z. case) where a similar matter of a female couple interested in biological genetic co-parenting, but where the recipient woman had a medical need for the eggs donation, was decided. And yet, at the end of the day the Legislature decided not to include in the Eggs Donation Law a general catch all section or a specific exception that permitted a case such as the one before us. Under these circumstances, I doubt whether it is possible for us to read a reading that is inconsistent with the legislative intent. Therefore, it seems this law, too, does not apply to the circumstances of the case before us.
6. Beyond the necessary scope, the question whether the Eggs Donation Law is at all relevant to the case before us is raised. Indeed, the Eggs Donation Law was designed to assist women who are unable to realize their parenthood in means other than an eggs donation, but in my view – and in this regard my opinion converges with the opinion of my collogue Justice Arbel – this law is not relevant to our matter, both in light of its said purpose and the clarity of its sections which explicitly exclude cases where the woman is able to realize her parenthood even without the eggs donation, and in light of the fact that in effect this is not a “donation” in our case, as my colleague Justice Arbel analyzed in a deep and persuasive manner. I accept the conclusion that the meaning of “donation” is giving to another without receiving any compensation and in our case the “donor” receives the right to be a co mother to the child. In my opinion, this is the reasonable interpretation of this term. Therefore, and in light of my colleague Justice Arbel’s additional reasons, I believe that the Eggs Donation Law is irrelevant to our matter.
7. My colleague Justice Arbel thus turned to the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: The IVF Regulations) in order to locate a solution to the problem and her position is that these Regulations are relevant to the case at hand, as they were in the case of T.Z.. However, my position is as the position of my colleague Justice Rubinstein. These two cases are distinguishable in the fundamental element of the egg recipient’s medical need. In the case before us there is no such need because the woman seeking to receive the eggs is a healthy woman and thus the T.Z. case, which considered a recipient with a medical need, cannot be analogized. It seems that the guidelines by the Attorney General from November 30, 2009 regarding eggs donation between female partners are irrelevant as well because these guidelines also relied on a case where the receiving partner demonstrated a medical need for a donation from her partner. And in any event, the Eggs Donation Law was enacted after this and regulated the issue in primary legislation.
8. As to the application of the IVF Regulations to the case at hand, I believe that the procedure requested by the Petitioners lacks any anchor in these Regulations. The IVF Regulations establish, among others, the exclusivity of the purposes for egg extraction as in vitro fertilization of the egg and its consequent implantation (regulation 3,) but they do not address a procedure such as the one sought in this Petition in any way. The reasonable interpretation of these Regulations leads to the conclusion that there were designed to regulate in vitro fertilization of a woman’s egg in order to implant it in her own body rather than the body of another, whether the latter woman is her partner or a stranger. And in any event, as my colleague Justice Arbel emphasizes in section 19 of her opinion, the procedure of eggs donation can currently be done only according to the arrangements of the Eggs Donation Law. Section 4 of the Eggs Donation Law explicitly limits the activity of eggs extraction and implantation to follow only the provisions of this law, unless in cases of surrogacy.
9. We learn that the procedure where a woman wishes to give her egg to her (healthy) partner in order for it to be implanted in the partner who would give birth to a mutual genetic, biological child is not regulated in Israeli legislation. But had the Eggs Donation Law not include a provision mandates the treatment of eggs to conform solely to this law (section 4 of the Eggs Donation Law,) it seems the Petitioners’ request would have been permissible. However, the explicit prohibition to follow a different path than that set out in the Eggs Donation Law limits the steps of the Petitioners and does not afford them what they request (see and compare HCJ 2458/01, New Family v. The Committee for Approving Agreements for Carrying Embryo, IsrSC 57(1) 419, 445 (2002), in a parallel context of exclusivity of arrangements in the Surrogacy Law.) Therefore, in the case before us I believe that despite our willingness to do so, we cannot assist the Petitioners.
10. In this context, a central matter that came up in my colleagues positions was the legislative intent while enacting the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law) and the assumption about courts’ intervention in legislation (see the discussion in this regard in my colleague Justice Hayut’s judgment in paras. 21-22, 38 and in my colleague Justice Rubinstein’s judgment in paras. 11-14.) So, for instance, Rabbi Dr. Halperin said that “the court permits things that are prohibited… when there is a real need it finds the way to do so even in violation of express statute” and later “this does not need to be written. The court does this anyway even without a catch all section.” I have but to join the words of my colleagues Justice Hayut and Justice Rubinstein on this issue. The assumption that the court would intervene in legislation even if it were against the law is fundamentally mistaken and undermines the public’s trust in the court system. As emphasized by my colleague Justice Rubinstein, the court sees it fit to intervene in legislation only in extreme cases and it does so with great care. These things are of even more force where the Legislature clarified his position and where the question of the statute’s interpretation does not come up, as in the case before us.
11. Similarly to the position of my colleague Justice Rubinstein, I, too, believe that the removal of the requirement for the recipient’s medical need as set in section 11 of the Eggs Donation Law must be considered in order to extend the circle of men and women eligible for an eggs donation. Similarly certain aspects or the Surrogacy Law should also be revisited and current gaps in the statutory regime – such as the existence of a procedure of partner assisted reproduction, or reciprocal IVF, which permits eggs donation for healthy women as well, of course with inherent and imminent mechanisms of control and supervision – should be regulated in legislation.
12. The right to parenthood – as discussed at length in paragraphs 2-3 of my colleague Deputy President M. Naor’s judgment – is an important and fundamental right in our country, a basic constitutional right that stands to each man and woman by virtue of their humanity. However, I agree with the position that the right to parenthood is not the right to parenthood exercised in a particular way (see HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 11 of Justice Barak-Erez’s judgment (February 5, 2013.)) In the case before us, the Petitioners have several options to become parents, even if not all of them make the requested genetic biological co-parenting model possible. Specifically, they have the option, to which the State agreed, to perform the requested procedure abroad and receive recognition of the genetic biological co-parenting in Israel. We must hope that this option will be only temporary for such cases until the Legislature permits performing the procedure in our own country.

                                                                                                Justice

Justice H. Melcer:

1. At the time it was decided – by a majority of four Justices against three – to deny this petition. I was among the minority. The decision was made public with no reasoning so that the Petitioners may calculate their steps according to the outcome and explore whether they are willing to accept the partial solution proposed to them by the Respondents. We took this route in light of the constraints of “the biological clock” which weighed heavy on the Petitioner, and thus we allowed the Petitioners to make an informed decision in their matter as early as possible.

It is time now for giving reasons, and these took shape so that first the opinions of my colleagues in the minority, Justice E. Hayut and Justice (Ret.) E. Arbel were written and the opinions of the majority Justices, headed by the opinion of my colleague Justice E. Rubinstein, then followed. As a result before me is all the comprehensive and studious material and I have but to clarify why I was of the view that the Petition must not be rejected and how it should be upheld. I shall turn to this immediately, but I will open by briefly reviewing the Petition and focusing on the issues in agreement and those in dispute. 

2. The Petitioners are partners. They wish to bring a child into the world in the following way: an egg taken from the body of the First Petitioner would be fertilized and then implanted in the body of the Second Petitioner. Seemingly, under the statutory situation in our country, the said method is not permitted to be executed in Israel, in light of the different provisions in the Agreements for Carrying Embryo Law (Approval of an Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and in the Eggs Donation Law,5770-2010 (hereinafter: The Eggs Law.) In order for this to be permitted, the Petitioners have therefore raised different arguments on the interpretive and constitutional levels to challenge the restricting provisions. An order nisi was granted in the Petition and it was considered by an extended panel.
3. My colleague, Justice E. Hayut, described well (and thus I will not repeat): The various legal obstacles in the statutory network that the Petitioners face in realizing their desire to parenthood and the constitutional rights on which they rely in their arguments. Finally, my colleague analyzed the current restrictions in the mentioned statutes against the “Limitations Clause”. In a sharp and concise opinion she reached the conclusion that the arrangement set in the Eggs Donation Law, which restricts extraction, fertilization and implantation of the fertilized eggs and prohibits, under criminal prohibition, the performance of these procedures in the circumstances where the Petitioners find themselves, violates the Petitioners’ constitutional rights to autonomy, to family life and to parenthood. Therefore she found that the limitations in the Eggs Law in this sense do not pass the requirements of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty.

I join all these finding, as it was not said that there is an interpretive avenue that would grant the Petitioners’ wishes without judicial intervention in existing legislation (and I believe that there is such a path.) I additionally share my colleague’s conclusion and the views of the remaining members of the panel that judicial intervention in the Surrogacy Law is not the proper path to examine the arguments of the Petitioners and to find remedy to their plight.

4. Therefore it appears that the split in opinions between the majority and the minority is on the question whether the restrictions in the Eggs Law which bar the Petitioners from realizing their desires meet the requirements of the Limitations Clause. Together with this difference in opinions, within the minority justices, there is an agreement regarding the outcome (that the Petition should have been accepted), but we do not agree on the method of resolution and as to the legal basis for it.

It is fitting here to note further that even the Respondents, who were also aware of the Petitioners’ distress, proposed during the hearings in the Petition a certain partial solution for the Petitioners – an arrangement that the majority saw fit to accept as satisfactory under the circumstances, and not go beyond.

In the following paragraphs I will attempt to concisely demonstrate why the majority’s position is unsatisfactory, and why the minority position, with its differing aspects, is preferable to me.

5.  In analyzing the legal problem brought to us two insights should, at least, guide us, in my view:
   
   1. Technology generally precedes the law. In these cases where the Legislature and the courts are called upon to pour the essence of existing, good, and established fundamental principles into new legal vessels (as if were they wine which gets better with age, which only needs a more modern container. Compare: Stephen Breyer, Active Liberty 64 (2009)). And see my opinion in CA 9183/09, The Football Association Premier League Limited v. John Doe, (May 13, 2012.)
   2. Interpretation is the preferable method to resolve issues which overlap with constitutional questions and this before we reach the last resort of striking down legislation. See: judgments by President A. Barak and then Justices M. Cheshin and D. Beinisch in HCJ 9098/01, Genis v. The Ministry of Construction and Housing, IsrSC 59(4), 241 (2004); HCJ 3809/08, The Association of Civil Rights in Israel v. The Israel Police (May 28, 2012); my judgment in LCA 7204/06, Israela Erlich v. Yehoshua Bertel at para. 40 (August 22, 2012.) Review also comparative law – the judgment of the United States Supreme Court, by Justice Roberts (in majority) in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2593-94 (2012)).

Considering these insights and the distress of the Petitioners’ and others like them, the Respondents notified us in an updated notice that on July 21, 2013 the Ministry of Health published a protocol for the “taking  Sperm, Eggs or Fertilized Eggs out of Israel.” Following the protocol a decision was also made by the exceptions committee, which operates under the Eggs Law. The committee approved the taking of eggs out of Israel in order for them to be implanted abroad under certain circumstances. Such approval is permissible under section 22(d) of the Eggs Law. The protocol and the decision by the exceptions committee both mean that it is now permitted to perform the procedure of extracting eggs from the First Petitioner in Israel and later their fertilization, with their implantation in the Second Petitioners’ bodies to be done out of Israel.

The majority Justices are willing to consider this, under the circumstances, a satisfactory solution to this problem. I, with all due respect, think differently for two reasons:

1. Section 22(d) of the Eggs Law stipulates as follows:

“The exceptions committee may approve the taking out of eggs extracted in Israel from a patient’s body for the purposes of their implantation out of Israel, if it satisfied that the eggs were intended to be implanted in her body, and that there is justification to approve the eggs’ implantation out of Israel.” (My emphasis – H.M.)

Therefore, it seems, the requirement that the exceptions committee be satisfied that the eggs be intended to be implanted in the patient’s body, in its plain language, is not met here, and thus referring the matter abroad works primarily to “distance and marginalize”. What is more – moving the solution abroad is more burdensome.

2. Constitutionally, it is neither appropriate nor proportionate to send an Israeli citizen abroad to exercise her constitutional rights. In this context, the Petitioner’s cry (who is also an officer in the IDF) that called upon us from the bottom of her heart not to accept the partial solution proposed to the Petitioners by the Respondents, still rings in my ears, particularly because in my view she is not only correct on an emotional level, but also on a legal level.

What is, then, the right solution? I shall elaborate on this directly below.

6. It appears to me that granting the Petitioners’ wishes could have come to its resolution within the authority of the exceptions committee under section 22(a)(2) of the Eggs Law, which reads as follows:

“The Exceptions Committee may approve the extraction of eggs for implantation, or implantation of eggs when the donor designates in advance the eggs extracted from her body to a particular recipient, when it is satisfied that the following conditions are met, as appropriate to each case:

…(2) In the case of the donor who designates in advance the eggs extracted from her body to a particular recipient who is not her family member – there are religious or social reasons which justify such an egg donation.”

This sub section has none of the limitations of the type included is section 22(d) of the above Eggs Law. Moreover, the interpretation taken by the majority is much less sound. Furthermore, as demonstrated by my colleague Justice E. Rubinstein in paragraph 12 of his opinion – during the discussions of the Knesset’s sub-committee of Labor, Welfare and Health, which considered the Eggs law’s bill before it was prepared for its second and third reading the sub committee’s chair, MK Professor Ariyeh Eldad commented that this section was a good opening for same sex female couples.

In this way it would have been possible therefore to grant the requested by the Petitioners and accept, in this sense, their petition (there still would have been the issue of the Child’s status under section 42 of the Eggs Law, however this issue could be resolved by finding statutory solutions (see and compare with the situation in Britain – section 42-46 of the Human Fertilization and Embryology Act 2008,) or judicial ones (see the majority opinion in HCJ 566/11, Doron Mamat-Magad v. The Ministry of Interior (January 28, 2014.) Additionally, this issue was not included by the Petitioners in their Petition.)

However, since my colleagues do not accept, to my regret, for some reasons that were not expressed, the interpretive approach based on section 22(a)(2) of the Eggs Law in order to resolve the issue – I am also willing to walk down one of the paths proposed by my colleagues to the minority and in this sense will limit myself only to several short comments.

7. As to the proposal raised by my colleague Justice E. Hayut (as to the addition of a catch all section for an exception to the Eggs Law) – this solution, in principle, is acceptable to me as I support the approach that legislation should include authorities that enable solutions in “a special particular case,” or to instruct doing so by way of judicial interpretation. See HCJ 2390/10, Ala Halihal v. The Minister of Interior (May 23, 2010) para. 10 of my judgment; APA 9890/09, Nava v. The Ministry of Interior (July 11, 2013), para. 16(d) of my judgment; LAA 7272/10, Jane Doe v. John Doe (January 7, 2014), section 6 of my judgment.)

Furthermore – differently. The read in remedy also seems fitting to me under the circumstances (compare to my opinion in APA 343/09, Jerusalem Open House for Pride and Tolerance v. The Jerusalem Municipality, September 14, 2010, there in para. 5.)

On the apparent difficulty that views the “catch all exception” section to have been initially proposed in the Knesset, but then rejected – indeed this is possible to overcome in light of the mistaken reasoning which led (as my colleagues’ opinions clarify) to the removal of that section from the agenda.

8.  As for the alternative option, suggested by my colleague Justice (Ret.) E. Arbel, insofar that it is original and creative, which indeed it is – it is also acceptable to me. The reasons for this is that the People’s Health Regulations (In Vitro Fertilization), 5747-1987 were left standing despite the Eggs Law, and thus it is possible that they indeed are supposed to regulate different cases than those covered by the Eggs Law. This solution is not free of flaws either (see regulation 8(b)(1) of these Regulations) however its advantage lies in the possibility that it provides the tools to overcome the provision of section 42 of the Eggs Law.
9. In conclusion – though the path to resolution which we – my colleagues and I – support is different in its reasoning, we all believe that the Petitioners’ Petition must be accepted. This also validates my general approach that when the consideration of basic legal issues – from different perspectives of the relevant statutes – leads, in every path, to a similar conclusion – this is a sign and indication that from a general legal philosophy the outcome is correct (see my opinion in CA 4244/12, Haaretz Newspaper Publication Ltd. v. Major General Efrayim Bracha (February 19, 2014), there in para. 35.)
10. As a result, were the minority opinions heard – the Petitioners would not have to travel beyond the sea to realize their desires.

                                                                  Justice

For all these reasons it was decided on September 1, 2013 to reject the Petition by a majority of opinions by President A. Grunis, Deputy President M. Naor, Justice E. Rubinstein, and Justice S. Joubran, against the dissenting opinions by Justices E. Arbel, E. Hayut and H. Melcer.

There is no order as to costs.

Reasons given today, September 18, 2014.

President                                 Deputy President                                Justice (Ret.)

Justice                                                 Justice                                                 Justice

                                                                        Justice

In the Supreme Court

Sitting As the High Court of Justice                                             HCJ 8638/03

JUDGEMENT

Justice A. Procaccia

1.         This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

2.         The petition concerns the petitioner's motion to vacate the decisions of the Great Rabbinical Court in Jerusalem – the first respondent – of May 4 and June 9, 2003, which dismissed the petitioner's appeal against the judgment of the Regional Rabbinical Court of Jerusalem – the second respondent – of May 27, 2002, and its decisions of March 5, 2001 and June 18, 2002.

Background and Proceedings

3.         The petitioner and the third respondent (hereinafter: “the respondent") were married in 1980 and have three children. Their relationship became unstable and they motioned the Regional Rabbinical Court of Jerusalem in 1992 in order to arrange for divorce proceedings. As part of that proceeding, the couple requested the Regional Rabbinical Court to approve a divorce agreement that they had made. In the agreement, the couple agreed on the act of divorce, the custody and support of the children, and various financial and property arrangements, as follows: the three children would be in the custody of the wife until reaching the age of 18 (clause 3); the husband would pay child support in the sum of NIS 1,000 per month for all three of the children until they reach the age of 18; the sum of the child support as set in the agreement would not be increased, and in exchange, the husband would transfer his share of the couple’s apartment to the wife, including his share of the apartment’s contents and the gold objects, ownership of which would all be transferred to the wife (clauses 4(a) and (b)); the husband also undertook to discharge the balance of the mortgage loan each month (clause 6(c)). The agreement also included a condition whereby the wife undertook not to sue the husband in any court for an increase in child support, either directly or indirectly, and if the husband were sued, the wife would compensate him in such a way that he would receive half of the apartment, half of its contents and half of the gold (clauses 4 and 5 the agreement). Taking out a stay of exit order inhibiting the husband's departure from the country would also be deemed a breach of the agreement and lead to the same result (clause 13). In order to secure the wife's obligation in accordance with the agreement, a cautionary note would be registered against the apartment, pursuant whereto one half of the apartment would be transferred into the husband's name if he were sued to increase child support. The relevant provisions of the agreement are as follows:

                        "4.       Child Support

                                    (e)       For the avoidance of doubt and without prejudice to the generality of the aforegoing, child support under the agreement shall unequivocally cover all the children's needs without exception… until the children reach the age of 18.

                                    The mother undertakes not to sue the father in any legal instance for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest), and if the husband is sued, the wife shall compensate him and he shall receive one half of the apartment, one half of its contents and one half of the gold. The obligation is in perpetuity.

                                    …

                        5.         Indemnification

                                    (a)       The mother undertakes and takes it upon herself not to sue the father in any legal instance whatsoever for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest).

                                    (b)       If, contrary to the abovementioned, the father is sued for an increase in child support and/or satisfaction of any of the children's needs, whether the lawsuit is brought by the mother and/or the mother in the name of the children or by an entity, authority, institution and/or anyone who now and/or in future has an interest, beyond what the father has undertaken in this agreement, then the mother undertakes to transfer one half of the apartment into the father's name and one half of its contents and one half of the gold. The obligation is in perpetuity.

                                    (c)       To secure the wife's obligations in this agreement, a cautionary note shall be registered, pursuant whereto one half of the apartment shall be transferred into the husband's name if the husband is sued to increase child support…"

            The agreement also includes a provision with regard to the exclusivity of the Rabbinical Court's jurisdiction in the event of a dispute between them after the divorce, in the following terms:

                        "9.       Cancellation of Mutual Claims And/or Complaints

                        …

                        10.       …

                        11.       If after the divorce, differences arise between the couple, they undertake to file the lawsuit solely in the Rabbinical Courts.

                        12.       …

                        13.       The wife undertakes not to take out a stay of exit order preventing the husband's departure from the country, and taking out such an order shall constitute a breach of this agreement, and the husband shall be entitled to obtain one half of the value of the apartment, of the contents and of the gold.

                        …"

            The divorce agreement was given the effect of judgement by the Rabbinical Court, and on May 26, 1992 the couple was divorced.

4.         About five years later, in June 1997, the couple's children (through the petitioner) filed a child support motion against the respondent in the Jerusalem Family Court (FC 10330/97). The motion was mainly intended to increase the child support upon which the couple had agreed in the Rabbinical Court to NIS 6,700. This was, inter alia, due to the petitioner's claim that the respondent was not paying the mortgage payments as undertaken by him in the divorce agreement. In the answer of defense, the respondent defended the claim on its merits. According to him, he was living off a general disability pension of NIS 1,200 per month, from which he was paying child support. The Family Court (per Judge N. Mimon) held in its judgement that the children's monthly support should be increased to a total of NIS 2,000 for both minor children together, and the sum of NIS 500 for the other child until his enlistment to the IDF; with respect to the minors, it was further held that from the time they reached the age of 18 until they completed their service in the IDF, the child support for them would be reduced by NIS 700, and upon completion of their military service the liability for their support will be terminated; if they do not enlist, the liability for them would be terminated when they reach the age of 18. With regard to the other child, upon his enlistment to the IDF and until his discharge, support of NIS 300 would be payable for him.

            On September 20, 1997, about three months after the motion to increase child support was filed in the civil court, the respondent filed a motion in the Regional Rabbinical Court of Jerusalem "for a declaratory judgement and specific performance" of the divorce agreement. In the motion, he pleaded that the petitioner had breached the divorce agreement several times and in several different aspects, as follows:

                        "8        (a)       The defendant (the petitioner – AP) filed a motion to increase child support in the name of the minors before this Honorable Court on February 28, 1993 – a motion that was dismissed by the Court

                                    (b)       The defendant filed another motion on November 6, 1994 and at the end of that motion the wife again applied for an increase in child support.

                                    (c)       The defendant motioned for a stay of exit order that was cancelled on July 21, 1997.

                        9.         (a)       The defendant went further, and when she saw that her motions were being dismissed by the Honorable Rabbinical Court, she  filed a motion to increase the child support in the name of the minors in FC 10330/97 in the Jerusalem Family Court.…

                                    (b)       As part of the motion in Family Court, the wife applied for a stay of exit order that the Court approved.

                                    (c)       Moreover, at about the time she filed the motion, the defendant filed a motion for a stay of exit order on July 22, 1997, after the previous order inhibiting departure from the country had been set aside, and the Chief Execution Officer approved it".

            He pleaded that the wife had therefore breached clauses 5 and 13 of the divorce agreement. On the basis thereof, the respondent sued the wife for one half of the apartment and its contents and one half of the gold.

5.         After filing his motion to the Regional Rabbinical Court, the respondent traveled abroad for more than two years and abandoned his motion. After returning to Israel, he renewed the motion in the Rabbinical Court. The petitioner pleaded in her defense, that the subject of the motion was " breach of a divorce agreement" and according to the law laid down in HCJ 6103/93 Sima Levy v. The Great Rabbinical Court in Jerusalem, PD 48(4) 591 (hereinafter: "Sima Levy Case") the Rabbinical Court did not have jurisdiction to adjudicate the motion. As for the merits of the motion, the petitioner argued that the respondent had come to court with unclean hands because he had breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The Regional Rabbinical Court, in its decision of February 25, 2001, referred the issue of jurisdiction raised by the petitioner to the Rabbinical Courts' then legal counsel on rabbinical jurisdiction, Adv. E. Roth, for his opinion.

            During the same month (February 2001) the petitioner filed a lawsuit in the Jerusalem Family Court against the respondent for "declaratory judgement as to the revocation of the indemnity provision in the divorce agreement" (FC 10331/97). This was based, inter alia, on the argument that the respondent breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The petitioner further requested that the Court declare the revocation of clauses 11 and 13 of the divorce agreement, pleading that they were "contrary to public policy and the law". The respondent argued in his defense that the claim should be summarily dismissed due to the proceedings conducted on the same issues in the Rabbinical Court.

            On March 4, 2001, and before the Family Court had awarded its decision on the respondent's motion for the summary dismissal of the petitioner's claim, the opinion of the legal counsel on rabbinical jurisdiction, Adv. Roth, was filed in the Rabbinical Court. In his opinion, with reference to clause 5(b) of the divorce agreement, the Rabbinical Court did not have jurisdiction to adjudicate the respondent's motion after the divorce. Nevertheless, he believed that clause 11 of the divorce agreement could be treated as an arbitration clause in accordance with the Arbitration Law, 5728-1968 (hereinafter: "the Arbitration Law"). By virtue of the rules of arbitration, the Rabbinical Court is empowered to adjudicate the suit as an arbitrator in accordance with the rules and restraints governing an arbitrator. He further added that, in his opinion, it was unnecessary for the couple to sign an arbitration deed, since clause 11 of the divorce agreement constituted an arbitration deed in all respects.

            Following the opinion of the legal counsel, Adv. Roth, the Regional Rabbinical Court decided on March 5, 2001 that it was vested with jurisdiction to adjudicate the respondent's suit "since in the Court's opinion clause 11 constitutes an arbitration deed".

            On May 14, 2002, and before the Regional Rabbinical Court's judgement had been awarded in the respondent's suit, the Family Court awarded its decision in the respondent's motion for the summary dismissal of the petitioner's suit. It reviewed the question of the Rabbinical Court's jurisdiction to try the respondent's claim, whether as a court empowered by virtue of statute or as an arbitrator, but it decided to stay the award of its decision on jurisdiction on the ground that:

                        "Mutual respect of legal instances requires that after a decision has been awarded by the Rabbinical Court holding that it has jurisdiction to adjudicate the suit that has been filed with it as an arbitrator, the award of a decision on jurisdiction should be stayed until the proceedings in respect of jurisdiction have been exhausted by the plaintiff, who will perhaps wish to act by applying on appeal to the Great Rabbinical Court or by applying to the High Court of Justice to clarify whether her position with regard to jurisdiction will be allowed, or even by motioning to vacate an arbitral judgment as provided in section 24 of the Arbitration Law…"

            On May 27, 2002, the Regional Rabbinical Court awarded its judgement in the respondent's motion. The court was divided in its opinion between the three judges, and the decision was made, in the words of the judgement, in accordance with –

                        "the third opinion, which was the decisive one of the three, since there are several doubts regarding the interpretation of the agreement, and there is a doubt as to whether it constitutes a breach according to Halachic authorities and the circumstances. Therefore, the case should be decided according to the law, and if the apartment has already been transferred into the wife's name, it is not possible to take away her ownership of the apartment because of a doubt, and of course the wife is liable to comply with all of the obligations in the divorce agreement.... If the apartment has not yet been transferred, it is not possible to order the plaintiff ... to transfer his share of the apartment into the wife's name ....

If the plaintiff has already signed a power of attorney and delivered it to the wife, it would appear that the wife cannot be precluded from exercising the power of attorney in order to transfer the plaintiff's share of the apartment into the wife's name…. On the other hand, if the husband still needs to sign transfer documents and the like, he should not be made to help transfer the dwelling into the wife's name in any way whatsoever….

With regards to the gold objects that the wife has received, it would also appear that she cannot be made to return them to the husband because they are in her possession and in this way her possession is valid…"

            As mentioned above, according to the Rabbinical Court's decision of March 5, 2001 it decided the respondent's suit as an arbitrator, but on June 18, 2002 it awarded another decision that was headed "Clarification", according to which:

                        "The Rabbinical Court makes it clear that it was the Rabbinical Court that approved the agreement and that there was an undertaking that all matters involved in the agreement would be tried solely by the Rabbinical Court. Therefore, since both parties undertook in the agreement, and the Rabbinical Court also approved the agreement, the Rabbinical Court consequently has jurisdiction to hear and adjudicate the matter, and the Rabbinical Court awarded the judgement by virtue of its jurisdiction, and there was no need for the Rabbinical Court to adjudicate the same as arbitrator, and although the Rabbinical Court could also adjudicate the matter as an arbitrator, the Rabbinical Court also had jurisdiction to try the matter as an adjudicating court in accordance with the aforegoing".

6.         The petitioner appealed to the Great Rabbinical Court against the Regional Rabbinical Court's judgement of May 27, 2002. Her main plea in the appeal was that the Regional Rabbinical Court did not have jurisdiction to adjudicate the respondent's suit, either as a competent court by virtue of the law or as an arbitrator, and its judgement is therefore void. As to the actual merits, she argued that the Regional Rabbinical Court had made an error "of judgement" and "disregarded facts" by not giving proper weight to the fact that it was the respondent who was in breach of the divorce agreement by not making the mortgage payments as he had undertaken in the divorce agreement. Consequently, on that ground too, on the merits of the case, the Regional Rabbinical Court's judgement should be vacated. The respondent also appealed to the Great Rabbinical Court against the said judgement.

            The Great Rabbinical Court, in its decision of May 4, 2003, dismissed the petitioner's appeal with respect to jurisdiction and held that the interpretation of the divorce agreement indicated that it concerned the couple's agreement for "property in consideration for child support". That interpretation affects the substance of the complaint that the respondent filed to the Rabbinical Court, and it demonstrates that it is a suit to revoke the divorce agreement as opposed to a motion for the enforcement of an indemnity provision. That being the case, the Rabbinical Court had jurisdiction to adjudicate the respondent's motion by virtue of its original (primary) authority because "indemnification was not involved, but property and child support and the connection between them, and those matters of property division and child support are certainly matters of personal status that are governed by section 9 of the Rabbinical Courts Jurisdiction Law". The Rabbinical Court was also vested with original (primary) jurisdiction to adjudicate the suit in view of clause 11 of the divorce agreement, which provides that if differences arise between the petitioner and the respondent after the divorce, the two undertake to file the motion solely to the Rabbinical Courts. The Rabbinical Court mentions that at the hearing, the respondent also pleaded avoidance of the Get and the divorce because according to him the Get had been given by mistake. Consequently, on that ground too, the Rabbinical Court had original (primary) jurisdiction to adjudicate the claim. According to the Rabbinical Court, it also had jurisdiction by virtue of its "continuing" jurisdiction, because the respondent was "applying expressly for the revocation of the property arrangement as a result of a change in circumstances concerning child support". Finally, the Great Rabbinical Court held that the jurisdiction to adjudicate the respondent's suit was vested in the Regional Rabbinical Court, when "the jurisdiction is the essential jurisdiction vested in the Rabbinical Court, rather than jurisdiction by virtue of the Arbitration Law". The Great Rabbinical Court adjourned the deliberation on the appeal itself to a later date.

            On June 9, 2003 the Great Rabbinical Court awarded another decision, this time with regard to the respondent's appeal against the Regional Rabbinical Court's judgement. In its decision, the Great Rabbinical Court ordered the matter to be remitted to the Regional Rabbinical Court for it to try the argument, which had not been tried in the Regional Rabbinical Court, that the petitioner had breached the divorce agreement by suing for increased child support in the Regional Rabbinical Court in 1993.

The Petition

7.         In her petition before us, the petitioner seeks to set aside the decisions of the Great Rabbinical Court and the Regional Rabbinical Court, according to which the Rabbinical Court had jurisdiction to adjudicate the respondent's motion, both as original (primary) jurisdiction and by virtue of an arbitration clause.

            This Court issued an order nisi in the petition.

The Parties' Arguments

8.         The petitioner's essential argument in her petition herein is that the Rabbinical Court lacks jurisdiction to adjudicate the property dispute that has arisen between her and the respondent in respect of the divorce agreement that was made between them. According to her, the Rabbinical Courts are not vested with original (primary) jurisdiction to adjudicate the suit. Moreover, they do not have continuing jurisdiction to hear the respondent's suit. The respondent's motion to obtain one half of the property, which was transferred to the wife, is based on the cause of enforcing an indemnity provision in the divorce agreement. This cause is based on a plea of breach, if one occurred, after the divorce agreement was made and the judgement of the Rabbinical Court giving it force and effect was awarded, and after the couple had been duly divorced. A subsequent breach of the divorce agreement in respect of property after the parties' divorce cannot be bound in retrospect with the divorce agreement and the judgment that materialized in the past. From the divorce and onwards, motions that relate to the breach of the divorce agreement are not a part of matters of personal status. The Rabbinical Court therefore lacks jurisdiction to adjudicate them, and jurisdiction in respect of them is vested in the civil court. Moreover, it was argued that the respondent himself breached the divorce agreement by not paying the mortgage payments as he had undertaken to do in the divorce agreement. His breach of the agreement has civil-financial character, which also demonstrates that his suit after the divorce is subject to the jurisdiction of the civil, rather than religious, court. The petitioner further pleads that clause 11 of the divorce agreement does not amount to an arbitration clause and does not purport to establish an agreement for arbitration. Instead, its wording and contents merely demonstrate its determination, by agreement of the parties, to which court the couple's motions after the divorce should be filed. This agreement, per se, does not vest jurisdiction in the Rabbinical Court. In view of all of this, and based on other grounds too, upon which we shall not focus, the Rabbinical Courts' decisions on jurisdiction are void.

9.         The respondent's position in his petition is that the Rabbinical Court is vested with jurisdiction to adjudicate the suit he filed to it. In this respect, he relies on the provision of the divorce agreement, according to which the parties expressly agreed to vest the Rabbinical Court with jurisdiction to try any future dispute between them concerning the agreement. He pleads that, according to case law, a matter that can be bound from the outset with the divorce suit, such as property matters, and it was agreed in the divorce arrangement to vest jurisdiction in the Rabbinical Court in respect to them, is also within its jurisdiction after the divorce. He further asserted that the meaning of the cause of the action that he filed was the revocation of a conditional undertaking given under the agreement, as opposed to the enforcement of a contractual indemnification arrangement. That is to say that the respondent entered into a conditional undertaking to transfer property to the petitioner in consideration for the child support being set in a binding amount and not being increased, and for motions not to be brought in this matter. Since that condition had not been fulfilled, the property undertaking that he had given is void. A contractual indemnification provision is not to be treated in the same way as a conditional property undertaking, with regard to which the Rabbinical Court has continuing jurisdiction even after the divorce. Alternatively, it is argued, the Rabbinical Court has jurisdiction to entertain the respondent's suit according to the law of arbitration, by virtue of clause 11 of the divorce agreement, which constitutes an arbitration agreement, even if the word "arbitration" is not mentioned in it.

Judgment

10.       This Court's intervention in the decisions of religious courts is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal (sections 15(c) and (d)(4) of the Basic Law: the Judiciary; HCJ 323/81 Vilozni v. The Great Rabbinical Court, PD 36(2) 733; HCJ 1689/90 E'asi v. The Sharia Court, PD 45(5) 148, 154-155; HCJ 1842/92 Blaugrund v. The Great Rabbinical Court PD 46(3) 423, 438; HCJ 5182/93 Levy v. The Rehovot Regional Court PD 48(3) 1, 6-8).

            The subject matter of the petition herein justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it for the reasons explained below.

The Question

11.       The couple signed a divorce agreement containing property and child support arrangements. In the scope of the property arrangements, they agreed to limit and not increase child support. They added a condition according to which if motions to increase child support were filed by the wife, directly or indirectly, or if she took out stay of exit orders, these actions would have certain property consequences. The parties further agreed that if differences arose between the couple after the divorce, they undertook to conduct the claims solely in the Rabbinical Courts. Indeed, after the divorce, disputes did arise between the parties following motions to increase child support that were brought against the husband, and stay of exit orders were taken out. Further thereto, the husband filed a suit in the Rabbinical Court claiming a breach of the divorce agreement by the wife and requesting to receive one half of the property because of that breach. In those circumstances, after the couple's divorce, is the Rabbinical Court vested with jurisdiction to adjudicate the husband's property suit, which is based on an alleged breach of the divorce agreement by the wife? Or is the exclusive jurisdiction to deliberate and adjudicate that claim vested in the civil court?

            The subsidiary questions that are to be decided can be divided into two:

            First is whether the Rabbinical Court has jurisdiction by virtue of the law to adjudicate a property claim based on a breach of the divorce agreement after the divorce has been completed, by virtue of one of the following:

            (a)       Original-primary jurisdiction by virtue of statute to hear and adjudicate issues pertaining to the divorce;

            (b)       the Court's "ancillary" jurisdiction to adjudicate matters connected with the divorce after its completion, as interpreted and expanded by case law.

            The Second is whether the Rabbinical Court has jurisdiction to decide a property claim based on the breach of a divorce agreement by virtue of the parties' agreement, and what legal significance is to be given to this agreement.

            We shall consider these questions.

The Starting Point

12.       The starting point underlying the analysis of the Rabbinical Court's scope of jurisdiction is based on several fundamental assumptions:

            First, the Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom. As such a state judicial instance, the bounds of the Rabbinical Court's powers are defined and fashioned in accordance with the state law.

            Second, every state judicial instance, including the religious court, has merely those jurisdictions that the state law has granted it; it is the statute that established it, and it is the one that defined its powers and assigned them to it. In doing so, the statute assumed, as part of the basic concept of democratic government, that in the granting of judicial powers also lay judicial limitations. Anything that has not been granted to the judicial instance is outside and beyond its power, and it must not surpass its acknowledged boundaries and into areas that have not been entrusted to it and go beyond its responsibility. That is the principle of legality that characterises the structure of democratic government, upon which rests the perception of the status of the government authorities, including the courts. It is on the basis of this principle that the realm of jurisdiction that is vested in the state judicial instances, of which the Rabbinical Courts form part, extends.

            Third, the definition of the judicial powers of the various different courts, including the Rabbinical Courts, derives from statute, and statute is subject to interpretation by case law. The case law's interpretation of the extent of the powers vested in the judicial instance is intertwined with the provisions of the statute as the primary source of the power vested in the judicial instance, and it is intended to serve its purpose. In reviewing the boundaries of the religious court's power we shall therefore assume that the religious court is vested with the powers that have been granted to it by the statute, as they have been interpreted by case law, and it has only what the law has given it. As the Court stated (per Justice Landau) in HCJ 26/51 Menashe v. The Chairman and Members of the Rabbinical Court in Jerusalem, PD 5 714, 719:

                        "The Rabbinical Courts of our country exist in accordance with the general law, which determines their place in the state courts system, and the questions relating to the spheres of their jurisdiction should generally be resolved in accordance with the same principles as govern other courts".

            This is what distinguishes Rabbinical Courts from arbitrators, internal tribunals and voluntary tribunals, which are not established by virtue of statute but mainly by virtue of contract or regulations, and the scope of their jurisdiction is determined pursuant thereto. These entities are essentially governed by the principles of the private law that creates them and they are not part of the country's state judicial system.

            As Justice Zamir stated in HCJ 3269/95 Yosef Katz v. The Jerusalem Regional Rabbinical Court, PD 50(4) 590, 602:

                        "The Rabbinical Court is established by virtue of statute and its jurisdiction derives from the statute. Its budget comes from the State Treasury and its judges receive salaries like state employees; it sits in judgement beneath the symbol of the State and it writes its judgements on State paper; the orders that it issues speak in the name of the State and are enforced by the State. The Rabbinical Court is not a private entity but a state institution. It is therefore subject to public law and review by the High Court of Justice. Amongst other things, the Rabbinical Court is obliged to respect and observe the fundamental principle that governs every government agency, namely the principle of legality. According to that principle, the Rabbinical Court has nothing other than the power granted to it in accordance with the statute" (emphasis added).

            In this respect Justice Cheshin stated in the Sima Levy Case (ibid, p. 616):

                        "The legal system takes a grave view of a judicial entity acting beyond the bounds set for it by the law; hence, the case law holds that a lack of subject matter jurisdiction plea stands out and the court will consider it at any stage of the litigation, even where a party first raises it on appeal".

            (See also HCJ 816/98 Eminoff v. Eltalaff, PD 52(2) 769, 796-7; HCJ 512/81 The Hebrew University Archaeology Institute v. The Minister of Education, PD 35(4) 533, 543-4; HCJ 30/76, MF 150/76 Siho v. The Karaite Jewish Community Religious Court, PD 31(1) 15, 17-18.)

            The state judicial system, and its various different courts, both civil and religious, is built on common norms that govern all its agencies. Thus, for example, it has been held in the past that the fundamental principles that govern civil judges also apply to rabbinical judges. The rabbinical judge, like the civil judge, is part of the judicial authority and in his position he is subject to the same basic rules as obligate any judicial officer:

                        "He is not an arbitrator between parties who voluntarily apply to him. He operates by virtue of state law and his authority extends over the whole public with all its diversity, opinions and views. Like a civil judge, a rabbinical judge enjoys independence in matters of judgement. The laws concerning conditions of service, immunity, appointment, discipline and the like that govern the rabbinical judge are very similar to those that govern a civil judge. Like the civil judge, so too the rabbinical judge must, by his action, ensure the public's trust in his judgement. The public is not only the religious public. The rabbinical judge deals with the whole people and he must by his conduct ensure the trust of the whole people, both secular and religious". (Per Justice Barak in HCJ 732/84 MK Tzaban v. The Minister of Religious Affairs, PD 40(4) 141, para. 16.)

            In this context, case law has also drawn a clear distinction between a person's fitness as a rabbinical judge of the Israeli Rabbinical Court and his fitness as a community rabbi. On enactment of the Dayanim (rabbinical judges) Law a clear separation was created between judicial and rabbinic functions, and a mix between the two in judicial work is no longer consistent with the concept of state law. In the words of the Minister of Religious Affairs Warhaftig, when he presented the Dayanim Law draft on first reading in the Knesset, as cited in the Tzaban Case:

                        "With the establishment of the State of Israel we adopted this course. We distinguished between those functions and separated between rabbis and rabbinical judges" (Knesset Proceedings Session 5457, 1954, p. 2182).

            As Justice Goldberg added on this subject in the Tzaban Case:

                        "The main power of the Rabbinate rests in its traditional authority over those who come 'to seek God', whilst the rabbinical judges' authority when sitting in judgement does not depend on the wishes of the litigants but is enforced in the context of the judicial system prescribed for it by the legislature. In this sphere, the rabbinical judges perform the function of 'judging the people', with its varied opinions and views".

            The religious function of the rabbinical judge as rabbi is not intertwined with the judicial function that he performs as a rabbinical judge and is separate from it. The Rabbinical Court cannot therefore rely on its religious power in order to assume jurisdiction in a matter that exceeds its powers and authorities in accordance with state law (Schiffman, Family Law in Israel, 5755, Vol. I, p. 42).

            Against this background there is difficulty with the argument that is sometimes made that the Rabbinical Court might perform a dual function: on the one hand, a state judicial function imposed upon it by virtue of state law, and on the other hand, a religious court in monetary matters by virtue of the parties' agreement. Like any public entity that performs a function in accordance with the law, so the Rabbinical Courts, which operate by virtue of statute must also discharge the responsibility owed by them by virtue of statute and decide the matters entrusted to them. As part of the state judicial system, they possess only the jurisdiction that the statute has placed in their hands. That is the essence of the principle of legality that underlies public administration and the judicial system (Katz Case, ibid, p. 607); hence, even if Jewish law and tradition permit a Rabbinical Court to adjudicate and decide disputes in a certain manner, that does not suffice to authorize it to do so because "the Rabbinical Court, as a state institution, must act within the authority vested in it by state law" (Katz Case, ibid, p. 607). To the same extent, a civil court, which is part of the judicial authority, may not assume an authority or function that does not derive from state law (Tzaban Case, ibid, p. 152).

            It is against this background that we shall examine the question of the Rabbinical Court's jurisdiction to decide the respondent's property suit against the petitioner based on a breach of the divorce agreement, and the relief deriving therefrom. A comprehensive analysis of the issue of jurisdiction in a similar context can be found in the judgement of Justice Cheshin in the Sima Levy Case and it will guide and direct us.

The Rabbinical Court's Original – Primary Jurisdiction

13.       The original primary powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built on two tiers: exclusive powers by virtue of the statute; and parallel powers of the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The exclusive powers comprise matters of marriage and divorce, as well as matters that are duly bound up in the motion for divorce, including wife and child support. Parallel jurisdiction that is vested by agreement relates to matters of personal status in accordance with article 51 of the Palestine Orders in Council and the Succession Ordinance. The relevant provisions are as follows:

                        "1.       Jurisdiction in matters of marriage and divorce

                        Matters of marriage and divorce of Jews in Israel, nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts.

                        …

                        3.         Jurisdiction in matters incidental to divorce

                        Where a suit for divorce between Jews has been filed in a rabbinical court, whether by the wife or by the husband, a rabbinical court shall have exclusive jurisdiction in any matter connected with such suit, including support for the wife and for the children of the couple.

                        …

9.         Jurisdiction by consent

In matters of personal status of Jews, as specified in article 51 of the Palestine Orders in Council, 1922 to 1947, or in the Succession Ordinance, in which a rabbinical court does not have exclusive jurisdiction under this Law, a rabbinical court shall have jurisdiction after all parties concerned have expressed their consent thereto."

The Rabbinical Court's powers – both the exclusive ones (marriage, divorce and matters bound with divorce) and the jurisdiction in accordance with the parties' agreement in matters of personal status – are original-primary powers by virtue of the statute to hear and rule on the matters that fall within the scope of those powers.

Power Ancillary to Original Jurisdiction

14.       The Case law has recognized the existence of a judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the statute and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past. Such is, for example, the jurisdiction of the civil and religious courts to vacate a judgement awarded by them that is based on an agreement between the parties, in the making of which there has been a defect. Such a material defect might lead to the revocation of the agreement and therefore also to revocation of the judgment that rests upon it, and the instance empowered to decide its revocation is the one that rendered the judgment (HCJ 124/59 Glaubhardt v. The Haifa Regional Rabbinical Court, PD 13 1490; CA 151/87 Artzi Investment Co. v. Rachmani PD 43(3) 489, 498-500). Additional expression of such ancillary jurisdiction occurs when there is a material change in the circumstances of the matter, that has occurred after the award of judgement by consent, which makes its continued performance unjust (Sima Levy Case, ibid, pp. 605-6; CA 442/83 Kam v. Kam PD 38(1) 767, 771; CA 116/82 Livnat v. Tolidano PD 39(2) 729, 732; CA 219/87 Rachmani v. Shemesh Hadar, Building Company Ltd et al. PD 43(3) 489, 498-500). The recognition of this ancillary jurisdiction is intended to bring about a proper balance between the judgment’s finality on the one hand, and the interest not to leave in effect a judgment, the enforcement of which has become extremely unjust due to a change in circumstances. Inherent jurisdiction is also vested in the judicial instance, including the Rabbinical Court, to retain jurisdiction in respect of a matter that is pending before it until the proceedings have been completed. So long as final judgement has not been awarded, jurisdiction continues until the judicial court has completed its work. Once a final, unconditional judgment has been awarded, the work is completed (Sima Levy Case, p. 607; CA 420/54 Ariel v. Leibovitz PD 9 1337; ALA 2919/01 Daniel Oshrovitz v. Yael Lipa (Fried) PD 55(5) 592; J. Zussman, The Civil Procedure (seventh edition, 5755) 550).

One of the expressions of ancillary jurisdiction relates to the existence of the Rabbinical Court's "continuing jurisdiction", the essence of which is that, under certain conditions, where the Rabbinical Court has in the past heard a particular matter, its continuing jurisdiction to hear it again will be recognized. The continuing jurisdiction also derives from the inherent power of the judicial instance. Its basic purpose is to give expression to the duty of mutual respect and the need for harmony between judicial instances where there is parallel jurisdiction between them, and in order to avoid parties running from one judicial instance to another. It has nevertheless already been explained that continuing jurisdiction is not intended to undermine or derogate from the original powers vested in the judicial instances in accordance with statute. Its purpose is essentially "to vest power to vacate or modify an earlier decision due to a change that has occurred in the circumstances upon which the first decision was based" (per Justice Cheshin in the Sima Levy Case, ibid, p. 608, 610). Such are matters of child support and custody, which by their nature are subject to material changes of circumstance, and the original judicial instance therefore has inherent jurisdiction to reconsider them when the appropriate conditions arise.

It should be made clear that no inherent power has been recognized for a civil or religious court to exercise its original authority again in order to interpret a judgement awarded by it. Hence, a Rabbinical Court that has granted a divorce does not have inherent jurisdiction to interpret the divorce agreement and the judgement that awarded it force and effect (Sima Levy Case, ibid, pp. 612-13).

These are the characteristics of the original jurisdiction that is vested in the Rabbinical Court in accordance with the statute, alongside its ancillary powers that are sparingly exercised in special circumstances by virtue of its inherent jurisdiction, in order to complete the judicial act and make it a complete and just deed.

We shall now examine the question of whether the Rabbinical Court has jurisdiction to adjudicate a dispute by virtue of the parties' agreement, where such jurisdiction is not set in the statute empowering the Rabbinical Courts, and is not within the scope of the ancillary jurisdiction vested in it.

The Rabbinical Court's Jurisdiction by Virtue of the Parties' Agreement

15.       The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement to grant the Court jurisdiction in a particular case, regardless of the provisions the Rabbinical Courts Jurisdiction Law; second, agreement intended to empower the Court to hear and rule on a dispute as an arbitrator. Can such agreement by the parties vest power in the Court that is not granted to it by the empowering statute or embodied in its ancillary powers?

The Israeli state judicial system and the various different judicial instances, derive their powers from statute. It is the statute that establishes them, it is what delineates the bounds of their activity and it is what defines the sphere of their subject matter and territorial jurisdiction. This is also the case in respect to the civil judicial instances; and so it is with respect to the special judicial systems, including the courts of Israel's different religious communities. These include the Rabbinical Courts in Israel.

By defining the powers of the various different judicial instances in Israel, the statute intended not only to delineate the function and responsibility of the system and its various different arms. It also sought, at the same time, to deny the power of a judicial instance to hear and adjudicate a matter which it was not charged with by the statute and which is not within its inherent jurisdiction. The definition of the judicial instances' powers has a dual dimension, both positive and negative: it constitutes a source of power and responsibility on the one hand, while denying the exercise of authority and power that have not been so conferred; the judicial instance has only what the statute that established it has vested in it, and insofar as it has been made responsible to adjudicate disputes within the scope of the power vested in it, it is under a duty that derives from the statute and the concept of democratic government not to try or adjudicate a matter that is beyond its statutory power.

A preliminary and mandatory condition for the satisfactory activity of any judicial system is a clear and exhaustive definition of the framework of powers and the apportionment of functions that rest with its various different instances. Without an exhaustive and specific definition of powers the systemic structure, built in accordance with the statute, is blurred and the stability of its functioning is not secured. The harmony necessary in the area of operation of the different judicial arms and the relationship between them is impaired; the allocation of professional, administrative and budgetary resources to the different instances is disrupted, and direct harm might occur to the efficacy of the judicial system and the level of judicial performance. The uniqueness of the responsibility owed by the judge, which requires the existence of a clear framework of authority, alongside which is the responsibility and duty to rule, becomes blurry. Thus, recognizing the power of a judicial instance to adjudicate matters, the power and responsibility for which have not been legally transferred to it, might materially disrupt the internal balance required in the structure of the judicial system and severely undermine its standing and performance.

A consequence of the aforegoing is that the power of a judicial instance, as such, be it civil or religious, is acquired by law and it has no power to be derived from the parties' agreement, except where the statute itself has seen fit to recognize such agreement in certain circumstances as a source of the power to adjudicate. Thus, for example, with regard to the effect of the parties' agreement, the law has distinguished between the apportionment of subject matter jurisdiction and territorial jurisdiction between judicial instances. It is willing to acknowledge, in certain conditions, the parties' agreement as a valid source for changing the territorial jurisdiction that has been prescribed. Section 5 of the Civil Procedure Regulations, 5744-1984 provides that when an agreement between parties as to the place of jurisdiction exists, the lawsuit will be filed to the court in that area of jurisdiction. The relative flexibility regarding territorial jurisdiction, and the willingness to recognize the parties' agreement as the source of such jurisdiction, stems solely from the statute and derives its power from its provisions. That is not the case in respect of subject matter jurisdiction. Generally, the law does not recognize that the parties' agreement has power to depart from the rules of subject matter jurisdiction, as crafted by state legislation.

A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to hear and rule a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. In general, a judicial instance is not supposed to adjudicate a matter that is referred to it as arbitrator. However, in certain circumstances, the law has expressly recognized the power of a civil instance to adjudicate a dispute in departure from the ordinary rules of procedure. Thus, for example, in the area of small claims, section 65 of the Courts Law (Consolidated Version), 5744-1984 provides that if a lawsuit has been filed in the small claims court, the judge may, with the parties’ consent, try the claim as arbitrator, and the provisions of the Arbitration Law will govern the matter, with certain restrictions; in addition, a court hearing a civil matter has been empowered, with the parties’ consent, to decide a matter before it by way of settlement (section 79A of the Courts Law) or to refer a matter, with the parties' consent, to arbitration or conciliation (sections 79B and 79C of the Courts Law). The said authorities are all vested in the court by virtue of statute. They assume that the subject of the dispute is within the subject matter jurisdiction of the court hearing the case and they give it special procedural means that are intended to facilitate and expedite the process of deciding the dispute and bringing about a just result. The various judicial instances have not been generally empowered by law to hear and decide matters that are not included in the scope of their subject matter jurisdiction by virtue of the parties' agreement, either as arbitrators or otherwise. Since such authority has not been conferred to them, it is, ipso facto, denied and does not exist.

The Rabbinical Courts are an integral part of the Israeli judicial system. They were established by virtue of the Rabbinical Courts Jurisdiction Law and they derive their power and authorities from the state statute. They have nothing other than what is vested in them by the statute, and they are subject to the set of powers of the statute in their judicial work, as interpreted over the years by case law. Along those lines, this Court has held in the Katz Case that the Rabbinical Court is not empowered to issue a Letter of Refusal in monetary matters that is intended to compel a party to submit to the Rabbinical Court's jurisdiction by ostracizing and disgracing the recalcitrant party; and in HCJ 2222/99 Gabai v The Great Rabbinical Court PD 54(5) 401, the opinion was expressed that the Rabbinical Court lacks legal authority to issue a forced settlement decision, without the parties' consent, thus forcing a judgment on the parties without determining facts on the basis of evidence, if it is unable to decide in accordance with the law.

It emerges from this that the parties' agreement as such cannot, per se, grant jurisdiction to the Rabbinical Court, unless, it has been recognized by the law as a primary source of authority. Thus, the parties' agreement has been recognized as a source of the Rabbinical Court's jurisdiction pursuant to section 9 the Rabbinical Courts Jurisdiction Law, in matters of personal status of Jews pursuant to article 51 of the Palestine Orders in Council or according to the Succession Ordinance, which are within the parallel jurisdiction of the Rabbinical Court and the civil instance. Nevertheless, the Rabbinical Court does not have power to hear and decide a matter that is not of the kind found within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their consent to its jurisdiction. Such agreement does not derive from a legally recognized source of authority in the law and it cannot, per se, vest jurisdiction in a state judicial instance.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Agreement

16.       According to the same line of reasoning, the Rabbinical Court has no power and authority to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter, which by its nature is not within its legal jurisdiction. The Court has not been vested with jurisdiction by law to decide disputes as an arbitrator and the parties' agreement cannot vest it with such power.

The issue of the Rabbinical Court's jurisdiction to arbitrate financial and other matters that go beyond the powers granted to it in accordance with the Rabbinical Courts Jurisdiction Law has caused consternation and confusion over the years. It appears that, in reality, the Rabbinical Court assumes the role of arbitrating matters that are beyond the scope of its subject matter jurisdiction (Katz Case, ibid, pp. 606-8; CA 376/62 Bachar v. Bachar, PD 17(2) 881, 882, 885; CA 688/70 Doar v. Hamami, PD 25(2) 396, 399; M. Alon, Jewish Law – History, Sources and Principles, third edition, vol. III, 5748, 1529). Justice Barak considered the inherent difficulty of a state judicial instance's need to adjudicate a dispute by arbitration where it was not empowered to do so by law, saying:

"The first possible argument is that the motion to the Rabbinical Court is like that to an arbitrator and embodied in the Arbitration Law, 5728-1968. That possibility – which has used in practice and can be encored as a year-long custom - raises serious problems in principle. Thus, for example, it can be asked whether it is proper for a judicial entity, whose powers are prescribed by law, to assume additional judicial powers, by being empowered as an arbitrator. Is it conceivable that parties would motion the magistrate’s court to try a pecuniary claim, that is outside its jurisdiction, as an arbitrator? From the state's point of view, is it justifiable to use judicial time and tools (whether of the civil or religious courts) for matters outside the jurisdiction that the law has granted the judicial authorities? Is there no fear that the public be confused as to which decisions the judicial instance has awarded as the government and those that it has awarded as arbitrator?"

(HCJ 3023/90 Jane Doe (a minor) v. The Rehovot Regional Rabbinical Court PD 45(3) 808, 813-14; see also S. Ottolenghi, Arbitration, Law and Procedure (fourth edition, 5765) 167-8; Schiffman, ibid, vol. I, 37.)

In HCJ 2174/24 Kahati v. The Great Rabbinical Court, PD 50(2) 214, this Court (per Justice Dorner) once again referred to the practice, adopted from time to time by the Rabbinical Courts, of deciding disputes as arbitrators in matters that are not within their jurisdiction. It expressed skepticism with respect to the validity of the practice. However, as in the previous case, it again left this question open without making any conclusive ruling, since such a ruling was not necessary in that case (cf. Aminoff, ibid, pp. 792-3).

17.       There is indeed an inherent difficulty in recognizing the Rabbinical Court's power to decide a dispute in a matter on which it has not been given jurisdiction by law (cf. Ottolenghi, Dispute Resolution by Alternative Means, Israeli Law Yearbook, 5752-5753, p. 535, 550-1). In the past, the Mandate government empowered the Rabbinical Courts to act as arbitrators by means of section 10(d) of the Israel Knesset Regulations of 1927, but upon the establishment of the State, the “Israel Knesset”, within its meaning under the Mandate, ceased to exist and it was held that those Regulations no longer had any force or effect (Crim. App. 427/64 Yair v. The State of Israel PD 19(3) 402; HCJ 3269/95, ibid, p. 622-3; Schiffman, ibid, p. 39). It cannot therefore be argued that the said section might serve as the source of the Rabbinical Courts' power as arbitrators. Moreover, upon enactment of the Arbitration Law, it was proposed that an arbitration decision made by a religious court when ruling as an arbitrator would in all respects, except with regard to the appeal, be treated as a judgement of the court sitting in accordance with its jurisdiction prescribed by statute, and that the award would not require confirmation under the Arbitration Law. That proposal was not accepted (Knesset Proceedings 5728, pp. 2966-7).

It is indeed difficult to settle the governing perception that views the judicial system as an arm of government, which derives its power and authority from statute, while acknowledging the possibility that the selfsame system can acquire other subject matter authorities deriving merely from the parties' agreement that do not originate from the empowering law. The Israeli Rabbinical Courts, that are part of the Israeli judicial system, integrate with the said perception and, like the other judicial instances, operate in accordance with the principle of legality of the arms of government (see the dissenting opinion of Justice Tal in the Katz Case, distinguishing between the power of religious courts as a state authority and the power they have, in his opinion, by virtue of Jewish law, which is not connected with state law).

18.       Apart from the essential difficulty inherent in the judicial decision of the Rabbinical Court as an arbitrator, which is not consistent with the principle of legality of the government authorities, other difficulties arise from the said procedural practice. The practice blurs the spheres of the Court's own activity in respect of the procedural basis upon which its decision rests: is it a decision within the scope of the Court's state power that is subject to review by the High Court of Justice in accordance with section 15 of the Basic Law: the Judiciary, or is it an extra-statutory power that is built on a different foundation originating from the parties' agreement and subject to review by a different judicial instance, like the District Court, in accordance with the Arbitration Law (cf. Jane Doe Case, ibid, para. 7)? In more than a few cases the parties might misunderstand the nature of their agreement to vest jurisdiction in the Rabbinical Court as they do not always understand the meaning and implications of their consent. Moreover, usually, in the course of such adjudication, strict attention is not paid to enquiring into the existence of an arbitration agreement or the application of the Arbitration Law and the rules pursuant thereto, such, for example, the mechanism for the confirmation and revocation of an arbitral award and the role of the District Court as the competent instance in accordance with the Arbitration Law (Ottolenghi, ibid, p. 168; Dichovski, The Standing of a Rabbinical Court Dealing with Property Law As Arbitrator, The Jewish Law Yearbook 16-17 (5750-5751) 527; MF 268/88 Delrahim v. Delrahim, DCJ 49(3) 428; SC 2329/99 Kfir v. Kfir, PD 55(2) 518, para. 5). An arbitral judgment made by the Rabbinical Court frequently does not undergo confirmation or revocation proceedings in the District Court as required by the Arbitration Law for the purpose of its execution, and the Rabbinical Court has no power to confirm an arbitral judgment (Kahati, ibid, p. 220; HCJ 5289/00 Mograbi v. The Great Rabbinical Court, Takdin Elyon 2000(2) 581; Kfir Case, ibid, para. 5). Furthermore, a situation in which the District Court, by virtue of the Arbitration Law, might oversee the Rabbinical Court's decisions as an arbitrator might harm the proper balance between the instances and aggravate the tension between the civil and religious judicial arms (A. Porat, The Rabbinical Court As Arbitrator, Kiriat Mishpat II (5762) 503, 521-4; Dichovski Case, ibid, p. 529).

The Rabbinical Court, purporting to act as an arbitrator between the parties, still operates under cover, and with the characteristics, of its state role. To that end it makes use of the court's physical and organizational system, which is financed by the state; it adjudicates disputes as an arbitrator in the scope of the court calendar, as part of its ordinary work; the overall services, the organizational and professional arrangement and the government budget are also used by it in that function, which by its nature does not have a state character. The time that it should devote to matters of personal status in its official capacity is partly assigned by it to a different judicial function that is not for the state, despite appearing to carry the state seal in the eyes of the public at large, who finds it difficult to distinguish between the judicial function and the extra-statutory function performed by the Court. This intermingling of functions is inconsistent with the principle of legality and a correct definition of the functions and powers of a state judicial instance (Katz Case, ibid, p. 608; Schiffman, ibid, pp. 37-8).

19.       Mention ought to be made to the approach of Prof. Shochatman in his paper entitled The Rabbinical Courts' Jurisdiction in Matters Other Than Personal Status (Bar Ilan University Yearbook on Humanities and Judaism, vols. 28-29 (5761) p. 437, p. 449 et seq.). As he sees it, the Rabbinical Court might acquire jurisdiction by virtue of the parties' agreement in matters outside its jurisdiction in accordance with the Rabbinical Courts Jurisdiction Law by virtue of section 15(d)(4) of the Basic Law: the Judiciary, thereby acquiring jurisdiction as an arbitrator. According to that Law, which defines the High Court of Justice's power to review religious courts, the question of a religious court's jurisdiction can only be referred to this instance when it was raised at the first opportunity. The author infers from this that where there is prior agreement between the parties to vest subject matter jurisdiction in the religious court, a party who has so agreed may not later dispute jurisdiction. By virtue of that preclusion the religious court acquires subject matter jurisdiction, and the High Court of Justice is itself precluded from intervening therein. According to this approach, such an agreement vests subject matter jurisdiction and is not limited solely to matters of personal status. It might encompass numerous spheres that are beyond the subject matter jurisdiction of the religious court, as defined in the Rabbinical Courts Jurisdiction Law.

I cannot agree with this position. The interpretation expressed by Prof. Shochatman assumes that it is possible to recognize the existence of subject matter jurisdiction of an Israel state judicial instance by means of the parties' consent, combined with the doctrine of preclusion and estoppel that prevents someone who has agreed to jurisdiction from later disputing it. That approach is fundamentally inconsistent with the principle of legality that obligates judicial instances, including the religious courts. It is not consistent with the starting point whereby subject matter jurisdiction is vested in a judicial instance by a positive arrangement, and its existence is not to be inferred by an indirect interpretation of provisions of law concerning estoppel and preclusion. The Rabbinical Court's powers are granted to it by virtue of the Rabbinical Courts Jurisdiction Law and they cannot be added to by an indirect interpretation of statutory provisions, the purpose of which is not the vesting of power. Moreover, it has already been held (in Sima Levy Case, ibid, p. 618-19) that the element of preclusion emerging from section 15(d)(4) of the Basic Law: the Judiciary was not intended to vest in the Rabbinical Court subject matter jurisdiction that is not vested in it by virtue of the Rabbinical Courts Jurisdiction Law. The said preclusion is based on the assumption that the matter being adjudicated by the Rabbinical Court is of the type that are within the parallel jurisdiction of the civil court and Rabbinical Court, and regarding the latter, jurisdiction is conclusively consummated if both parties have agreed to it. In those circumstances, and only in them, a party's prior agreement or silence, or subsequent denial of jurisdiction, might lead to preclusion with respect to a lack of jurisdiction argument in the High Court of Justice - that and nothing more. An interpretation that takes the doctrine of preclusion out of context, and assumes the existence of a potentially unlimited Rabbinical Court subject matter jurisdiction, the final consummation of which is dependent only upon the parties' agreement, is directly opposed to the principle of legality, upon which the concept of democratic government is based. It is inconsistent with the subject matter jurisdictions vested by statute in the arms of government, including the judicial system.

Alternative Decision-Making Systems

20.       The need of various different circles in the religious world to entertain alternative systems for the resolution of disputes is proper and recognized. Indeed, alternative rabbinical judicial systems that are not associated with the state rabbinical judicial system, which decide disputes between litigants in the community, are recognized. They can be granted powers to act as arbitrators by agreement of the parties. The need of different communities for alternative dispute resolution systems specific to them can be met by reference to internal arbitration frameworks that are not part of the state judicial system, within which disputes can be settled by virtue of the parties' agreement. This alternative course to litigation in the state judicial instances can be developed and strengthened in accordance with the different needs and preferences of the communities. This was considered by Justice Zamir in the Katz Case (ibid, p. 606), who stated:

"As is known, there are still observant Jews who prefer to litigate in matters of property according to religious law before a religious court rather than the state court. The state's law does not preclude that, if both parties to the dispute so desire, and it is even willing to give the force of arbitration to such litigation, if the litigants fulfil the provisions of the Arbitration Law. Indeed, in practice, such courts exist in various communities around Israel, not by virtue of state law or as official institutions but as private entities. That is, for example, the case of the rabbinical court of the Edah Chareidis [the Haredi Community] in Jerusalem. However… in these cases we are not dealing with a private entity but a state court, and the law applies to it just as any other of the state's courts. Like any court, in fact, like any government agency, the Rabbinical Court is also subject to the principle of legality, meaning that it has nothing other than what was granted to it by the law… In this respect, the Rabbinical Court in Jerusalem is distinguished from the rabbinical court of the Edah Chareidis in Jerusalem. The Israeli Rabbinical Court, which has jurisdiction in accordance with the Basic Law: the Judiciary, is not like one of the rabbinical courts of the Jewish communities in the Diaspora. Unlike them, it has the power and authority of a government institution. So too, unlike them, it is also subject to the restrictions that apply to any government institution".

Consensual Resolution – Looking to the Future and to the Past

21.       The scope of the Rabbinical Courts' subject matter jurisdiction to decide a dispute by virtue of the parties' agreement outside the framework of the law looks to the past and the future. It calls into question the validity of the Court's rulings based on the parties' agreement outside the scope of the statute, not merely henceforth, looking to the future, but also with respect to the past. The outlook to the future seeks to find a binding definition of the limits of the Rabbinical Court's jurisdiction and to strictly observe those limits hereafter. However, the outlook to the past calls into question the binding legal validity of the Rabbinical Court's decisions that have been made over the years by virtue of the parties' agreement as aforesaid. That issue is far from simple; there is no need to decide it here, and it will wait until its time comes.

From the General to the Particular

22.       Let us return to the respondent's suit against the petitioner in the Rabbinical Court and examine whether it is within the subject matter jurisdiction of the Rabbinical Court; the test of jurisdiction depends on the nature of the cause of action, and whether the cause falls within the jurisdiction of the Rabbinical Court.

The Cause of Action – Enforcement of a Contractual Indemnity Clause

23.       The respondent's cause of action in the Rabbinical Court is the enforcement of a contractual clause concerning property, which is contained in the divorce agreement that was made between the couple for the purpose of the divorce proceedings. It provided that if the respondent were sued for an increase in child support and the satisfaction of any of the children's needs or if a stay of exit order was granted at the initiative of the wife, then the petitioner would compensate him, in the language of clause 4(e) of the agreement, with half the property. That provision is also mentioned in clause 5 of the agreement, which is headed "Indemnification", and according to the substance of the provision, and also its location and wording, it is an indemnity clause. The respondent sues for the enforcement of a property condition for his indemnification due to a breach of contract by the wife, and he gave expression thereto by heading his claim as one for "specific performance". That is to say, we have here a property claim for the enforcement of the contractual indemnity clause in a divorce agreement that received the effect of a judgement of the Rabbinical Court and further to which the parties' divorce was completed.

The Rabbinical Court's Jurisdiction to Adjudicate a Property Claim for the Breach of a Contractual Indemnity Clause in a Divorce Agreement after the Parties' Divorce

Does the respondent's suit, according to its cause, fall within the scope of one of the sources of the Rabbinical Court's jurisdiction? Because of the great similarity between the instant matter and the case of Sima Levy, we shall draw guidance and direction from that case.

Original – Primary Jurisdiction

24.       The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce, as provided in section 1 of the Rabbinical Courts Jurisdiction Law, does not apply in the instant case because the subject of the suit is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is, no longer involved. Nor is it a matter "connected with a divorce suit", including support for the wife and children, within the meaning of section 3 of the Law. After divorce, a property claim in respect of the breach of an indemnity clause is not connected with the divorce suit, which has ended and no longer exists. The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce judgment, based on a divorce agreement. The cause is based on the breach of a divorce agreement after the award of the divorce and completion of the couple's divorce, and such a new cause is naturally not to be bound up with the matters that were in the past connected with the divorce suit.

With regard to the property cause of action, which surrounds the breach of an indemnity clause of a divorce agreement, the Rabbinical Court does not have jurisdiction by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council and the Succession Ordinance. Section 9 of the Rabbinical Courts Jurisdiction Law raises the question of whether jurisdiction can be vested in the Rabbinical Court by consent in a matter included in its parallel jurisdiction after completion of the divorce, or whether its jurisdiction pursuant to that provision is limited solely to matters within its parallel subject matter jurisdiction that arise in connection with, and until, the divorce and its completion, but not afterwards. Whatever the answer to this question, it is in any event clear that the subject matter jurisdiction pursuant to section 9 is limited solely to the matters mentioned therein, that is, matters of "personal status" as defined in the Palestine Orders in Council and the Succession Ordinance. In a dispute that is not within the bounds of those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court (Schiffman, ibid, vol. I, p. 37; Jane Doe Case, ibid, p. 812). The power of the parties' stipulation is restricted solely to the matters defined by the statute (MF 358/89 Zalotti v. Zalotti PD 43(4) 41, 42; Porat, ibid, p. 510).

Clause 11 of the divorce agreement in this matter looks to the future, and provides that if differences arise between the couple after the divorce, then they undertake to bring their claims solely in the Rabbinical Courts. That agreement is effective only to vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law in respect of matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. A property claim for the enforcement of a contractual indemnity clause in a divorce agreement is not a matter of personal status within the meaning of the Palestine Orders in Council or the Succession Ordinance, and thus, the parties' contractual agreement in respect of such a dispute cannot vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law.

The Rabbinical Court therefore does not have original jurisdiction to adjudicate the respondent's claim.

"Ancillary" Inherent Jurisdiction

25.       Does the Rabbinical Court have "ancillary" inherent jurisdiction to adjudicate the respondent's claim? The answer is in the negative.

            In the instant case, the Rabbinical Court's ancillary jurisdiction is irrelevant insofar as it relates to the revocation of a divorce award because of a defect in the making of the divorce agreement. It is not a defect of fraud, mistake, deceit, duress or similar that occurred in the making of the agreement and that might have given the Rabbinical Court ancillary jurisdiction to consider its revocation.

            Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after granting the divorce judgment that allegedly justifies revoking the divorce agreement and the divorce judgment in order to achieve a just result. On the contrary, the respondent's suit is for the specific performance and enforcement of the divorce agreement, not its revocation. Although, in the Great Rabbinical Court, the respondent pleaded that his suit was to revoke the divorce agreement because, according to him, the Get had been given by mistake (the Great Rabbinical Court's decision of May 4, 2003). These arguments were made as an "embellishment" at a late stage of the trial and do not reflect the real cause of action; the motion to revoke the divorce agreement and the act of divorce is inconsistent with the respondent's claim in his suit to compensate him with half the property (the apartment, the contents and the gold), which is nothing other than a claim for the enforcement of the divorce agreement (cf. CA 105/83 Menashe v. Menashe PD 38(4) 635; Yadin, The Contracts (Remedies for Breach of Contract) Law 5731-1970, Second Edition, 5739, p. 44).

            Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction in this case. The Regional Rabbinical Court had granted a final and unconditional judgment and awarded the effect of judgement to the divorce agreement. Indeed, the divorce agreement does contain an indemnification provision, which by its nature looks to the future, but this fact cannot transform a judgement that gave effect to a divorce agreement into a judgment that is not final, leaving the Rabbinical Court with jurisdiction that has not yet been exhausted to continue adjudicating with respect to the divorce agreement's future performance in this property matter. A financial-property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law (see Sima Levy Case, pp. 607-608; CA 468/85 Dondushanski v. Don PD 40(2) 609; D. Bar Ofir, Execution - Proceedings and Law (Sixth Edition, 2005, pp. 164-5)).

            Nor has the Rabbinical Court acquired jurisdiction to hear this matter by virtue of the doctrine of "continuing jurisdiction". It should be kept in mind, that continuing jurisdiction is vested where an instance has tried a particular matter in the past and, in special circumstances, a need has arisen to vacate or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based such, for example, in matters of child support and custody. The instant case is fundamentally different. The motion does not seek to modify or revoke the divorce agreement made between the parties. On the contrary, it seeks to enforce the agreement, and such a claim has no place within the continuing jurisdiction vested in the Rabbinical Court. A decision on property matters is a final one and not a matter for continuing jurisdiction, as the Court stated in Sima Levy (Justice Cheshin, ibid, p. 611):

                        "As distinct from decisions concerning the payment of support or child custody – which by their nature are not final and the doctrine of continuing jurisdiction applies to them – a decision on a property matter is in principle a final one" (emphasis added).

            The property aspect of the divorce agreement, including the indemnification clause, and the divorce judgment that gave it effect, are therefore not within the Rabbinical Court's continuing jurisdiction.

            And finally, the Rabbinical Court does not have ancillary jurisdiction to adjudicate the new cause that arose following the divorce agreement in order to interpret the agreement. Firstly, the Rabbinical Court, having completed and exhausted its power to rule on the matter of divorce, no longer has ancillary power to interpret the divorce agreement or the divorce judgment (cf. HCJ 897/78 Yigal v. The National Labour Court, PD 33(2) 6, 7; CA 5403/90 The State of Israel v. RAM Revhiat Ibrahim PD 46(3) 459). Moreover, in the instant case, the question of the agreement’s interpretation hasn’t risen as such, but a claim for its enforcement has been brought instead. Hence, the Rabbinical Court does not have ancillary jurisdiction in this respect either.

            In conclusion: the Rabbinical Court does not have primary original jurisdiction, or ancillary inherent jurisdiction, to adjudicate a property claim for enforcement of a contractual indemnification clause in a divorce agreement that has given the effect of judgement, once the couple's divorce has been completed.

The Rabbinical Court's Jurisdiction by Virtue of Consent

26.       As can be recalled, clause 11 of the divorce agreement provides that differences between the couple after the divorce are to be adjudicated solely in the Rabbinical Courts. The couple's agreement as such cannot vest the Rabbinical Court with jurisdiction where there is no legal source for it. The agreement in this case concerns something that is not a matter of personal status according to section 9 of the Rabbinical Courts Jurisdiction Law, and it was therefore given for this purpose outside the scope of the law, and is ineffective.

            Indeed,

                        "where the subject of the litigation is not within the jurisdiction of a particular judicial entity, no agreement in the world has power to grant the entity jurisdiction that the statute has not given it; it is the statute that gives and it is the statute that takes away" (Sima Levy, p. 617).

            The Regional Rabbinical Court's decision of June 18, 2002 and the Great Rabbinical Court's decision of May 4, 2003, according to which the Rabbinical Courts have jurisdiction in principle to try the claim by virtue of the law, are inconsistent with its provisions.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Arrangement

27.       It was further argued that clause 11 of the divorce agreement is an arbitration provision that vests the Rabbinical Court with power as an arbitrator to adjudicate the respondent's claim of a breach of the agreement's indemnification provision. Although not strictly necessary, we have considered the question in principle of whether a Rabbinical Court can be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. We have answered that question in the negative and the answer is applicable to the case herein.

            In the instant case, the conclusion that the Rabbinical Court lacks jurisdiction to try the matter as an arbitrator is also reinforced by another reason. Studying the contents of clause 11 of the divorce agreement shows that it cannot be construed as an arbitration clause, equal to an "arbitration agreement" between the parties. It is well known that the power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. Without an arbitration agreement, no arbitration arises. An "arbitration agreement", according to the Arbitration Law, is "a written agreement (between parties) to refer to arbitration a dispute that arises between them in the future, whether an arbitrator is named in the agreement or not" (section 1 of the Arbitration Law). The condition precedent for arbitration is therefore the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement (ALA 4928/92 Aziz Ezra Haj v. Tel Mond Local Council PD 47(5) 94; Ottolenghi, ibid, pp 9-41).

            In this case, the parties undertook to refer any disputes arising between them after the divorce solely to the Rabbinical Courts. No intention can be inferred from that agreement to refer such disputes to the Rabbinical Court qua arbitrator. In Jane Doe (para. 6 of Justice Barak's opinion), as in the case herein, the couple mistakenly believed that their consent to the Rabbinical Court's adjudicating disputes connected with the divorce agreement could vest it with power to decide as a state judicial instance, rather than as an arbitrator. Indeed, the wording and contents of clause 11 of the divorce agreement do not demonstrate the parties' intention to treat it as an arbitration clause purporting to empower the Rabbinical Court to act as arbitrator. Consequently, even if we assumed that the Rabbinical Court could be empowered to act as an arbitrator in matters in which it has no original or ancillary jurisdiction by virtue of the law, there is still no effective arbitration agreement, as pleaded.

A Note before Closing

28.       The issue of the Rabbinical Court's power to adjudicate by virtue of the parties' agreement, outside the scope of the law, has arisen in earlier contexts in the past, and although different opinions have been expressed in such respect by the courts, no binding decision has been necessary in connection therewith. This absence of a ruling has permitted the continuation of a procedural practice that is inconsistent with the organizational structure of the courts and the division of powers between them in accordance with state law. This custom has enabled a judicial practice that is inconsistent with the principle of the administration's legality and the legality of the judicial system. The time has come to move from the stage of expressing an opinion to the stage of making a ruling, which is necessary to ensure the proper function of the judicial system within the scope of its powers, and thereby to protect the basic foundation that defines the boundaries of its activity based on the principle of legality and the rule of law. This will not harm, in a any way, the need and ability of various social groups to entertain alternative resolution systems outside the state judicial instances, based on the principles of arbitration regulated by law or on the basis of other agreed and recognized rules of procedure. However, at the same time, it is necessary to safeguard, and protect against blurring the boundaries between the state judicial systems and alternative resolution systems that are built on the parties' agreement, in order to protect the proper operation of the different arms of the judicial system and the public's confidence in the way in which its powers are exercised and its judgments.

Conclusion

29.       By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification clause in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the Regional Rabbinical Court and the Great Rabbinical Court in the respondent's claim are void. The result is that the order nisi that has been awarded should be made absolute. The respondent shall bear the petitioner's professional fees in the sum of NIS 12,000.

Vice President (Ret.) M. Cheshin

            I concur.

Justice S. Joubran

            I concur.

Therefore, held as stated in the opinion of Justice Procaccia.

Awarded today, this eighth day of Nissan, 5766 (April 6, 2006).

legal world has not yet had the time to properly address these issues, and it falters behind them, as it does following the other dramas of the superior technology era. This was described nearly two decades ago by author Y. Green (In Vitro Fertilization through the Prism of Consent (1995)):

"The longing for a child is common knowledge that requires no proof. Spouses, who experience difficulties in having children, make and will make any effort in order to be blessed with children: emotional, physical and financial. They are also willing to 'sign' any undertaking, provided that their heart's desire is fulfilled. Medical technology in the fertility field has developed at an incredible pace in recent years. Solutions, which were considered science fiction only a few years ago, are slowly becoming an almost daily reality. There is a great blessing alongside this development, which grants more and more couples of various degrees of infertility a chance to expand the family. However, as chances increase and the potential of being blessed with children increases, so increases the risk involved in the various stages of the process, both to those born (sic.) and to the infant to be born in this way" (ibid, p. 9).

Before us is a chapter in this complex whole, on an unfinished road, and we will clearly not attempt – nor need we in this case – to encompass the full human issue, nor the legal one, relating to parenthood in the modern era; as we shall hereinafter see, this issue may be reviewed through the prism of more than one family of law, but none is exhaustive. As President Shamgar (Retired) stressed already at the outset:

"Any conversation with respect to issues of birth affairs is, by nature, pretentious and stirs oversensitivity. It is pretentious – since before us are complex and multifaceted issues, the legal aspect of which is unable to exhaust their nature and description. There is a kaleidoscope of elements here, which are anchored in various disciplines, medical, philosophical, theological and social, which do not fit within the standard legal compartmentalization and are not fully exhausted by the employment of legal criteria alone. Thus, in such areas, cautious legal treading is suitable… These issues evoke oversensitivity, because they directly touch on the exposed nerve of existence. Although the vast majority of legal issues of various types are taken, by mere nature, from life, there are issues that attack the problematic nature of our human existence head-on, at the core, rather than indirectly…" (President Meir Shamgar "Issues on Matters of Fertilization and Birth" 39(a) HaPraklit 21 (1989).

3. This is also the case before us, and therefore we shall guide ourselves with this advice before we embark on the journey. This is the order of the discussion: firstly, we shall briefly address the normative framework concerned, the factual background of the case and the parties' claims; we shall examine the nature of the right to parenthood, and we shall examine the standing of the Petitioner vis-à-vis the standing of the donor, who asserts autonomy in deciding the use of his sperm, in view of this right. We shall thereafter briefly address additional aspects of the issue, and mainly the contractual regulation of sperm donation. Finally, we shall articulate the evident need, in this case, for the in-principle regulation of the entire field by the legislator.

4. We shall forerun and state the principal part of our ruling. Needless to say, we feel – as does the attorney for the Respondents and even the anonymous donor himself – human sympathy for the Petitioner, who requests that her children by a sperm donation carry an identical genetic constitution, which apparently proved successful – thank God – with her first-born daughter. However, we have come to the conclusion that precedence should be afforded to the donor's position and to his personal autonomy. With all due understanding of the Petitioner's claims in the field of private law, contract law and even in the field of administrative law, with respect to the reliance interest – these do not amount in value to the dominancy of the aspect of personal autonomy under the circumstances of the case. The donor has formed his position, according to what he stated orally (his written response is more general) as a penitent (Chozer B'Tshuva), and it appears that there is also a religious facet to his position. However, even without such facet, one can understand the position of a person who, after reflection, reached the conclusion – which had not occurred to him in the past, when deciding to donate sperm for such or other considerations – that he no longer wants there to be children by his sperm in the world, whom he did not choose and whose mother [he did not choose], with whom he has no relation and who will not be raised by him; it being [the case] even if he is not liable to them under the presently practiced law (and incidentally, there is a possibility that under Hebrew law, even if they are not entitled to child support from him, they are entitled to inherit him). In our opinion, the autonomy aspect overshadows the other considerations, as we shall explain below.

The Normative Framework

5. Sperm donation and the management of sperm banks in Israel are currently not regulated by primary legislation, but rather by the Public Health  (Sperm Bank) Regulations, 5739-1979 (the "Regulations") and circulars of the Director General of the Ministry of Health, which are issued thereunder (these regulations were promulgated by the Minister of Health by virtue of the Consumer Services Act (Sperm Bank and Artificial Insemination), 5739-1979; for criticism, see Pinhas Shifman "Determination of the Paternity of a Child Born by Artificial Insemination", 10 Mishpatim 63, 85 (1980); further see (in respect of the status of administrative directives) Yoav Dotan Administrative Directives (1996), 27-39). The last Director General Circular, of May 22, 2008, entered into effect on January 1, 2009, and is the principal part of the normative basis, on the administrative directives' level, for our discussion at this point. The Director General Circular mainly regulates the conditions for recognition of a sperm bank and prescribes rules with respect to the retention of information regarding sperm units and donors – a problematic issue in and of itself, as we shall briefly mention hereinafter. The Director General Circular also defines the procedure required both of the donor and of the recipient of the donation.

6. The donor, alongside whose donation there is a certain financial benefit, fills out a "Donor Card" form (Exhibit B to the Respondents' response), which requires general details, including name, identity number, a general description of appearance, and data regarding physical examinations, which are intended to negate the existence of illnesses in his body. The donor also fills-out a "Consent of a Sperm Donor" form (Exhibit C to the Respondents' response), in which he declares by his signature as follows:

"I agree to donate of my sperm for use thereof for the artificial insemination of women or for research purposes, according to the considerations of the sperm bank. I hereby agree and declare that I will not be entitled to receive any details of the identity of the women, and their identity shall remain confidential. Furthermore, my name and my identity or any detail about me will not be provided to any person and will also remain confidential, except for a cross-check of these data with a center for national donor registration and national registration of persons ineligible to marry".

This statement is required under Section 25(e) of the Director General Circular, which determines that "[T]he sperm of a donor shall not be taken nor received nor used for artificial insemination, unless the donor shall have given his consent to the use of the sperm" (emphasis added - E.R.). The donor also states that he is willing to undergo medical examinations and that to the best of his knowledge he is not suffering from an illness or family history, which might disqualify his donation. The forms do not address the issue of consent withdrawal or additional issues such as a quantitative limit of the possible amount of inseminations by the donation (such as inseminations that produced a pregnancy, as distinguished from unsuccessful attempts).

7. A similar personal data card is filled-out by the recipient of the donation (Exhibit D of the Respondents' response), which one of two consent forms is added to, in accordance with her family status: one consent form for spouses, and another consent form for a single mother [who is] a "single woman" (Exhibit E-1 and Exhibit E-2 to the Respondents' response). The second form, which is the one relevant to the case at hand, mainly includes a statement as to the explanation the recipient of the donation received with respect to complications and side effects (and a waiver of future claims in respect of such matters), and as to the practical prospects of impregnation as a result of the insemination. As pertains to the sperm and the donor, the recipient of the donation states as follows:

"I consent that the donor or donors of the sperm that will be used in the insemination, or the sperm itself, be chosen by the physician and according to his discretion and with his consent and I will not be allowed to know the identity of the person whose sperm is used, or his attributes, or any other detail related to him or to his family" (emphasis added – E.R.).

8. As we can see, the only documents that include the parties' consent, each separately, do not address the issue of donation withdrawal at all. These matters were presented somewhat in length, since, in the situation before us – a ruling on which is "the lesser of two evils", and involves a measure of harm to one of the parties – it is appropriate to examine how to avoid such situations in the future, rather than merely how the current situation will be resolved.

The Case At Bar

9. The Petitioner is a single woman, born in 1974, holding Israeli and American citizenships, and a resident of the Unites States for the past 17 years. In 2010, the Petitioner's first-born daughter was born via fertilization treatments, during which use was made of the sperm donation of an anonymous unknown donor (Respondent 3, hereinafter the "Donor"), which the Petitioner received from the sperm bank at the Rambam Medical Center in Haifa (Respondent 2, hereinafter: the "Sperm Bank"), which is under the supervision of Respondent 1 (hereinafter: the "State"). Following the birth of her first daughter, the Petitioner purchased - apparently at the first opportunity she had – the option to use five additional sperm units of the Donor, to be kept at the Sperm Bank for an annual fee. For this purpose, the Petitioner filled out a sperm reservation form and paid the required amount. It was stated on this form that:

"The sperm bank undertakes to use its best efforts to keep these sperm units, but will not be responsible in any manner for a loss, harm or other use of these sperm units" (emphasis added – E.R.; Res/3).

10. On December 1, 2011, the Sperm Bank received a letter from the Donor, in which he stated his wish that use of the sperm donation that he had made in the past be discontinued, among other things, in view of a change in his lifestyle (Res/4); following is his letter verbatim:

"My name is ________, in the past I was a sperm provider to the sperm bank managed by you and I ceased this activity several years ago.

Due to a change in my lifestyle, use of my sperm by the sperm bank at the present and future time raises a problem for me. I approached you several months ago with a request to cease use of my sperm. At first I was told that I had no right or say on the matter, and afterwards it was said that in any event the use of my sperm had already been discontinued, so that there was no problem.

After a medical-legal inquiry, it was clarified to me that I have a veto right on the matter, despite the contract between us.

My request to you is a formal letter of statement that no use is presently made nor will it be made in the future by the entity managed by you (the sperm bank)".

Following this letter, the Bank notified the Petitioner (on January 10, 2012), that she would no longer be able to use this sperm donation. Subsequently and in view of the Petitioner's appeals to the Bank's manager, the Bank's manager contacted the legal advisor to the Ministry of Health and forwarded the reply of the legal office to the Petitioner, whereby "[A] consent which is unlimited in time is not "everlasting" and the sperm donor who previously agreed to donate his sperm may recant at any time [so long] as "irreversible reality" has not been created". It was stated that under the facts of the case, such a reality had not been created, and it was assured that the money that had been paid for reservation of the sperm units would be refunded (letter of January 11, 2012 by Dr. A. Leitman, Manager of the Sperm Bank; Res/5). The Petitioner requested not to destroy the donation and to allow her to exhaust the legal avenues; the Sperm Bank's manager accepted her request.

The Petition

11. On May 22, 2012, the present petition was filed claiming that the Respondents' decision to prevent the Petitioner from using the sperm units that had been saved for her infringes upon her constitutional and contractual rights, is unreasonable and should be annulled. The Petitioner's claims may be separated, in general and for the sake of discussion, into two levels. The first, claims on the level of public law, and mainly the impingement on her right to parenthood. The second, on the level of civil law, rights by virtue of a contract between the parties, by virtue of proprietary ownership and more.

First Level – the Right to Parenthood

12. The Petitioner claims that there is presently no dispute as to the standing and importance of the right to parenthood, a "fundamental human right which every person is entitled to", a natural right which is established in Basic Law: Human Dignity and Liberty; hence, this right may be limited – as argued – only under the conditions of the Limitation Clause (to substantiate her position, the Petitioner referred to the rulings of this court in CA 451/88 John Does vs. the State of Israel, IsrSC 44(1), 337 (1990); in CFH 2401/95 Nachmani vs. Nachmani, IsrSC 50(4) 661 (1996); in HCJ 2458/01 New Family vs. the Committee for Approval of Embryo Carrying Agreements, the Ministry of Health, IsrSC 57(1) 419 (2002)). The Respondents' decision impinges – so it is mentioned – on her right, since following the birth of her first-born daughter it may "seal the Petitioner's fate, remaining a mother of a single child only, and forgoing her wish to have the family she was hoping to have" (Paragraph 21 of the Petition).

13. Moreover, per the Petitioner's position, there is a parallel infringement upon her right to a family, another derivative of the protection of human dignity and the autonomy of individual will. To her mind, this right has a higher status than the other constitutional human rights, such as the right to property and to freedom of occupation. Furthermore, beyond the infringement on her constitutional rights – so it is argued – the Respondents' decision is marred by unreasonableness, and is therefore void ab initio. It is further argued that the Respondents' decision impinges upon her daughter's rights to siblings in general, and to biological siblings in particular.

Second Level – Contractual and Other Causes

14. The Petitioner also claims that the Donor gave his consent to use of his sperm – informed consent; and therefore his present request to prohibit the use of his sperm constitutes a breach of contract, both vis-à-vis the State and the Sperm Bank, and vis-à-vis herself, as a third party to the contract. Moreover, the State and the Bank are themselves in breach of the contract they entered with the Petitioner: the Petitioner fulfilled the procedure determined thereby as required; she gave financial consideration for the sperm units. As stated, at no stage of the proceedings was the possibility of the Donor withdrawing his consent raised before her. Since the Petitioner relied on this representation (in view of the manner of presentation of the sperm donation by the State and the Director General Circular) and chose to bring her first born daughter into the world from the Donor's donation, it may no longer be said, per her position, that an "irreversible reality" has not been created. It is difficult – so it is argued – to assume that the Petitioner would have consented to undergo the insemination process knowing that the Donor might change his mind at any time. It is further argued that the Donor sold his sperm, and therefore cannot retroactively demand that no use be made of the donation without cause under law, like any other sale contract that confers ownership upon the purchaser.

15. The Petitioner also claimed that a change in the circumstances of the Donor's life may not serve as cause for his retraction of the consent, and the reversal of the Respondents' decision does not constitute an impingement on the best interests of the child or on public policy. It was further argued that the damage to be caused to the Petitioner as a result of the upholding of the Respondents' decision is disproportionate; it is argued that the Petitioner's time to undergo another fertilization is running out, beyond the fact that the mere impediment to having additional children who have the same genetic constitution, as aforesaid, might prevent her from having more children. Conversely – it is so claimed – the Donor "has finished his part", and no cooperation is required of him for the purpose of continuing the process; he is not the parent of the child to be born, and therefore this does not involve the coercion of parenthood; his right to personal autonomy is thus not violated.

16. It is finally argued that upholding the Respondents' decision will have severe across-the-board implications on sperm recipients of donations in Israel. The donor's option to retract his consent at any time creates uncertainty in the planning of a future family, as it leaves the recipients of donations under the shadow of the "concern that the donor they chose will change his mind". This compromises the ability to plan a family according to the circumstances of every woman's life and wishes. This might – as asserted – lead to many donors withdrawing their consent, and gravely harm sperm banks in Israel and their stability. In order not to render the Petition redundant, an interim order has been sought to order the Respondents to prevent the disposal of the donation until the Petition is decided.

The Response of the Respondents and the Hearing before us

17. On July 10, 2012, the State's response was filed, which argued that indeed it is undisputed that the core of the right to parenthood and the right to family gives rise to a protected constitutional right deriving from the right to dignity, and established in Basic Law: Human Dignity and Liberty. However, the case at bar does not concern the exercise of the right to parenthood, but rather the right to birth children who are full biological siblings, and the right of a child to a sibling or a full biological sibling; these rights do not exist in law, and therefore the Petitioner cannot point to an infringement on her constitutional rights. The State emphasizes that the Petitioner's aspiration is understandable in and of itself, yet under the circumstances of the matter – even if the Petitioner's position is accepted as to the infringement on the rights conferred upon her – her right is outweighed by the right of the Donor not to be a biological parent against his will. It is argued that, although in re Nachmani it was decided to hold the right to parenthood superior to the right not to be a parent, the factual situation in that case was such that Ms. Nachmani no longer had the option of being impregnated by other sperm, i.e., a situation of the absence of a possibility of biological parenthood other than by means of Mr. Nachmani's sperm. This is not – so it is argued – the situation at hand, and the Petitioner has other options for exercising her right to parenthood. Furthermore, the Petitioner has no "biological link" to the sperm contemplated in the Petition, as was the case in re Nachmani (which, as may be recalled, concerned fertilized ova) – and a fertilization process has not commenced in the case at hand.

18. With respect to the second level of arguments, it is maintained that although the Sperm Bank offers recipients of donations a same-donor sperm storage service (for a fee), such storage, at most, creates "a priority" over other recipients of donations; such storage does not ensure use of the sperm, nor does it obligate the sperm donor or the bank to make use of the sperm in circumstances where this is impossible. It is further asserted that the Petitioner cannot claim that had she been aware that the Donor may retract his consent she would have used other sperm, because this right is available to each one of the sperm donors, whoever they are, so long as no irreversible reality has been created. It is emphasized that in the consent form that the Petitioner signed, it was clarified that the choice of sperm is ultimately entrusted to the physician according to his discretion; that is to say, the choice is subject to the discretion of the representative of the sperm bank from the outset, and is not guaranteed to the recipient of the donation in advance. On the contractual level, it is argued that a contract whose expiration date has not been determined is not in force and effect forever and ever, and after a reasonable time, in the framework of the duty of good faith, a party to the contract may – so it is claimed – notify the other party of his intention to be released from the contract; such – in view of the elapse of time and change of circumstance.

19. To reinforce its position, the State sought to draw an analogy from the Ova Donation Law, 5770-2010, which expressly regulates the option of an ovum donor to withdraw her consent "at any time prior to the performance of the act, which she agreed to designate the ova retrieved from her body to, and in respect of consent to designate ova for implantation – at any time prior to the fertilization of the ova" (Section 44 of the Ova Donation Law). It is also claimed that a similar analogy may be drawn from the Patient's Rights Law, 5756-1996, which prescribes that the patient's consent is required not only at the medical treatment stage, but throughout the continued treatment in its entirety (Section 13(a) of the Patient's Rights Law). According to the State's position, it emerges from these two laws that the legislator adopted an approach whereby infringement upon a person's right to autonomy is only merited in rare events of concern of grave danger, or at the stage of "irreversible reality"; this is not the case in the matter at hand. It was agreed that an interim order be issued, which prevents the disposal of the sperm donation until the court rules on the Petition. It was also requested that the Donor be joined as a respondent in the Petition, as the person whose rights might be compromised as a result of the Petition.

20. The Donor, who was joined in as a respondent, had been requested to provide his response to the Petition (the decision of Justice Solberg of July 13, 2012, in which the interim order in consent was issued, as well as aforesaid), and after numerous attempts and efforts by the Sperm Bank's manager his response was received. At first, the Donor had notified the Sperm Bank's manager that he was willing to meet outside hospital grounds, in order to refrain from exposure "due to his current situation as a penitent", but failed to hold the appointment (notice by the State of August 15, 2012). Following the decision of November 6, 2012 (toward the hearing), in which the Donor's position had been requested once more, and it had been stated that if such response is not presented, "the court may consider this conduct in his ruling, without, of course, expressing an opinion as of this time", the Donor provided his position. In a letter of November 13, 2012, the Donor noted that, at the time of the donation "I had considered the act an ideal thing for childless women, and I am not playing innocent here, the money given was also a motive, but the desire to do good was the main thing"; however, "Afterwards, I changed my lifestyle and beliefs. The aforesaid act is presently incompatible with my world view, and in my opinion, the damage it holds is greater than the benefit, both to me, to my relatives, and to the woman who is the recipient of the donation and her children who are born by the sperm of a stranger". The Donor expressed his sympathy for the Petitioner's wishes, he also explained that since providing the donation, he got married and had a son; he is not interested in adding injury to his wife and hurting his children by adding a terrible uncertainty to their lives, "in the knowledge that they have siblings they do not know"; and it was further stated: "I am not interested in having a child born by me, without me being able to give him love, and without me loving his mother". At the bottom line, the Donor requested that use no longer be made of his sperm and expressed his apologies to the Petitioner for all the sorrow he had caused her as a result of these proceedings.

21. In the hearing before us, on November 14, 2012, the Petitioner's attorney reiterated her arguments with respect to the infringement on her right to parenthood and her reliance on the representation before her. At the same time, the State's attorney reiterated the difficulty in recognizing the Petitioner's right, and asserted the need to regulate the area through primary legislation.

Ruling

22. We are not dealing with a binary decision between "good and bad", or between right and wrong – both of the parties before us are "right" from their subjective point of view; we are dealing with human emotions of the both of them, and as pertains to the Donor – also internal feelings that derive from a current viewpoint. I believe that our decision must reflect the weight of the values of the law in a proportionate manner; there is no illegitimate position before us, as stressed by Justice (his former title) Witkon a long time ago:

"As with most problems of law and of life in general, it is not the choice between good and bad that makes the decision difficult for us. The difficulty lies in the choice between various considerations, all of which are good and worthy of attention, yet in contradiction with one another, and we are required to determine the order of priority among them" (CA 461/62 Zim Israel Navigation Company Ltd. vs. Maziar, IsrSC 17(2)1319, 1337 (1963)).

Such is also the case before us. It does not concern the elimination of one of the interests that lie in the balance, but rather the relative preference of one over the other. As we have noted at the outset, this case raises questions of numerous fields of law. The issue may be looked at through the prism of contract law, property law, and, naturally, from the angle of administrative law. Each one of these perspectives may serve as fruitful grounds for a rich and innovative discussion. However, I believe that, at the end of the day, the most appropriate and correct perspective for a ruling on the issue is through the right to dignity and autonomy conferred upon any person to tell the story of his life, as we shall see below. Therefore, the discussion will principally revolve around this angle of the subject, yet, as aforesaid, we shall also address some of the claims raised by the parties on the other levels of discussion. We shall already state at this point that it is worthy to once more call upon the legislator to regulate the issue through primary legislation.

Preface – Of Interests and Rights

23. Legal reality often summons a fundamental contest between various legitimate considerations and values; obviously, such cases raise uncertainties and the need for an objective outline, to the greatest possible extent, of the craft of ascribing priority among them. Not every interest is protected by the law, and it depends upon circumstances even where a fundamental legal right has been recognized by law (of the classification of interests as rights, see HCJ 1514/01 Gur Aryeh vs. Second Television and Radio Authority, IsrLR 267, 275 (2001), in the judgment of President Barak, and compare to the dissenting opinion of Justice Dorner, ibid, p. 284; HCJ 6126/94 Senesh vs. the Chairman of the Broadcasting Authority, IsrSC 53(3)817 (1994); Oren Gazal Ayal and Amnon Reichman, "Public Interests as Human Rights", 41 Mishpatim 97 (5771)). Thus – for example – freedom of speech, which is recognized as a fundamental right in our legal system (HCJ 806/88 Universal City Studios vs. Films and Plays Censorship Board, IsrSC43(2)22 (1989)), receives legal protection on the political level, as the core of the right, but will not necessarily receive a similar protection on the level at the distant periphery of the recognized right, which collides with other interests; the farther you go from the core of the recognized right, so it is possible that under certain circumstances a certain act will not fall within the protection of the law. The question is thus twofold: whether the act falls under the definition of the fundamental right, and whether, under the circumstances, it is protected by the law, after the balance against other interests and rights (see ibid, p. 33-34, President Barak). In order to complete the picture, we shall note that the classification of the considerations at stake as rights or as interests defines the formula of the balance between them, and the normative superiority of one value over the other or their equal value (see Re Gur Aryeh, p. 284); however, the mere classification and the balancing manner ("horizontal" or "vertical") do not necessarily decide the concrete question before the court, since a weighty interest in vertical balancing, such as the interest of the security of the State and the public, may prevail in certain cases over a fundamental right (see HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel vs. Minister of the Interior, [2006](1) IsrLR 202, 339 - President Barak; and compare with the position of former Deputy President Cheshin, p. 457-459, and the position of Justice (his former title) Rivlin, p. 555-559 (2006)).

24. The tough question – which was raised in re Nachmani under the special circumstances thereof – with respect to the classification of the right to parenthood against the right not to be a parent and the normative status of the one against the other, is not raised in the case at bar; because, as we shall see, harm to the core of the right to parenthood has not been proven, and, in fact, if harm has taken place in the matter at hand, it pertains to the right to autonomy; in this situation again, at most the issue concerns the right of the Donor to autonomy against the right of the Petitioner to autonomy, all as shall be specified below.

Of the Right to Parenthood

25. Indeed, on the one hand, the Petitioner stands before us with her heart's desire to bring into the world another child from the Donor's donation, having full genetic siblinghood with her daughter. On the other hand, there is the Donor, who asks to prevent further use of the sperm donation he made in the past, and prevent an insemination process, that would make him, against his will, a genetic father to at least one more child, even if without ties with the child and obligations to him. Justice Strasberg-Cohen described this in re Nachmani as two sides of the same coin (see re Nachmani, p. 682), yet, according to her statements as well, a mixture of interests lies at the balance, and even if these interests may be referred to under the general term of right to parenthood and the right no to be a parent, this matter is not thereby exhausted; see the essay of the scholar Daphne Barak-Erez, "Of Symmetry and Neutrality: Reflections on the Nachmani Case", Iyunei Mishpat, 20(1)197, 198 (5756). I shall note already at this point that I do not believe that this case requires legal innovation with respect to the right to parenthood and the right not to be a parent, since the Petitioner's right to parenthood is undisputed, and the question is whether one should recognize the interest of parenthood necessarily by the sperm of the specific donor, as protected under one of these rights.

26. Indeed, despite the different reasoning in re Nachmani and the disagreement between the members of the panel, including among the justices of the majority, it appears that there is presently no longer a dispute with respect to the status in-principle of the right to parenthood – and this is true also in the case at bar. In other cases as well, the perception that the natural right to parenthood is conferred upon every person has been established, as emphasized in CFH 7015/94 the Attorney General vs. Jane Doe, IsrSC 50(1)48, 102:

"It is the law of nature that a mother and father will naturally hold their son, raise him, love him and see to his needs until he grows and becomes a man. This is the instinct of existence and survival in us – 'the call of blood', the ancient longing of a mother to her child – and it is common to man, beast and bird. 'Even sea-monsters [jackals – M.C.] offer their breast and nurse their young' (the Book of Lamentations, 4:3)…this tie is stronger than anything, and is beyond society, religion and state…the law of the state did not create the rights of parents toward their children and toward the entire world. The law of the state addresses something already made, it aims to protect an inborn instinct within us, and it transforms an 'interest' of parents to a 'right' under law, to the rights of parents to hold their children" (Justice (his former title) M. Cheshin).

            And elsewhere, Justice Cheshin emphasized:

"The State argues and maintains as follows: a woman does not have the "right" to surrogacy; it is as though the issue of surrogacy is 'off-limits' and therefore a discrimination argument is an unmerited argument. According to this claim, because a woman is not entitled, ex hypothesi, to need a surrogacy process, a woman's claim of discrimination will consequently not be heard …I have found this argument difficult to comprehend…undoubtedly, the argument of a 'right' under law is a misplaced argument, certainly after the Surrogacy Law, which regulates the issue of surrogacy as it does. Whereas prior to the Law (and the regulations that preceded it), and there being no prohibition on surrogacy, one might argue that a woman, any woman, did have, a 'right' to surrogacy. In any event, the argument of a right to surrogacy is not to the point, yet, the main thing is that the 'right' we speak of – the right to parenthood – is a right that nature brings to us; it is of this right that we speak, not of the right to surrogacy by law (HCJ New Family, p. 445; emphasis added – E.R.).

27. These words are also relevant to the matter at hand (also see HCJ 2245/06 Dovrin vs. the Israel Prison Service (June 13, 2006): "Family and parenthood are the consummation of the natural urge for the continuity of generations and the self-fulfillment of the individual in society"; ibid, paragraph 12 – Justice Procaccia). It is only natural that we mention at this point, that one of the first and foremost commandments is "[B]e fruitful and multiply and fill the earth" (Genesis, 1:28). And this is a deep aspiration, not to be taken lightly. Rachel says to Jacob (Genesis, 30: 1) "[G]ive me children, or else I die". The longing of the mothers, Sara, Rebecca and Rachel, and Hanna, the mother of Samuel, as well as the mother of Samson, all of these are documented in the Bible. The divine promise is " [T]here shall be no male or female barren among you..." (Deuteronomy, 7:14). The visitation of barren women is entrusted to the Almighty and to the righteous (Genesis Rabbah, 77), but the key of birth ("key of life" – "Maftea'ch shel Haya") is not entrusted to an agent and remains in the hands of the Almighty (Babylonian Ta'anit 2, 1-2); see also the ethics book Messillat Yesharim [lit. "Path of the Upright"] by the RaMHaL (Rabbi Moshe Haim Luzzato), the Sanctity chapter. Indeed, in any situation in which the person claiming a right to parenthood requires the approval of use of a new technology in order to enter the world of parenthood, a claim may be voiced that such person does not "hold the right to a particular treatment", he does not hold the right to insemination treatments, to surrogacy and the like. However, the core of the right to parenthood is the practical ability to bring children into the world. Just as the State does not require a "parenting license", so it may not prejudice a person's right to parenthood without weighty pertinent reasons (see CA 413/80 Jane Doe vs. John Doe, IsrSC 35(3)57, 81-82 (1981)). In such situations, wherein a person requires a certain medical treatment in order to be included in the parent circle, non-administration of the treatment infringes upon his right. Naturally, the right to parenthood is also relative, but there can be no dispute that in such cases there is a concrete infringement on the protected interest.

28. I shall briefly address the classification of the right to parenthood (also see the words of Justice Goldberg, re Nachmani, p. 723-724). This point was extensively articulated by Justice Strasberg-Cohen (in a dissenting opinion) in re Nachmani:

"The classification of norms that regulate activity in relationships between man and his fellowman has occupied more than a few legal scholars and academics of various fields…legal rights in their strictest sense are the interests that the law protects by imposing duties on others in respect thereof. Conversely, legal rights, in their broadest sense, also include interests that are recognized by the law, against which there is no legal duty. These are liberties…Where a person has a right, which is a liberty or permission, he is under no duty toward the State or toward another to refrain from committing the act, just as he is under no duty to commit the act, which he is at liberty not to commit. A right, which is a freedom or a liberty, does not hold the power to impose a duty on another and to demand that he commit an act, which he is free not to commit…

The right to be a parent is, by its very nature, essence and characteristics, a natural, innate right, inherent to human beings. It is a liberty against which there is no legal duty, neither in the relationship between the State and its citizens nor in the relationship between spouses. The right not to be a parent is also a liberty, it is the right of an individual to control and plan his life. Indeed, non-parenthood in and of itself is not the protected value. The protected value in non-parenthood is the liberty, privacy, free choice, self-fulfillment and the right to make intimate decisions..." (ibid, p. 681-682; emphasis added – E.R.).

            And like her, Justice Dorner in the same case:

"Liberty in its fullest sense is not merely the freedom from outside interference by the government or by others. It also includes a person's ability to direct his lifestyle, fulfill his basic wishes and choose from a variety of possibilities while exercising discretion. In human society, one of the strongest expressions of an aspiration, without which many would not consider themselves to be free in the full sense of the word, is the aspiration for parenthood. This is not merely a natural-biological need. It concerns a freedom, which, in human society symbolizes the uniqueness of man. 'Any man who has no children is as good as dead' said Rabbi Yehoshua Ben Levi (Nedarim, 64, B [19]). Indeed, whether man or woman, most people consider having children to be an existential necessity that gives their lives meaning. Against this basic right, which constitutes a key layer in the definition of humanness, we are required to examine the right not to be a parent. The foundation of the right not to be a parent is the individual's autonomy against the interference of the authorities in his privacy." (re Nachmani, p. 714-715).

29. Hence, the right to parenthood is a liberty, in the legal sense thereof – the right that fellowman and the State not interfere in the individual's actions and not obstruct the fulfillment thereof; a right against which there is no positive duty to act. However, an additional distinction emerges from these words, which pertains to the two layers of this right. The first layer, which holds value in and of itself, is the ability to fulfill the reproductive ability and become a biological mother or father. The second layer, which is also the one underlying the right not to be a parent, is the ability of a person to choose how to fulfill his natural right, i.e., the first layer. The second layer is at the periphery of the right to parenthood, it is not intended to protect the value of bringing children into the world in itself, but rather other values, such as the right to privacy, autonomy and the free choice of with whom, how and when, if at all, to bring children into this world (including the ability to plan a family). This point was articulated by the scholar Green in his aforementioned book:

"There are two facets to the right to be a parent: one facet, which to distinguish from the other shall be referred to as the factual, biological-physical facet, namely the right to belong to the parent population and have the status of a parent. The other facet is the right to decide if, when, with whom and in what way to exercise the first facet of the right to parenthood" (Green, p. 68).

30. The right not to be a parent, as aforesaid, is based on the protected value of autonomy; on the face of it, in Israeli society in particular and perhaps in the free world in general, there is presently no value in and of itself in not being a parent; even if the Sages have said "[I]t is better for a man not to have been created than to have been created" (Babylonian, Eruvin, 13, 72), they added in the same breath "[and] now that he has been created, let him examine his deeds". In re Nachmani (p. 710-711), Justice Tal emphasizes the commandment "[B]e fruitful and multiply" (Genesis 1:28), which we have mentioned, and the words of the Sages (Babylonian Yevamot 63, 2): "Tanna, Rabbi Eliezer says that every person not engaged in bearing fruit and multiplying is as though spilling blood". Indeed, Rabbi E.M. Shach, may he rest in peace, told the story of the Chofetz Chaim, Rabbi Israel Meir HaCohen, may he rest in peace (HaMe'ot, the 19^th-the 20^th), who was deliberating in his times whether to give a couple a blessing for fertility because "children are an immense responsibility, it being a deposit from Heaven", and he saw the difficulty in raising children in a generation whose behavior is lawless and immoral (see Rabbi Asher Bergman The Use of Torah (Year 5758), 139). However, one way or another, everyone, or virtually everyone, would certainly agree that the right to parenthood includes a core value which stands on its own – to bring children into the world – and protects the value of autonomy. Scholar Barak-Erez wrote of this rationale in her aforementioned essay:

"This assumption of symmetry between the rights requires further inspection. Albeit captivating, it is far from being self-evident. It is not at all clear whether the right to be a parent and the right not to be a parent should be discussed on the same level only due to their allegedly being symmetric. In other words, the existence of symmetry between the two rights may not be assumed merely because they hold both ends of the rope of parenthood.

As a rule, the right to "have" and the right to "not have" are not always equivalent. Is the right to life completely equivalent to the right to die? ... This is not a sole example. From the fundamental principle of freedom of speech develops both the right to speak and the right to be silent. However, does it thence result that the right to speak is always equivalent to the right to be silent? … In order to decide the question of balancing the rights, one must address the justifications that underpin them … Justice Strasberg-Cohen determines that 'the right to parenthood derives from the right to self-fulfillment, liberty and dignity'. If the focus is on 'self-fulfillment', the right to parenthood is part of the idea of the autonomy of will: the law respects the individual's choices, including the choice of self-fulfillment through parenthood. When the right is perceived in this way, when it is the will that takes the focus, the balance between it and the decision to avoid parenthood is supposedly simple, since the court also respects this decision in the name of the autonomy of will.

However, there is only a semblance of simplicity here. Firstly, even were we to deem the right to parenthood and the right to avoid parenthood merely as derivatives of the autonomy of will, the symmetry between them would not be imperative. We do not respect every will, nor should every will be respected to the same degree. Beyond this, the main criticism is directed against the narrow perception … in my opinion, one should unravel in it [in the right to parenthood – E.R.] many additional facets. The right to be a parent is an independent right, rather than a mere expression of the autonomy of individual will. The realization of the option of parenthood is not just a possible way of life, but rather it is rooted in human existence. One may find it a cure for loneliness; another will thereby cope with the consciousness of death. Indeed, the choice to avoid parenthood is a possible way of life, which society and law need to respect" (p. 199-200).

31. We shall also recall the position of Justice Goldberg, who noted in re Nachmani that "[I]n the dispute before us a positive right and a negative right face one another", both of which are derived from the right to autonomy (ibid, p. 723); but, in contrast, the position of Justice Turkel in that same case, who emphasized:

"The modern view, social and legal, recognizes the autonomy of the will of the individual. Hence derive and stand, ostensibly, one against the other, the right to be a parent and the right not to be a parent… Indeed, as cited by Joseph Raz from the essays of Prof. Gans and Dr. Marmor: 'An autonomic person is a person who writes his life story himself'. However, to use this simile, is there indeed symmetry between the rights of each of the spouses to write his own life story himself? In my view, there is no symmetry between the rights, despite the 'external' similarity between them, and the right to be a parent may not be deemed merely as a derivative of the autonomy of will, which stands against the right not to be a parent. Still, even if we deem both of the rights as such derivatives, they are not of equal value and standing, as though existence and nonexistence are equal to one another, and as though they are the symbols 1 and 0 on the computer under the binary method" (ibid, p. 736-737).

I believe that this last position is closer to the position I support, whereby the right to parenthood includes an independent value component that exceeds the right to the autonomy of will, unlike the right not to be a parent, which is anchored in the autonomy.

32. We have thus found that the right to parenthood is, on the face of it, a cardinal value in and of itself, natural and primeval, and with high-ranking on a human scale of values; this is joined by the autonomy embodied in the choices of the individual related thereto. We have also seen that, in contrast, the right not to be a parent does not include a protected independent value, but is rather intended to protect the personal autonomy of a person in his choice (not to be a parent, or not to be a co-parent with a certain woman or man). It shall be noted that even those who side with this right being only an interest, see it – so it appears – as an interest that should be protected legally; see the words of Justice Tal in Re Nachmani (ibid, p. 701), who had reservations with respect to this classification. Now that we have established the characterization of the right to parenthood and the right not to be a parent, we shall now move forward to an examination of the standing of the Petitioner and the Donor.

Of the Standing of the Petitioner

33. It appears that, in the case at bar, the infringement upon the Petitioner's right does not pertain to the core of the right to parenthood. The primary basis of this right is the practical ability to be included in the "parent circle", and bring a child into this world; there is no actual dispute that such option is, thank Heavens, available to her from a practical standpoint. The Petitioner is healthy and fit to bring a child into this world and is not bound (as was the situation with Ms. Nachmani at her time) to the Donor in the case at bar. She is able to act soon to receive another sperm donation at her preferred timing for undergoing additional insemination treatments. The Petitioner claims that impingement upon the ability to choose with whom to bring children into this world is sufficient in order to be sheltered by the legal right to parenthood. However, in practice, this is not an infringement upon the right to parenthood, but rather, as explained above, at most, and this is highly doubtful, an infringement upon the periphery protected by her right to autonomy (without, for now, addressing the question of the scope of protection, whether the right was indeed violated and whether, on proper balance, it is deserving of protection). It is a major question, and I believe that as a rule the answer thereto will not be positive, whether the right to autonomy has been infringed upon by the focusing thereof on the sperm of John Doe the Donor and no other, at any rate where an anonymous donor is concerned.

34. It is claimed in this respect that "once the Petitioner arrived at the decision to bring children into this world from one donor only, and once she executed this decision when giving birth to her first-born daughter…the Respondents' decision infringes upon the Petitioner's right to parenthood" (Paragraph 21 of the Petition). However, as emerges therefrom, the Petitioner is not seeking protection of the core of the right to parenthood or of her autonomy, but rather of her right to parenthood from a specific person, or her right to a child having a specific genetic constitution.

35. In order to assert the difficulty in legally protecting the Petitioner's interest to again conceive by the same genetic constitution, we shall compare her situation with the situation of a married woman who gave birth to a first child in wedlock, and whose husband promised her that they would have another child. This is not identical, of course, but both of them hold the same promise in-principle, that the second child to join the family would have the same genetic constitution of the first child, i.e. a biological son or daughter by the same father. Can the law enforce this promise when the husband decides to dissolve the marriage, and consequently also infringe on the mother's interest of parenthood to children of the same genetic constitution (or the right of the child to a full genetic sibling)? Can one point to a protected legal interest, other than the interest of reliance, and the prima facie interest that contracts should be honored, although, of course, one may not, as a rule, disparage them? It is my opinion that the answer to these questions cannot be affirmative, and the power of the interest of reliance and agreement is insufficient. Moreover, the infringed interest in the case of the married woman as described may even be stronger in relation to the case at hand, since her reliance is perhaps greater in view of the close relationship between her and her husband; it is recalled that in the case at hand the choice is also subject to the discretion of the treating physician, as aforesaid (see above, according to Annex E-2 to the Director General Circular). Indeed, on the face of it, one might argue that the contractual relationship in a case of sperm donation attests to a choice to follow a different path to parenthood, "businesslike" or "financial", of the type that grants security that is not extant in an intimate set of understandings. We shall hereinafter return to an analysis of the issue on this basis, and shall already state here that this proposition cannot be held.

Interim Summary

36. We have addressed the nature of the right to parenthood and the right not to be a parent. We have seen that the first includes a separate independent value, recognized by law, which concerns the mere possibility of bringing children into this world, as well as an additional protection of the value of the autonomy of the designated parent (in this case – the Petitioner); the second principally includes the value of the Donor's autonomy. In the case at hand, we have found that the Petitioner is not fighting here for her core right to parenthood, which, in itself, no one is infringing on, but is rather seeking protection over her choice and her desire for parenthood from a specific person. We shall now move forward to examine the standing of the Donor. Such examination shall address, inter alia, the Petitioner's claim that the Donor's right to autonomy is not infringed upon (see Paragraph 15 above).

Of the Status of the Donor

37. As aforesaid, the core of re Nachmani was the difficulty to weigh, one against the other, the will of Mr. Nachmani not to be included in the "parents group" against his wishes, and the wish of Ms. Nachmani to enter such group. Both parties held the entrance key together, with one pulling out and the other pulling in; things also went as far as the biological stage of fertilization, which naturally intensified the difficulty, and the infringement upon the core of the parties' protected rights. In the case at hand, can the Donor point to a similar infringement? The issue we are concerned with indirectly raises a question complex in its own right that has yet to be fully addressed by law, which is the determination of the paternity of a child born by sperm donation; the question of what weight to ascribe the interest of autonomy – or none at all, as the Petitioner claims – of the Donor is inseparably linked to the question of in what social and legal sense he is a father.

38. In the case at hand, we shall not rule on this question, which may be deserving of determining by the legislator, but we shall hereinafter address it in the Halakhic context. The question before us is a complex question of values, and therefore the legislator takes precedence over the court in the ability to reach  a comprehensive and balanced arrangement, within which the gamut of the considerations of principle and practicality that are relevant to regulation will be taken into account. This was carried out in the Ova Donation Law, and the Agreements for the Carriage of Fetuses Law (Approval of Agreement and Status of the Newborn), 5756-1996 (even if there may be such or other criticism of these arrangements).

39. The normative framework – which includes, as aforesaid, the aforementioned Consumer Services Act, the regulations promulgated thereunder and the Director General Circular – does not decide this question; the courts that addressed this issue also refrained from setting a broad "paternity test", which exceeded the concrete case of the parties before it. In Re Salameh (CA 449/79 Salameh vs. Salameh, IsrSC 34(2)779 (1980)), it was ruled that a husband, who had given his consent to an insemination procedure, is liable for child support for the child born by the sperm donation of a stranger. It was ruled that the origin of child support was contractual, and therefore the question of the husband's status as a father did not require deliberation. Presently, as a solution in-principle for this matter as aforesaid, the consent forms of spouses include an explicit undertaking by the male spouse to assume full legal responsibility over the child. It should be noted that in Re Salameh and in the other cases raised in case law, a relation of paternity of the anonymous donor was never claimed; but, such rulings are instructive in a qualified manner with respect to the lack of status of the donor. The discussion of the husband's obligations for child support implies that there is no intention to attribute a similar legal liability to the anonymous sperm donor:

"At the base of these decisions, there implicitly lies the assumption that the sperm donor is not a father, although an unequivocal announcement in this spirit cannot be pointed to (Ruth Zafran "Family in the Genetic Era –Defining Parenthood in Families Created through Assisted Reproduction Techniques as a Test Case", Din U'Dvarim, B 223, 252 (Year 5766); original emphasis – E.R.).

Indeed, as the author shows, there are also different voices (see AP (Tel Aviv) 10/99 Jane Doe vs. the Attorney General, IsrDC 5760(1)831, 855) – but, in any event, there is no positive determination of parenthood with respect to the donor. To summarize this point, on the face of it, current law does not attribute "paternity" to a sperm donor in the classic legal sense of imposing child support. However, I believe it is clear that the mere fact that the donor does not owe legal duties to the infant born by his sperm does not negate the infringement on his autonomy – as the Petitioner claimed. We shall hereinafter address the mental implications of this infringement; prior thereto, we shall address the differences between the case at bar and re Nachmani.

40. Following the decision in re Nachmani, Mr. Nachmani was to become a father, both genetically and psychologically-socially: the theoretical child (who, as aforesaid, was not born at the conclusion of this sad story), was meant to know his father, and his father was meant to know him. Moreover, even if an indemnification contract could have been made between Mr. and Ms. Nachmani, which exempted the father from any future obligation, including the right (and the obligation inherent thereto) to visitation, beyond the aforementioned obligation of child support (since no consent of the unborn child to waive his rights was granted), the infant would have had the ability to insist upon his rights himself. It is also clear that it is not self-evident that an agreement between parents would negate, in effect, all of the father's duties (see Isaac Cohen "The Independent Legal Standing of a Minor in Family Law – Processes, Trends and Methods for Rebalance" Mishpatim 41 255 (5771)). Justice Strasberg-Cohen clarified these implications (in a dissenting opinion) in re Nachmani:

"Refrainment from forcing parenthood on a person unwilling to assume it is reinforced in view of the nature and hefty weight of parenthood. Parenthood involves an inherent limitation of the future freedom of choice, in imposing on the parent a duty that encompasses most of the fields of life. A person's introduction into parent status involves a significant change of his rights and obligations. Once a person becomes a parent, the law imposes on him the duty to care for his child. This care is not a casual one, but rather the duty to place the best interests of the child at the top of his priorities. A parent cannot deny the needs of his child simply because it is inconvenient for him to fulfill them. The responsibility of a parent to the well being of his child also holds tortious and criminal aspects. This responsibility incorporates the normative expectation of our social values and legal system, from the individual, with respect to his functioning as a parent. The highly significant implications that stem from this status mandate that the decision to be a parent be entrusted to the person and to him alone" (ibid, p. 683-684; emphasis added – E.R.).

41. The situation at hand is materially different. As aforesaid, if the Petition is approved, there is a certain chance that the Donor will become the genetic father of additional children (to the extent that the medical treatment is successful). Indeed, in the practical sense, this is an anonymous donor – with respect to whom, unlike other places in the world and other proceedings such as adoption, the child is not entitled to request information at the age of majority) (Rule 24 of the Director General Circular; for a discussion on the question of donor anonymity, see Report of the Public Committee for Examination of the Legislative Regulation of the Issue of Fertility and Reproduction in Israel, p. 34-36; Ruth Zafran "'Secrets and Lies' – the Right of AID Offspring to Seek Out their Biological Fathers" Mishpatim 35 519 (5765)). At this stage, it should be noted that the question of anonymity is a topic for debate in its own right, since against it stands the right of "a minor child, not to be suppressed all of the days of his life from knowing the identity of the father that had begot him" (see CA 548/78 Sharon vs. Levi, IsrSC 35(1)736, 758 – Justice (his former title) M. Elon); however, this question has not yet been examined in the context of the sperm donor. The fact of anonymity in the present state of affairs detaches the donor from nearly any "fatherly" context other than the genetic context, which remains concealed. On the face of it, according to present law, the donor owes no financial, social or other duty to the infant. In fact, it is not at all clear if and how the donor would know that he became a father, since, as aforesaid, this is subject to the success of the medical procedure, and without an inquiry on his part he will not learn about it. This also emerges from the statements of President Barak in re Nachmani, underscoring the situation of Mr. Nachmani compared with the one of an anonymous donor:

"At the foundation of the understanding between the parties – whether we deem it a contract or an agreement which is not a contract, and whether we deem it common property or we deem it a unique "phenomenon of law" – is the premise of a shared life. Once this foundation is removed, the foundation on which the relation between the parties is based is removed. If Danny Nachmani had been asked prior to the commencement of the fertilization procedure, whether he would be willing to go through with it even after separating from Ruth Nachmani, his sure answer would have been negative. It may be assumed that this would have also been the answer of Ruth Nachmani. In truth, they had not entertained this question, but the essence of the agreement (or the understanding) between them – an agreement for the birth of their child in common – is based on this premise. This is the basis for any act in the fertilized ova. This is the foundation of their entire inter-being. This is the infrastructure of their parenthood. It is not 'single family' parenthood. The sperm donor is not unknown. It is co-parenting on each and every ground" (ibid, p. 790; emphasis added –E.R.).

42. It may be gathered from these words, that the infringement upon Mr. Nachmani's autonomy was a harsh one, and pertained to the core of the right not to be a parent. In contrast, the infringement in the case at hand is weaker, which does not pertain to the core of the right. The remaining link, excluding possible changes in the law, is principally genetic – "a genetic father", not a father in the full social and legal sense of the term. However, as we have reiterated above, the fact that, in the case at hand, the impingement is reduced to the genetic element of parenthood does not nullify the infringement upon the autonomy. It is this issue that we shall now address.

Infringement against the Donor

43. In the broad context, no few writings have addressed the weakening of the model for determining parenthood on a genetic basis compared with models of physiological parenthood, social-functional parenthood (or, by another name, "psychological parenthood"), and other models such as the model of the best interests of the child and models based on the parties' consent (for elaboration, see Y. Margalit "Of the Determination of Legal Parenthood in Consent as a Solution to the Challenges of Determining Legal Parenthood in Modern Times" 6 Din U'Dvarim 553 (5772), and mainly the review in Chapter E thereof). Without expressing a position with respect to the dilemma of determining parenthood in such situations, it is clear today, when the genetic model no longer stands alone, and all the more so in a case of sperm donation, wherein no one "operatively" claims the donor's paternity, that such genetic connection is possibly not the be-all and end-all (see CA 3077/90 Jane Doe vs. John Doe, IsrSC 49(2)578, 599-605 (1995)).

44. Indeed, after years of going hand in hand with the genetic model exclusively (a position reflected in two of the central legislative acts in respect of the determination of parenthood – Section 3(a) of the Women's Equal Rights Law, 5711-1951 and Section 14 of the Legal Capacity and Guardianship Law, 5722-1962 – despite there being no definition of the term parent), the legislator also went some distance in the movement away from the genetic model, in determining parenthood in the new Surrogacy Law not by the direct genetic model, but rather by a "parenthood order" (the Agreements for the Carriage of Fetuses Law, Section 10); similarly, Section 42 of the Ova Donation Law also prescribes: "An infant born as a result of an ovum donation, will be the child of the recipient of the donation  for all intents and purposes" (emphasis added –E.R.), i.e., a determination of parenthood without a genetic relation to the recipient of the donation, but rather merely a physiological connection.

45. However, even if we were to find voices – and these are not the central voices – according to which the genetic link has weakened in the social and legal sense, especially in the context of sperm donation, it still carries a hefty weight; however, in any event, the infringement upon the autonomy is still concrete and strong, and it ultimately tips the balance in the case at bar. This is how the Donor himself described it in his aforementioned letter:

"The aforesaid act [the sperm donation – E.R.] is presently incompatible with my world view… I am not interested in having a child born by me, without me being able to give him love, and without me loving his mother. I see a connection between my genetic constitution and these conditions…"

46. The harm to a man, as a result of his feeling – even if it came about later and at first he had believed otherwise – that a child who is the fruit of his loins "walks about the world", and he is unable or unwilling, whether on religious grounds or in terms of the resources of time and emotion, to dedicate his love and attention to him – is inevitable, and touches upon his subjective moral conscience. The legal and Halakhic distinctions mentioned above are of no use to this person; this harm was described by the scholar Chaim Ganz:

"My sights are set on the interests that people have not to be in situations in which they are not fulfilling what they consider to be their emotional and moral duties, or the interests they have not to be in situations in which they pay too high a price in order to fulfill their moral duties, or not to be in situations in which they are indecisive as to whether to fulfill their emotional and moral duties or feel guilty for not fulfilling the same (Chaim Ganz "The Frozen Embryos of the Nachmani Couple" Iyunei Mishpat 18 83, 99 (5754)).

47. It appears to me that these words may be on the mark with respect to the Donor's feelings in the case at hand, as reflected in his letter to the court. It is for this purpose that the rule determined is that society may not, in the absence of weighty reasons, interfere with the intimate questions of reproduction. We must keep in mind that the sperm donor is not expressing a position in principle against bringing children to the world, as he has also married and has had children. Rather, it is hard for him to feel that the children to be born by his donation will not be his children, nor will they have the benefit of his affection, nor will they be the fruit of his love. We cannot dispute the weight of these things. As stressed by Justice (his former title) Or in Re Daaka:

"This right of a person to shape his life and his fate encompasses all of the central aspects of his life - where he shall live; what he shall do; whom he shall live with; what he shall believe in. It is central to the being of each and every individual in society. It bears an expression of recognition of the value of each and every individual as a world all its own. It is essential for the self-definition of every individual, in the sense that the gamut of the choices of each individual defines the individual's personality and life… The right to individual autonomy is not limited to this narrow sense, of the ability to choose. It also includes another tier – a physical one – of the right to autonomy, which pertains to a person's right to be left to his own devices…this right implies, inter alia, that every person has the liberty from interference with his person without his consent… the recognition of a person's right to autonomy is a basic component of our legal system, as the legal system of a democratic state…it constitutes one of the central expressions of the constitutional right of every person in Israel to dignity, which is established by Basic Law: Human Dignity and Liberty" (CA 2781/93 Ali Daaka vs. the 'Carmel' Hospital, Haifa, IsrSC 53(4)526, 570-571 (1999)).

48. Just as the initial choice, for such or other reasons, to make a sperm donation, with all of the implications entailed therein, was the Donor's – while his approach to values was different – so is the choice to retract his consent. As defined by the Director General Circular:

"Donor sperm shall not be taken, nor received nor used for artificial insemination, unless the donor shall have given his consent to the use of the sperm" (Rule 25(e); emphasis added – E.R.).

That is to say, consent is required for the mere taking of the sperm, for its receipt by the Sperm Bank and for the use thereof. Thus, for instance, it is clear that if a sperm donor had regrets, at the stage in which no use whatsoever had been made with his sperm – the bank would not have conceived of claiming that the donor had no right to recant (and for the purpose of further discussion, that the donor breached the contract with the bank). The significance of this is not that a sperm donor’s refusal for his sperm to continue to be used will be accepted under any circumstances; the stage in which the request is brought forth is relevant and even critical. There may be good and hefty reasons not to allow a sperm donor to recant, such as in a situation like the one created in re Nachmani; all the more so if conception has occurred. But other than under such circumstances, his right to retract and the infringement on this right bear actual weight and tip the scales. Indeed, he had given his consent and had received payment, however this is not an ordinary "transaction", but rather an issue that holds a fierce emotional aspect. The command of the conscience and feelings of the Donor is a matter of values and cannot be simply quantified in the legal sense; as emphasized by Justice Goldberg in re Nachmani:

"[The issue – E.R.] is by nature not within the framework of an existing legal norm. It may not be cast in the legal molds of a contract or a quasi-contract. It is entirely within the emotional-moral-social-philosophical realm. Hence, an explanation of the normative vacuum and the inability of the customary legal rules to resolve the dispute" (ibid, p. 723).

Like him, Justice Kedmi stressed that "[T]he answer shall thus be found in the internal world of values of each one of us. I also do not hesitate to say that it may be found in the cache of emotions inside the heart of each one of us" (ibid, p. 735). Even if the case at bar is not the same "borderline case" as was re Nachmani, we must acknowledge our limits when assessing the degree of harm to the donor, whose present point of view imposes such and other moral duties on him, in which bringing children into the world, who would not grow up to be his actual children, is opposed to. We shall mention again, that the entry, as argued, of the Donor into the religious world brings with it a harm that stems from this world of values. As aforesaid, a common opinion in the Halakha prohibits a Jew from making a sperm donation due to the prohibitions of emitting sperm in vain, the concern of future mishaps such as consanguineous marriage, levirate marriage (Yibbum) or renunciation thereof (Halizah) (see Paragraph 57 below). We shall also hereinafter address the status of the infant. Insistence on autonomy in the question of what will be done with a man's sperm does not need to come from a religious source; but entrance into the religious world may enhance it, as probably occurred in this case, and this should be respected. Again – this is no trivial matter; sperm is a type of man's continuity, hence the importance of the autonomy of a man to decide as to the use thereof, even if he initially believed otherwise. This is "high-level autonomy".

49. Finally, the harm to the Donor is not limited to the ability to choose not to be a father, but rather also extends to his autonomy to decide with respect to his status as a father. That is to say, a man who sees the genetic-biological parenthood or the "blood relation" as giving rise to moral duties of his as a father is harmed in his autonomy by both the denial of the choice, in and of itself, and by the nonfulfillment of his duties according to his conscientious or religious approach.

The decision in the case at bar

50. I believe, that in view of the analysis presented thus far, in the conflict of interests at hand, the Donor's wish to not be a genetic father to additional descendants prevails, within the bounds of autonomy, over the Petitioner's interest to bring children into the world, sharing the same genetic constitution; this last interest is legally insufficient to nullify of the Donor's right to change his mind. The parental liberty requires the cooperation of two people, within a marriage or another family unit, including – although with much lower force – within a single-sex family unit, through sperm donation; and it may be through a third party such as the Sperm Bank. Obviously, there are differences between the aforesaid situations, which may, under different circumstances, change the outcome; however, in the matter at hand I found no grounds to justify subjecting the Donor's wishes to the purpose of upholding the Petitioner's wishes.
51. The protection of the Petitioner's right to have children sharing the same genetic constitution stops where it clearly conflicts with the Donor's right. In a regime of relative rights, there is no right which grants its holder absolute superiority of exercise. Therefore, the acceptable interests underlying the Petitioner's arguments yield to the Donor's right to autonomy (see and compare with the opinion of Justice Mazza in re Nachmani, p. 750-751).
52. I am afraid that – with all human understanding for the Petitioner's feelings – the interest of conceiving from a certain individual, as stated in the Respondents' reply, is not recognized by law and is not protectable. Moreover, even if we were to assume that the matter at hand may be deemed as violation to the Petitioner's autonomy to choose with whom to have children, the Petitioner would receive no protection; since as aforesaid, we are concerned with a liberty, the fulfillment of which requires the cooperation of another:

"The right to be a parent and the right not to be a parent are two rights which despite being two sides of the same coin, do not share identical characteristics. Each in itself lies within the framework of individual liberties; the distinction between the two levels of rights is not in the one being a positive right versus another being a negative one, but in the fact that the right to be a parent belongs to the group of rights which require the cooperation of another individual for its consummation, whereas the right not to be parent is reduced to the individual himself… if the right to be a parent had been one of the rights in the strict sense, with a respective duty against it, there would be no need – on the theoretical level – for  consent from the outset, since once there is a duty the only remaining question is that of the appropriate remedy. Since the right is a liberty against which there is no corresponding duty, but rather an opposing right, and since two are needed for its consummation, the individual in need of the cooperation must obtain the same from the other party by obtaining his consent throughout. The right to be a parent requires – in the event of refusal by the partner – a positive coercive judicial act, whereas the right not to be a parent requires non-intervention and non-interference with the liberty of the individual who refuses to become a parent. Since the "refusing" partner has a right to not be a parent, he should not be subjected to such coercive order. Fulfilling the right of the individual seeking to be a parent by imposing a duty on an individual who does not is contrary to the essence of the liberty and violates its spirit" (the Nachmani case, p. 682-683 – Justice Strasberg-Cohen).

In re Nachmani – in which two rights weighed on the scale: the core right to be a parent, i.e. the mere ability to become a parent on the one hand, and on the other hand the right to autonomy, i.e. the right not to be a parent – it was ruled that under the circumstances the right to be a parent prevails. In the case at bar, on the other hand, the Petitioner cannot indicate violation of the right to be a parent. The issue at hand is her desire to conceive from the sperm of a specific person, against the wishes of that person to not be a parent again – even if, as aforesaid, a merely genetic parent – by way of sperm donation, it seems that there is no room to rule in favor of her petition.

53. It should be emphasized, as aforesaid, that in the case at bar, the Petitioner has indicated, at the most, violation of the right to autonomy. There is no violation of the Petitioner's right to become a parent herself, and the question is from whom she shall conceive; therefore – even if we assume, for the sake of the discussion, that the Petitioner's right to autonomy has been violated, and as aforesaid, I do not believe that it has been violated, and certainly not severely so– as opposed to the Nachmani affair, the conflict and ruling in the case at bar pertain to the Petitioner's right to autonomy versus the Donor's right to autonomy; and as mentioned, "we do not respect every wish, and not all wishes are to be equally respected" (Barak-Erez, p. 199). In the contest between these two "autonomies" it seems – without, of course, wishing to hurt the Petitioner's aspirations and feelings – that the Donor prevails. His case concerns an "active" legal measure – use of his sperm, whereas her case concerns a "passive" circumstance – preventing the use of the Donor's sperm. 
54. It may be that the interest of contractual reliance was violated in this case, and perhaps also additional public considerations and interests (such as the lateral effects and the need to preserve the stability of the Sperm Bank). However, the law, as in similar cases, avoids coercion with respect to the intimate questions of human life in the absence of weighty considerations (see the aforementioned CA 413/80; Pinchas Shifman "An Involuntary Parent – Misrepresentation Regarding the Use of Birth Control", 18 Mishpatim, 459 (5749)). And we shall reiterate – the force of the Petitioner's interest – with no offense, cannot tip the scales against the Donor's autonomy.
55. We spoke at length, since – as aforesaid in the preface – the avoidance of future cases is to be considered, and the possible lateral effects should also be addressed. The issue at hand calls for the intervention of the legislator. At this point it should be mentioned, as noted by the scholar Y. Green in another book he wrote on the issue ("Procreation in the Modern Era: Law and Halakha (2008), p. 99): "Caution should be exercised when holding a discussion on the in-principle, theoretical level, which is detached from the specific case to be decided. There is nothing "easier" than a theoretical discussion, but the solution is required for the specific case. It seems that the discussion in the appeal in re Nachmani demonstrates so".

Ostensibly, the aforesaid should have sufficed to conclude the discussion in the present case, however, I deem it fit to briefly discuss the position of the Hebrew Law on the issue of sperm donation and the status of the donor, since in some of the contexts contemplated, and in particular on the issue of attributing the newborn to the sperm donor, Hebrew Law has significant weight in shaping the Israeli law as well as some of the arguments on other levels of the discussion mentioned, and explain why the outcome in the case at bar does not change.

The Position of Jewish Law

56. The possibility of giving birth as a result of artificial insemination, although by chance, is mentioned already in the Talmud (Babylonian, Tractate Hagigah 14, 72-15, 71) in reference to the prohibition of the High Priest to marry a woman who is not a virgin (Leviticus 21, 13 and 15): a pregnant woman who claims to still be a virgin is permitted to the High Priest since "she may have conceived in the bath", i.e. from the penetration of sperm to the uterus, other than by way of sexual intercourse but by chance, while washing in a bath to which human sperm was ejaculated. The Halacha distinguishes between questions such as whether the technique of artificial insemination is in itself permitted (and in the present context, whether sperm donation is prohibited), and the Halakhic and legal consequences of insemination that has taken place. Regarding the mere donation of sperm by a Jew, Prof. Rabbi Avraham Steinberg writes "New Technologies in Fertility Treatments – Halakhic Aspects" a chapter from his book in "Halakhic Medicine", which was discussed at the Rabbinical Judges convention in 5772, that "a Jew who donates sperm to an unknown woman violates the prohibition of wasting sperm…", this is according to various sources such as Rabbi Moshe Feinstein (Letters of Moshe Even HaEzer I titles 10-11) and Rabbi A.I. Waldinberg, et al. (Tzitz Eliezer 9, 51).
57. Regarding the status of the newborn, Halakhic literature offers – amongst the modern adjudicators and their interpreters – different opinions, of which some are stringent (i.e. frown upon the mere artificial insemination from an unknown Jewish donor, and consider the donor to be the newborn's father, and therefore – in the case of a married woman – there is a fear of bastardry), and some are lenient, severing the tie and not necessarily attributing the newborn to the sperm donor, and also permit him to enter the assembly with no fear of  bastardry. One of the Halakhic questions is whether the child is deemed a "Shtuki", i.e., "one who knows his mother but not his father" (Mishnah, Kiddushin, 84 42), who is an doubtful bastard; see, among other interesting articles and dissenting opinions in Techumin 24 (5764); Rabbi M. Ralbag, in his article, "Attribution of a Newborn Conceived by Artificial Insemination" (p. 139), concludes that "a child who is born to a single woman by way of artificial insemination and with sperm taken from the sperm bank, either abroad or in Israel, shall not be deemed a Shtuki, who is prohibited for fear of bastardry, but is legitimate and may marry a legitimate Jewish woman" (p. 147). This is supported, inter alia, by central opinions in Halakhic adjudicative literature such as Rabbi Moshe Feinstein, Rabbi Shalom Mashash and others. On the other hand, see Rabbi Y. Epstein, "The Pedigree of a Newborn Conceived by Sperm From a Sperm Bank", ibid, p. 147, who concludes that "it seems that the child who is conceived by the fertilization of a single woman without knowing who is the sperm owner, increases the number of Shtukim in the world, and it should be avoided as much as possible" (p. 155); further see: Rabbi G. Orenstein "IVF – Attribution of the Newborn and the Command of Propagation", ibid p. 156, whose general approach (p. 156-157) is that the newborn is attributed to the father, which obviously adds to the Donor's dilemma. Also see: Prof. Rabbi Avraham Steinberg, Halakhic Medical Encyclopedia (Second Edition, 5748), p. 148; and his article "Artificial Insemination", Weekly Torah Portion Leviticus, edited by A. Cohen and M. Vigoda (5774), 102; A. Green "Procreate", p. 125-180. Prof. Rabbi Steinberg in his aforementioned essay "New Technologies in Fertility Treatments – Halakhic Aspects" believes that in general, "artificial insemination of a married woman by an unknown donor who is a Jew is prohibited, since this act entails so many Halakhic and moral-social faults". And he explains, that some believe that the prohibition is from the Torah, and some believe otherwise, and attribute the prohibition to moral-social considerations, such as detachment of the child bearer from marriage and turning "the birth of children into an arbitrary mechanical issue, denied of all the human qualities which make man God's partner in the act of creation". He further notes that there may be Halakhic complications of prohibited marriage of relatives and questions of inheritance – among other things, the newborn shall not receive, de facto, part of the inheritance of the sperm owner, even under methods which consider him his son. The sperm owner-donor – according to that method – is the newborn's father for all intents and purposes, and therefore the newborn is "prohibited to the relatives of the sperm owner, inherits his assets, his mother is exempt from Yibum and Halizah and he is liable for his child support" (I shall note that with respect to child support and similar issues, there are also other opinions). The aforesaid is in addition to the fact that "a priori, the artificial insemination of a single woman is prohibited. Under special circumstances, one should seek advice", and there are cases in which this shall be permitted, "such as when a single woman has made efforts to marry, and failed, and she reaches the end of her fertile years and she longs for a child, to be 'a cane to her hand and a hoe for her burial' (Yevamot 65, 2), all in accordance with the rabbinical judge's discretion, and the permitted conditions of artificial insemination". I shall add: in other words, the case of a woman who wants a child also in order to have someone to lean on in her old age – that would justify seeking the advice – and probably leniency.
58. And see, recently, the ruling of the Rabbinical Courts in (Beer Sheba) 90215/01 Jane Doe v. the Attorney General (Kislev 15, 5773, November 29, 2012), which concerned the status of a minor who was born to a single mother from artificial insemination, and the identity of the sperm donor was unknown. The Court ruled that the minor is allowed to enter the assembly, giving specific reason that artificial insemination creates no fear of bastardry, and it was, inter alia, stated (Paragraph H): "clearly if the newborn conceived by artificial insemination it not attributed to his father, there is also no fear of bastardry", since "the law that sperm is attributed to the sperm donor is not sufficiently clear and proven". And I shall add, that already two decades ago, Rabbi S. M. Amar, the present Rishon LeZion (Sephardic Chief Rabbi of Israel) and then a Rabbinical Judge in Petach Tikva, wrote in his book Hear Shlomo B', (Even HaEzer, Article B, p. 150-156) with respect to a child conceived by artificial insemination, that he should be permitted, and see the summary of the Halacha there, and this is also, as far as I am aware, his clear opinion today. Also see interpretation by Sara Hatab to the ruling of the Judicial Court in Beer Sheba ("Inglorious Bastards", Tsedek – Makor Rishon (Justice, Primary Source), Shvat 14, 5773 – January 25, 2013).
59. From the research literature which quotes the words of adjudicators, we will note that Prof. M. Corinaldi, in his book, "Laws of Personal Status, Family and Inheritance – Between Religion and State, New Trends (5764) also addresses the approach of the Hebrew law to the issue of sperm donation, pursuant to his previous essay – "The Legal Status of a Child who is Conceived by an Artificial Fertilization from an Unknown Donor or by an Ovum Donation" Jewish Law Annual 18-19, 295 (5752-5754). His starting point is the answer of Rabbi Peretz, one of the authors of Tosafot (annotations to the Talmud) in the 13^th century (of whose opinion has two versions); see p. 79-81. According to Rabbi Peretz, "a baby born to a married woman from the sperm of an unknown man – and not through prohibited intercourse – e.g. conception through a sheet – is not a bastard ("legitimate newborn") since there is no forbidden intercourse or partner". This answer is the Halakhic foundation, for example, for the aforementioned opinion of Rabbi Moshe Feinstein, see references on p. 81, note 30; in addition, the words of Rabbi A.I. Waldinberg are quoted (Tzitz Eliezer 9, 51 Section 200, 249), similarly to the opinion of Rabbi Feinstein, who believes that in the absence of ordinary intercourse, there is no fear of bastardry, since “anyway he did not come close to a woman, and it was for monetary consideration that he gave his sperm for that purpose, and the woman conceived anyway, without him positively taking action to consummate the conception. Moreover, in this case the act of the physician followed, in the absence of which the sperm of that man is allegedly discarded into the trees and stones…". Prof. Corinaldi concludes that the Halacha also makes room for a method whereby a man who agrees to the use of his sperm for an unknown woman "is deemed as a man who deposits his sperm in such a way as to expire the natural connection, and there is no genealogical connection formed between himself and the newborn – who is deemed as lacking pedigree on the father's side"; and Rabbi Bazmach Uziel (Shaarey Uziel B' 234) speaks in the same spirit. "For a man's pedigree is not attributed to him unless created in the usual manner through physical intimacy…" (p. 82-83). Dr. Michael Vigoda – "The Status of Those whose Conception is from the Sperm Bank", Weekly Torah Portion 5767 (282) – notes that Rabbi Yechiel Yaacov Weinberg, in Q&A Sridey Esh (Rabbi A.A. Weingurt's Edition) A', 49, considered an individual who was born by fertilization to be a Shtuki and is deemed as a bastard, but on the other hand Rabbi Ovadia Yosef ruled leniently. The author also quotes Rabbi Asher Weiss who tends to be lenient, as the insemination is completely detached from intercourse (similar to the aforementioned opinions of Rabbi Finstein and Rabbi Waldinberg); and see additional references there. Dr. Vigoda's conclusion is that "it seems that the proper solution is to properly regulate, at the very least, this highly sensitive issue and set forth rules of registration and control to ensure, on the one hand, that a woman shall not receive sperm from a relative or an illegitimate person, and enable the prevention of relative-marriages, and on the other hand, keep in confidence the identity of the donors… it is important to verify that the informed consent of those who need the services of sperm banks shall include an understanding of the Halakhic meanings of the procedure, and the sooner the better". With respect to the Sperm Bank, also see the lecture of the Rabbinical Judge, Rabbi David Malka, "Halakhic Aspects in the Activity of a 'Sperm Bank'", the Rabbinical Judges Conference, 5768. With respect to the Halakhic concept of parentage, also see Eran Shiloh, "More on the Halakhic Concept of Parentage – 'For Your Son to be Removed'" Weekly Torah Portion, 324 (5768).
60. It transpires from all of the aforesaid, that on the one hand there is a substantial school, mighty pillars to lean against, taking the position which detaches the parental connection from the donor, and some believe otherwise. As in this issue on the whole, I shall join Dr. Vigoda in his call for the legislator to intervene, and to my mind, in the directions he suggested. However, in the current state of affairs, a donor might find himself under a concern with respect to his Halakhic status in the various aspects, regarding both the donation itself and its consequences, and this might constitute a component of and support a position which has reservations regarding the donation and its consequences as expressed by him in the case at hand, without myself riveting or necessarily joining that.

The set of contracts between the parties and other arguments

61. Ostensibly, as aforesaid, we could have viewed this case also through the glasses of the private law and the contracts law; the term contract has different meanings and interpretations, but it is common to consider a document which expresses the parties' wishes and reflects a "promise" that is to be respected as a contract to which the contract law shall apply anyway (see Gabriela Shalev, Contract Law – General Part, Towards Codification of the Civil Law (5765) p. 13). Apparently, the aforementioned set of forms creates two contracts between three parties – between the donor and the Sperm Bank, and between the Sperm Bank and the recipient of the donation; indeed, there is no contract between the donor and the recipient of the donation. However, the application of contract law shall not change the outcome; the same values and consideration discussed thus far shall also be expressed here, through the principled concepts: the principle of good faith; public policy; and the principles of justice in the enforcement of a contract. Good faith, for example, is a window through which the values of our legal system and the values of public law flow into private law. The bottom line is therefore that the implementation of the aforementioned law and principles lead to the same outcome also according to contract law, although the potential problems as a result thereof are complex (for example, the question may rise, whether the contracts in the case at hand should be viewed as standard contracts pursuant to the Standard Contracts Law 5743-1982); it would not be appropriate to rule on these questions within a coincidental discussion, without sufficient foundation for the discussion.
62. In re Nachmani, Justice Dorner stressed why according to her, the contract law should not be applied to that case:

"… An agreement to have children is not a contract. It is presumed that spouses would not be interested in applying contract law to matters of that sort… anyway, even if it would have been proven that this was the parties' intention, it would still not be in their powers to give the agreement between them the effect of a contract, since a contract to have children is against public policy…

Nevertheless, the fact that an agreement to have children is not a contract does not entirely nullify the legal effect of the agreement or even a representation of consent, since in balancing the parties' rights there is room to also consider the fulfilment of the agreement between them, or the existence of a representation of an understanding. An agreement, as does a representation, may entail expectations and even reliance. These are to be considered among the other considerations affecting the balance (ibid, p. 717)).

Indeed, the picture in the case at bar is different: and in my opinion the set of agreements in the case at bar should not be deemed as void in view of public policy (see paragraph 35 of the Petition); it seems that the continuity of sperm banks, which assist many people every year to consummate the right to bring children into the world, is a public interest; therefore, the creation of a consensual and steady set of agreements which sustains the sperm banks is a public interest, and of course a clear interest of the parties. Certain reinforcement may be found in the attitude of case law to the aforementioned issue of child support; the Courts' willingness to recognize child support of a husband of a recipient of a donation by virtue of a contractual undertaking between them reinforces the conclusion that the contract law and the private law may resolve such issues. In this matter, see the Salameh case; FC ( Jer) 10681/98 John Does v. John Roe (September 19, 2000); and the opinion of Justices Or (p. 764) and Zamir (p. 780) and President Barak (p. 790) in the Nachmani case; also see Y. Margalit "Towards Determining Legal Parentage by Agreement in Israel", 42 Mishpatim 835; 887, (5772). Further reinforcement may be found in the approach of Israeli law to the violation of a marriage promise, an approach which deems the consent to marry a non-enforceable consent, however a compensable one (see CA 5258/98 Jane Doe v. John Doe, IsrSC 58(6) 209, 220-225 (2004)). Nevertheless, I must pose a "warning sign" here; as we are not concerned with "regular" contract law, of the economic sphere. The issue at hand comprises significant emotional components, and the perspective of contract law is only one part of the picture.

63. Still in the sphere of contract law, the Respondents argued, and rightly so, that the contract between the donor of sperm and the sperm bank can be viewed as a contract which is not limited in time, and therefore such that each of the parties may terminate following a change of circumstances, subject to the duty of good faith. Indeed, supplementary interpretation of a contract in which no time limit has been set forth as an integral part thereof, leads to the conclusion that the parties did not presumably intend to be bound by the contract indefinitely. (CA 9609/01 Mul HaYam v. Adv. Segev, IsrSC 58(4) 106, 141 (2004)). The Petitioner claims that the Donor's part ends upon the sale of the sperm to the bank, and the present case does not concern the termination of an indefinite contract. I cannot agree with this; there is great doubt in my mind whether we can draw an analogy to the sale of a car, for example, to the sale of sperm. I believe, with all due cautiousness, that an individual selling his sperm – if we call the donation a "sale" – does not confer upon others proprietary ownership of the "usual" kind in his unique genetic constitution (and so, for example, it does not seem that he confers the right to genetic "duplication" – had it been possible, of course); in other words, the sperm bank does not acquire "proprietary ownership" of the genetic code of the donor in a manner which detaches him – as per the Petitioner's claim – from the continuation of the process (and the same is relevant also to arguments regarding the acquisition of the right to preserve sperm units or any other proprietary right). This is a complicated question, but it seems that it can be assumed that this is a contract with no time limit, which does not confer a proprietary-ownership right – and therefore a party to the contract may withdraw his consent.
64. As aforementioned, this possibility is not a "veto right" of the donor throughout; the "point of no return", wherein the balance of rights and interests shall change, and that donor shall loose the legal possibility to terminate the contract and retract his donation, may vary in accordance with various considerations; these include, inter alia, the force of the consent and the way in which it was expressed at the outset (e.g. the difference between written and oral contracts), the point in time in which the termination of the contract is requested; the type of process and physiological affinity under discussion (in this way, for example, I doubt – as aforesaid – whether a way back is possible in case the sperm donation has already been fertilized into an ovum of the recipient of the donation within an IVF, and certainly, a fortiori, there will be no way back when a pregnancy is carried by the recipient of the donation's body or a surrogate mother's body); the law pertaining to the determination of parentage in such a case, the consent of the other parties to the cancellation of the process (since there may be more than two parties to the contract – e.g. in the case of full surrogacy); and obviously, the best interest of the born child – and the list is not a closed list (for the beginning of a discussion of these issues, see Y. Margalit, ibid, p. 874). Note that the dispositive consent in itself does not define the point of no return; it is determined by law. Such is the case also in the Ova Donation Law, from which the Respondents wish to conclude; see Section 44, whereby a donor or a patient may withdraw from a consent that was given with respect to the extraction of ova from her body "at any time prior to the performance of the procedure to which she had agreed to designate the ova extracted from her body, and with respect to consent to designate ova for implantation – at any time prior to the fertilization of the ova, and she will be under no civil or criminal liability for the withdrawal of her consent as aforesaid". It should be noted at this point, that even if the legislator made no statement in the matter at hand, this Law can serve us at least as reinforcement of the conclusion to which we have arrived, since it addresses, in essence, a very similar issue.
65. In the case at bar – as indicated above – not one of the contractual documents between the parties include reference to the possibility that for reasons other than the quality of sperm or its medical suitability, the recipient of the donation shall be unable to be inseminated by the sperm donation which she selected according to the general data available to her; most certainly there is no concrete addressing of the question of retrieving the donation – hence the Petitioner's reliance. The mere option to pay for safeguarding of sperm units implies that possibly the formulators of the said forms did not perceive a possibility of withdrawal of consent. However, as emphasized above, a priori and regardless of the donor's wishes, the wishes of the recipient of the donation are subject to the discretion of the attending physician (Annex E-2) in all aspects pertaining to the selection of sperm to be used, and the bank further disclaims any responsibility "in any manner whatsoever for the loss, damage or other use of such sperm units" (Res/3). In such a case, in which the parties did not address in advance the possibility of withdrawn willingness regarding the use of the sperm, it should be incorrect to assume for them that it does not exist (since the contract nevertheless does not, as aforesaid, prevail their lawful rights). Moreover, this issue also affects the legitimate reliance interest of the Petitioner, which unequivocally carries weight, but does not tip the scales, inter alia, in consideration of the aforementioned contractual situation. Furthermore, in terms of the aforementioned point of no return, additional considerations lead to the acceptance of the Donor's withdrawal of consent, and in particular the lack of any physiological affinity thereto by the Petitioner at this point in time.
66. Finally, and without making a definitive ruling, I shall also mention the rule stipulated in Section 3(4) of the Contracts Law (Remedies for Breach of Contract), 5731-1970, which determines the "justice exclusion" to the enforcement of a contract (see Gabriela Shalev and Yehuda Adar – Contract Law – Remedies: Towards the Codification of Civil Law (5769) p. 230). This issue was also discussed in re. Nachmani, as stressed by Justice Strasberg-Cohen (dissenting opinion):

"In the field of liberties, the law avoids forcing an individual to do that which he is not compelled to do, also in other contexts in the sphere of inter-personal relationships between humans. Every individual has the right to be married. However, there is not dispute that an individual who had been promised marriage, a promise that was broken, shall not receive from the Court a remedy of enforcing that promise. Every person has a right to start a family and have children. However, there is no dispute that the State – whether directly or through the Courts – shall not enforce an individual to have children against his will, even if he had promised his spouse to do so, and even if the spouse has relied thereon and perhaps even entered the marriage upon reliance and expectation of the same. And why is this not done? Not only because a mandatory injunction cannot force action (other than, perhaps, by way of contempt of court proceedings until the "recalcitrant" shall accede), but because of the in-principle and normative reason therefor, which is the law's refraining to call upon coercive measures for the purpose of fulfilling the heart's desires of one spouse, in contrary to the wishes of the other" (ibid, p. 683).

In my opinion, the aforementioned considerations are also relevant with respect to this exclusion, such that the contract – even if we accept the breach argument – may be viewed, in its current form and under the circumstances, as a non-enforceable contract (for a discussion of the considerations within the exclusion of justice, see Shalev & Adar, p. 231). Indeed, this brief discussion is far from exhausting the questions raised by this case; as aforesaid, I did not find that contract law indicates a weighty interest that calls for an outcome different to the one we reached. However, the tarrying in regulating the whole issue by legislation is evident.

Lateral Effects of the Case and a Call upon the Legislator

67. The main concern arising from the case at bar is the damage to the stability of the sperm banks in Israel, through the issuance of a "carte blanche" for donors to withdraw their donation as well as through recipients of donations who, similarly to the Petitioner, asked the specific sperm bank to reserve additional donations for them, and shall realize that this option is not guaranteed. The stability of this institution is, as aforesaid, a public and human interest of the highest degree. The uncertainty in this area – a result of the unsteady normative arrangement – undermines, a priori, the public's possibility to rely on the receipt of a sperm donation. The solution therefor is in the hands of the legislator.
68. For a review of the numerous problems arising from the lacking normative arrangement, see for example HCJ Salameh, p. 784; HCJ 998/96 Yarus Hakak v. the Director General of the Ministry of Health (February 11, 1997); Shifman, p. 85; Margalit "Towards the Determination of Consensual Legal Parentage", p. 885-889; Shamgar, p. 37-38; Corinaldi, p. 325-326. We are concerned with morally sensitive and complex issues, which should not remain in the sphere of uncertainty and partial regulation. We refer not only to the aforementioned lacking forms but also to additional aspects, such as determining fatherhood and the issue of anonymity, limitation of the number of sperm units from a single donor, the medical examinations for donors and recipients of donations and the way of management of the sperm banks (for background, see the comprehensive audit by the State Comptroller, Annual Report 57B for 2006, p. 417-447). It would not be farfetched to assume that had the issue been handled thoroughly, the unfortunate case at bar could have been prevented, or, in the very least, all concerned parties would have known their rights in advance, rather than in retrospect.
69. In the meanwhile, and as a temporary measure, it is appropriate that the Respondents shall amend the consent forms of donors and recipients of donations in order to ensure that all concerned parties are aware of and understand their rights. So long as there is no legislation in this field, to regulate and define the donor's option to withdraw his consent, sperm banks must present recipients of donations with an accurate picture of the legal situation, in order to not promise what might not be fulfilled.

Comments before conclusion

70. My colleague, Justice Barak Erez referred (paragraph 14) to the sensitive issue of organ donation and to the fact that organs are not deemed as negotiable merchandise, although it is currently acknowledged by the Organ Implantation law 5768-2008; in this matter, she mentioned also other bodily donations, but stressed that "the recognition of the possibility to donate blood, sperm or ova did not turn them into 'assets' for all intents and purposes". I shall note that in HCJ 5413/07 Jane Doe v. the State of Israel (2007) I had the opportunity to address the approach of the comparative law and the Hebrew law in the area of organ donation from the living (see paragraph 9). I consent with my Colleague's comment, and shall stress the special sensitivity in these issues which require – on the one hand – a broad human perspective, and on the other hand, taking one step at a time in making the arrangements.
71. My colleague further justly referred (paragraph 19) to Directive 1.2202 of the Attorney General (of Heshvan 1, 5763-October 27, 2003) in the matter of "the obtaining of sperm post-mortem and the use thereof". I was the Attorney General at the time this directive was issued, and I remember the in-depth discussions involved therein, "from a broad moral-social perspective, which attributes significant weight to the concrete wishes of the individual in question (the deceased)…" (Section 4). It was further stated there, that "the Attorney General's position is based mostly on two central principles: one is respecting the deceased's wish which derives from the principle of the individual's autonomy and right to his body, and the second is the wish of his spouse…" (Section 9). In the matter at hand, however, I shall stress that the individual's autonomy of will played a major role in the decision therein, and was a leitmotif of the Directive. 
72. Reading the opinion of my colleague, Justice Amit, I shall note that his comment (in paragraph 8) regarding Section 3(4) of the Contract (Remedies) Law is based on FH 21/80 Wertheimer v. Harrari, IsrSC 35(3) 252 (1981); but see Sahlev & Adar paragraph 6.60-6.62 on p. 229-231 and note 189 there, with respect to the legal outline. As for justice itself, we are considering the enforcement of the contract on which the donor is signed, and enforcement is requested with respect to him, which is the reason for the reference made to the section in this context; and as recalled, to my mind, the decision lies in another legal field, such that the question I addressed related to the legal tool in the civil realm for applying these principles.
73. With respect to the relationship between the donor and the spouse in re Nachmani (paragraph 21 of my colleague, and paragraphs 40-42 of my opinion) as compared to the case at bar, indeed this is a "genetic" father who shall probably remain anonymous to his child, as obviously his child shall remain to him, rather than the "known" fatherhood discussed in re Nachmani. However, in my opinion the question, ultimately, is not whether the biological father shall come across the newborn, as could have been the case therein, but rather what goes through this father's mind, knowing that there is a child born of his sperm in the world, and such issue, as aforesaid, may permeate and deeply disturb his peace of mind, all in accordance to the individual in question and his feelings (as also noted by my colleague in paragraph 24).

Conclusion

74. The Petitioner's desire and wish to bring into the world another child from the sperm donation of the Donor are understood, and are also hard not to sympathize with. However, we cannot legally enforce that wish under the circumstances herein. The Donor's right to autonomy prevails over the interests at the basis of the Petition. The Nachmani case did not recognize an in-principle right to have children with a specific person; it recognized that in the absence of any other possibility to bring a child into the world, and under exceptional circumstances (inter alia, after the consummation of an IVF) the right to be a parent might prevail over the right of another person to not be a parent and to autonomy. This is not the situation in the case at bar. The Petitioner's right to be a parent, and her ability to parent, are not dependent on the sperm donor; furthermore, the Petitioner has no "advanced" affinity to the sperm, other than the payment for the storage of the specific sperm donation, prior to the Donor's request to withdraw his donation. Under these circumstances, the Donor's right to autonomy prevails. However, the current case highlights – as aforesaid – the necessity to regulate this area by the legislator, and as a first step, on the governance level, to amend the consent forms and the Director General's circular. We do hope that the Petitioner shall be able to consummate her right to be a parent as she wishes later on in life; the distress that was surely caused to her is not little, and we are deeply sorry for this. Indeed, the decision to donate sperm – and I find this term suitable also in view of the symbolic amount of money received by donors for providing the sperm – must be taken seriously and after considerable deliberation. Donors must know that their informed consent to give sperm to another person is relied upon by other human beings who wish to plan their lives and bring children into the world. Therefore, this decision cannot be easily revoked, and the revocation cannot be guaranteed under all circumstances, and it depends on the stage of the procedure; i.e. in the absence of a full normative arrangement, it is contingent on the circumstances, pursuant to the considerations reviewed above.
75. To conclude, we do not accept the Petition. Under the circumstances, there is no order for settlements.

Justice

Justice D. Barak-Erez

1. "If only I had a son, a little boy, with dark curly hair, and bright", wrote the poet, Rachel. It is hard to resist the natural yearning for parentage. However, despite the sympathy it raises, the focus of the Petition before us is nevertheless different. The question is not whether the Petitioner will be able to consummate her desire to be a mother of children, but rather whether she is entitled, under the circumstances, to consummate her plan to be a mother of children who all share one genetic father, and therefore share the same dark (or golden) curly hair. 
2. Being the question at hand, I consent with the outcome reached by my colleague, Justice E. Rubinstein – although not without regret. I share the main conclusions of my colleague's comprehensive judgment; however I would like to clarify my opinion with respect to some of the reasons underlying the same, considering the legal and human complexity of the Petition.

The Framework of Discussion – Private Law or Public Law

3. A priori, the Petition before us was presented as based on contractual foundations. The Petitioner had her first daughter through the use of a sperm donation made by Respondent 3 (the "Donor"), which she received from the Sperm Bank of Rambam Medical Center, Respondent 2 (the "Sperm Bank"). After the birth of her daughter, the Petitioner made annual payments to the Sperm Bank to store for her additional sperm units donated by Respondent 3. Payment for the storage of the sperm units was arranged through a form of the Sperm Bank, titled, "Request for Storage of Sperm Units". The Donor, on his part, provided his sperm units to the Sperm Bank after having signed consent for their purpose of fertilizing women who apply to the Sperm Bank for that purpose, or for research purposes. In other words, the sperm donation was also regulated in a contractual form between the Donor and the Sperm Bank. The Petitioner therefore argues, that the contract law requires the acceptance of her Petition, as pacta sunt servanda. She argues that the contracts entered between the Donor and the Sperm Bank or between herself and the Sperm Bank contain no reservation regarding the regret of the sperm donor, and therefore the signed undertakings are valid and binding.
4. The first question to be reviewed is then whether the contractual framework upon which the Petition is based is the correct or exhaustive, normative framework for the discussion of the rights of the parties. Like my colleague, Justice Rubinstein, I believe that the answer to this question is negative. Indeed, there are two contracts executed with the Sperm Bank in the background of the parties' arguments – the Donor's donation contract on the one hand, and the Petitioner's purchase contract on the other. However, the existence of these contracts is not independent of the set of values at the basis of the legal system. The foundational values of the system "permeate" as well into the realm of contract law and affect their basic perceptions, including their public policy (see: Aharon Barak "Protected Human Rights and the Private Law" Klinghoffer Book on Public Law 163 (Itzchak Zamir, Editor, 1993); Daphne Barak-Erez & Israel Gilad "Human Rights in Contract Law and Tort Law: the Quiet Revolution" Kiryat HaMishpat H 11 (2009)). A different, and possibly more worthy, way to present the issue is that the constitutional law is the basic foundation on which other fields of law are built, which are therefore also shaped by the values and principles of constitutional law.
5. Hence, in my opinion, the correct path in examining the question before us should be based, first and foremost, on identifying the public rights and interests which are relevant to the case at bar. However, I will demonstrate below that in fact, the private law's perspective of this case does not yield a clear and unequivocal outcome as the Petitioner claimed. Moreover: insofar as we are concerned with principles from the sphere of private law, more than one legal framework may be perceived as relevant to the discussion of the case at bar – the law of property, contract law (including the distinction between a for-consideration contract and a gift contract) and more (for the possible effect of the legal sphere within which the issue is discussed, compare: Daphne Barak-Erez "Of Symmetry and Neutrality: Reflections on the Nachmani Case" 20 Iyunei Mishpat 197, 207-212 (1996) (hereinafter: "Barak-Erez, Symmetry)).

Public law: the right to be a parent, the right to dignity and the right to autonomy of will

6. In the present case, several rights play side by side in the legal arena, which should be well defined and distinguished. The Petitioner comes before this Court on behalf of two rights which she claims – the right to be a parent and the right to autonomy of will (which was also consummated under the circumstances in her contract with the Sperm Bank). Indeed, the right to be a parent was already recognized in the ruling of this Court, including in the present context, which concerns the desire to consummate the right through fertilization technology, in the series of rulings known as the "Nachmani Affair" (see: CA 5587/93 Nachmani v. Nachmani, IsrSC 49(1) 485 (1995) (the "First Nachmani Case"); CFH 2401/95 Nachmani v. Nachmani, IsrSC 50(4) 661 (1996) (the "Second Nachmani Case"; as well as other cases (also see: HCJ 2458/01 New Family v. the Committee for the Approval of Embryo Carrying Agreements, the Ministry of Health, IsrSC 57(1) 419 (2002)). The same applies to the right to autonomy of will, which was defined in the case law as one of the expressions of the right to human dignity (see for example: CA 294/92 Chevra Kadisah Burial Society "Jerusalem Community" v. Kastenbaum, IsrSC 46(2) 464 (1992)). In fact, the Petitioner's arguments, by virtue of the two rights, merge at least in part. Indeed, she presented an argument seeking to be founded upon the right to be a parent, but in fact she is seeking protection of the right to be a parent in a specific way – through control of the identity of the genetic father of her children. Considering the fact that she may consummate her choice to become a mother also through other sperm donors, her request is actually in the periphery of the right to be a parent, rather than in the center thereof, and it is connected, to a large extent, to the desire to protect the Petitioner's autonomy of will in all aspects pertaining to the consummation of the right to be a parent.
7. Against the Petitioner's right to autonomy in consummation of the right to be a parent, stands the Donor's negative right not to be a parent (in the format of anonymous biological parentage). This right to avoid parentage (and for the sake of accuracy, the genetic parentage of an additional child) is a right that is fundamentally tied to human dignity. Insofar as we are concerned with the right to be a parent, under the present circumstances the collision of rights can be described as the collision between a peripheral expression of the right to be a parent in its positive aspect (a demand to consummate it with respect to a specific genetic father) and the objection to be a parent, which is closer to the core of this right in its negative aspect (since it is a general objection to genetic parenting in the framework of sperm donation, and not just the genetic parenting with respect to a specific mother). The right to not become a genetic parent, which is derived from the negative aspect of the right to be a parent, is in some ways similar to other expressions of the right not to be a parent, but is also different from them – considering the lessened burdens entailed in merely genetic parenting, as distinct from parenting which creates further affinities between a father and a newborn, and imposes additional legal obligations. Hence, the balances pertaining to the scope of its protection shall also be different. See and compare: Glenn Cohen, The right not to be a Genetic Parent, 81 USC L. Rev. 1115 (2008) (in this article, wherein the author calls to recognize the right to avoid genetic parentage as a distinct right, he expresses his opinion that the waiver thereof is to be allowed, but only when the waiver is explicitly and clearly made). In any case, for the continuation of the discussion, the reference to the recognition of this right shall suffice. The balance between this right and the Petitioner's rights is yet to be reviewed.
8. Part of the complexity which the case at bar arises derives from the fact that the parties herein raise arguments concerning different aspects of the very same right – the right to human dignity, within which the Israeli constitutional law has recognized both the right to autonomy and the right to be a parent on its various aspects (including the right to avoid parenting). This is not a "vertical" balance made within the limitation clause of the basic laws, but rather a "horizontal" balance between rights, and to a great extent, between different aspects of the very same right.
9. In the past, this Court was required to face the question of balancing the right to be a parent and the right not to be a parent, in re Nachmani. After numerous disagreements, the majority opinion in the additional hearing supported the mother's right in that case to consummate her right to be a parent. In other words, in the balance between the right to be a parent and the right to non-parenting, the right to be a parent prevailed in that case. However, the circumstances of the case and the nature of the conflicting rights therein were different. In re Nachmani the Court was required to rule in the question of ova which were fertilized with the father's sperm, under circumstances in which the woman's chances to fertilize other ova of hers were extremely low, perhaps non-existing, i.e. deciding in favor of the woman was based on the protection of her right to any biological parenting – as distinct from protection of the manner of consummation of the right to be a biological parent, such as in the case at bar. The potential father's objection was raised at a time when the reliance of the woman on his consent was decisive and irreversible. The case at bar differs from re Nachmani in some important aspects. First of all, we are not concerned with the mere possibility of the Petitioner to become a mother. Second, we cannot indicate significant reliance such as in re Nachmani. The Petitioner paid to store additional sperm units of the Donor only after having given birth to her daughter. Indeed, as per her claim, which was not contradicted by the Ministry of Health, according to the policy of the Sperm Bank she only could have asked that sperm units are stored for her after the success of the first fertility treatment. This matter was not sufficiently clarified to us, but even if this is so, the Petitioner did not rely on the option to store the Donor's sperm units prior to the fertilization process. Moreover, if the Donor's position is accepted, the Petitioner shall not be required to undergo additional difficult physical treatments (such as the additional ova extraction). Essentially, the injury to the Petitioner is expressed in dashed, unfulfilled expectations. It is noteworthy that in protecting the rights of the female spouse in re Nachmani – by recognizing the existence of reliance – Israeli law (justifiably) went much further than the common practice of other systems. To compare, it is noted that in the matter of Evans v. United Kingdom, App. No. 6339/05 (2006), which addressed an issue similar to the Nachmani affair, the European Court recognized the right of a father to withdraw his consent to an IVF procedure even at a stage in which his sperm was already used for fertilization (similarly to the ruling in England in this matter – Evans v. Amicus Healthcare and others [2004] 3 All E.R. 1025. Anyway, as aforesaid, there is no doubt that the irreversible nature of the situation created in re Nachmani, as well as its affinity to the core of the right to be a parent, varies from the case at bar. It is important to emphasize that the point of "no return" in re Nachmani was the creation of the fertilized ovum, and therefore, in my opinion, there is no doubt (an addition which I make in reference to the opinion of my colleague, Justice Rubinstein in Paragraph 65 of his ruling) that had the fertilization of the Petitioner's ova by the Donor's sperm been completed in the case at bar, he could not have withdrawn his consent. In that state of affairs, accepting the Donor's position might have forced the Petitioner to repeat the painful procedure of ova extraction, and again go through the agonizing anticipation for the outcome of their fertilization (which is never guaranteed). This cannot be accepted.
10. In fact, the comparison to re Nachmani is illuminating in one other aspect pertaining to the grounds at the basis of the Donor's objection to the continuation of the fertilization procedure. In the First Nachmani Case, Justice T. Strasberg-Cohen supported – at that time as part of the majority opinion, and later in a dissenting opinion in the additional hearing – the prioritizing of the right not to be a parent, also in consideration of the economic burdens entailed therein (ibid, p. 501). In contrast, in the case at bar, the argument on behalf of the right not to be a parent is not at all based on the fear of monetary obligations towards the anticipated newborn, but is rather made on behalf of emotion, pain and identity (compare: Barak-Erez, Symmetry, p. 201). From this perspective, it is easy to be convinced that the emotional injury to the Donor is significant – clearly he is not motivated by additional reasons of an economic nature. Indeed, in some way the hurt to the Donor is less acute than in the case wherein the question is whether use can be made of a sperm donation for the purpose of first-time fertilization (a case wherein avoiding use of the sperm shall absolutely prevent the situation of being a parent to a child whom the Donor shall not know and not raise). The injury entailed by genetic parentage of the Donor to a boy (or a girl, in this case) unknown to him has already been partly inflicted, as far as he is concerned. However, one cannot dismiss the damage caused to the Donor by increasing the hurt through genetic parentage of additional children, against his will and understanding.
11. The distinction between the protection of the right to be a parent and the limited protection of the desire to consummate the right to be a parent in a specific way is also recognized in other contexts. Despite the in-principle recognition of the right to be a parent, parents cannot, under the usual circumstances, choose the sex of the fetus, although this can be done through using relatively simple technology and scientific tools. The right to be a parent, in this context, is the right to be a parent of a child, not a child whose sex was pre-chosen. The right to choose the sex of the fetus is regulated, for the time being, in the circular of the Director General of the Ministry of Health, and is only granted in very limited contexts (see: The Ministry of Health, Director General Circular" Selecting the sex of the fetus in IVF Procedures" (2004)), under circumstances of a genetic disease in the family, which is identified with one of the sexes. (see further: Ruth Zafran "the Scope of Legitimacy in Selecting the Genetic Characteristics of a Newborn by his Parents – Selecting the Newborn's Sex for Social Reasons as a Test Case" 6 Mishpat Ve'Asakim, 451 (2007)). Indeed, a distinction can be made between preference with respect to the newborn's sex for emotional and cultural reasons and preference such as the Petitioner's, to bring additional children into the world, to be full biological siblings to her daughter, a preference which may have rational reasons (such as in contexts in which a donation of organs is needed in the family). Therefore, the comparison between the situations is not complete. Moreover: apparently, the Petitioner's preference is also a known preference among those who are assisted by fertilization technologies in similar situations (see for example, the instance brought by Anne Reichman Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80, Iowa L. Rev. 265 (1995)). However, the said comparison indicates the fact that the protection of the right to be a parent does not mean protection for the full liberty with respect to the manner of its consummation. For that purpose, balances are required against other rights and interests, including the rights of the sperm donor, in the case at bar.
12. One might add, that also with respect to other rights, there is a distinction between the broad protection for the core of the right, and the limited protection for specific choices regarding its consummation, the price entailed in which it is to be balanced against other rights or other social interests. For example, the Israeli law recognized the right to education as a basic right. This right includes the rights of the parents to be senior partners in the formulation of their child's education. However, this right does not mean the right to always determine to which school their child shall attend and what would be the curriculum in that school (compare: Yoram Rabin, the Right to Education (2002)).

The law of property and the bounds of commodification

13. A first connecting point between the realm of human rights and that of the private law, in which the Petitioner claims her rights are grounded, is expressed in the assumption that the Petitioner has acquired full ownership of the Donor's sperm. This assumption is based on the perspective that "everything is negotiable", and raises a discussion regarding the boundaries of commodification. The question is whether body organs, or other intimate aspects of the human behavior, are indeed commodities for all intents and purposes. Is sperm donation really a tradable commodity, no different to a chair or a table, which were sold for a fair price? The answer to this question is not at all obvious. Not everything is for sale. As technology develops, new questions arise with respect to the scope of tradable commodities and the level of willingness to deem anything which can be technically transferred as a commodity (see, in general, Rethinking Commodification (edited by Martha M. Ertman & Joan C. Williams, 2005; Lori Andrews & Dorothy Nelkin), Body Bazaar – The Market for Human Tissue (2001); Michael Sandel, Justice – What is the Right Thing to Do? 88-112 (2012)).
14. At this time in Israel, human organs are not a regular, tradable commodity (for different opinions on this issue, see and compare: Joshua Weisman "Organs as Assets" 16 Mishpatim, 500 (1986); Gad Tedeschy "The Ownership of Organs Taken from a Living Person" 38 HaPraklit, 281 (1991)). Indeed, for pragmatic reasons, the possibility to donate body organs has been recognized, when the donation does not harm the donor's health (see: HCJ 5785/03 Gidban v. the State of Israel, the Ministry of Health, IsrSC 58(1) 29 (2003)). Today, this possibility is anchored in the Organ Implantation Law 5768-2008 (the "Organ Implantation Law") (see mostly Sections 13-17 of the Law). In addition, the transfer of tissues and cells which are perceived as renewable or non-vital is possible in the format of a donation or a quasi-donation (to which the Organ Implantation Law does not apply – the definition of "organ" in Section 1 of the Law excludes "Blood, bone marrow, ovum and sperm"). Blood donation is considered as not only possible, but also desired, and the Law recognizes the possibility to receive with respect thereto an "insurance" for the receipt of blood donation to the person, his spouse and children under the age of 18 (according to the blood insurance regulations of MADA). Over the years, in recognition of the renowned importance of the consummation of the right to be a parent, certain physiological aspects of the fertilization process also became transferrable, in a format which is defined as a donation, but in fact entails certain consideration, which is defined as compensation for effort and inconvenience, as opposed to payment of an actual price. The field of sperm donation has been regulated for quite some time now (pursuant to the People's Health Regulations (Sperm Bank) 5739-1979 (the "Sperm Bank Regulations")). Later on, the issues of surrogacy procedure were also regulated (pursuant to the Embryo Carrying Agreements Law (Approval of Agreement and Status of the Newborn) 5756-1996 (the "Surrogacy Law")), as was the issue of ova donation (pursuant to the Ova Donation Law 5770-2010 (the "Ova Donation Law")). It is important to note that in all of these instances, the laws or regulations did not recognize sperm, a uterus or ova to be an "ordinary" commodity on the market. On the contrary; despite the fact that in all of these cases payment is made to those defined as "donors", such payment is limited in scope, supervised and defined as compensation for effort and inconvenience, as distinguished from consideration for the body parts or the use thereof (see: Section 6 of the Surrogacy Law and Section 43(a) of the Ova Donation Law, similar to Section 22 of the Organ Implantation Law). The issue is not specifically regulated in the regulations pertaining to sperm donation, since this is not an overall arrangement within primary legislation. The decisions to open the door for such limited transference of body organs were no simple decisions. On the one hand, it is a necessity that should not be condemned, or at least is understandable, but on the other hand, they threaten to turn people into commodities or a container for potential commodities, which literally has a price. The disputes in this question continue. The recognition of the possibility to donate blood, sperm or ova did not turn them into "assets" for all intents and purposes.
15. The decision regarding the transferability or partial tradability of body organs, or renewable body organs as in the present case, does not need to be all embracing. As we realized, the arrangement applicable to sperm donations recognizes the possibility to transfer sperm for the use of the Sperm Bank, against some consideration, which is not a full market "price". However, this does not mean that the sperm thus turns into an ordinary tradable commodity. The limited commodification is embodied in strict regulation of the price and limitations on the transfer of sperm to third parties (which is only allowed for the purpose of fertilization or research). We face the question of whether the limited tradability of sperm cells should also be asserted through a withdrawal right, to be enfolded in the consent to donate sperm, and which allows the donor to withdraw his consent prior to the fertilization process. I believe that the answer to this question, in instances such as the case before us, in which the Petitioner did not change her position to the worse, is positive.
16. The necessity to recognize the limitations that should be imposed on viewing body organs as tradable and transferrable property may be demonstrated through examples that go beyond the facts of the current case. Would we perceive a situation whereby the "neutral" attitude towards the proprietary and business nature of purchasing the rights to the sperm cells would lead us to recognize the possibility to cast an attachment thereon? Would a person who donates his body to science be prohibited from reversing this decision, even though he signed an undertaking of a decisive nature in this matter?
17. This attitude is also reflected in the Ova Donation Law. Pursuant to Section 44(a) of that Law, "a donor… may withdraw her given consent… at any time prior to the performance of the procedure for which she agreed to designate the ova which were extracted from her body, and with respect to a consent to designate ova for implantation – at any time prior to the fertilization of the ova, and she will be under no civil or criminal liability for the withdrawal of her consent as aforesaid". The explanatory notes to the bill of the Ova Donation Law, 5767-2007, are illustrative of the issue we are concerned with: "the consent of a woman to donate ova from her body in accordance with the provisions of the proposed law, involves significant results – giving birth to a child who is the biological child of that woman, while she waives any parentage affinity towards him. Therefore, such a donor should be allowed to withdraw her consent with respect to the procedures performed in the ova extracted from her body, at any time prior to the performance of the procedure to which she has agreed to designate such ova, and with respect to consent to designate ova for implantation – at any time prior to the fertilization of the ovum" (explanatory notes to Section 42 of the bill).
18. Indeed, Israeli law does not specifically regulate the issue of withdrawal of consent in all aspects pertaining to sperm donations, since the issue is not yet established in primary legislation. However, it would be reasonable to conclude that the statutory arrangement applicable to ova donation reflects the perception of the Israeli legislator regarding the limitation, which would be appropriate to apply to the use of reproduction substances that are provided by way of donation. It is possible and appropriate to apply here the principle whereby acts of legislation that regulate similar issues should be interpreted such that they are consistent with one another, in a manner that promotes the values of the system.
19. The reluctance to apply a full property regime to sperm cells is also expressed in the regulation of the use of sperm cells of a deceased person. The use of sperm cells under such circumstances is decided in consideration of the wishes of the person from whom it was taken, and not on the grounds of proprietary principles. In Israeli law, the position that guides the regulating of this issue, as formulated by the Attorney General, is that the use of sperm cells of a deceased person is based on the assumption of his estimated wishes. See: "The Retrieval and Use of Sperm After Death " the Attorney General Guidelines no. 1.2202 (5763). A similar approach is also expressed in the rulings of the courts of other legal systems. In the precedential judgment, wherein a dispute took place over the rights to sperm of a deceased person, between a sperm bank and his widow – Parpalaix v. Cecos (1984), the court in France rejected the position of the sperm bank which claimed a proprietary right, and favored the widow, who presented indications to the deceased's wishes that she will be fertilized by his sperm (further see: E. Donald Shapiro & Benedene Sonnenblick, The widow and the Sperm: The Law of Post-Mortem Insemination, 1 J.L. Health 229 (1986-1987); Gail A. Katz, Parpalaix c. Cecos: Protecting Intent in Reproducting Technology, 11 Harv. J. L. & Tech. 683 (1998)). Likewise, in Hecht v. Kane, 16 Cal. App. 4^th 836 (1993), in which the parties to the dispute were the spouse of a person who had committed suicide, and his adult children. The California Court rejected the attitude that considers the frozen sperm units, which the deceased left behind, as property for all intents and purposes, belonging in his estate. This ruling stated that the question of using the sperm units should be answered after further investigation regarding the deceased's wishes. The ruling further clarified that insofar as his spouse shall be granted rights to these sperm units, she will be able to use them only in an attempt to conceive thereby, and not for any other purpose. This reservation once again brought into focus the limitation of treating sperm units as "ordinary" property (further see: Bonnie Steinbock, Sperm as Property, 6 Stan. L. & Pol'y Rev. 57 (1995); Ernest Waintraub, Are Sperm Cells a Form of Property? A Biological Inquiry into the Legal Status of the Sperm Cell, 11 Quinnipiac Health L. J. 1 (2007).

Contract law: Contract Interpretation and Waiver of Right 

20. From the law of property to contract law. Insofar as we are in the realm of contract law, the first question is the scope of liability of the sperm donor, pursuant to the language of the undertaking form that he has signed. And to be more concrete: does the language confer upon him a right to change his mind, or alternatively – deny him the right to reverse?
21. The letter of consent, which a sperm donor is required to sign, appears in Annex C to the Circular of the Director General of the Ministry of Health "Rules regarding the management of a Sperm Bank and Instructions for the Performance of Artificial Insemination" (2007). This letter of consent includes the following language of undertaking: "I agree to donate from my sperm for the use thereof for artificial insemination of women or for research purposes, as per the considerations of the Sperm Bank". This language does not include explicit reference to the sperm donor being granted a right to change his mind. Yet, nor does it explicitly deny such a right. In other words, the (current) letter of consent signed by sperm donors is silent in this matter. An interpretive question therefore arises: how should this silence be interpreted? Considering the fact that the sperm donation pertains to the personality of the donor and his dignity, it is appropriate that the waiver of the right to reverse be regulated, at least, by an explicit reference to the issue in the letter of consent. A separate question is whether it is appropriate to allow an individual to irrevocably waive the right to withdraw the donation under circumstances in which no irrevocable reliance has been created by a fertilization procedure that has already begun. However, it may be stated that, in the least, the arrangement that denies the right to reverse in cases such as the one before us (prior to the use of the donor's sperm for the purpose of fertilization) should be explicit and clear (as also noted by Cohen in his aforesaid article). This is emphasized even more if we take into account the view of the sperm donation as a "donation" or "gift", in contrast to a "sale", as shall be specified below.
22. In order to complete the picture, it is important to reiterate that the Petitioner signed the documents pertaining to the storage of sperm units only after having given birth to her first child. These documents too, make no explicit reference to the question of the donor's withdrawal, and they further state that the Sperm Bank shall not be liable for the "loss, damage or other use of such sperm units".
23. It is noteworthy that such issues, which are so sensitive and so essential for the parties involved, as well as for the public interest in its broad sense, should be explicitly regulated, rather than requiring, in retrospect, the interpretation of experts – not only for legal considerations but first and foremost for reasons of fairness. Undoubtedly, one of the important lessons to be learned from this case is the preparation of suitable forms for the signature of sperm donors and women who wish to conceive by sperm donation, to be also accompanied by detailed and clear explanatory sheets.

Contract law: a for-consideration contract or a gift

24. Insofar as the case is also reviewed from the contractual perspective, it is appropriate to further inquire whether the consent to sperm donation is a regular consent, or one which is rooted in the Gift Law (pursuant to the Gift Law 5728-1968 (the "Gift Law")), or should at least be discussed while concluding from this law (see and compare: Mordechai A. Rabello, The Gift Law, 5728-1968 212 (Second Edition, 1996)). A major difference between the law which applies to a regular contract and that which applies to a gift contract (whether totally unilateral or accompanied by a condition is an obligation) is the recognition of the right of reversal which is granted under certain conditions to the giver of the gift, out of recognition that he is performing an act of benevolence, an act which benefits the other. Section 5(b) of the Gift Law 5728-1968 (the "Gift Law") stipulates, "so long as the receiver of the gift did not change his situation in reliance of the commitment, the giving party may withdraw it, unless he had waived this permission in writing". Section 5(c) recognizes the possibility of withdrawal of a gift also due to "considerable deterioration in the financial condition of the giving party". These provisions do not necessarily apply to the case at bar, since one may assume that the gift in this case was concluded in an act of conferral (Section 2 of the Gift Law). Furthermore, the sperm donation still involves payment, although not large. However, if only by way of syllogism, these arrangements indicate that the legislator chose to be compassionate and measured towards those who a priori expressed these virtues through their own altruistic act. In this context, it is particularly worthy to emphasize the following two: first of all, Section 5(b) stipulates that the prevention of withdrawal from the person who obligates himself to the gift requires "a written waiver of this permission". In other words, the wavier of the giver of the gift of the right to withdraw his obligation requires specific and formal arrangement. Secondly, Section 5(c) of the Gift Law refers to a change in the economic situation of the giving party since it concerns the typical case that the Law addresses – a gift of economic value. Insofar as a sperm donation is concerned, by way of syllogism, a change in the personal situation may be relevant, for the same reasons.
25. Indeed, sperm donors often do not attribute much importance to the personal aspect entailed in the donation. However, in those cases in which the sperm donor later feels sadness and remorse regarding his willingness to take part in this process, should society treat him with the same legal rigidity which should apply to a merchant who canceled a merchandise transaction? I think not. This is required by the virtue of humanness. In my opinion, in the present case, it is of no particular importance that the donor had a "change of heart" following repentance ("Tshuva"). The main issue is that he feels true remorse regarding the sperm donation, whether the reasons therefor are religious, moral or emotional (for a distinction between the right to freedom of religion and protection of religious feelings, see and compare: Danny Statman & Gideon Sapir "The Freedom of Religion, Freedom from Religion and Protection of Religious Feelings" 21 Mechkarei Mishapt 5, (2004)). I wish to further note, in this context (in reference to section 61 of my colleague's ruling), that I do not believe that the review of the Halakhic sources which he refers to eventually affect the conclusion we reached in this case. It seems that my colleague, Justice Rubinstein, does not believe so either. On the contrary, as my colleague noted, some adjudicators take a stance that detaches the parentage affinity between the sperm donor and the newborn, and consider the sperm of the donor to be "abandoned" (see: Michael Corinaldi "The Legal Status of a Newborn Conceived by Artificial Fertilization" 4 Kiryat Ha'Mishpat 361, (2004)). Also amongst the stringent adjudicators, who recognize the affinity of the newborn to the sperm donor, some limit this stringency to certain issues only (prohibition of incest) and not to others (such as child support and inheritance) (see: Yossi Green "Is There a Solution to the Problem of Bastardry through Medical Technologies in the field of Fertilization?" 7 Moznei Mishpat 411, 422-425 (2010)). Under these circumstances, in my opinion, no weight is to be attributed to the fact that other, more stringent, approaches can also be taken, of which the Donor himself did not claim.

Contract law, contractual adversary and normative duality

26. Insofar as the Petitioner's argument is seeking foundation in contract law, it is important to pay attention as well to the lack of contractual adversary between her and the sperm donor. Insofar as the Petitioner has a contractual right, such right derives from an agreement she had with the Sperm Bank (which on its part obtained the sperm donation within a separate contractual arrangement with the Donor). The payment made by the Petitioner was also transferred by her to the Sperm Bank, unrelated to the earlier payment made by the Sperm Bank to the Donor. Hence, the correct perspective for the review of the scope of her contractual rights should focus on the contract she has with the Sperm Bank. This contract is not only subject to the regime of contract law, but is also under the yoke of public law – being a contract made with a public body, in this case a governmental hospital. It is further subject to public law, alongside contract law, according to the concept that is called "normative duality" (see, for example, Daphne Barak-Erez, Citizen Subject -  Consumer,  Law and Government in a Changing State 234-238 (2012)). The governmental hospital is also expected to act in the framework of this contract out of commitment to the principles of public law that it is bound to. In this context, it must also examine whether the case calls for the application of the rule of rescission, which enables an administrative authority to be released from a contract it entered for the purpose of protecting an important public interest (see: Daphne Barak-Erez, "The Rescission of a Government Contract: A Test Case of Normative Duality" 11 Ha'Mishpat, 111 (2007)). The public interest in this case also includes the protection of the rights of sperm donors, as shall be specified below.
27. As a rule, we must additionally review the question before us from the perspective of the duties of the governmental hospital towards the sperm donor. The governmental hospital is to also take into consideration the donor's rights. In fact, the question is not if the governmental hospital should be considerate towards the donor, but rather what should the scope of such consideration be. To illustrate, a simpler case than the one before us can be imagined – that of a donor who regrets his donation after its delivery had been completed and before a specific woman had asked to make use of his sperm for the purpose of fertilization. Under these circumstances, would a stringent attitude of the sperm bank, whereby once the sperm donation is completed there is no longer room for regret, be accepted as reasonable? I think the negative answer to this question is obvious. On the other hand, the answer to the opposite extreme case is also clear, when use has already been made of the sperm for the purpose of fertilizing ova, such as in re Nachmani, and therefore reversal is no longer a possibility. The case at bar is an interim case. For the reasons explained thus far, I believe that here too, the "point of no return" is yet unformulated.

Comparative law and the limitations thereof

28. A new and complex question such as the one before us, ostensibly directs us to the almost infinite reserves of comparative law, as a source for inspiration and learning. In fact, this is a blessing, which in the present circumstances is of limited benefit. The answer to the question is necessarily founded on ethical and ideological views, which are often culture and geography dependent. Indeed, a sample review of other systems – wherein the discussion is often still unconcluded – indicates that there is no agreed answer to the question. Moreover, the answer provided for the question depends on resolving other questions, such as the question whether the identity of the sperm donors may be disclosed to the children born from their sperm upon their maturity. For example, in England, sperm donors are allowed to withdraw their donation (see: Human Fertilization and Embryology Act 1990, Schedule 3, Section 4(2). Further see: Peter D. Sozou & Others, Withdrawal of Consent by Sperm Donors, 339 British Medical Journal 975 (2009)). The English attitude regarding this issue is part of a broader perception which also recognizes the possibility of withdrawal of a donation when an ovum had already been fertilized by the donor's sperm, as ruled in re Evans, mentioned above, which expresses an opinion different than that of Israeli law, as formulated in re Nachmani (further see: Heather Draper, Gametes, consent and points of no return 10(2) Human Fertility 105 (2007)). Recognizing the option granted to sperm donors to withdraw their donation is expressed in Australian legislation (wherein the issue is not regulated on a federal level, but rather by state legislation only. See: Human Reproductive Technology Act 1991, Section 22 with respect to Western Australia, and Assisted Reproductive Treatment Act 2008, Section 20 with respect to Victoria). Canada offers another approach. The regulations which regulate the issue there – Assisted Human Reproduction (Section 8 Consent) Regulations, 2007, issued under the Assisted Human Reproduction Act, 2004 – distinguish between a situation in which sperm or ovum are provided for the purpose of fertilization within a relationship with the provider of sperm or ovum, and sperm or ovum donation for a third party. While in the first situation consent may be withdrawn at any time so long as no use was made of the sperm or ovum, this cannot be done in the latter situation, if notice had been given by the third party that the donated substance was designated for him (in fact, as in the case of the Petitioner). This arrangement is considered to set the "point of no return" much earlier, and was criticized on these grounds. See: The Standing Senate Committee on Social Affairs, Science and Technology, Ninth Report (14 February 2007), at p. 2. And further see: Porsha L. Cills, Does Donating Sperm Give the Right to Withdraw Consent? The Implications of In Vitro Fertilization in the United Kingdom and Canada, 28 Penn. Int'l L. Rev. 111 (2009). A relatively unconventional approach may be found in Spanish Law (Law 14/2006 dated May 26, 2006 on Fertility Assisting Technologies – Técnicas de reproducción humana asistida). Section 5 of this Law allows the sperm donor to withdraw consent, but limits this right to circumstances under which he needs the sperm cells for his own needs, and stipulates that under such circumstances the donor shall be required to compensate the relevant sperm bank. The Bill that was drafted by the American Law Institute regarding this issue – Model Act Governing Assisted Reproductive Technology – includes a detailed arrangement with respect to the manner of granting consent to IVF procedures, by all parties involved therein, including the donor. According to Section 201 of this bill, the information regarding the consent and its boundaries should also be provided orally as well as in writing, while explicitly addressing the question of the right to withdraw the donation, and the time at which it expires. The section further stipulates that the right of withdrawal is effective only so long as the sperm cells were not transferred, but this rule is intimately connected to the overall regulation of the issue of informed consent and the information provided prior to its granting.

Expectations, heart's-desires, protected expectations and rights

29. The Petitioner's heart-desire to be a mother of children who all share the same genetic father is therefore not fulfilled. Her expectations are frustrated. However, from the legal aspect, such expectations do not enjoy full legal protection. Essentially, the Petitioner did not rely on the possibility to receive additional sperm donations from the same donor prior to giving birth to her firstborn. She paid in order to secure the use of the donor's additional sperm units only after successfully conceiving from the donor's sperm. As transpires from the above discussion, it is possible that even the reliance of a woman on the purchase of several sperm units by the same donor would not suffice to prevail over the donor's right not to be a parent, under circumstances in which no further injury is caused to the woman. Nevertheless, in the case at bar, we cannot indicate reliance of the petitioner on the possibility to secure the use of several sperm units of the same donor prior to the original fertilization from which she had her daughter, as distinct from interrupting her expectations further down the road.
30. An additional perspective to review the case pertains to the comparison between the Petitioner's expectations to consummate parentage of several children with one genetic father, and the ability to protect this kind of expectation in the ordinary course of life. Indeed, in most cases, partners who choose to make a home and bring children into the world hope and plan that, insofar as they wish to have several children, their lives will enable them to jointly parent children who are full biological siblings to each other. This expectation may materialize, and indeed it often does. However, this is not always the case. Partners may separate, for example. In such cases, even if one of them did have an expectation to consummate joint parenting of several children with the partner from whom they separated – such expectation is not a protected one. Indeed, there is additional hardship in the situation of the Petitioner, who has no direct connection to the person from whose sperm she conceived. She cannot persuade him and directly appeal to his feelings, as distinct from the case of a "regular" separation. Truly, the Petitioner differs from a woman who conceived by a partner with whom she has an ongoing relationship which naturally experiences ups and downs, and in which it is obvious that family planning is the responsibility of both partners, and not just one of them. The comparison is therefore incomplete. However, it highlights the fact that the law does not protect, under regular circumstances, the expectation to give birth to full biological siblings. My conclusion in this context is similar to the conclusion reached by my colleague Justice Rubinstein (Section 35 of his ruling). In a broader perspective, the absence of legal protection of a family model which is close to that of a traditional family, a family which includes several biological siblings, integrates into the growing recognition that our society includes different types of families, whose members can and should experience happiness in their lives (further see: Sylvia Fogel Bijawi "Families in Israel – between the Familial and Post-Modernism" Gender, sex, Politics (Dafna Azrieli and Others, Editors, 1999)).
31. In view of the considerations presented in the discussion thus far, it is also doubtful whether the Petitioner's expectations are worthy of full protection. Such full protection would cause a disproportionate harm towards the sperm donor. In addition, broader policy considerations might add to the aforesaid, pertaining to over-deterrence of potential sperm donors in the future (and particularly in consideration of the fact that already now there is chronic shortage of sperm donors. See: Background Document regarding Sperm Donation in Israel 2 (the Knesset's Research and Information Center, March 1, 2005)). It can further be assumed that these considerations shall also be reviewed when additional questions regarding the rights of sperm donors are raised in the future, e.g. with respect to the expectations of children who are born from sperm donation to seek out the identity of the biological father (see and compare: Ruth Zafran "Secrets and Lies – The Right of an Offspring to Seek Out their Biological Fathers, 35 Mishpatim 519 (2005)). To emphasize: the Petitioner in this case is not paying the price of protecting these future donors, insofar as they shall seek such protection. The required outcome in the case at bar is also the desired outcome in other instances, and not vice versa.

Technology, Science and Law

32. The case at bar is yet another example of the new challenges presented by scientific and technological progress. From a medical aspect, a woman who seeks conception may select the preferred sperm donor after having reviewed his specifications as well as the availability of a sperm unit "inventory" provided by him. The availability of such possibilities to her join many other situations in which technology creates new opportunities – freezing ova or storing sperm (for future use thereof), early detection of embryo genetic diseases, and more. These situations repeatedly raise the question of whether the availability of a certain mode of action, as a matter of science and technology, necessarily entails the existence of a right to use it, and that the exercise of such right is not to be limited. In the present case, since there is a technical possibility to use the additional sperm units of the Donor, the assumption lying at the foundations of the Petition was that it would be possible to actually use them, without limitation. Indeed, the technology opens up new horizons, allowing us additional choices. However, the fact that certain scientific and technological possibilities allow us to take certain steps does not, in itself, confer the right to do so. Surely this must be considered when against the possibility to use the technology stands, not only a vague concern of potential implications for society, but a concrete sperm donor whose rights are expected to be injured.

Legislation and preliminary arrangements

33. The situation revealed to us with respect to the regulation of sperm donations is far from satisfactory. Such an essential issue, with implications on the consummation of the right to be a parent, as well as on family law in general, is lacking proper legislative regulation. The operation of a sperm bank is only loosely regulated by legislation, and even this is only by secondary legislation – the Sperm Bank Regulations. These regulations limited the management of a sperm bank to recognition by the Director General of the Ministry of Health, and further stipulated that the artificial insemination from a donor shall only be performed in a hospital which has a sperm bank and by sperm which was obtained from this bank. More detailed arrangements only exist in the form of a circular of the Director General of the Ministry of Health, as explained earlier, and this, too, lacks reference to fundamental issues, such as the one before us. The current situation therefore has two flaws: first of all, the current regulation does not address essential and important questions; second, in any event, the regulation is not by primary legislation which contains preliminary arrangements, as required by the Court's ruling (see: HCJ 3267/97 Rubinstein v. The Minister of Defense, IsrSC 52(5) 481 (1998); HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. the Prime Minister of Israel, IsrSC 61(1) 1 (2006)). This state of affairs is improper, as a matter of principle, and further contributes to situations in which expectations are created in the hearts of the involved parties, in the absence of clear regulation. This is stated a fortiori, since the issue of sperm donations is not regulated by primary legislation at all, as distinguished from situations where primary legislation exists, but it is not sufficiently detailed (for various approaches regarding the scope and status of the duty to stipulate preliminary legislative arrangements, see: Gideon Sapir "Preliminary Arrangements", 32 Iyunei Mishapt 5 (2010); Yoav Dotan "Preliminary Arrangements and the New Principle of Legality" 42 Mishpatim 379 (2012); Barak Medinah "The Constitutional Rule regarding the Duty to Stipulate 'Preliminary Arrangements' by Law – Response to Yoav Dotan and Gideon Sapir" 42 Mishpatim 449 (2012)). A law addressing the issue, had one been enacted, could have clarified what is the "point of no return" in a sperm donation process, in terms of the donor's ability to withdraw his consent, and further stipulate rules in other matters of general public importance, such as the scope of use of sperm units donated by a single donor (through determining a clear boundary in this area). A law regulating the issue may also set forth arrangements pertaining to the scope of information which the sperm donor is entitled to receive (e.g., could he know whether children were born from his sperm). For example, under the current circumstances, a clear rule which would have "blocked" such information could possibly make it somewhat easier for the donor, since the implementation thereof would have spared him the positive knowledge that his sperm was practically used for a successful fertilization (although such a rule would not necessarily guarantee that future donors will not seek to withdraw their donation).

Of the law and beyond

34. Be that as it may, one can sympathize with the Petitioner, even though the law is not on her side. Although the Donor's refusal regarding use of his sperm for additional fertilization is founded on emotional grounds, which can be respected, the Petitioner's struggle and pain might lead him to further deliberation, after the legal proceeding is concluded. He is under no legal obligation to do so. He can most certainly consider it ex gratia.

Justice

Justice I. Amit

1. I concur with the outcome reached by my two colleagues, and like them, I too face the outcome we reached with a heavy heart.

Since my colleagues elaborated in their thorough analysis of the field, I shall limit myself to the odds and ends that they have left behind, and try to shed light on other aspects of the issue that are presented to this Court for the first time.

The Petitioner and the Donor in the prism of civil law

2. The outcome of the Petition is derived from the legal tools that we shall choose for analyzing the issue at hand. My opinion is that had we chosen the "realm" of civil law only, it seems that the Petitioner would have prevailed.
3. Two contractual systems apply to the "asset" under our discussion. The one – between the Donor and the Sperm Bank, and the other – between the Petitioner and the Sperm Bank, and there is no contractual adversary between the Donor and the Petitioner.

"Sale" is defined in Section 1 of the Sale Law 5728-1968 (the "Sale Law") as "the transfer of an asset in consideration for a price". In the relationships between the Donor and the Sperm Bank, the Donor may be deemed as having sold his sperm for a consideration – not symbolic but also not particularly high – and the ownership of the sperm transferred to the Sperm Bank, under Section 33 of the Sale Law, which stipulates that in the absence of another understanding, the ownership of the object of sale is transferred by delivery. My colleague, Justice Rubinstein, believes that sperm donation should not be deemed as a sale, since it is impossible to transfer proprietary ownership in the Donor's genetic code in order, for example, to "duplicate" him genetically (Section 63 of his ruling). My colleague, Justice Barak-Erez, indicated the ruling of the California court, which ruled that the deceased's spouse is entitled to receive his sperm units in order to try and conceive thereby, and not for any other purpose, as an additional example which illustrates that we are not concerned with regular property (Section 19 of her ruling).

However, these examples do not preclude the classification of the donation as a sale transaction, and the proprietary nature of the deal, since there is no prevention that a sale contract shall be executed for a specific purpose, while limiting the buyer with regards to the use of the object of sale, without this derogating from the validity of the transaction as a sale transaction, which transfers the ownership of the object of sale. In the case at bar, the form signed by the Donor explicitly states that the donation is made for the purpose of fertilization, or for research purposes. The contractual limitation with respect to the non-use of the Donor's genetic constitution for purposes other than fertility or research, does not, in itself, derogate from the validity of the sale contract and the effect of the proprietary transfer made thereunder.

4. My colleague believes that due to the nature of the object of sale, it should be assumed that the Donor did not intend for the contract to be indefinite, and since no expiry date has been determined therein, a built-in contractual withdrawal option exists, which requires the Donor's ongoing consent throughout the process. However, if we consider the sperm donation to be a sale transaction, this is not an indefinite contract, but rather a one-time agreement, exhausted upon the transfer of sperm to the Sperm Bank against the payment received by the Respondent, and therefore the Respondent cannot retract the contract. As far as I know, also according to the common practice at governmental and private sperm banks, the Donor's consent is not required in each and every instance in which any use is made of the sperm donated by him.

My colleague believes that an interpretive question arises regarding the way to interpret the silence of the letter of consent on which the sperm donor is signed with respect to the right to withdraw his consent. However, this question already includes the assumption that regular contract law should not be applied in our case. Indeed, a regular sale contract does not include a "withdrawal clause", and the withdrawal of consent is deemed by contract law as a breach of contract, which entitles the injured party to the remedies set forth in the contract or by law.

5. Even if we view the Donor not as one who has sold his sperm but rather as one who gave it as a gift – by reason of the use of the word "sperm donation" and the consideration, which totals several hundred Shekels only – this shall not suffice to change the outcome of the transfer of ownership of the sperm. The term "movable property" is defined in Section 1 of the Movable Property Law, 5731-1971 (the "Movable Property Law" as "tangible assets, other than land" and the Law also applies to rights, mutatis mutandis (Section 13(a) of the Movable Property Law). Hence, the Donor can be deemed as one who gave "movable property" as a gift, which was completed upon delivery of the sperm to the Sperm Bank. The ownership of a movable gift transfers immediately upon delivery, according to Section 2 of the Gift Law, 5728-1968 (the "Gift Law"), which stipulates that "a gift is completed upon the transfer of the object of gift by the giving party to the recipient, while both agree that the object was given as a gift". The aforesaid, together with Section 6 of the Gift Law, which stipulates that in the absence of specific provisions of the law, the "ownership in the object of gift transfers to the recipient upon delivery of the object to his hand, or by the delivery of a document which entitles him to receive, and if the object is in the possession of the recipient – upon the delivery of notice by the giving party to the recipient regarding the gift". Since we are concerned with a concluded gift, Section 5 of the Gift Law, pertaining to an undertaking to give a gift and the possibility of the giving party to withdraw the gift under certain circumstances, does not apply.
6. The aforesaid notwithstanding, I am willing to assume that had the Petitioner not been in the picture at all, then in the event that the Donor would have asked to retract the sale/gift transaction for reasonable arguments, there would be room to accept his demand, and had the Sperm Bank refused to do so, we would probably deem its position as insistence upon a right in bad faith, considering the special nature of the object of sale/gift. However, the state of affairs changes upon the introduction of a third party, which modifies the set of considerations. There are many examples therefor in legislation and case law, such as the provision of Section 15(b) of the Agency Law 5725-1965, which stipulates that if the third party did not know of the termination of agency, it is entitled to consider it as ongoing. This provision was elaborately discussed in the rulings in CA 4092/90 Mitelberg v. Niger, IsrSC 48(2) 529 (1994), and CFH 1522/94 Niger v. Mitelberg, IsrSC 49(5) 231 (1996), and see the opinion of Justice Cheshin in the appeal (p. 553):

"We do know, that Shmuel did not change his situation, that no third party came to the house, and the dispute remained inter partes – between the same parties and with no intervention of a third party. …to reiterate: had the interest of a third party been introduced into the system, we may have ruled otherwise. However, this did not happen, and therefore we ruled as we did".

7. On the level of the relationships between the Petitioner and the Sperm Bank, the Petitioner may be viewed as having acquired the Donor's sperm units. Indeed the sperm was not transferred to her physical possession, as sperm units are only stored at the sperm bank, through a special freezing method (in liquid nitrogen, at a temperature of minus 196 degrees), however the Sperm Bank agreed to store the Respondent's sperm for the Petitioner, as indicated by the form which title is "Request for Storage of Sperm Units". This fortifies the Petitioner's status as owner of the sperm, in view of the definition of storage in Section 1 of the Guarantee Law 5727-1967, as "lawful possession, which is not by virtue of ownership" – the lawful possession is by the Bank, however the Petitioner is the owner. Note that the Petitioner's consent to subject the use of the sperm to a physician's medical-professional discretion does not prejudice her proprietary ownership of the sperm. A condition whereby the Petitioner exempts the Sperm Bank from liability regarding "loss, damage or other use of such sperm units", has nothing to do with the issue of the Donor's withdrawal, and can be seen as an exemption clause in guarantee-owner relationships.
8. My colleague proposed to apply the exclusion of unjust enforcement pursuant to Section 3(4) of the Contracts Law (Remedies for Breach of Contract) 5733-1973 (the "Remedies Law"). However, this exclusion is applicable to the relationships between the Donor and the Sperm Bank, and there is doubt whether it can be applied to the relationships between the Donor and the Petitioner, since the ownership in the Sperm already transferred to the Petitioner, and also due to the absence of contractual adversary between the two (compare FH 21/80 Wertheimer v. Harrari IsrSC 35(3) 253 (1981), in which the majority opinion ruled that Section 3(4) of the Remedies Law applies to relationships between the first buyer and the seller, and justice considerations of the direct parties to the contract may be taken into account, whereas justice considerations of the second buyer may not). In any case, the application of justice considerations under Section 3(4) of the Remedies Law in favor of the Donor, cannot guide us on our way to solving the riddle, since the question of what is the just solution under the circumstances is the very question in dispute between the parties.
9. The aforesaid legal analysis, in the prism of civil law, is based on the assumption that sperm may be seen as "Movable property" as defined by the Movable property Law (See Section 5 above, and similar definition in the Interpretation Ordinance [New Version] and the Interpretation Law 5741-1981) and as a tradable asset, in proprietary and contractual aspects. The opinion of some adjudicators in accordance with Hebrew law, who deem the donor's sperm to be "abandoned", also ostensibly supports the proprietary aspect, as one of the clear characteristics of the right to ownership is the right to abandon or destroy the object of ownership (Joshua Weisman Property law: General Part 89, 108 (1993) ("Weisman Property Law")).

However, the question whether a human body organ is an "asset", in which ownership may be transferred, is not clear of doubts. It is hard to deem as "property" something that the legal system does not allow the purchase of ownership in, and the Israeli legal system objects to human trafficking and objects to organ trafficking, even though it does allow the donation thereof (Weisman Property Law, p. 91; Joshua Weisman "Organs as Assets" 16 Mishpatim 500 (1987)). With respect to renewable organs such as sperm, ovum, bone marrow or blood, and in contrast to organs such as kidney or cornea, the mere donation does not prevent the donor of personal use of the asset, which shall be available to him again in the future. Moreover, as far as I know, and with due cautiousness, as we were provided no factual foundation on the matter, there is trade and "import" of sperm from abroad to sperm banks in Israel (and perhaps also "export" of sperm overseas), which indicates the tradability of sperm as an asset for all intents and purposes. Therefore, it is easier to consider such "organs" as "assets", and it seems that this is why the legislator allowed their transfer from one person to another, and allowed the receipt of some consideration therefor (Gad Tedeschy ""Property and Transferability: the Ownership of an Organ Taken from a Living Person" 38 Hapraklit 281, 282 (1998); Daphna Lewinsohn-Zamir "Transplantation from a Living Body in Israel: Experience and Problems" 38 Hapraklit 300 (1988)).

On the other hand, an argument may be raised whereby sperm or ovum cannot be compared to other renewable organs, and not even to organs such as kidney or cornea, since the masculine and feminine gametes (sperm cells and ovum cells) enable the birth of a child, thus "perpetuating" the donor's genetic constitution for eternity. Through this prism, the donation of sperm or ovum is a very fateful matter.

The bottom line is, that even if there is room to implement civil law to the donation of sperm, and although "commercially" the definition of sperm differs from other body organs, we do not conclude that this is a regular "asset", and the sale of sperm is not the same as that of moveable objects, to which trade practice and market price can be applied. Therefore, apparently there is no dispute that as a rule, the donor should be allowed to withdraw his consent, so long as we are concerned with the relationships between himself and the Sperm Bank only. The real relevant question is whether sperm is such a special "asset", whose unique characteristics are of such force as to overcome the weight of a third party (the Petitioner) who enters the scene?     

10. The answer to this question is a matter of ideology, and like my colleagues, I too believe that civil law is not the only applicable law in this case, and is definitely not exhaustive, and we must seek answer in other legal realms (on the importance of the classification and delineation of the legal realm, see: Isaac Amit "On the blurring of bounds and boundaries and uncertainty in the law" 6 Din U'dvarim 17 (2011)). The decision of which legal tool is selected, or in which "realm" of the law to classify the issue under discussion, is in itself a principled decision that might affect the final outcome.  

Analogy to ovum donation

11. The legislator did not regulate the issue of sperm donation by primary legislation and therefore there is no legislative reference to the issue of withdrawal of consent by the donor. A private bill regarding sperm donations was submitted to the Knesset in March 2011 by Knesset Member Otniel Schneller, and it allows withdrawal of consent by the donor, only in such cases in which the sperm donor wishes to designate his sperm in advance for a specific recipient of the donation, and when he wishes to withdraw the donation prior to the performance of insemination in the recipient of the donation.

The circular of the Director General of the Ministry of Health, stipulating rules pertaining to the management of sperm banks (circular no. 20/27 dated November 8, 2007) refers to withdrawal of consent only in such cases in which a woman wishes to conceive a child in joint parenthood with a person who is not her spouse, and then they are both required to present an agreement which addresses the possibility of the parties to withdraw their consent, and what would be the use of the genetic constitution upon such occurrence (Section 31B of the circular). In Section 25(e) of the Director General's circular it is stated that "Donor's sperm shall not be obtained, received or used for the purpose of artificial insemination, upon the fulfilment of one of the following: […] the donor did not give his consent in writing, on a form as specified in the donor's file". Apparently, it can be argued that the donor's consent needs to be obtained in each and every stage, but it transpires from the form on which the donor signs, that his consent for the provision of sperm and the use thereof is given simultaneously and after the sperm is obtained and received, there is no need to receive separate consent for the use thereof. As aforesaid, and as far as I know (no factual foundation was presented to us with regards to this matter), this is also the common practice, and the various sperm banks do not inform the donor, all the same obtain his consent, prior to making use of his sperm.

12. Therefore, there is currently no reference by the legislator, or by the secondary legislator, to the question whether a sperm donor is allowed to withdraw his consent, and until what stage. Upon facing a void, we must resort to analogy. The law of analogy is currently established in our law by the Act of Foundations of Law 5740-1980, which stipulates that "had the Court encountered a legal question to be resolved, and found no answer thereto in a legislative act, in case law or by analogy…". And yet, with respect to an issue that is very close to the matter at hand, the legislator had set forth an arrangement in the Ova Donation Law, 5770-2010 (the "Ova Donation Law"). Section 16 of the ova donation Law stipulates four acts which the donor is entitled to order with respect to the ova extracted from her body, as follows: implantation of the ova; freezing ova for the purpose of future use by herself; research; exterminating of the ova. Consent with regards to implantation may be given for a specific or unlimited time. The possibility to withdraw consent is set forth by Section 44(a) of the Law, as follows:

Withdrawal of consent and change of designation

1. A donor or a patient may withdraw consent given by her pursuant to Sections 15, 16 or 27, as the case may be, at any time prior to the performance of the act to which she agreed to designate the ova which were extracted from her body, and with respect to consent to designate ova for implantation – at any time prior to the fertilization of the ova, and she will be under no civil or criminal liability for such withdrawal of consent.

An ovum donor is therefore allowed to withdraw her consent until that point in time in which the donated ovum has been fertilized. If and insofar as we adopt this solution by way of syllogism also to the case at bar, then we reached a solution for the issue submitted to us, and we are not obligated to resort to "the principles of liberty, justice, equity and peace of the Jewish heritage" and to the Hebrew law on which my colleague, Justice Rubinstein, elaborated in his ruling.

13. As determined by the legislator, the moment a shared genetic constitution is created, the interest of the donor no longer stands alone, and she cannot withdraw her consent due to the introduction of a third party – the other partner to the genetic constitution. In this perspective, it can be argued that the analogy between ovum donation and sperm donation is naturally called for – so long as no use has been made of the sperm, the donor may withdraw his consent, but upon use of the sperm and fertilization of the ovum, we face a "point of no return" in view of the shared genetic constitution which was created (with reflection to civil law, see Section 4 of the Movable Property Law, which addresses the combination and mixing of movable property).

Why does the Ova Donation Law establish the fertilization stage (and not the stage of implantation or re-implantation) as the "point of no return" with respect to the donor? Did the legislator seek to avoid the need to address the medical-legal-moral-philosophical-religious issues pertaining to the time of creation of life and the status of a number of cells that have divided following an IVF? I found no grounds for this assumption in the Ova Donation Law, in the explanatory notes thereto or in the legislative history, however it can be supported by common sense.

According to this explanation, setting the "point of no return" at the time of the fertilization of the ovum is not arbitrary. In this way, as long as no use has been made of the Respondent's sperm, it can be argued that the Petitioner has no right to a specific child from his sperm, since so long as the child is not conceived (non-existence), the concrete right to his birth is yet unestablished (compare to statements made regarding "wrongful life" – David Heyd "The Right to be born free of birth defects?" Moral Dilemmas in Medicine, 255, 258-259 (Raphael Cohen-Almagor, Editor, 2002)). This is not the case in the post-fertilization stage, when the vague right to a specific child now has a concrete object, and a right is established for the mother to bring into the world the child that had already begun to be created (for a discussion of the time of formation of actual existence as opposed to potential existence, see: David Heyd, Are "Wrongful Life" Claims Philosophically Valid? 21 Israel L.  Rev. 574, p. 578 (1986). Some believe that after the fertilization, the interest of the embryo taking shape to be born is added to the set of balances (for a dissenting opinion, see Andrei Marmor "The Frozen Embryos of the Nachmani Couple: A Reply to Chaim Ganz "Iyyunei Mishpat 19. 433, 436-439 (1995)).  

14. The simple meaning of the analogy is therefore supportive of the conclusion that also with respect to the sperm donor, the point of no return is the fertilization of the ovum. However, in my opinion, an in-depth review of the issue may lead the analogy to the Ova Donation Law to a different outcome, and at least to a conclusion that no analogy can be drawn between the case at bar and the arrangement set forth in that Law, in view of the material differences between sperm donation and ovum donation.

In contrast to ovum donation, the issue of sperm donations is yet unregulated by primary legislation. Even according to the private bill of Knesset Member Schneller, as well as pursuant to the current circular of the Director General, all that is required for a sperm donation in Israel is the obtainment of the donor's consent on the proper form. On the other hand, ova donors are required to receive a written approval from an approval committee which comprises of physicians, a social worker, a psychologist, an attorney and a representative of the public or a cleric; the donor is provided with specific written and oral explanation regarding the essence of the procedure and the donation; she is required to undergo a medical and psychological examination in order to confirm her fitness to give the donation; the approval committee is to be convinced that the donor's consent was given "of sound and disposing  mind, out of her free will and free of family, social, economic or other pressure" (Section 12 of the Ova Donation Law). The reason for the aforesaid procedure derives from the fact that the donation of ovum involves a complex procedure for the donor, as distinct from sperm donation, which does not involve invasive procedures or medication treatment.

15. The procedure of sperm donation also varies greatly from that of an ovum donation. Sperm donation is performed, as aforesaid, through a sperm bank, and the sperm units are stored in freezing for many years, such that the recipients of donations can select from the supply available to them the sperm that meets their needs and desires. The sperm bank serves as a mediator between the sperm donor and the recipient of the donation, and in addition to the service of storing the sperm under the required conditions it is further responsible for the obtainment of the sperm from the donor and the transfer thereof to the recipient of the donation. In a sperm donation, the donor who already delivered the sperm unit is not at all involved in the procedure, and the recipient of the donation may acquire sperm units, which the donor gave at a time which is of no relevance to her, and is no longer depending on cooperation on his part.

This is not the case with the procedure of ova donation, which requires cooperation between the donor and the recipient of the donation. This is a complex procedure, in the course of which the donor undergoes hormonal treatment over a period of several weeks, aimed to stimulate the ovaries. During that period of time, the donor is being monitored, including ultrasound checkups and blood tests, and she is obligated to avoid smoking, drinking alcohol and having unprotected sexual intercourse. Concurrently, the recipient of the donation also undergoes hormonal treatment, which is aimed to thicken the endometrium such that it can accept the implanted ova. All of the above is carried out while "synchronizing" the menstrual cycle of the donor and the recipient of the donation, such that the uterus of the recipient of the donation shall be ready to receive the ova soon after its extraction from the donor. Immediately upon the extraction of ova from the donor (within a time frame that does not exceed several hours), they are fertilized by sperm in various techniques which are not relevant to the issue at hand, and which are related, inter alia, to the quality of sperm. The fertilized ovum is incubated in the laboratory, and after several days (48 hours to five days) the conceived embryos – or perhaps the divided cells – are inserted into the recipient of the donation's uterus. In contrast to sperm donation, the donation procedure involves risks for the donor, and contrary to sperm donation, the possibility to freeze ova is limited, since the quality of an ovum decreases after freezing and defrosting. For this reason, as far as I know, there is currently no "ova bank" in Israel, in contrast to an "embryo bank" of fertilized ova.

I elaborated on the medical procedure not in order to enrich the reader's knowledge of the wonders of creation and of technology and medicine, but rather to indicate the material difference between sperm donation and ovum donation. The procedure of sperm donation is simple, does not require any medical procedure, and the main medical burden is carried by the recipient of the donation. On the other hand, the procedure of ovum donation requires lengthy cooperation between the anonymous donor, who carries the main burden, and recipient of the donation.

16. As aforesaid, a [ova] donor may not withdraw her consent from the moment of fertilization of the ova, which is performed, as a rule, immediately after the extraction. The donor may not withdraw her consent even if the ova have not yet been implanted in the recipient of the donation's uterus, and even if the sperm by which the ovum has been fertilized is from an unknown donor who is not the recipient of the donation's spouse, even though the recipient of the donation does not ostensibly have a "strong" reliance interest, since the ova were not yet implanted in her uterus, and therefore the avoidance of conception does not involve an invasive procedure on her body.

The explanatory notes to this section state as follows: (Governmental Bills 2007, 311):

"A woman's consent to donate ova from her body pursuant to the provisions of the proposed law entails significant outcomes – the birth of a child who is the biological child of that woman, while she waives any parenthood affinity toward him. Therefore, such donor should be allowed to withdraw her consent with respect to the procedures performed in the ova extracted from her body, at any time prior to the performance of the procedure to which she has agreed to designate such ova, and with respect to consent to designate ova for implantation – at any time prior to the fertilization of the ovum. The donor shall be under no civil or criminal liability due to her aforesaid withdrawal. A donor who so withdrew her consent, shall return the compensation given to her for the extraction of ova for implantation purposes or for her consent to allocate the excess ova extracted from her body for implantation".

The explanatory notes seem to be "unsynchronized" with the language of the Law, which sets the point of no return at the stage of fertilization. It is ostensibly reasonable that had the legislator wanted to allow a donor to withdraw her consent, in view of the significant outcome of the birth of a child and waiver of parentage affinity towards him, he would have also allowed the donor to withdraw her consent prior to the implantation of the ova in the recipient of the donation, and in case of an unsuccessful implantation, allow her to withdraw her consent prior to an additional implantation in the recipient of the donation (which in turn requires receipt of a renewed approval in order to examine if the conditions stipulated by law for the implantation – Section 19(c) of the Law – still exist).

The reason for the determination of the time of fertilization as the point of no return is based in the aforementioned stages of fertilization and implantation, which are separated by several days at the most. Considering the complex procedure that the donor undergoes, the legislator enables her to withdraw her consent at any time until her share is completed and the ovum is extracted from her body and fertilized immediately thereafter. The extraction of the ovum and the fertilization should be viewed as one stage, and considering the implantation being performed within no longer than several days, perhaps the three stages (ovum extraction-fertilization-implantation) should also be deemed as one. After the donor had completed her share, the power of decision is transferred to the recipient of the donation, who also began hormonal treatments, although less complex. For this reason, there is doubt if one can draw an analogy to the consent withdrawal right which is granted to the ovum donor – whose cooperation is required up until the extraction of ova and the fertilization which is performed immediately thereafter – to a sperm donor who has no part in the medical procedure entailed in the fertilization and whose cooperation is not at all required before the fertilization.

17. Moreover, it can be argued that an analogy to the Ova Donation Law is called for in the case at bar, however such analogy leads us to an entirely different conclusion. Hence, the donor may indeed withdraw her consent until the stage of fertilization, but in fact, considering that the extraction of ovum and the fertilization are performed "as one" (at most within several hours apart), it can be stated that the donor is prevented from withdrawal, the moment of extraction of the ovum from her body. Similarly, the sperm donor shall be prevented from withdrawal after the sperm leaves his body. In other words, since the point of no return is, de facto, not the fertilization but actually the extraction of ova, which are then immediately fertilized, the analogy to the case at bar is the moment of ejaculation and delivery of sperm.
18. In view of the aforesaid, there is doubt whether an analogy can be drawn from the Ova Donation Law to the case at bar, and in any case, the analogy to the Ova Donation Law does not lead us to an unequivocal answer to the issue at hand.
19. Interim summary: we resolved that in the settling of the competition between the Petitioner and the Donor from the perspective of civil law, the Petitioner ostensibly prevails; however, the choice whether to follow civil law depends on the principled question of how much we are willing to attribute to the uniqueness of sperm as an "asset". On the one hand, we can allegedly conclude, by way of syllogism, from the arrangement set forth in the Ova Donation Law, that in the case at bar as well, the point of no return is the stage of fertilization; however on the other hand, in view of the differences in the procedure entailed in ova donation, an analogy to that arrangement might lead to the outcome that the point of no return is the delivery of sperm, and, in the least, that there is no room for such syllogism.

Having failed to find an answer to the question before us, we must continue wandering the paths of law in search for a solution.

Analogy from a woman who does not need sperm donation

20. My colleagues indicated that a married woman or a woman who has a spouse and does not need a sperm donation also has no conferred right that all of her children be born from her spouse, and she is not "immune" from separation and divorce, or – god forbid – death of her partner. Thus they conclude that the rights of the Petitioner should not be secured to a greater extent than in the ordinary state of affairs.

However, the comparison to a woman who has a spouse is incomplete, not from the point of view of the recipient of the donation and not from that of the father. A recipient of donation such as the Petitioner has a possibility to secure in advance, at a high level of certainty – subject to medical and other constraints – that all of her children be born from the same genetic father, since to that end she paid and "secured" the donor's sperm units. On the other hand, an "ordinary" spouse may bear an economic price (child support and property division) and an emotional-mental-social price involved in the process of divorce and separation, whereas the sperm donor pays no price for his withdrawal of consent (other than, perhaps, an obligation to return the amount received at the time for the sperm donation). Hence, the concern pertaining to negative lateral effects in issuing a "carte blanche" to all donors to withdraw their donation, as elaborated by my colleague in Sections 68-70 of his ruling.

Analogy to and distinction from the Nachmani case

21. My colleagues indicate several distinctions between the case at bar and the Nachmani case which indicate that the level of expectations and reliance of the Petitioner in this case, is far lower than that of the female spouse in re Nachmani. According to this method, the necessary outcome is that the Petitioner be denied.

However, this is not the case from the perspective of the donor in the case at bar, whose injury is far lower than that of the male spouse in re Nachmani. A involuntary father, who knows the identity of the mother and the child born to him against his wishes, and might also come across him in everyday life, as in re Nachmani, cannot be compared to the anonymous donor in the case at bar. In the ordinary state of affairs, the donor is not even supposed to know whether use has been made of his sperm for fertilization, how many times it has been used, if the use of his sperm was successful, whether his sperm was used for the fertilization of a married woman or a single one and the identity of the happy mother. In this aspect, the emotional injury to the donor in the case at bar is much smaller than that of the male spouse in re Nachmani. According to this method, the reduced magnitude of the injury to the Donor, tips the scales in the direction of the Petitioner.

Hence, also the comparison to re Nachmani may yield different outcomes. The injury to the Petitioner is smaller than that of the female spouse in re Nachmani, but so is the injury to the Donor smaller than that of the male spouse in re Nachmani.

Analogy from the laws of rescission of contract and administrative promise

22. My colleague proposed, inter alia, to apply to the hospital the principles of public law and the rule of rescission of contract. I shall add to the aforesaid an analogy to the law of administrative promise, which allows an authority to withdraw its promise upon the existence of legal justification.

Indeed in the case at bar we are concerned with a governmental hospital, but according to the Sperm Bank Regulations pertaining to sperm donation, a hospital is not necessarily a governmental hospital, and the implementation of the principles of public law shall not always be applicable. Essentially, the rule of rescission is contingent on public interest (essential public needs), and an administrative promise withdrawal is contingent on legal justification. This does not promote the issue at hand, since the question whether there is a justification or public interest to allow the Donor to withdraw his consent, is the very core of the dispute before us.

Between autonomy and parenthood, and between a right and an interest

23. My colleague, Justice Rubinstein, based his opinion on a principled preference of the Donor's right to autonomy, over the Petitioner's interest to conceive specifically by his sperm.

The case law and legal literature provides us with the distinction between protection or injury of a right, and protection or injury of an interest (see, for example: Oren Gazelle Ayal and Amnon Reichman "Public Interests as Human Rights?" 41 Mishpatim 97 (2011); Zamir Ben Bashat, Erez Nachum & Amir Colton "The Public's Right to Know: Reflections following APA 398/07 The Movement for Freedom of Information v. the Tax Authority" 5 He'aarat Din 106 (2009) and the references there). Between rights it is common to make a horizontal-internal balance, whereas the balance between a right and an interest is vertical-external (Gideon Sapir "Old versus New – on Vertical Balancing and Proportionality" 22 Mechkarei Mishpat 471 (2006)).

The mere distinction between a right and an interest sometimes serves to determine a different level of legal protection, in the words of my colleague: "the classification of the considerations at stake as rights or as interests defines the formula of the balance between them, and the normative superiority of one value over the other or their equal value". Alas, sometimes it is unclear whether the outcome preceded the classification or vice versa (Michael Dan Birnhack "Constitutional Geometry: The Methodology of the Supreme Court in Value-based Decisions" 19 Mechkarei Mishpat 591 (2003)). In my opinion, the injury to the Petitioner should not be classified as an injury to an interest, but rather as an injury to the positive right to be a parent, against which stands the injury to the Donor's negative right to autonomy, as per Section 6 of the ruling of my colleague, Justice Barak-Erez (on the right to be a parent in the context of fertilization, see: Vardit Ravitsky "The Right to be a Parent in the Era of Technological Fertilization" Moral Dilemmas in Medicine 137, 141 (Rafael Cohen-Almagor, Editor, 2002)). Therefore, a horizontal balance is called for between the two conflicting rights, and the distance from the core of the right shall be expressed in the outcome of the balance and not in the mere classification as interest against right.

24. The outcome of the balance depends on the distance of the right from the core of the right, and this may provide an answer to the issue before us. The farther the right is from its core, the lesser its force and vice versa, the weaker the force of the right is, it shall be positioned further away from the core of the right. Clearly this is not a scientific-physical measurement of the distance of the right from the "magnetic pole" wherein it stands, and the force of the right also derives from the motives at its basis. To demonstrate:

Would we recognize the Petitioner's (sic) right to withdraw his consent had he declared that he objects the use of his sperm for the fertilization of a single woman, but is consenting with regards to the fertilizing of a married woman?

And had the Donor casted a "veto" on the use of his sperm for the fertilization of a woman from a certain ethnic group, as distinguished from another ethnic group?

[Parenthetically – Section 13(e)(4) of the Ova Donation Law requires informing the recipient of donation if the donor is married or of a religion different than hers].

And had the Donor's withdrawal of consent been totally arbitrary, with no reasoning and no explanation? And had it been based in greed, attempting to get the Petitioner to pay him additional amounts?

I believe that in the aforesaid cases we would say that the Donor's right is weakened, and removed further from the core of the right, since the motivations on which it is founded are not "solid", and as such, we shall not be willing to view as justifications for the withdrawal of consent. Therefore, I believe that the Donor's "change of heart" with respect to this willingness to donate sperm is not enough, and we should further examine the reasons and motivations which lead him to withdraw his consent, and accordingly determine the degree of the right, and consequently – its distance from the core of the right.

25. The difficulty multiplies in view of issues that are not limited to the balance between the Donor and the Petitioner. For example, would the outcome change had it transpired that the daughter conceived by the recipient of the donation from the Donor's sperm has an interest of her own in the birth of the "potential sibling", such as her need of bone marrow donation? (And I am not referring to the legal-ethical questions that such a situation of "my sister's keeper" might raise).
26. The task of concluding is not ours, and we shall leave, questions and challenges to be resolved when they occur.

In the case at bar, it seems that the (positive) right of the Petitioner to conceive from the same genetic father is distant from the core of the right to be a parent, whereas the (negative) right of the Donor not to be an involuntary father is at the core of the right to autonomy, and I see no relevance, in this respect, to the fact that the Donor already has an offspring from his sperm. To the Donor, the question is "to be or not to be" – whether to at all be a father to another offspring carrying his genetic constitution or not, whereas for the Petitioner the question is not whether to be a mother but rather who shall be the father. Indeed, it cannot be denied that the Petitioner's wishes that all of her children shall carry the same genetic constitution are of considerable force. In the case at bar, the ovum is of the Petitioner's and even if her petition is denied her children will still carry her genetic constitution, and shall be half-siblings. This is different from a theoretical case in which also the ovum is not from the recipient of the donation, and the use of the sperm of a different donor for each fertilization shall mean that the children are not even genetically half-siblings, which would have increased the force of the recipient of the donation's right.

The bottom line in the case at bar is that in the competition between the Donor's core-negative right (the right to autonomy) and a right which is not the core of the positive right (the right to be a parent), the Donor prevails. I shall end with a short quotation from the letter sent by the Donor to the Court, speaking for itself: "I am not interested in having a child without being able to provide love to him, and without me loving his mother".

To conclude, I concur, although with a heavy heart, with the outcome reached by my colleagues.

Justice

Decided as per the ruling of Justice E. Rubinstein.

Issued today, 25 Shvat 5773 (February 5, 2013).

            C.A. 86/63

HASSAN EL-ZAFDI

v.

BARUCH BENJAMIN AND ATTORNEY-GENERAL

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

[July 11, 1963]

Before Olshan P., Silberg J., Witcon J., Cohn J.  and  Manny J.

Inter-religious law - guardianship of child of Jewish mother and Moslem father - jurisdiction of religious courts - Palestine Order in Council, 1922, arts. 51 and 55 - Women's Equal Rights Law, 1951, secs. 3 and 7 - Adoption of Children Law, 1960, sec. 11.

The child in this case was born to a Jewish mother and a Moslem father. According to Jewish law, the child was Jewish, following the mother, and according to Moslem law it was Moslem, following the father. On the death of the mother, the child was placed with its Moslem aunt, but when the father learned that German reparations were payable to the mother he applied to the District Court for the appointment of a maternal uncle as guardian. The Court appointed an uncle as sole guardian and at the instance of the Attorney-General ordered him to place the child in a Jewish institution. The father however, applied to the Sharia Court which decided that both the father and child were Moslems and that the child should be handed over to the father. The Attorney-General and the guardian, after having unsuccessfully contested the jurisdiction of the Sharia Court, did not take part in these proceedings. For some reason, the father nevertheless did not proceed to enforce the judgment of the Sharia Court and instead applied again to the District Court to have the appointment of the guardian set aside and for an order that the child and its property be delivered up to him. His application was denied and he appealed.

Held                  The father was the natural guardian of the child whichever personal law applies to either of them. Such natural guardianship did not, however, relieve the court of its fundamental duty of acting always in the interests of the child alone. In a case of "mixed" parentage, the President of the Supreme Court is empowered to decide whether either of the two religious courts concerned or the District Court has jurisdiction, and no party might apply to a religious court without the President's approval; for an application to the District Court no approval is necessary. Any decision made by a religious court with approval of its jurisdiction could not oust the jurisdiction of the District Court. Where a child's religion, as here, could not be certainly determined, the "territorial" principle applied and the child's interests were paramount. There was sufficient evidence before the District Court to show that it was in the interests of the child not to be placed under the guardianship of the father.

Israel cases referred to:

(1)   H.C. 72/62 - Oswald Rufeissen v. Minister of the Interior (1962) 16 P.D. 2428; S.J. (Special volume) 1.

(2)       C.A. 209/54 - Franz Steiner v. Attorney-General (1955) 9 P.D. 241.

(3)       Motion 121/55 - Orah Fruchter v. Bernard Fruchter (1955) 9 P.D. 1361.

Y. Ben-Yishai for the appellant.

The first respondent appeared in person.

M. Cheshin, Deputy State Attorney, for the second respondent.

COHN J.                     The fate of a young child whose parents' sins are being visited on her is to be decided in this appeal. This mother was Jewish and died when the child was still in her first year. The appellant claims to be the father of the child and to evidence that has produced her official birth certificate; and if it is pleaded before us that the appellant's paternity has not been sufficiently proved, the child's birth certificate is, in my opinion, good prima facie evidence and, no atcempt having been made to upset it, we must presume that it is true and on the strength of it hold that the appellant is indeed the father of the child. The appellant is stated to be a Druze in the birth certificate, but he asserts that he is not a Druze but a Moslem; and for the purpose of this appeal I assume, without deciding, that he is in fact a Moslem.

2. Litigation over and concerning the child commenced in 1960 when the appellant asked the Tel Aviv District Court to appoint him and an uncle of the deceased mother, one Baruch Benjamin, as the guardians of the person and property of the child. On that application the appellant argued that he and the deceased had lived as husband and wife, although unmarried, and that the child was their daughter; and that German reparations had been received in the name of the deceased to which the child is entitled to succeed. With regard to this application, the learned judge said in his judgment

"The applicant does not argue that he is legally the father of the child. Neither he nor his counsel says that. Clearly, had the applicant urged that he is the father, he could not have claimed to use the    money for bringing up the child, since as her father it was his duty to do so. In view of this situation the court appointed only the uncle of the child as guardian and gave him leave to obtain a Succession Order to the deceased's estate. He was also given leave to use money received after the Succession Order was obtained for the maintenance and up-bringing of the child."

3. Notwithstanding the appointment of Mr. Baruch Benjamin alone as the child's guardian, the appellant was able to get the child placed under the control of a couple by the name of Saliman, by means not explained to us. By virtue of his powers under the Welfare (Procedure in Matters of Minors etc.) Law, 1955, the Attorney-General instituted further proceedings in the District Court, submitting, as the learned judge stated in his judgment

"that the minor is now living with the Saliman family in shocking inhuman conditions and that the Saliman family looking after the child are elderly people, Mrs. Saliman suffering from trachoma, and they live in a hut open to the weather, and that the applicant ... does not visit the child nor is concerned about her ... and that for some nine months has not seen the child or at all been interested in her, and that he himself appears to be undeveloped and lives with a woman of doubtful conduct."

The Attorney-General petitioned that the appellant be denied his (natural?) guardianship and that the child be allowed to be adopted.

            The learned judge heard counsel for the Attorney-General, the appellant and the guardian Mr. Baruch Benjamin and directed the guardian to take the child away from the Saliman family and take her to "the social department of Tel Aviv Municipality so that arrangements might be made for her in an institution".

            We are told that the guardian did so and that the child is now in an institution.

4. Upon changing lawyers, the appellant was advised that the District Court had no jurisdiction in the matter and that exclusive jurisdiction lay with the Sharia Court since he was from birth a Moslem. The appellant did not remain idle and applied to the Yaffo Sharia Court. It appears from the decision of this court ... of October 8, 1962, filed with the District Court, that the appellant had asked three things from the Sharia Court - a declaratory judgment that he was a Moslem and not a Druze, a determination that he was the child's father and his appointment as the child's legal guardian, and the annulment of the guardianship of Mr.Baruch Benjamin (who was summoned as defendant in the Sharia Court) and an order that the latter deliver the child to him "together with all rights and property".

            Both Baruch Benjamin and the Attorney-General appeared before the Sharia Court and pleaded that it had no jurisdiction in the matter. After this plea was dismissed by the court, they no longer took part in the hearings.

            The Sharia Court, after hearing two witnesses (and two others regarding their credibility), held that the appellant was a Moslem "by origin" and the child his daughter. The court also held as follows:

"Lawful marriage relations existed between the parents (of the child) since marriage is determined according to the factual situation, as laid down by the sages... . And I hereby determine that the daughter is Moslem following the religion of her father and she can be adopted in accordance with the rulings of religious scholars; and in accordance with the application ... to appoint the father the guardian of his said daughter because he is capable of bringing her up, dealing with her affairs and managing her property in the best possible manner, in addition to the provisions of the Women's Equal Rights Law 1951, section 3(a) that both the mother and the father are natural guardians of their children and where one of them dies the survivor remains the natural guardian - I hereby appoint Hassan EI-Zafdi (the present appellant) as lawful guardian of his daughter Ziva EI-Zafdi and order that she should be delivered to him by any one under whose control she may be together with all the property due to her, and the father shall hand her over to his aunt Muhtia Hussin EI-Dagma with whom she was previously."

5. For some reason the appellant did not execute the judgment of the Sharia Court but made a new application to the District Court asking for the cancellation of Mr. Baruch Benjamin's appointment as guardian and order against him to hand over the child and her property. The learned judge refused the application, hence the present appeal.

            In a detailed and basic judgment the learned judge considered carefully Moslem, Jewish and English law, and Dr. Cheshin who represented the Attorney-General so elegantly and knowledgeably, also tilled every corner of the field of law to gather proof that this appeal should be dismissed. For myself, with all respect and esteem for the learned judge and appreciation of noted counsel, the questions which arise here are short and very simple and they need not detain us long.

6. Section 3 of the Women's Equal Rights Law, 1951, provides as follows:

"(a) Both the mother and the father are the natural guardians of their children; where one parent dies, the survivor shall be the natural guardian.

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

Under section 7 of the same Law,

"All courts shall act in accordance with this Law; a tribunal competent to deal with matters of personal status shall likewise act in accordance therewith, unless all the parties are eighteen years of age or over and have consented before the tribunal, of their own free will, to have their case tried according to the laws of their community".

            Dr. Cheshin submits that the father referred to in section 3(a) is not the natural but only the legal father. Unlike his other submissions, this one does not merit acceptance. First, the word "parent" in the second part of the subsection indicates that we are concerned with a person who played a part in the pregnancy of the child. Secondly, the word "natural" indicates that we are concerned with guardianship created naturally and not depending upon the operation of the law (other than this statute). Thirdly, the Law draws a comparison between the father and the mother: just as the mother is natural and does not require legal recognition, so also the natural father is intended. Fourthly, and this is the main point, unlike English law, Israeli law does not recognize the status of the legal father as distinct from the natural father; and the terms of a Knesset enactment are not to be interpreted according to the meaning they can possess in the laws of one or other religious community (Rufeissen v. Minister of the Interior (1)).

            It follows that the appellant is the natural guardian of his daughter, whatever personal law applies to him or her;and all research into what this personal law is and its provisions is irrelevant here.

7. However, the natural guardianship of the appellant over his daughter does not by itself release the court (or any religious tribunal) from the basic absolute duty to adjudicate in guardianship matters affecting children "with the interests of the children as the sole consideration". What the Law calls "the power of a court or tribunal" is but the sacred duty which it may not disregard. I cannot express the matter more becomingly and incisively than Silberg J. when he said

"The test of the child's interests ... cannot be otherwise than one of two things, either it is not a serious consideration at all or it alone must be deemed the decisive absolute element ousting (in the event of conflict) every other consideration. No compromise is possible here: it does not lend itself to division and it is not to be mingled and confused with any other consideration whatsoever... . The Israeli legislature was therefore justified in laying down - and this to my mind is the correct meaning of section 3(b) - that the interests of the children are to be the final determinative consideration, both when they conflict with the rights of guardianship provided in section 3(a) and when they conflict with the provisions of a foreign law... No happier expression of this is to be found than the formula coined by one of our great poskim: the rule of matter is that all depends on where the bet din sees the better interests of the child lie (Responsa Radbaz, Part I, 123)" (Steiner v. Attorney-General (2) at p. 251-52)

            With regard to the child's interests here the learned judge was persuaded, both when dealing with the Attorney-General's application as above and again when dealing with the present application of the appellant, that the child should not be returned to the appellant's relatives but should remain in the institution where she is at present. The learned judge points out that the child was taken from the Saliman couple, the aunt and uncle of the appellant, because she was suffering there; and that she feels better, is developing well and receiving proper education in the institution where she is at present. Furthermore the reports of the Welfare Officer which served the Attorney-General as cause for his initiative, were not denied or controverted at all; before us as well appellant's counsel did not try to argue that these reports were incorrect or that meanwhile the situation at the Salimans has changed to the better.

8. The only submission of appellant's counsel in this regard was that the interests of the child required that she be brought up and educated in her religion, Islam, and not in a Jewish institution. I agree that generally the interests of children require that they grow up in the parents'faith; but I do not agree that every other interest must yield to this religious interest. The court facing the choice either to endanger the physical and mental health of the child by handing it over to members of its religion, if these are not fit or capable to rear and educate it, or to hand it over to teachers who, though not of its faith, will look after all its due needs - the court has the duty to be concerned with the health of the child and not its religion: the saving of endangered life displaces religion. That is simple and obvious.

            Nonetheless, I have not at all been persuaded that the child here is a Moslem. We have two judgments before us, one by the learned judge holding that the child is Jewish, and the other of the Sharia Court holding that she is a Moslem. In this situation, and without entering into the question whether the Sharia Court had jurisdiction to decide as it did, prima facie doubt exists as to the religion of the child; or one may say that she is Jewish according to Jewish religious law and Moslem according to Sharia law and thus a member of two religions, in theory if not in practice. In either event her interest alone must be decisive in respect of guardianship and her upbringing and education. Since there is doubt or conflict as to her religion, that cannot be an element, or be of importance, in finding where her interests lie.

            Moreover, where a person has dual nationality, the prevailing view today is that we look to the "effective" nationality, operative, real and manifest (see M. Silberg, Personal Status in Israel, pp. 247-50 (in Hebrew)). Presumably the same applies to a person with dual religion, the effective operative religion is followed in case of a conflict of laws. All this applies to an adult capable of giving effectivity to one of the nationalities or religions of his by actual conduct or expression. It is otherwise with a minor whose conduct and expression does not stem from a voluntary and thought-out act from which conclusions can be drawn in law. It appears to me, and I have no doubt about it, that such effectivity as regards a child is only its interest. When in the case of a child there is a choice between the law of two religions or two nationalities, one must choose that law the operation of which will yield greater benefit to the child, not only because in any case one must place the child's interests at the head of all consideration but also because the child, had he the ability of effecting a voluntary and thought-out act, can be presumed to act and express himself, and thus give effectivity, according to that religion or nationality from which it will derive the greatest benefit. Thus, even assuming that the present child is of dual religion, her "effective" religion is Judaism because her interests lie in growing up and living as she does at present and not in the home of the Salimans or of the appellant.

9. Appellant's counsel argues, though only half-heartedly, that the child's interests were already decided upon by the Sharia Court and that is the end of the matter. It is, however, not so. Although that judgment states that the appellant "is capable of bringing her up, dealing with her affairs" etc., and two witnesses attested to that in the Sharia Court, with all deference to their credibility and knowledge, the Sharia Court did not decide that it was in the child's interests to be in the home of the appellant and be brought up there. On the contrary, the judgment ordered the appellant to hand over the child to the couple in whose home she had previously been. And the Sharia Court said nothing about the fact that the child's interests require or justify her being placed with this couple, just as it says nothing about the frightful conditions described in the Welfare Officer's reports (which apparently were not brought to its knowledge).

  However, I was not in the least persuaded that the Sharia Court had jurisdiction in this matter and I am almost of the opinion, and not only for the reasons of my honourable friend, Witkon J., that it did not. Since, in any event, there is no finding in the judgment as to the needs of the child and her interests, I find no need to go into the question of jurisdiction, especially as the appellant himself turned to the District Court after the Sharia judgment had been given and undertook the burden of proving the interests of the child precisely in the District Court.

10. In one incidental matter appellant's counsel, it seems to me, was right. The learned judge stated in his judgment that as regards the possible adoption of the child he was doubtful whether in the light of section 11(1) of the Adoption of Children Law, 1960, the appellant's consent was necessary and that perhaps an adoption order might be made without his consent. Although the judge was doubtful in express terms, his observations imply that in fact he had made up his mind that the condition in section 11(1) of the said Law obtained*. The question whether the condition has been met in the case of the appellant, or whether his consent may be forgone by virtue of the existence of one of the other conditions in section 11, or whether his consent should properly be first sought since none of these conditions exist - these questions will not occur nor come up for decision so long as there is no application to court for adoption by a particular adopter. When the time arrives for such an application to be heard, the court will consider the applicability of section 11 on the evidence adduced on the hearing of the application.

            I would affirm the judgment of the District Court, though not for the reasons therein set out, and dismiss the appeal.

SILBERG J     The story of the child in dispute exposes the fact that we do not possess either the system or machinery for a fundamental solution of the problems of inter-religion law. We wait for that in vain. For while in the area of conflict of private international law we are more or less sustained by the Common law and domestic case law, in the exclusively Israeli field of conflict of religious laws we have a single provision in the Palestine Order in Council which skirts in a most superficial manner the edges of the problem.

2. Were I therefore called upon to decide the basic question of the "quality" of this child, whether she is Moslem according to the personal religious law of the father or Jewish according to the personal religious law of the mother, I would openly confess that I do not know. The religious laws contradict one another and the civil law is silent. The Common law does not deal with such conflicts and Palestine or Israeli case law has not yet said its piece on this complex subject. Elsewhere (Personal Status in Israel, p. 355) I have recommended that when a civil court had to deal with such "dual religion" it should adopt as a principle of interreligion choice the test of effectiveness customary under the Hague Convention relating to nationality of 1930. I am happy to confirm that my learned friend, Cohn J., agrees. This test, however, has manifestly no place in the case of a child of four and a half years. My learned friend's suggestion in paragraph 8 of his judgment that in this situation the court should deduce the effective religion in the light of the child's interests does not, with all respect, commend itself to me. Religious belonging may obviously affect the question of the child's interests and in any event the child's interests cannot determine its religious belonging, for the "effect" cannot be its own "cause".

3. We are, nevertheless, fortunate in the case of the present child and it is not upon us to resolve the basic insoluble problem of her religious affiliation. The present matter can, in my opinion, be decided directly or analogously under article 55 of the Order in Council which states that

"Where any action of personal status involves persons of different religious communities, application may be made by any party to the Chief Justice, who shall ... decide which Court shall have jurisdiction."

The reason for this provision is absolutely clear: where two different religious laws are likely one way or another to affect the determination of a dispute between parties, it is proper that another instance, superior and "neutral", should decide which judicial tribunal is to go into the matter.

4. I was originally inclined to say that since the child here was of "dual religion"; she is herself a person belonging to two different religious communities; and because - even without having recourse to the Interpretation Ordinance - the plural nearly always includes the singular, the phrase "persons of different religious communities" includes "a person of different religious communities", from which it would follow that article 55 applies directly to the child in dispute.

5. Afterwards, however, I decided not to lay down any hard and fast rule about this extreme idea. It could be urged against me that the child in all truth does not belong to two different religions since each of these religions claims that the child is entirely its and its alone. That would be like a glass concave on one side and convex on the other, not concave and convex together but all depending from which side it is viewed.

6. In spite, however, of this precise conceptual distinction, the ratio of article 55 applies with equal logic both to two people who truly belong to different religious communities and to one person whom two religious communities claim. The ultimate object of article 55 is to find a "third address" which can decide, and that is essential to an even larger extent when the source of the inter-religious dispute dwells within the very person himself. Hence - at least analogously - the provisions of article 55 are applicable here.

7. Article 55, it will be recalled, provides that the President of the Supreme Court (who now stands in the shoes of the Mandatory Chief Justice) can decide which court shall have jurisdiction in the matter and that means that he can decide that the competent court is one of the religious courts of the communities concerned or the District Court. A party cannot go to a religious court of one of the communities without first arming himself with the consent of the President of the Supreme Court; a party may turn to a District Court even without jurisdiction first being vested in that court under article 55 (Fruchter v. Fruchter (3) at p. 1365-66).

8. The conclusion that arises from the foregoing is very briefly and simply that guardianship is a matter of personal status under article 51 of the Order in Council; it is a matter of personal status where a child's religious affiliation is "claimed" by two different communities, the Jewish and the Moslem, and obviously the Sharia Court could not deal with the matter without first obtaining the consent of the President of the Supreme Court in accordance with article 55; such consent was neither asked for nor obtained; the District Court on the other hand was competent to deal with the guardianship at all stages even without a prior application to the President of the Supreme Court and the decision of the Sharia Court of 8 October 1962 made without such authority as aforesaid could not serve as a bar to that; the Court took evidence about the place where the child had previously been, the absence of being cared for, the uncleanliness, the eye disease, the father's relation to the child and his relations with another woman which were said to be immoral and abnormal; if after all this the court decided by virtue of section 3(b) of the Women's Equal Rights Law, 1951, that the child's interests required that she should not be given into the father's guardianship, we may not go against this conclusion even if it be said - for the reasons explained in paragraph 2 above - that here it is impossible to determine the child's religion. "The interests of the child" is a territorial principle applicable to members of all religions.

            I do not agree with the argument of counsel for the Attorney-General that article 52 of the Order in Council denies in its very terms jurisdiction to the Sharia Court to deal with the present guardianship. In my view, the Sharia Court's lack of jurisdiction stems only from article 55 as 1 have explained above.

            For these reasons I join in the opinion of my learned friend, Cohn J., that the appeal should be dismissed. I will not express my opinion or indicate my hesitations about the child's adoption since the time for that has not yet been reached.

            Finally, I find it a pleasant duty to note the high standard of argument of counsel for the Attorney-General, Dr. Michah Cheshin.

MANNY J.                 I concur in the judgment of my honourable friend, Silberg J..

WITKON J.                This tragic and complex case can, in my opinion, be decided on the single point put to us by counsel for the Attorney-General, and 1 would be satisfied with that. The point was that the Sharia Court cannot have jurisdiction unless the matter lay in its exclusive jurisdiction under article 52 of the Palestine Order in Council, and that jurisdiction depends on the child, a "party" thereto, being of the Moslem religion and no other. The jurisdiction test is both positive and negative at the same time. Here a person is involved which each of the two said religions claims as belonging to it, and the laws and rules of each of them merit our recognition.

            In parenthesis I would observe that the concept, 'dual religion, creates a difficult dialectic problem when we speak as here of two religions each of which says to a person "You are entirely mine" and does not admit the possibility of the person belonging also to another religion. By regarding a person as a member of two religions we at once lend force to the claim of each of the religions and ignore the exclusiveness of the claim. But from the viewpoint of the religions the "coexistence" of the two claims has no place and in their contemplation the reverse is the situation. May it be said, with the same logic, that since each of the two religions denies the possibility of the person belonging to the other of them as well, it is as if it refuses to accept him into its ranks if it cannot have him completely and exclusively, and thus he falls between two stools and becomes one of those spirits that dwell in limbo.

            In any event, I think that as regards the child here the condition which gives exclusive jurisdiction to the Sharia Court - that she is a Moslem and not of any other religion - does not exist here. Ipso facto the matter comes within the jurisdiction of the District Court and that court has exercised in is an unexceptional manner.

OLSHAN P.               I also am of the opinion that the religious court had no jurisdiction to deal with the child's case. Therefore the situation is as it was before appellant's counsel applied to the religious court.

            There remains the fact that the appellant himself, who purports to be the child's father, brought the matter before the District Court. There is no disputing that in the absence of jurisdiction in any other court, it is the District Court which alone is competent.

            The District Court's decision was based on the child's interests and this consideration is determinative in accordance with the Women's Equal Rights Law.

            The frightful conditions in which the child was kept when she was with the appellant certainly justify that decision.

            The appeal should be denied.

            Appeal dismissed.

            Judgment given on July 11, 1963.

* Under section 11(1) a parent's consent is unnecessary where it has been satisfactorily proved that the parent has abandoned the child or has constantly failed to fulfill his duty towards it (Ed.).

Appeal allowed by majority opinion, Justice Ts. E. Tal dissenting.

28 Adar II 5755

30 March 1995.

HCJ 2245/06

1.            MK Neta Dobrin

2.            MK Ronen Tzur

v.

1.            Israel Prison Service

2.            Yigal Amir

3.            Dr Larissa Trimbobler

The Supreme Court sitting as the High Court of Justice

[13 June 2006]

Before Justices A. Procaccia, S. Joubran, E. Hayut

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

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request.

The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to grant the request and its decision was therefore ultra vires. In addition, the petitioners argued that it was immoral to allow the murderer of the prime minister to have children; that he had no right to start a family while in prison, that the parental capacity of the third respondent should have been considered; and that the decision was contrary to the natural rules of justice and unreasonable, in that it gave no weight to the feelings of deep abhorrence felt by most citizens at the despicable acts perpetrated by Amir.

Held: The first respondent’s decision was made intra vires. A prisoner has a constitutional human right to parenthood. This does not cease automatically as a result of the sentence of imprisonment, although it may be restricted for reasons relevant to the imprisonment. The first respondent does not need an authorization in statute to permit a prisoner to realize his rights. The premise on which the petition is based is fundamentally unsound; it effectively turns the law upside down and undermines basic principles of public and constitutional law. When a person has a right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: authority is required in statute in order to restrict or violate the right.

The first respondent does not have a power to add to a prisoner’s punishment that was imposed on him in the sentence handed down by the court. The public’s feelings of abhorrence at Amir’s crime cannot affect the scope of the human rights given to him in prison, and the nature of the restrictions upon them that are permitted.

Petition denied.

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 8.

Knesset Elections Law, 5729-1969, s. 116.

Penal Law, 5737-1977, ss. 1, 48.

Prisons Ordinance [New Version], 5732-1971, ss. 25, 56(30), 58, 76.

Release from Imprisonment on Parole Law, 5761-2001, ss. 9, 10.

Israeli Supreme Court cases cited:

[1]          LHCJA 3172/99 Amir v. Israel Prison Service (unreported).

[2]          LHCJA 5614/04 Amir v. Israel Prison Service (unreported).

[3]          HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

[4]          LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) (unreported).

[5]          HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [2003] IsrSC 57(1) 419.

[6]          CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661; [1995-6] IsrLR 320.

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

[8]          LCA 3009/02 A v. B [2002] IsrSC 56(4) 872.

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

[10]        LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.

[11]        HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[12]        LHCJA 3713/04 A v. State of Israel (not yet reported).

[13]        LHCJA 1552/05 Hajazi v. State of Israel (not yet reported).

[14]        LHCJA 8866/04 Hammel v. Israel Prison Service (not yet reported).

[15]        PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

[16]        PPA 1076/95 State of Israel v. Kuntar [1996] IsrSC 50(4) 492.

[17]        PPA 5537/02 State of Israel v. Sarsawi [2004] IsrSC 58(1) 374.

[18]        PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[19]        HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[20]        LHCJA 4338/95 Hazan v. Israel Prison Service [1995] IsrSC 49(5) 274.

[21]        HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[22]        HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[23]        HCJ 89/01 Public Committee Against Torture v. Parole Board [2001] IsrSC 55(2) 838.

[24]        LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [2005] IsrSC 59(2) 176.

[25]        LHCJA 9837/03 A v. Parole Board [2004] IsrSC 58(2) 326.

[26]        HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[27]        CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

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

[29]        HCJ 9/49 Bloi v. Minister of Interior [1948] IsrSC 2 136.

[30]        HCJ 144/50 Sheib v. Minister of Defence [1951] IsrSC 5 399; IsrSJ 1 1.

[31]        HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.

[32]        HCJ 112/77 Fogel v. Broadcasting Authority [1977] IsrSC 31(3) 657.

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

[34]        HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[35]        HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309.

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

[37]        HCJ 6358/05 Vaanunu v. Home Front Commander (not yet reported).

[38]        HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

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

[40]        HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[41]        BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [2004] IsrSC 58(4) 55.

[42]        HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

[43]        HCJ 7837/04 Borgal v. Israel Prison Service [2005] IsrSC 59(3) 97.

[44]        HCJ 96/80 Almabi v. Israel Prison Service [1980] IsrSC 34(3) 25.

[45]        HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

American cases cited:

[46]        Turner v. Safley, 482 U.S. 78 (1987).

[47]        Overton v. Bazzetta, 539 U.S. 126 (2003).

[48]        Hudson v. Palmer, 468 U.S. 517 (1984).

[49]        Pell v. Procunier, 417 U.S. 817 (1974).

[50]        Washington v. Harper, 494 U.S. 210 (1990).

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

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

[53]        Carey v. Population Services International, 431 U.S. 678 (1977).

[54]        Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).

[55]        Stanley v. Illinois, 405 U.S. 645 (1972).

[56]        Anderson v. Vasquez, 28 F.3d 104 (9th Cir. 1994).

[57]        Hernandez v. Coughlin, 18 F.3d 133 (2nd Cir. 1994).

[58]        Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986).

[59]        Goodwin v. Turner, 908 F.2d 1395 (8th cir. 1990).

[60]        Percy v. State of New Jersey, Department of Corrections, 278 N.J. Super. 543 (App. Div. 1995).

[61]        Gerber v. Hickman, 291 F.3d 617 (9th cir. 2002).

English cases cited:

[62]        R. v. Secretary of State for the Home Department, Ex Parte Simms [1999] 3 All ER 400.

[63]        R. (Mellor) v. Secretary of State for the Home Department [2001] 3 W.L.R. 533.

European Commission of Human Rights cases cited:

[64]        X v. UK (1975) 2 D&R 105.

[65]        X v. Switzerland (1978) 13 D&R 241.

[66]        Hamer v. UK (1979) 4 EHRR 139.

[67]        Draper v. UK (1980) 24 D&R 72.

[68]        ELH and PBH v. UK (1997) 91A D&R 61.

European Court of Human Rights cases cited:

[69]        Dickson v. United Kingdom, no. 22362/04 [2006].

[70]        Hirst v. United Kingdom, no. 74025/01 [2005].

[71]        Aliev v. Ukraine, no. 41220/98 [2003].

[72]        Evans v. United Kingdom, no. 6339/05 [2006].

For the petitioners — S. Ben-Ami.

For the first respondent — I. Amir.

For the second and third respondents — A. Shamay, O. Schwartz.

JUDGMENT

Justice A. Procaccia

1.            Yigal Amir, a prisoner serving a life sentence, was convicted of the murder of the late Prime Minister Yitzhak Rabin. He submitted an application to the prison authorities in which he requested permission to send a sperm sample out of the prison in order to enable the artificial insemination of his wife, Larissa Trimbobler. On 5 March 2006, the competent authority at the Israel Prison Service decided to grant the request (hereafter — ‘the decision).

2.            The petitioners, who were both members of the last Knesset, filed a petition against the Israel Prison Service and against the prisoner and his wife in order to cancel the decision. Alternatively, they request that the Israel Prison Service establish a special committee composed of professionals who will consider and examine the conditions required for granting a permit to a security prisoner regarding artificial insemination, which should take into account, inter alia, the factor of the best interests of the child that will be born and examine the consent and ability of the wife to take responsibility for raising him, and it should make recommendations in this regard. We were also asked to stay the decision of the Israel Prison Service that is the subject of this petition until the proceedings in the proposed committee are completed. As a third option, the petitioners request that they be allowed to table a draft law in this matter, and that the implementation of the decision should be stayed in the interim.

Background

3.            The respondent was convicted of the murder of the late Prime Minister Yitzhak Rabin and of the wounding of his bodyguard in aggravated circumstances. He was sentenced to life imprisonment and to an additional six years imprisonment. He was also convicted in another trial of conspiracy together with his brother, Haggai Amir, and another person, Dror Edni, to murder the prime minister, and of conspiring with them to assault residents of Arab towns and Palestinian police personnel in Judaea and Samaria. For this conviction he was sentenced to an additional eight years imprisonment, to be served consecutively.

4.            Because of the nature of the risk presented by Amir, he was classified by the prison authorities as a ‘security prisoner.’ This classification led to the imposition of various restrictions upon him, of which the main ones are that he is held separately from other prisoner, surveillance cameras are installed in his cells and there are visitation restrictions. Various objections by Amir to these restrictions were rejected (LHCJA 3172/99 Amir v. Israel Prison Service [1], PPA (BS) 2077/01, and see also PPA (TA) 2853/05-A). Notwithstanding, Amir’s application to allow him to have meetings with the third respondent, his wife, was approved by the court; this was because, inter alia, no evidence was presented with regard to her activity (PPA (BS) 2077/01).

5.            In January 2004, Amir submitted a request to the Israel Prison Service to be allowed to marry Larissa and to have conjugal visits with her. When the response was slow in coming, Amir filed a prisoner’s petition in this matter to the Tel-Aviv District Court. In response to the petition, the Israel Prison Service gave notice that it decided to deny the request for conjugal visits, and that it had not yet formulated a position on the question of marriage. The District Court, in reliance on privileged intelligence information, decided to deny Amir’s petition with regard to conjugal visits. Amir applied for leave to appeal this decision in the Supreme Court, which denied the application (LHCJA 5614/04 Amir v. Israel Prison Service [2]; hereafter — LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits)). In its decision (per Vice-President M. Cheshin), the court examined the conflict of values between the right of a human being to conjugal visits, and the interest of state security that is likely to conflict with it, and it evaluated their weight in order to balance them. The court found that in the circumstances of the case there was a real concern that allowing conjugal visits between the couple would lead to a security risk. It said that the great risk presented by Amir had not decreased since he committed the offences for which he was serving his sentence, and he remained committed to the terrorist ideology that he espoused in the past. The court also found that Amir was the subject of adulation and a role model in certain circles, there was concern that unsupervised meetings with his wife would be abused in order to transmit messages in the spirit of his extreme views, and that he would thereby influence others to carry out extreme acts of the kind that he committed. The concern regarding security interests was greater, in the opinion of the court, because of information that was submitted, according to which Larissa had independent contacts with extreme activists who identified in their ideologies with Amir’s beliefs. All of this led to the court’s conclusion that the refusal of the competent authority to allow Amir conjugal visits with his wife was reasonable and proper. The question of Amir’s right to marry his wife was not decided in that case, since at that stage the decision of the Israel Prison Service on this matter had not been made. At a later stage Amir and Larissa married by proxy, and on 10 July 2005 the marriage was declared valid by the Rabbinical Court.

6.            On 27 July 2005 Amir made a request to the Israel Prison Service to allow him to carry out procedures for the purpose of artificial insemination treatments for his wife, in order to allow them ‘to realize their desire to bring children into the world,’ and he produced a medical certificate in this regard as required by the authority. On 3 January 2006, before a decision was made with regard to the request, Amir filed a prisoner’s petition in which he applied ‘to carry out artificial insemination with his wife, Ms. Larissa Trimbobler.’ On 5 March 2006, after considering the legal position, the Israel Prison Service decided to approve Amir’s request. The following is the language of the decision:

‘1.           After the petitioner’s request has been examined [it has been decided] to allow the petitioner to send sperm outside the prison for the purpose of the artificial insemination of Ms. Larissa Trimbobler.

2.            The transmission of the sperm sample will be allowed within the framework of a visit by Ms. Larissa or within the framework of a visit by another person who is permitted to visit the petitioner.

3.            Nothing in the aforesaid amounts to consent for the prisoner to be allowed outside the prison for the purpose of any fertility treatments or for other fertility treatments to be administered in the prison, something that was not even requested by him.

4.            It is also clarified that no change whatsoever will be allowed in the rules governing the terms in which the petitioner is held, including the number of visits to which the petitioner is entitled.

5.            If you wish to clarify anything concerning the manner of transmitting the sperm sample, we ask you to refer the matter to us and the matter will be examined by us.’

The petition before us is directed against this decision.

The arguments of the parties

The arguments of the petitioners

7.            The petitioners’ arguments are composed of several strata: first, they argue that the Prison Service Commissioner does not have the authority to grant a permit to a security prisoner to transmit a sperm sample for the purpose of insemination within the framework of the powers given to the Commissioner under the Prisons Ordinance, which gives him power to regulate matters of prison administration and discipline. According to the petitioners, a permit for artificial insemination, if at all, should be found in express legislation and not in administrative guidelines, and therefore the decision of the Israel Prison Service concerning Amir should be set aside because it was made ultra vires. Alternatively, even if the decision was made intra vires, it should be set aside on the merits because it is immoral and violates the basic outlooks of an enlightened society. It is not right to allow the murderer of a prime minister, who has not expressed regret for his despicable act, to give life to a new generation of his progeny and to bequeath the heritage of his despicable beliefs through his child. This decision, so it is alleged, departs from the natural rules of justice, runs contrary to administrative reasonableness and is also contrary to the rules of equality between prisoners, since it was made without carrying out a process of properly examining the right of all security prisoners to have children. The petitioners further argue that a prisoner has no inherent right under the law to create a family while he is in prison. Giving permission for artificial insemination by a prisoner constitutes a privilege that requires the discretion of the competent authority in the specific case, and this should be exercised by balancing the wishes of the prisoner to bring children into the world with maintaining discipline in the prison. In this case, no balance was made between these values, and for this reason also the decision is defective. Amir’s special personal circumstances, the seriousness of his actions, his current attitude to his actions and his conduct in the prison were not considered. In giving this kind of permission, the authority should also consider questions of the parental capacity of the mother to raise on her own the child that will be born, as well as the interests of the child, and no weight was given to these matters in the decision of the Israel Prison Service. Finally, the petitioners argue that the unreasonableness of the decision is also reflected in the fact that no weight was given to the serious injury to the feelings of the public that will be caused by granting this permission, in view of the deep abhorrence felt by the citizens of Israel towards Amir for his despicable acts.

The position of the state

8.            The state’s position is that there is no basis for intervening in the decision of the Israel Prison Service to allow Amir to send a sperm sample out of the prison for the artificial insemination of his wife. According to case law, a distinction should be made between restrictions on human rights required by the actual imprisonment, such as a restriction on the freedom of movement, and restrictions on other rights that are not inherent to the imprisonment and are not limited by an express provision of statute. A restriction on the ability of the prisoner to provide a sperm sample for artificial insemination is not inherent to the actual imprisonment, and there is no provision of statute that prohibits or restricts it. In the absence of such an express provision of statute, and in the absence of a security reason or any concern of prison discipline that requires such a restriction, there is no basis for denying Amir’s request to give a sperm sample to his wife. In the course of the hearing, the state gave notice that the Israel Prison Service intends in the near future to formulate a general procedure concerning the sending of sperm samples by prisoners to their wives.

The position of the second and third respondents

9.            The argument of the second and third respondents, Amir and his wife, is that even if we assume that the offences that Amir committed are despicable offences, there is no legal or moral basis for depriving them of the right to have children. The sentence imposed on Amir is limited to depriving him of his freedom for his whole life; it does not extend to the basic right to have a family and to bring children into the world, nor does it permit these to be restricted without a conflicting consideration of great weight. A prisoner retains his human rights as long as there is no public interest of great weight that justifies depriving him of them, and in this case there is no such interest. The consideration of the best interests of the child, which was raised by the petitioners as a reason for denying Amir his right to hand over a sperm sample, is unfounded, since it is clear that the wife has full parental capacity, and this assumption has not been rebutted.

Decision

10. A prisoner serving a life sentence, who has been convicted of the despicable murder of a prime minister, wishes to realize the right to have children by giving a sperm sample to his wife outside the prison. The Israel Prison Service granted his request, while stipulating certain conditions for it that concern the administrative arrangements of the prison. Were there any defects in this administrative decision that justify the intervention of this court to amend it or set it aside?

In view of the petitioners’ arguments, it is clear that we are required to examine the validity of the commissioner’s decision in two respects: the issue of authority and the issue of administrative discretion. With regard to the issue of authority, the question is whether the commissioner required express authority under the law to grant permission to a prisoner to transfer a sperm sample to his wife outside the prison. With regard to the issue of discretion, the question is whether the decision is reasonable and proportionate; were all the relevant considerations and no others taken into account? Was the balance between the relevant considerations a proper and proportionate one, in view of the fact that we are concerned with a basic right which can only be violated if the tests of the limitations clause in the Basic Law: Human Dignity and Liberty are satisfied?

I will start with my conclusion and say that the commissioner’s decision was made intra vires and it contains no departure from the powers given to him by law; the decision on its merits is founded on relevant considerations, it is reasonable and proportionate and it does not contain any defect that justifies judicial intervention.

The following are my reasons.

The commissioner’s powers — a normative outline

11. Does the commissioner’s decision to allow Amir to hand over a sperm sample fall within the scope of his authority under the law? Is special authorization required in the law in order to give this permission, such that without such authorization the permission falls outside the scope of the authority’s power?

There is currently no express statutory arrangement with regard to the right of a prisoner to give a sperm sample to his wife for the purposes of insemination outside the prison. Notwithstanding, the existence of such a legislative arrangement is not a precondition for permitting this, for the following reason: according to general constitutional principles of law, a person in Israel has constitutional human rights. These are reflected, inter alia, in the Basic Law: Human Dignity and Liberty (hereafter — ‘the Basic Law’), which enshrines some of the human rights and gives them a super-legislative status. These rights include the human right to dignity, from which the right to family and parenthood is derived.

The constitutional outlook that focuses on the protection of human rights is based on the assumption that the constitutional rights of a person are not absolute, and sometimes there is no alternative to allowing a violation of them in order to realize a conflicting essential public interest. In circumstances where tension arises between a human right and a conflicting public purpose, a balance needs to be struck between them for the purpose of finding the balancing point that will reflect the proper relative importance of the conflicting values. The tests in the limitations clause in s. 8 of the Basic Law are what define the criteria for a permitted violation of the Basic Law, and they are an essential tool for properly balancing the right and the public interest, whose realization necessarily involves a violation of the right. A violation of the right will only satisfy the required constitutional test if the act that violates the right is done pursuant to statute, is consistent with the values of the state, is for a proper purpose and satisfies the test of proportionality.

This normative constitutional basis also lies at the heart of the proper approach to the rights of prisoners who have been sentenced to imprisonment, including those serving a life sentence. It is an established rule that a criminal sanction, including imprisonment, does not automatically deprive someone serving a sentence or a prisoner of his human rights, except to the extent that the restriction of those rights is necessarily implied by the imprisonment and is consistent with the nature of the permitted constitutional violation in accordance with the limitations clause.

The Prison Service Commissioner was given his powers under the Prisons Ordinance [New Version], 5732-1971. Beyond the specific powers given to the competent authority in the Ordinance, the Israel Prison Service is responsible for administering the prisons, guarding the prisoners and doing everything required by these duties (s. 76). The prisons and the warders shall be under the command and management of the commissioner, subject to the directives of the minister (s. 80). The authority of the commissioner extends to the organization of the prison service, administrative arrangements, prison management, discipline and ensuring the proper functioning of the service, and he is authorized to issue general orders in this regard. Within the scope of its authority, the Israel Prison Service is subject to the general principles of the constitutional system and to the fundamental constitutional recognition of human rights and the rights of prisoners that derive therefrom. The restrictions that it is authorized to impose on the prisoners derive from the enabling law, which is the Prisons Ordinance, but where these restrictions violate human rights, they must also satisfy the constitutional test of the limitations clause in the Basic Law. When we are speaking of a constitutional human right, which is given by the Basic Law to a person as a human being, we should not look in the enabling law for a right to uphold it, but the opposite: where the authority wishes to restrict it, we should examine whether it has the power to do so and whether the use made of that power amounts to a permitted constitutional violation in accordance with the limitations clause in the Basic Law.

As we shall describe below, the right of a prisoner to be a parent and to have a family is a constitutional human right, which does not automatically cease to exist as a result of the sentence of imprisonment, even though it is likely to be subject to various restrictions as a result of the conditions of the imprisonment. It follows that the Prison Service Commissioner does not need an authorization in the law to permit a prisoner to realize the various aspects of the right to have a family and to be a parent that he has by virtue of recognized basic rights in Israel. It is a refusal to allow a prisoner to realize the right to have children and to be a parent that makes it necessary to satisfy the tests for a permitted constitutional violation. Such a situation will exist where the prisoner’s right to be a parent and to have a family is opposed by a conflicting value of sufficient weight that it justifies denying the right to a proper degree, in view of the relative weight of the conflicting values.

In our case, Amir, like any other prisoner, has a human right to establish a family and to be a parent. He was not deprived of the right to establish a family and to bring children into the world by the actual sentence that was imposed on him, even if the loss of liberty resulting from the imprisonment deprives the prisoner of the ability to realize family life in full. The Prison Service Commissioner therefore does not need an express authorization in order to give practical expression to the realization of this right, which is one of the supreme constitutional human rights in Israel. Had the commissioner denied the basic right, this would have required him to show that there were good reasons that supported the violation, and defining the scope of the violation in accordance with the tests of the limitations clause.

In addition to the scrutiny of the decision from the perspective of the authority to make it, we shall also examine the question of its reasonableness in view of the arguments that were raised. This scrutiny will focus on the question whether the authority addressed the relevant considerations and balanced all the relevant considerations in the case properly. The principles of constitutional scrutiny also apply to the consideration of this question, as we shall make clear below.

Let us examine in greater detail the principles of the normative framework that apply to this case.

Constitutional human rights and the right to family and parenthood

12. The Basic Law: Human Dignity and Liberty enshrines the human rights to dignity and liberty and thereby expresses the values of the State of Israel as a Jewish and democratic state (s. 1A). It provides that the dignity of a person as a human being may not be violated and that every person is entitled to protection of his dignity (ss. 2 and 4); it recognizes the possibility of violating a person’s basic constitutional rights, provided that the violation satisfies the tests of the limitations clause (s. 8). The tests in the limitations clause make the constitutional legitimacy of the violation conditional: it should be done pursuant to statute or by virtue of an express authorization therein; it should be consistent with the values of the state; it should be for a proper purpose and it should not be disproportionate.

Within the scope of the right to human dignity lies the right of a person to have a family and to be a parent (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3]). The right to family is one of the most basic elements of human existence. It is derived from the protection of human dignity, from the right to privacy and from the realization of the principle of the autonomy of the will of the individual, which lies at the very essence of the concept of human dignity. The family and parenthood are the realization of the natural desire for continuity and for the self-realization of the individual in society (LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) [4]; HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [5], at p. 447; CFH 2401/95 Nahmani v. Nahmani [6], at p. 719 {390}). Within the scope of the human right to dignity, the right to family and parenthood is a constitutional right that is protected by the Basic Law (cf. also CA 232/85 A v. Attorney-General [7], at p. 17; LCA 3009/02 A v. B [8], at p. 894; CA 2266/93 A v. B [9], at p. 235).

On the scale of constitutional human rights, the constitutional protection of the right to parenthood and family comes after the protection of the right to life and to the integrity of the human body. The right to integrity of the human body is intended to protect life; the right to family is what gives life significance and meaning. I discussed this in one case:

‘These are first principles; the right to parenthood and the right of a child to grow up with his natural parents are rights that are interrelated, and together they create the right to the autonomy of the family. These rights are some of the fundamental principles of human existence, and it is difficult to describe human rights that are equal to them in their importance and strength’ (A and B (prospective adoptive parents) v. C and D (biological parents) [4], at para. 6 of my opinion).

This right is therefore very high on the scale of constitutional human rights. It is of greater importance than property rights, the freedom of occupation and even the privacy of the individual. ‘It reflects the essence of the human experience and the concrete realization of an individual’s identity’ (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], at para. 6 of my opinion).

A violation of the right to parenthood and family will be legitimate only if it satisfies the tests in the limitations clause. These tests reflect a balance of the weight of the basic rights against other needs and values that are essential for the existence of proper social life. Basic rights, including the right to family, are not absolute; they derive from the realities of life that make it necessary to give a relative value to human rights and other substantial interests, whether of other individuals or of the public. A harmony between all of these interests is a condition for a proper constitutional system (LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [10]). In order for a violation of a human right to satisfy the constitutional test, it must fall within the proper margin of balances, which weigh the right against the conflicting value. The more elevated the status of the constitutional right, the greater the weight of the conflicting interest that is required in order to derogate from or counter the right (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], ibid.).

Prisoners’ rights

13. The constitutional outlook that gives human rights a supreme normative status also has ramifications on the human rights of a prisoner, and his ability to realize these rights when he is in prison. The constitutional system in Israel is based on the presumption that a person’s basic rights should not be denied or restricted unless there is a recognized conflicting interest, whether private or public, that is of sufficient weight to justify this. The same presumption also applies to sentences that are handed down to offenders. Its significance is that the protection of human rights is extended to prisoners even after they have been sentenced, and a violation of their rights is possible only where a conflicting public interest of great significance justifies it. Such a violation is recognized only to the extent necessary in order to achieve the conflicting interest, but no more. In this spirit it has been said that:

‘The walls of the prison do not separate the person under arrest from human dignity. Life in the prison inherently requires a violation of many liberties that are enjoyed by a free man… but life in the prison does not necessitate a denial of the right of a person under arrest to bodily integrity and to protection against a violation of his dignity as a human being’ (per Justice Barak in HCJ 355/79 Katlan v. Prisons Service [11], at p. 298).

Restrictions on prisoners’ rights

14. According to the prevailing constitutional system, an offender who is sentenced to imprisonment does not automatically lose all of his human rights. The violation of his rights is limited solely to the degree that it is required in order to achieve the goals of a substantial public interest. These goals include, first and foremost, the purpose of the sentence of imprisonment, which is intended to deprive the prisoner of his personal liberty during the term of imprisonment that was imposed.  By being deprived of his personal liberty, a prisoner suffers a violation of a basic right, but the violation is made pursuant to a law that befits the values of the state; it is intended for the proper purpose of isolating the offender from society for a defined period in order to protect the security of the public from the realization of an additional danger that the offender presents, and to rehabilitate him; the assumption is that it is a proportionate sentence relative to the severity of the offence that was committed and the other circumstances that are relevant to the sentence. Restricting the liberty of a prisoner is an inevitable consequence of the sentence that was imposed upon him, and therefore the violation of liberty receives constitutional protection. The restriction upon personal liberty, which is a consequence of the imprisonment, also gives rise to a necessary violation of certain other human rights that cannot be realized because a person is imprisoned. Thus, for example, the prisoner suffers a violation of his right to engage in his occupation, his right to privacy, and to a certain extent also his right of expression, with all the liberties that derive from it. The violation of human rights that accompanies imprisonment as an inherent consequence thereof is limited solely to an essential violation arising necessarily from the loss of personal liberty, but no more than that.

Another purpose that may justify a violation of a human right of a prisoner concerns the need to ensure the proper administration of the prison and to safeguard the welfare of its inmates. The competent authority has the responsibility to impose various restrictions that are required for managing life in prison in an effective manner, and these include maintaining order, security and discipline in the prison, as well as protecting the security of the inmates, the safety of the warders and the safety of the public from the dangers that are presented by the prison inmates (LHCJA 3713/04 A v. State of Israel [12]; LHCJA 1552/05 Hajazi v. State of Israel [13]; LHCJA 8866/04 Hammel v. Israel Prison Service [14]; and PPA 4463/94 Golan v. Prisons Service [15]). For the purpose of achieving the objective concerned with the proper administration of the Israel Prison Service, the Commissioner is competent to give comprehensive orders with regard to all the aspects of prisoners’ lives, and these may in several respects restrict their personal autonomy in various spheres (PPA 1076/95 State of Israel v. Kuntar [16], at p. 299; PPA 5537/02 State of Israel v. Sarsawi [17], at p. 379; Golan v. Prisons Service [15], at pp. 152 {506} and 172-175 {534-539}).

An additional reason for the restrictions on the rights of a prisoner may derive from other needs that involve an important general public interest, which is not directly related to the prison administration, such as, for example, a need that derives from general reasons of state security that are relevant mainly to security prisoners. Considerations of this kind may make it necessary to impose various restrictions on a prison inmate, which may violate his human rights.

When restrictions that are imposed by the public authority violate the human rights of a prisoner and they do not arise inherently from the loss of his liberty as a result of the imprisonment, they should materially satisfy the tests of the limitations clause in order to comply with the constitutional test. They should be consistent with the values of the state, intended for a proper purpose and satisfy the requirement of proper proportionality.

According to the prevailing legal outlook, a sentence that imposes imprisonment on an offender — and this includes a life sentence — is directly intended to deprive him of his personal liberty for the term of the sentence. The restrictions on the other rights, whether they are inherent to the imprisonment or they are intended to achieve other purposes, are not a part of the purpose of the sentence (PPA 4/82 State of Israel v. Tamir [18], at p. 206; HCJ 114/86 Weil v. State of Israel [19], at p. 483; Golan v. Prisons Service [15], at pp. 152-153 {506}; LHCJA 4338/95 Hazan v. Israel Prison Service [20], at pp. 275-276). The constitutional justification for imposing them depends upon the existence of a public purpose of special importance that justifies the violation in accordance with the tests of the limitation clause (Katlan v. Prisons Service [11], at p. 298). The greater the importance of the human right on the scale of human rights, the stronger the reasons required in order to justify a violation of it (Golan v. Prisons Service [15], at para. 13; HCJ 221/80 Darwish v. Prisons Service [21], at p. 546; HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [22], at p. 573).

It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their inherent purpose is not to increase the severity of the sentence that was handed down to the prisoner. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts. Where this is the purpose of the restrictions, they are likely to fail the constitutional test, since this is not a proper purpose. A restriction that is not required by the realization of the purposes of imprisonment or that is not required by another legitimate public purpose constitutes, de facto, the imposition of an additional sentence on the prisoner for the offence of which he was convicted. Such a restriction that adds to the sentence imposed on the prisoner falls outside the scope of the power to limit the rights of prisoners that is granted to the Israel Prison Service. It is a departure from the principles of criminal sentencing, and especially from the principle of legality that is enshrined in s. 1 of the Penal Law, 5737-1977, according to which there are no offences or sanctions unless they are prescribed in statute or pursuant thereto. The penal sanction takes the form of the actual loss of freedom of movement in a prison, which is determined by the court that handed down the sentence; in view of this, the Israel Prison Service is not competent to add a punitive measure to the sentence that was handed down (ss. 9 and 10 of the Release from Imprisonment on Parole Law, 5761-2001; HCJ 89/01 Public Committee Against Torture v. Parole Board [23], at p. 869, and also LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [24], at p. 185; LHCJA 9837/03 A v. Parole Board [25], at p. 333).

The principles of this approach to the rights of a prisoner in Israel have been expressed in case law over the years. In Golan v. Prisons Service [15], at p. 152 {501-502} the court said (per Justice Mazza):

‘It is established law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law…

The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law.’

(See also HCJ 337/84 Hukma v. Minister of Interior [26], at p. 832; CrimApp 3734/92 State of Israel v. Azazmi [27], at p. 81).

The right of a prisoner to family life and parenthood

15. The criminal sanction involved in imprisonment was not intended, in itself, to violate the right of the offender to family life and parenthood directly. Notwithstanding, it is clear that a prisoner is de facto deprived of the physical ability to have a regular family life and thereby to realize the right to family as a result of the loss of his personal liberty that is a result of the imprisonment. The violation of the ability to realize a family life in the prison is inherent to the restriction of liberty, and therefore it lies within the margin of the permitted constitutional violation. Isolating the prisoner from society in order to realize the purposes of the sentence also results in a separation from his spouse, children and wider family circle. But even though this restriction is inherent to the imprisonment, the existence of a human right to family and parenthood requires that the scope of the violation is reduced as much as possible, to its essential limits only, such as by way of giving controlled permission for family visits to prisoners, granting furloughs when defined conditions are satisfied, providing facilities that allow conjugal visits between spouses, etc.. This preserves the proportionality of the violation of the human right, which is inherently required by the loss of liberty resulting from imprisonment.

The right to have children is an integral part of the right to family life. It is given to every human being and a prisoner is not deprived of it merely because of the sentence that was imposed on him. The de facto realization of the right to have children given to a prisoner depends on the question whether there is a public-systemic consideration of sufficient weight that justifies preventing a prisoner from realizing it, whether in general or in a specific case. Whereas a prisoner cannot realize a full family life since it is inconsistent with the restriction of liberty resulting from imprisonment, the right to bring children into the world as such may be consistent with the framework of imprisonment, if certain conditions are fulfilled. The realization of this right may be consistent with conjugal visits between spouses, which are ordinarily allowed when certain conditions are fulfilled, in accordance with the procedures of the Israel Prison Service. Because of the need to limit the violation of the prisoner’s human right merely to the most essential cases, where it is not possible to allow conjugal visits because the prerequisites for this are not satisfied, the prisoner may be left to realize his right to be a parent by way of artificial insemination outside the prison, which does not require a conjugal visit. This possibility is consistent with the purpose of the sentence to keep the prisoner isolated from society, and it does not usually involve a disturbance to the Israel Prison Service administration from the viewpoint of the procedures and resources at its disposal. If, however, there is another reason that justifies the realization of the right to be prevented or restricted, it needs to be a substantial reason that can justify a violation of a human right of the greatest importance, to which even a prisoner is entitled.

The right to have children is a human right that is enshrined in the value of human dignity. This value includes the right of a person to personal autonomy and to self-realization in the form of bringing children into the world. The status of the right to have children imposes on the executive authority a duty to uphold it and to give it significant weight in the course of its deliberations, even when the person seeking to realize it is serving a life sentence in prison. The restriction on the right to have children by means of artificial insemination of the wife outside the prison is not necessarily implied by the restriction of the prisoner’s liberty. Notwithstanding, like all human rights, this right too is not absolute, and it may in certain circumstances give way to conflicting interests of great weight. But in view of the strength of the right, reasons of particular importance are required in order to outweigh it and to justify a violation of it, and the principles used to balance them should be consistent with the conditions of the limitations clause, with the elements of the proper purpose and proportionality that are enshrined therein (New Family Organization v. Surrogacy Agreements Approval Committee [5], at pp. 444-445).

It has been held in the past that:

‘We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation… Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

As an enlightened society, we should ensure that the dignity of the prisoner is upheld and that his rights are protected as long as it does not conflict with the true purposes of the imprisonment or is inconsistent with a public interest of great importance that justifies a restriction of his rights. This duty applies to every prisoner as such. It applies to a prisoner who is serving a short sentence and it applies to a prisoner who is serving a long sentence for serious felonies. It is also the case with regard to a prisoner serving a life sentence for murder, whether the murder was committed against a background of gang wars in the criminal underworld or it is the murder of a prime minister. The same is true of a security prisoner. The set of principles is the same for every prisoner as such, even though the specific application to individual prisoners may vary from case to case according to the conditions and the circumstances.

The power of the commissioner to give permission to hand over a sperm sample — conclusions

16. The premise on which the petition is based is that express authority is required in statute for the competent authority to allow a prisoner to undergo a procedure of artificial insemination with his wife; without this, granting such permission goes beyond the powers given to it under the law. This premise is fundamentally unsound, and it effectively turns the law upside down and undermines basic principles of public and constitutional law. The reason for this is that when a person has a right, and certainly when he has a constitutional right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: it requires an authorization in statute in order to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it should satisfy the tests of the limitations clause as a condition for its validity and legitimacy. Already in HCJ 1/49 Bajerno v. Minister of Police [28], at p. 82, it was held (per Justice S.Z. Cheshin) that:

‘Where an applicant complains that a public official prohibits him from doing a certain act, the applicant does not need to prove that there is a statute that imposes a duty on the public official to allow him to do the act. The opposite is true: the public official has the duty of proving that there is a justification for the prohibition that he is imposing’ (see also HCJ 9/49 Bloi v. Minister of Interior [29], at p. 140; HCJ 144/50 Sheib v. Minister of Defence [30], at p. 411 {14}; HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [31], at p. 1532; HCJ 112/77 Fogel v. Broadcasting Authority [32], at pp. 663-664).

It follows that in our case there is no need to ask whether the Israel Prison Service is competent to permit a prisoner to realize his right to parenthood by means of artificial insemination; at most, we may need to ask whether there is a power to restrict this right, and what is the scope of such a possible restriction in the special circumstances of the case. This question does not arise directly in this case, since the competent authority has recognized and respects the right of the prisoner to parenthood, and it has thereby given expression to a recognition of the human right to family and parenthood that the prisoner has, in so far as possible, even within the framework of imprisonment. It has thereby recognized that the protection of human rights is given to a prisoner in so far as possible, including a prisoner serving a life sentence for a despicable murder, and that the ability to restrict the right does not depend on the nature of the offence but, if at all, on public or systemic purposes that are not a part of the purposes of sentencing. In the circumstances of this case, the commissioner acted within the limits of his authority when he did not find any systemic or other reasons that justify a restriction on the prisoner’s right. His decision relies on recognized basic principles of constitutional law and it gives expression to the right of the prisoner when no basis was found for restricting it.

The decision of the public authority according to the test of reasonableness

17. In addition to the petitioners’ argument that the commissioner’s decision to allow Amir to give a sperm sample to his wife outside the prison was made ultra vires, they also argued that this decision does not satisfy the test of reasonableness. According to this argument, the unreasonableness is expressed first and foremost in the fact that the permission given to Amir to realize his right to have children conflicts with public morality and injures the feelings of the public, when it is given to the murderer of a prime minister; it is also argued that granting the permission ignores the interests of the child who will grow up without a father; finally it is argued that in giving the permission the commissioner did not make a comprehensive examination of the significance of the issue for all prisoners, and in the absence of a general procedure in this regard, he acted in a manner that violates the principle of equality between prisoners.

An examination of the reasonableness of a decision of an administrative authority requires, in the first stage, a clarification of whether it considered factors that are relevant and pertinent to the case; second, we consider the question whether, when making its decision, the authority made a proper balance between all the factors that should be taken into account, and whether a proper relative weight was given to each of these. An examination of the reasonableness of an administrative decision is therefore conditional on a proper balance of the relevant considerations (HCJ 935/89 Ganor v. Attorney-General [33]; HCJ 5016/96 Horev v. Minister of Transport [34], at p. 34 {183}; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [35]; HCJ 217/80 Segal v. Minister of Interior [36]; HCJ 6358/05 Vaanunu v. Home Front Commander [37]).

Where a decision of the public authority violates a human right, an examination of the administrative reasonableness of the decision is conditional upon its satisfying the tests of the limitations clause — proper values, a proper purpose and proper proportionality. The criterion for balancing derives from the limitations clause (Horev v. Minister of Transport [34], at para. 54 of the opinion of President Barak). The elements of the limitations clause are incorporated in the criteria that have been formulated in public law rulings for examining a violation of basic human rights by an administrative authority (HCJ 4541/94 Miller v. Minister of Defence [38], at p. 138 {231}). The court has also held:

‘This connection between the constitutional limitations clause and all the principles of public law — including human rights that are not covered by the Basic Laws… The general purposes are the values of the State of Israel as a Jewish and democratic state. The specific purposes are the “proper purpose” in the limitations clause. The principle of proportionality that is provided in the Basic Law is an additional expression of the principle of reasonableness, according to which we have also been accustomed in the past to interpret legislation. It follows that the transition from the previous law to the limitations clause is “quick” and “clean,” and it involves no difficulty’ (per President Barak in Horev v. Minister of Transport [34], at p. 43 {194-195}).

When an administrative decision violates a constitutional human right, the premise is, first, that the conflicting value whose realization leads to the violation befits the values of the state; second, that this value should be a relevant objective consideration that to a large extent overlaps with the conditions of the ‘proper purpose’ in the limitations clause; and finally, whether in the overall balance proper relative weight was given to the human right, on the one hand, and the conflicting value, on the other, and whether the administrative decision chose a balancing point that properly balances the conflicting values. This is the requirement of proper proportionality in its constitutional sense.

In our case, on one side of the equation is the right of a human being, who is a prisoner serving a life sentence, to realize his right to be a parent by way of fertilizing his wife with a sperm sample that will be sent out of the prison. His application is filed against a background of the refusal of the public authority to allow him conjugal visits with his wife, because of security considerations. The petitioners argue that there are values that conflict with the right of the prisoner to parenthood, which were not given any weight, and therefore the permission that was granted is invalid. These conflicting values are, first and foremost, an outrage to public morals and public feelings that, it is argued, results from permission to have children being given to a criminal who was convicted of murdering a prime minister. Such permission runs contrary to the feeling of natural repulsion that the public feels towards a vile offender of this kind. It seriously injures the feelings of the public, which is repulsed by the despicable offence and the offender who committed it, and which expects that he will spend the rest of his life in prison in absolute isolation, without him being allowed to realize his rights to family and parenthood, or any aspect thereof.

I cannot accept this position. The values that are under discussion, on which the petitioners base their objection to the permission that was given, do not satisfy the test of administrative relevancy or the element of the proper purpose in the limitations clause. The public’s feelings of repulsion towards Yigal Amir for the despicable crime that he committed are, in themselves, understandable and natural, but they are not relevant to the restriction of the right of a prisoner to become a parent by way of artificial insemination. They do not achieve a ‘proper purpose’ that is required as an essential conditional for a violation of a human right.

No one denies that the offence of murder that Amir committed and for which he was sentenced to life imprisonment deserves public condemnation and will be recorded in the history of the state as one of the most terrible offences committed in Israel since its founding. But the seriousness of the offence that was committed, with all of its ramifications, found full and final expression in the criminal sanction that was handed down to Amir. The sentencing considerations that are taken into account within the framework of the sentence lie solely within the sphere of authority of the judiciary, and when the sentence is handed down, the sanctions imposed on the offender are exhausted. The Israel Prison Service does not have jurisdiction to punish the prisoner in addition to the sentence that was imposed on him by restricting human rights that even he has as a prisoner. The argument of showing abhorrence for the base acts of the offence that he committed is insufficient. The public’s feelings of repulsion for an offender who took human life and murdered the state’s leader are also incapable of affecting, in themselves, the scope of the human rights given to him in the prison, and the nature of the permitted restrictions upon them. Basic principles of public morality and the desire for revenge that is felt by a part of the public towards one prisoner or another do not constitute a relevant consideration or a proper purpose for preventing a prisoner from realizing his human right to parenthood, as long as this realization does not amount to a significant administrative disruption in the management of the prison or another relevant violation of a significant public interest that justifies its restriction. The human right is also retained by a prisoner who was convicted of the most terrible offences, and no matter how great the feeling of abhorrence at his acts, it cannot constitute an objective reason for restricting his rights. The strict application of the test for the scope of permitted violations of a human right in accordance with the elements of the limitations clause is what guarantees that the protection of the right does not become neglected; it ensures, especially in difficult cases like the one before us, that the constitutional principles are observed. Since the considerations of public morality, public sentiment and especially the deep abhorrence that most of the public feels towards Yigal Amir for his act are not relevant to a restriction of his right to parenthood and are therefore not a proper purpose, they also cannot serve as an objective conflicting value that may compete with the prisoner’s right to become a parent. Therefore we do not need to consider the question of proportionality, which would have arisen had these considerations constituted a relevant objective reason to restrict Amir’s right and which would have given rise to a need to balance them against his right.

We ought to add in this context that it is precisely because Amir was not given the possibility of conjugal visits by his wife for security reasons that the possibility of realizing his parenthood by being allowed to carry out artificial insemination remains his last resort. These circumstances provide even greater justification for the decision of the Israel Prison Service authorities concerning Amir.

Even the petitioners’ additional argument that Amir should not be given permission because of the damage that can be anticipated to the best interests of the child that will be born to the couple cannot serve as a valid ground for violating the right to parenthood in the circumstances of this case.

The question when the consideration of the best interests of the child may justify preventing his birth is a profound question in the field of ethics and philosophy. The question when the law may intervene in this, and when a public authority has power to intervene in the human right to have a child for reasons of the best interests of the child and for other reasons, is a very difficult and complex one. The right to have a child and the right to be born are concepts that lie to a large extent in the field of morality and ethics that are outside the law. Whether and in what circumstances the Israel Prison Service has a power to restrict the right to have a child against a background of considerations of the best interests of the child is a difficult and loaded question. Thus, for example, a question may arise as to whether the Israel Prison Service may prevent a prisoner’s conjugal visits or the realization of his right to parenthood because of a serious and contagious disease from which he suffers that is likely to infect his wife and child (CA 518/82 Zaitsov v. Katz [39], at pp. 127-128; Nahmani v. Nahmani [6], at pp. 729-30). Is it entitled to restrict the right of women inmates in the prison to have children when they have been sentenced to long terms of imprisonment for the reason that it is not desirable from the viewpoint of the best interests of the child to raise him inside the prison or, alternatively, to condemn him to be placed in a foster home or in an adoption, or to separate him from his mother when he reaches a certain age? Are these considerations that the Israel Prison Service may address and do they fall within the scope of its authority? These questions do not require an answer in this case, since with regard to the best interests of the child it has only been argued that he is expected to be born to a single-parent mother because the father has been sentenced to life imprisonment. This argument has no merit in the specific context. No reasons have been brought before us to show, on the merits, any real grounds why the best interests of a child that will be born from artificial insemination to the Amir couple will be harmed. No basis has been established for the argument that Amir’s wife lacks the capacity to raise a child. Moreover, the raising of a child by a single-parent mother while the father is sentenced to life imprisonment does not in itself indicate that the child’s best interests are harmed, nor does it allow the public authorities to restrict the right of his parents to have children. In the modern world, the single-parent family has become a common and accepted phenomenon, and it does not in itself indicate harm to the interests of the child on such a scale and to such an extent that it justifies the intervention of the public authority in a way that violates the right of individuals to self-realization by bringing children into the world. The mere fact that one of the parents is in prison does not constitute, prima facie, a ground for violating the right of the couple to parenthood and the right of a child to be born, for reasons of his best interests. The remarks of Prof. Shifman in his book Family Law in Israel, vol. 2, at p. 156, are pertinent:

‘… In artificial insemination we are concerned with planning the coming into the world of a child who has not yet been born, in order to realize the expectations of persons to be parents. Is it possible to determine categorically that it would be better for that child not to be born than for him to be born? Will the situation of that child necessarily be so wretched merely because he is born into a single-parent family that for this reason we have a duty ab initio to prevent him from coming into the world?’

In this case, no factual basis was established to show harm to the best interests of the child that may be created as a result of giving the permission to the Amir couple. Therefore the question of balancing the relevant conflicting values to the right to parenthood does not arise, and this argument should be rejected.

18. This leaves the argument that the prison authorities did not conduct a comprehensive examination of the question of prisoners sending sperm samples to their wives, nor did they formulate a general procedure for all prisoners in this regard, nor did they make the proper balances in this regard with regard to the case of Amir, who in their opinion has received better treatment in comparison to other prisoners.

In this matter also the petitioners’ arguments are general and they do not establish a concrete factual basis for the existence of conflicting values to the prisoner’s right, which would justify a restriction or denial thereof. Indeed, the prison authorities have stated that they will take action to prepare general procedures concerning the transfer of sperm samples of prisoners to their wives for the purpose of artificial insemination outside the prison. But their willingness to do this, which is important in itself, has no bearing on the specific decision in Amir’s case, which is reasonable. From the state’s response we see that, first and foremost, it took into account as a relevant factor the right of the prisoner to artificial insemination, and it gave this right the proper weight. There is no real public or administrative need that can be a consideration that conflicts with the prisoner’s right in this case, to the extent that it might justify a violation of the right. The security considerations that were the basis for the refusal of the Israel Prison Service to allow Amir conjugal visits with his wife are not relevant to the transfer of a sperm sample out of the prison, and no other legitimate administrative argument was raised that might justify a violation or restriction of the aforesaid right of the prisoner.

Since there is no important value that conflicts with the prisoner’s right to parenthood, no proportionate balance is required here between relevant conflicting considerations, nor is there a proper reason to violate the prisoner’s human right (see Horev v. Minister of Transport [34], at p. 37 {187}; Ganor v. Attorney-General [33], at pp. 513-514; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [40], at paras. 40 and 41).

In addition, no concrete information was brought before us to support the petitioners’ claim with regard to a violation of equality between prisoners as a result of granting the permission to Amir. Moreover, the concept of equality in this context is loaded and complex, and it may justify possible distinctions between types of prisoners from the perspective of the possibility to realize the right to have children while in prison. Thus, for example, it is possible that there will be a distinction between the ability of male prisoners to realize parenthood by sending sperm samples to their wives for the purpose of insemination and raising children outside the prison, which does not involve any responsibility on the part of the public authority for the birth and raising of the child and does not require any special institutional and budgetary arrangements, and the ability of the authority to allow pregnancies and childbirths of female prisoners in the prison on a large scale, which gives rise to difficult questions concerning the manner of raising and caring for the child after his birth, as well as questions involving resources and budgets that are required for this purpose. This issue involves difficult moral and practical questions that relate both to the prisoners and to the children who are born to a difficult fate. Logic therefore dictates that in this area of realizing the right to parenthood there may be a legitimate distinction between types of prisoner according to various criteria, which should satisfy the constitutional test.

In view of the aforesaid, there is no merit to the petitioners’ argument that the decision of the commissioner to permit the transfer of Amir’s sperm sample to his wife outside the prison was tainted by a defect of unreasonableness. The Israel Prison Service acted in making its decision in accordance with its responsibility by virtue of general legal principles, which recognize the right of the prisoner to realize his right to parenthood, and it saw fit to allow its implementation by way of giving a sperm sample to his wife outside the prison, in the absence of significant conflicting considerations that justify a restriction of the right.

Comparative law

International conventions and the position of the United Nations

19. The position of Israeli constitutional law on this issue and its ramifications upon the rights of prisoners serving a prison sentence is in essence consistent with the outlook of the international conventions and the position of the United Nations. This is the case with regard to the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, which was ratified by Israel in 1991, and also with regard to the position of the Human Rights Commission of the United Nations and the basic principles that were determined by its institutions with regard to the treatment of prisoners. According to these sources, the right of a person to have children is considered to be a natural right, and it may only be restricted by statute, in accordance with the purposes of the United Nations Universal Declaration of Human Rights, and on reasonable grounds according to the circumstances of the case. With regard to the rights of prisoners, the principle enshrined in these conventions is that these should only be limited by those restrictions that are required by the actual imprisonment.

The right to found a family

Article 16 of the Universal Declaration of Human Rights establishes the right to marry and found a family.

This is also provided in art. 23 of the International Covenant on Civil and Political Rights:

‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.’

In interpreting this article, the United Nations Human Rights Commission has held that the significance of the right to found a family in its fundamental sense is the right to procreate and to live together (General Comment no. 19 (1990)):

‘The right to found a family implies, in principle, the possibility to procreate and live together.’

The right to protection against arbitrary intervention in family life

Article 12 of the Universal Declaration of Human Rights enshrines the right to privacy and protection against arbitrary intervention in family life.

Article 17(1) of the International Covenant on Civil and Political Rights also enshrines the right to privacy and protection against arbitrary intervention in family life:

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’

The United Nations Human Rights Commission has commented that this right should only be restricted by law and in accordance with the objectives of the Covenant and should be reasonable in the particular circumstances. It also said that the term ‘family’ should be given a broad interpretation (General Comment no. 16 (1988)).

Prisoners’ rights

Article 5 of the Universal Declaration of Human Rights provides that:

‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’

In addition, article 7 of the International Covenant on Civil and Political Rights provides (inter alia) that no one should be subjected to degrading punishment, and article 10(1) of the Covenant provides that:

‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’

With regard to this article, the United Nations Human RiOPghts Commission has determined that a person who has been deprived of his liberty should not suffer a violation of additional rights except to the extent that the restrictions are required by the actual imprisonment:

‘3.           … Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment’ (emphasis added).

Similarly the Basic Principles for the Treatment of Prisoners, 1990, that were adopted by the United Nations provide that:

‘5.           Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.’

Human rights and prisoners’ rights under the European Convention on Human Rights

20. The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, regulates the protection of human rights in the European Community. Article 8 of the convention provides the right to respect for private and family life, and article 12 provides the right to marry and to found a family:

‘Article 8 – Right to respect for private and family life

1.            Everyone has the right to respect for his private and family life, his home and his correspondence.

2.            There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

…

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’

The European Prison Rules of the Council of Europe, 1987, (Recommendation no. R (87) 3 of the Committee of Ministers of the Council of Europe) constitute recommendations for standard minimum rules of imprisonment for the countries of Europe, in which the inherent basic outlook is that the deprivation of liberty is itself a punishment, and it should not be aggravated by imposing conditions of imprisonment that are unnecessary:

‘64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.’

(With regard to the centrality of this principle, see the explanatory notes to the rules, para. 64, ibid.). These principles are consistent with the constitutional outlook underlying the legal system in Israel.

In X v. UK [64] an English prisoner applied to be allowed to have a conjugal visit with his wife. The European Commission of Human Rights (hereafter also: ‘the commission’), to which individuals had to apply at that time in order to file a case in the European Court of Human Rights, held that under art. 8(2) of the convention, it was possible to prevent prisoners from having conjugal visits for reasons of public security. In X v. Switzerland [65], a married couple from Switzerland, who were held separately in the same place of arrest for a period of approximately two months, applied to be allowed to have conjugal visits. The commission held that considerations of public security in a prison might justify preventing married persons under arrest from having conjugal visits. It also held that the persons under arrest were married and had already established a family, and it therefore followed that they were entitled to respect for family life under art. 8, and that a violation of the right to family which is justified under art. 8(2) cannot be considered at the same time a breach of art. 12, which addresses the right to marry.

In two additional cases that considered the right to marry, the commission held that the prisons should allow prisoners to realize their right to marry, since marriage does not create any risk to the security of the prison (Hamer v. UK [66]; Draper v. UK [67]). The commission in these cases rejected the argument that the existence of personal liberty was a precondition for realizing this right, and in the absence of personal liberty the right should not be recognized (Hamer v. UK [66]), and also the argument that imprisonment includes a public interest that justifies preventing the marriage of someone serving a life sentence (Draper v. UK [67]). A particularly important decision for our case was ELH and PBH v. UK [68]. In that case a prisoner requested a conjugal visit with his wife, for the purpose of the wife becoming pregnant. It was also requested that the visit would take place shortly after a surgical operation that the wife would undergo, which was expected to increase her chances of fertility for a short period of time only. The commission reiterated the rule that, notwithstanding the fact that preventing conjugal visits violates the right to respect of family life in art. 8 of the convention, preventing them is justified for the purpose of preventing breaches of discipline and the commission of offences under art. 8(2), and that a justified violation under this provision will not be regarded as a violation of the right to marry under art. 12. Notwithstanding, the commission added that it regarded in a favourable light reforms that were being made in several European countries to prepare prisons to facilitate conjugal visits:

‘The commission considers that it is particularly important for prisoners to keep and develop family ties to be able better to cope with life in prison and prepare for their return to the community. It therefore notes with sympathy the reform movements in several European countries to improve prison conditions by facilitating “conjugal visits”’ (p. 64).

More importantly, the commission went on to say that in the circumstances of the specific case, preventing the visit did not constitute a violation of arts. 8 and 12 of the convention since the local law did not prevent the prisoner having the possibility of artificial insemination:

‘The Commission considers that the same conclusions should be reached under articles 8 and 12 of the convention in the present case, despite the exceptional circumstances invoked by the applicants. Thus, although the first applicant requires major surgery to be able to conceive and this surgery can only be performed when the couple are in a position to attempt conception, domestic law, as the applicants themselves accept, does not exclude artificial insemination in the case of prisoners… The Commission, therefore, considers that no appearance of a violation of Articles 8 and 12 of the convention is disclosed…’ (emphasis added).

From these remarks it can be deduced, prima facie, that the position of the European Commission of Human Rights was that the absolute prevention of a prisoner’s possibility of having children is unconstitutional. But an interesting development in this matter occurred in a judgment that was given only recently by the European Court of Human Rights: Dickson v. United Kingdom [69]. A prisoner who was sentenced to life imprisonment for murder applied, together with his wife (a former prisoner, whom he married in prison), for access to facilities for artificial insemination. The couple argued that when the husband would be released from the prison, the wife would be 51 years old, and if their application would not be granted, their chances of having children would be non-existent. The Secretary of State for Home Affairs refused the application, while clarifying his policy with regard to artificial insemination. According to this policy, requests by prisoners for artificial insemination will be considered on an individual basis, and they will be granted only in ‘exceptional circumstances.’ The policy will give special weight to several factors, including: whether artificial insemination is the only possible means of having children; the date of the prisoner’s release (if the release is very close, it is possible that waiting to be released will not cause much hardship to the prisoner, and if the date is particularly distant, it can be assumed that the prisoner will not be able to function as a parent); whether both parents are interested in the procedure and are able to undergo it from a medical viewpoint; whether the relationship between the couple was stable before the imprisonment, so that it can be assumed that it will continue to be good after the imprisonment; the financial resources of the parent who will raise the child; and whether, in view of the prisoner’s criminal past and other relevant facts, there is a public interest in depriving him of the possibility of artificial insemination. The Home Secretary decided that, even though in that case a refusal of the request meant that the couple would lose most of their chances of having a child, on the other hand the considerations of the seriousness of the offence that was committed and the harm to the interests of the child who would be raised for many years without a father prevailed. The majority justices in the European Court of Human Rights adopted the position of the United Kingdom. First they confirmed that according to the case law of the European Court, the prisoners retain all of their rights under the convention (including the right to respect for privacy and the family) apart from the right to liberty (Hirst v. United Kingdom [70], at para. 69). Notwithstanding, the restriction of liberty naturally results in a restriction upon the ability to realize additional rights, and therefore the key question is whether the nature of the restriction and its degree are consistent with the convention. According to the majority justices, within this framework a distinction should be made between an intervention in the right of the prisoner to respect for family and privacy and a violation that takes the form of non-performance of a positive obligation that is imposed on the state with regard to that right. According to them, even though restrictions on family visits and conjugal visits have been recognized in its previous decisions as intervention in the rights of the prisoner (Aliev v. Ukraine [71], at pp. 187-189), the restriction on the possibility of the prisoner carrying out artificial insemination merely constitutes the non-performance of a positive duty that applies to the state. But when determining the scope of the positive duties, the member states of the convention have a broad margin of appreciation. Further on, the majority justices approved the principle that the convention does not permit an automatic denial of prisoners’ rights merely because of adverse public opinion, but notwithstanding this, according to their approach considerations of public confidence in the penal system are legitimate considerations within the framework of determining policy in the prison. They were also of the opinion that a legitimate consideration in this matter is the question of the best interests of the child. According to these principles, the majority justices held that the criteria determined in the policy of the United Kingdom were neither arbitrary nor unreasonable. With regard to the specific case, the majority justices held that according to the broad margin of appreciation, it was possible to give the considerations of public confidence and the best interests of the child greater weight than the harm to the prisoner in losing the possibility of bringing children into the world. Three justices dissented from this approach. The president of the court, Justice Casadevall, and Justice Garlicki emphasized that the right to have children is a constitutional right, which is enshrined in the convention (Evans v. United Kingdom [72], at para. 57). It follows that the access of a prisoner to artificial insemination facilities is a part of the right to respect for family life in art. 8 of the convention, and where the couple are married, it is also enshrined in art. 12. The minority justices said that the premise adopted by the majority justices, according to which the prisoner retains his constitutional rights apart from the right to liberty is correct. But the logical conclusion that follows from this is that a violation of the right to have children is lawful only if it is necessitated by the restriction on liberty. The minority justices also emphasized that the premise adopted by the United Kingdom in its policy was erroneous, since, according to it, access to artificial insemination would be granted only in special circumstances. This is the opposite of the basic philosophy of human rights and the European Convention, according to which the right is the rule, whereas the restriction of the right is the exception. They held that in the specific case, in which refusing access to artificial insemination facilities means the loss of the possibility of having children in its entirety, the refusal of access was disproportionate. The third minority justice dissented from the majority position that took no account of the mother’s right to have children.

It would appear that the minority opinion in that case is more consistent with the approach to the principles of the convention according to the opinion expressed by the majority, and it is consistent with the principles of the constitutional system in Israel.

English law

21. According to the case law of the House of Lords, imprisonment is intended to restrict the rights and liberties of the prisoner. Therefore, it restricts the personal autonomy of the prisoner and his freedom of movement. At the same time, the prisoner retains all of his civil rights, apart from those that have been taken from him, either expressly or as a necessary consequence of the imprisonment:

‘A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus, the prisoner’s liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”: see Raymond v. Honey…; R. v. Secretary of State for the Home Department, Ex parte Leech…’ (R. v. Secretary of State for the Home Department, Ex Parte Simms [62]; emphasis added).

The Human Rights Act 1998, which came into force in 2000, applied the main parts of the European Convention on Human Rights (including the rights under discussion in this case) to English law. Without purporting to exhaust the question of how the new statute affected English law, we can say that the various public authorities, including the prisons, are required to act in accordance with the convention (s. 6 of the law). Similarly the courts have a duty to take into account the case law of the European Court of Human Rights (s. 2 of the law; see also P.B Proctor, ‘Procreating from prison: Evaluating British Prisoners’ Right to Artificially Inseminate Their Wives Under the United Kingdom’s New Human Rights Act and the 2001 Mellor Case,’ 31 Ga. J. Int’l & Copm. L. (2003) 459, at pp. 467-470). It should be noted that even before the new law came into force, prisoners were entitled to apply to the European Commission of Human Rights with regard to prima facie breaches of the convention (after exhausting proceedings in England), and the public authorities in England acted in accordance with its decisions. A detailed consideration of the right to have children by means of artificial insemination was made by the English Court of Appeal in R. (Mellor) v. Secretary of State for the Home Department [63]. The Court of Appeal decided that the right of a prisoner to artificial insemination had not yet been recognized in case law under the European Convention, and that a prisoner should not be allowed artificial insemination in every case where he has not been allowed conjugal visits. The implication of the case law, in its view, was that only in exceptional cases, in which the violation of the right granted in the convention was disproportionate, would it be justified to impose a duty to allow artificial insemination. According to the approach of the Court of Appeal, the judgment of the House of Lords in R. v. Secretary of State for the Home Department, Ex Parte Simms [63] means that it is possible to justify a restriction of a prisoner’s rights even when this is not required for reasons of the proper functioning of the prison, but it is a result of the loss of liberty that is inherent in the penal objective:

                ‘They recognised that a degree of restriction of the right of expression was a justifiable element in imprisonment, not merely in order to accommodate the orderly running of a prison, but a part of the penal objective of deprivation of liberty.’

Consequently, according to the approach of the Court of Appeal, there may be a justification for restricting the right to artificial insemination for reasons of public interest:

‘A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern.’

According to the court in England, an additional legitimate consideration for restricting the right is the consideration of the best interests of the child, who will grow up while one of his parents is in prison:

                ‘By imprisoning the husband, the state creates the situation where, if the wife is to have a child, that child will, until the husband’s release, be brought up in a single parent family. I consider it legitimate, and indeed desirable, that the state should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.’

The Court of Appeal did not consider in depth the question when a restriction of the right of a prisoner to carry out artificial insemination will be considered disproportionate. Notwithstanding, it said, as a premise, that it must be shown that preventing the possibility of carrying out artificial insemination does not lead only to a delay in realizing the prisoner’s right to establish a family, but to his being completely deprived of it:

                ‘I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether.’

American law

22. The premise in American law is that prisoners retain their constitutional rights inside the prison:

                ‘Prison walls do not form a barrier separating prison inmates from the protection of the constitution’ (Turner v. Safley [46], at p. 84).

Therefore, the prisoner retains constitutional rights such as the right to equal protection before the law, the right to due process in the Fourteenth Amendment of the United States Constitution, and the right to privacy. At the same time, other constitutional rights that are not consistent with the actual imprisonment are not retained by the prisoner:

                ‘An inmate does not retain [constitutional] rights inconsistent with proper incarceration’ (Overton v. Bazzetta [47], at p. 132; Turner v. Safley [46], at p. 96).

According to the stricter opinion in the United States Supreme Court, the rights of which prisoners can be deprived are only those that are fundamentally inconsistent with imprisonment (‘we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself…’, Hudson v. Palmer [48], at p. 523). But an opinion has been expressed that the rights that are consistent with the actual imprisonment may also be restricted, if this is done for the purpose of realizing legitimate penal objectives:

                ‘It is settled that a prison inmate “retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” Pell v. Procunier [49], at p. 822’ (Turner v. Safley [46], at p. 95).

In the leading decision in Turner v. Safley [46], it was held that the appropriate standard for scrutinizing a violation of the constitutional rights of prisoners is the lowest level of scrutiny, the rational connection. The reason for this lies in the complexity of the task of administering the prison, and the court not having the proper tools to consider the matter (ibid. [46], at pp. 85, 89).  In addition, details were given of four tests for examining the constitutionality of the violation, in accordance with the aforesaid standard. The judgment in Overton v. Bazzetta [47], at p. 132, adopted the tests laid down in Turner v. Safley [46] and summarized them as follows:

                ‘Whether the regulation [affecting a constitutional right that survives incarceration] has a “valid, rational connection” to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are “ready alternatives” to the regulation’ (ibid. [47], at p. 132).

The aforesaid standard of scrutiny also applies when the constitutional right that is violated is a fundamental and basic one and when in other circumstances a stricter test would be applied (Washington v. Harper [50], at p. 223). Notwithstanding, restrictions that are imposed in reliance upon a classification that gives rise to a suspicion of a racist consideration are examined with the constitutional strict scrutiny test (Johnson v. California, 543 U.S. 499 (2005)).

The right to have children is recognized in American law as a constitutional right, which lies at the very heart of the right to personal freedom (see: Skinner v. Oklahoma [51], at p. 541; Eisenstadt v. Baird [52], at p. 453; Carey v. Population Services International [53], at p. 685; Cleveland Board of Education v. LaFleur [54], at p. 639; Stanley v. Illinois [55], at p. 651).

In view of these principles, the United States Supreme Court has held that the right to marry is retained even during imprisonment (Turner v. Safley [46]). Notwithstanding, the Federal courts have consistently refused to recognize a right to conjugal visits and intimacy with a spouse as a constitutional right (Anderson v. Vasquez [56]; Hernandez v. Coughlin [57]; Toussaint v. McCarthy [58]). The question whether allowing a prisoner to provide a sperm sample for the purpose of artificial insemination and realizing his constitutional right to have children is consistent or inconsistent with the actual imprisonment and what are the potential conditions for restricting it has not yet been brought before the United States Supreme Court, but other courts in the United States have approved administrative decisions that restrict the realization of the right. These decisions raise the question of whether they are consistent with constitutional principles and the substantive rules of conventional international law on this issue. In Goodwin v. Turner [59] the Federal Court of Appeals of the Eighth Circuit approved a policy that denied prisoners the possibility of artificial insemination. It was held that even if the right survived imprisonment, there was a rational connection between this policy and the duty of the prison to treat all prisoners equally. The argument was that the prisons would also be required to allow female prisoners to realize the right to have children, and as a result also to care for their needs during pregnancy and for their infants, and that this would lead to imposing substantial costs on the prisons and make it necessary to divert resources from important programs and the security needs of the prison. Therefore, for this reason it was possible not to approve artificial insemination for spouses of male prisoners.

                ‘According to the Bureau’s artificial insemination policy statement, if the Bureau were forced to allow male prisoners to procreate, whatever the means, it would have to confer a corresponding benefit on its female prisoners. The significant expansion of medical services to the female population and the additional financial burden of added infant care would have a significant impact on the allocation of prison resources generally and would further undercut the Bureau’s limited resources for necessary and important prison programs and security’ (ibid. [59], at p. 1400; the Supreme Court of the State of New Jersey made a similar ruling in Percy v. State of New Jersey, Department of Corrections [60], at pp. 548-549).

The minority justice in that case thought otherwise. According to him, the right to have children, like the right to marry, survives the imprisonment. In addition, in his opinion it is not legitimate to make use of the principle of equality in order to deny the constitutional right of another (ibid. [59], at pp. 1403-1407). Further detailed consideration of this issue can be found in Gerber v. Hickman [61], in an opinion of the Federal Court of Appeals of the Ninth Circuit. In that case a majority (of six judges) held that the right to have children is inconsistent with the nature of imprisonment, since imprisonment naturally separates the prisoner from his family and his children. It was also stated there that restricting the right to have children is consistent with the legitimate objectives of the penal system, including deterrence and retribution:

                ‘… “these restrictions or retractions also serve… as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction”…’ (ibid. [61], at p. 621).

Following from these remarks it was held that the right to have children is inconsistent with imprisonment, even when it is possible to realize it by means of providing sperm for artificial insemination:

                ‘Our conclusion that the right to procreate is inconsistent with incarceration is not dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish. Rather, it is a conclusion that stems from consideration of the nature and goals of the correctional system, including isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation’ (ibid. [61], at p. 622).

By contrast, the five minority justices were of the opinion that realizing the right to have children by means of a process that does not require an intimate meeting does not pose a security risk, and therefore it is consistent with the substance of imprisonment and should be respected:

                ‘… the right to intimate association and the right to privacy — are clearly inconsistent with basic attributes of incarceration because of security concerns. Procreation through artificial insemination, however, implicates none of the restrictions on privacy and association that are necessary attributes of incarceration’ (ibid. [61], at pp. 624-625).

They also emphasized that the majority judges had not shown why the right to have children was inconsistent with the penal objectives, and in so far as their intention was to deny the right to have children as a method of punishment, a determination of this kind should be made by the legislature:

                ‘The majority identifies correctional goals such as isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation that are supposedly inconsistent with the right to procreate, yet does not explain how the right is inconsistent with any of these goals. If, in fact, the purpose behind prohibiting procreation is to punish offenders, this is a determination that should be made by the legislature, not the Warden’ (ibid. [61], at p. 626).

It would appear that the minority position in this proceeding corresponds in essence to the outlook that has become accepted in the Israeli legal system, whereby human rights are retained by the prisoner in so far as they are not inconsistent with the substance of the imprisonment, and restricting and limiting them is permitted only in so far as this is essential for achieving a very weighty public purpose, such as security and disciplinary arrangements in the prison, or another important public interest. In the absence of such an interest, the remaining rights should be respected, and the prisoner should be allowed to realize them de facto.

Conclusion

23. Yigal Amir was and remains one of the most abhorred criminals in the Israeli national consciousness in recent generations, if not the most abhorred. He was convicted of the murder of a prime minister, and first introduced into the public consciousness the possibility that a terrible event of this kind, in which an ordinary Israeli citizen would murder his leader, could also take place in Israel. Amir has been sentenced by the legal system in so far as the law requires, and his punishment has been exhausted. But his sentence has not reduced the feelings of abhorrence towards him, for the nefarious deed of taking the life of a man who was the symbol of the democratic system of government in the independent State of Israel.

Notwithstanding, from the moment that Amir’s sentence was handed down and he became a prisoner serving a sentence of life imprisonment, his punishment was exhausted. From this stage, like all prisoners, Amir is subject to severe restrictions on his liberty, and additional restrictions on his human rights, that derive inherently and essentially from the loss of his liberty. In addition he is subject to further restrictions that concern the discipline and order that are required by life in the prison. It is also permitted, where necessary, to impose restrictions on him that are derived from the needs of state security or from other essentials needs that are a public interest. But apart from these restrictions he retains, like every prisoner, basic human rights that were not taken from him when he entered the prison (cf. BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [41], at para. 19). The executive authority is required to respect these rights and to do all that it can in order to allow them to be realized, unless they are confronted by conflicting considerations of public interest whose weight justifies a limitation of the human right. These considerations do not include the consideration of desiring to worsen the conditions of imprisonment of someone who is serving a life sentence because of the severity of his crime, or the consideration of restricting his human rights as revenge for his deeds. These considerations are irrelevant to the issue and they are inadmissible.

The outlook that it is possible to violate the prisoner’s right to parenthood because of the gravity of the offence that he committed, for reasons of deterrence and to show abhorrence towards the offender, is foreign to the basic principles of criminal law and to penal theory. This approach is also clearly inconsistent with the prevailing constitutional approach in the Israeli legal system. It is inconsistent with the ethical principles of the State of Israel as a Jewish and democratic state; it does not reflect a proper purpose nor is it proportionate. This court has already said, in another context:

                ‘A restriction upon contact with persons outside the prison should not be imposed on security prisoners if it is not required by security considerations or other objective considerations, but merely derives from considerations of retaliation or revenge, or if it harms the prisoner to a degree greater than that required by objective considerations’ (per Justice Zamir in State of Israel v. Kuntar [16], at p. 501, and LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits), at p. 5).

With regard to the realization of human rights that are retained by a prison inmate, Amir’s status is the same as any other prisoner. In the absence of substantial conflicting considerations of public interest, the human rights that he retains as a prisoner serving a life sentence should be respected and not violated, and the right to parenthood is among the most exalted of these. This is what the competent authority decided in this case, and it was right to do so.

Respect for human rights and the protection of human rights lie at the heart of the constitutional system in Israel. The protection of the human rights of prison inmates is derived from and required by this outlook. Without de facto implementation of this protection, to the extent that it is possible, even for someone who has lawfully been deprived of his liberty, the value of human dignity may be diminished. This is equally true of all prisoners, whether less serious or more serious offenders. It is also true with regard to prisoners serving a life sentence because they have taken human life; society’s recognition of the human rights retained by the prisoner preserves his dignity as an individual. But no less importantly it preserves the dignity of society as a civilized society that does not merely protect the rights of its ordinary citizens, but also those of persons who have committed crimes against it, even if the crime is the worst of all — the murder of a human being — and even where the victim of the murder symbolized in his life and his death the image of Israeli society as a democracy that is built on constitutional values that give precedence to human rights.

                ‘Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic state is liable to uphold. A state that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

We should remember that a civilized country is not merely judged by how it treats its faithful citizens, but also by how it treats the criminals living in it, including the most despicable criminals who wish to undermine its ethical foundations. In a proper constitutional system, the umbrella of human rights extends over every human being, including the criminal sitting in prison, subject to conditions and restrictions that satisfy constitutional criteria. The public authority acted in this case in accordance with the proper constitutional criteria, and its decision was made according to the law.

On the basis of all of the aforesaid, the petition should be denied. The interim order that was made is set aside.

In the circumstances of the case, I propose that no order is made for costs.

Justice E. Hayut

1.            I agree with the opinion of my colleague Justice Procaccia and I would like to add several remarks.

This petition concerns a decision of the Prison Service Commission of 5 March 2006 to allow Yigal Amir, who is serving a life sentence, to send sperm outside the prison for the purpose of the artificial insemination of his wife, Mrs Larissa Trimbobler. Like my colleague, I too am of the opinion that the argument of the petitioners that the Prison Service Commissioner is not competent to allow the sperm to be transferred as aforesaid should be rejected. The question in this context is not what is the source of the authority to allow this but by virtue of what authority was the Prison Service Commissioner entitled to refuse the request of this prisoner in this regard. It would appear that in so far as the commissioner’s decision does not restrict the human rights of the prisoner but realizes them, his decision enjoys the presumption of being made with authority and no fault can be found with it in this regard. A completely different question is whether the authority has a duty to exercise its power in this matter and what are the limitations and restrictions that it may determine in this regard. These questions do not arise in the case before us, and therefore we can leave them until they do.

2.            With regard to the question of the reasonableness of the decision, the petitioners as public petitioners sought in their petition to give expression to the feeling of abhorrence that the Israeli public feels to the murderer of the late Prime Minister Yitzhak Rabin. According to them, the punishment incorporated in the criminal sanction should also receive expression after the sentence has been imposed, when the murderer is serving his sentence of imprisonment. Therefore, so it is alleged, he should not be allowed to realize his right to parenthood. The petitioners further argue that the decision of the Israel Prison Service to allow the Trimbobler-Amir couple artificial insemination is an improper decision from a moral viewpoint, and according to them ‘a person who commits such a serious crime ought to know that not only will he lose his personal liberty, but also other basic rights may be impaired… someone who takes the life of his fellow-man may discover that that he cannot give life to his progeny.’ The petitioners emphasize, however, that it is not in every case that a prisoner is not entitled to have children, but in their opinion ‘the murder Amir does not have this right.’

3.            In his book A Judge in a Democracy (2004), President Barak discussed how a judge ought not to estrange himself from the society in which he lives and functions. In his words:

‘The administration of justice is a form of life that involves a degree of seclusion; it involves distancing oneself from social and political struggles; it involves restrictions on the freedom of expression and response; it involves a considerable degree of solitude and introspection. But this is not a form of life that involves an estrangement from society. A wall should not be built between the judge and the society in which he functions. The judge is a part of his people’ (ibid., at p. 52).

Indeed, as an integral part of Israeli society we ought to be aware and sensitive to the strong feelings that the public has to the terrible act of murder committed by Amir, and these feelings have been well expressed by the petitioners in their petition. But as judges in a democracy, we are enjoined to decide the petition according to the law, by applying the basic principles of our legal system even if our decision is not consistent with these feelings. In his aforementioned book, President Barak outlines the important distinction between the need to maintain the confidence of the public in its judges and being carried away unprofessionally by public opinion and public feelings. He says:

‘The need to ensure public confidence does not imply a need to ensure popularity. Public confidence does not mean following the prevailing trends among the public. Public confidence does not mean making decisions on the basis of public opinion surveys. Public confidence is not pleasing the public. Public confidence does not mean making decisions that are inconsistent with the law or with the conscience in order to reach a result that the public wants. On the contrary, public confidence means making decisions according to the law and in accordance with the judge’s conscience, irrespective of the public’s attitude to the actual decision’ (ibid., at p. 51).

In our case, it is possible to understand the collective feeling of revenge that the petitioners are expressing in view of the national trauma caused by Amir by means of the political murder that he committed. But this feeling cannot dictate an outcome that is inconsistent with the basic principles of our legal system. According to these principles, which my colleague discussed at length in her opinion, the punishment to which Amir was sentenced, according to which he was removed from society and imprisoned behind bars for life, does not inherently deprive him of the right to parenthood. Therefore, we can find no unreasonableness in the decision of the Israel Prison Service to allow the transfer of the sperm (subject to the restrictions stipulated in the decision), in order to give Amir a chance to realize his right to parenthood by means of artificial insemination.

Justice S. Joubran

1.            I agree with the opinion of my colleague Justice A. Procaccia and the reasons that appear in her profound and comprehensive opinion. Notwithstanding, in view of the complexity of the question before us, I think it right to add several remarks of my own, if only in order to present the difficulties raised in this case from a different and additional viewpoint.

2.            From time to time the court is asked to consider petitions concerning the conditions of imprisonment and the various restrictions that are imposed on prisoners who are serving sentences in the prisons. On a theoretical level, these petitions involve complex questions concerning the purpose of the sanction of imprisonment. In this context, it is possible to identify two main approaches that conflict with one another. According to one approach (hereafter — the first approach), the purpose of imprisonment is limited to depriving the prisoner of his personal liberty, by restricting his freedom of movement when imprisoning him behind bars for the period of imprisonment to which he has been sentenced. According to this approach, restricting any other rights of the prisoner is not a part of the sentencing purpose. In this regard it makes no difference whether we are dealing with rights whose violation is a consequence of the restriction of the liberty because of the fact that the ability to realize them depends upon the freedom of movement, or we are dealing with rights that are being violated in order to achieve other public purposes, including ensuring the proper management of the prison service, security considerations and other legitimate public interests (see para. 14 of the opinion of my colleague Justice A. Procaccia).

3.            According to the other approach (hereafter — the second approach), a restriction of additional basic rights of a prisoner, apart from the right to personal liberty, will be possible if this is consistent with the additional legitimate purposes underlying the objective of the sentence, including the removal of the prisoner from society, the suppression of crime, (specific or general) deterrence, a denunciation of the offender and punishment (with regard to these reasons, see the memorandum of the draft Penal (Amendment — Incorporation of Discretion in Sentencing) Law, 5765-2005, which is based on the opinion of the committee chaired by Justice Emeritus E. Goldberg; an expression of the second approach can be found in the majority opinion in the judgment in Gerber v. Hickman [61], which is mentioned on page 33 of my colleague’s opinion). In other words, according to this approach, the purpose of the sentence of imprisonment that is imposed on the prisoner is not limited to sending him to prison in itself, and the restriction of the prisoner’s freedom of movement, together with the other violations of his rights that accompany it, do not express the full sentence that is imposed on him.

4.            It is not superfluous to point out that the distinction between the aforesaid two approaches is not merely a matter of semantics but a difference that goes to the heart of the purpose of sentencing. Thus it may be asked most forcefully why sentencing should only take the form of a denial of the prisoner’s liberty and freedom of movement and not a restriction of other rights. It should be emphasized that the distinction between the different approaches has major ramifications on the scope of the protection given to the rights of the prisoner. Thus it is not difficult to see that whereas the first approach results in a restriction of the violation of the prisoner’s basic rights, the second approach actually extends the possibilities of violating them. To a large extent it can be said that the approach that the sanction of imprisonment should realize the various purposes underlying the sanction, including punishment and deterrence, leads to an approach that holds that the mere restriction of the freedom of movement does not exhaust, in every case, the sentence that is imposed on the prisoner. According to this approach, imprisonment should fully reflect the society’s abhorrence at the acts that the prisoner committed and the severity with which society regards them. In this way, not only is the prisoner placed behind bars for his acts, but his imprisonment should reflect, in all its aspects, his isolation and removal from society.

5.            The difference between the aforesaid two approaches may easily be clarified by giving several examples: serving a prison sentence within the confines of a prison inherently results in a violation of the prisoner’s right to engage in an occupation, since he is subject to various restrictions that deprive him of the possibility of leaving the prison confines. But consider, for example, a case in which a prisoner, who committed crimes that gave rise to public outrage, wishes to publish, from the prison, a novel that he has written, which is based on the story of his personal life. Assuming that the writing of the book during the prisoner’s free time does not interfere with the proper functioning of the prison and does not affect the maintenance of order and discipline in the prison, according to the first approach the prisoner should not be prevented from publishing the book, by which means he realizes his right to the freedom of expression and the freedom of occupation. In parenthesis I will point out that the need to examine the writings of the prisoner and to ensure that they do not include details that may affect order and discipline in the prison may impose a significant burden on the prison service so that it will be justified in refusing publication of the book (see and cf. Golan v. Prisons Service [15], at pp. 165-166 {524-527}). In any case, it should be noted that according to the second approach it is possible that the publication of the book may be prevented for very different reasons. It may be argued that the purposes underlying the sentence of imprisonment, including punishment, expressing revulsion at the acts of the prisoner and isolating him from society, justify not allowing that prisoner, while he is in prison and before he has finished serving his sentence, to derive an economic benefit from the commission of his despicable acts or achieving public recognition as a result of the publication of the book.

Another interesting example concerns the question of the rights of a prisoner to participate in elections to the Knesset. Whereas according to the first approach there is no basis for restricting the right of a prisoner to vote, as long as this does not harm the proper management of the prison, according to the second approach it is possible to regard the refusal of the right to vote as a measure that reflects the purpose of isolating the prisoner from society, which derives from the idea that there is no reason to allow a prisoner who has been removed from society for a certain period to influence the shaping of its system of government and other aspects of society. This is the place to point out that, in Israel, the arrangement that allows prisoners to realize their right to vote is enshrined in legislation (see s. 116 of the Knesset Elections Law, 5729-1969; HCJ 337/84 Hukma v. Minister of Interior [26]; Golan v. Prisons Service [15], at pp. 158-159 {514-516}).

The same applies to the restrictions imposed on the prisoner’s ability to have contact with members of his family and with additional persons outside the prison, whether by means of visits to the prison or by sending letters or making telephone calls. It may be argued that the aforesaid restrictions were not only imposed because of the need to prevent a disruption to the running of the prison but they were also intended to realize the purpose of removing and isolating the prisoner from society.

6.            Several different variables may increase the disparity between the aforesaid two approaches. One of these variables concerns the seriousness of the offence that the prisoner committed. Thus, for example, according to the second approach, the more serious the offence, the greater the degree of revulsion that the public feels towards the acts of the prisoner, and this should be reflected to a more significant degree in his sentence. This can be done, inter alia, by preventing him from benefitting from additional rights that he would have had, were he a free man.

7.            It can be said that the petitioners’ arguments are based to a large extent on the second approach. According to what is alleged in the petition, when considering a request of someone who committed such a despicable and serious offence as the second respondent to be allowed to have children, the competent authority should take into account considerations that go beyond the effects of the application on the mere ability to keep him behind bars, and it should also balance the violation of his rights against the principles of punishment and deterrence that underlie his sentence. Thus they request that the administrative authority should also take into account the profound feelings of abhorrence that the citizens of the state feel towards his despicable acts, when it decides whether there are grounds for allowing the artificial insemination of his spouse. It follows from this, the petitioners seek to argue, that someone who committed such a serious act against the Israeli public should not be allowed to realize his right to have a family.

8.            But as my colleagues say in their opinions, the path that the petitioners seek to follow is not the path of the Israeli legal system. It is the first approach presented above that has established over the years a firm basis in our case law. The remarks of this court in Golan v. Prisons Service [15], which are cited in the opinion of my colleague Justice A. Procaccia, are pertinent in this regard:

‘The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison’ (ibid., at p. 152 {502}; see also the references cited there).

Or as my colleague expressed so well in her own words:

‘It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their purpose is not to increase of the severity of the sentence that was handed down to the prisoner as a goal in itself. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts’ (para. 14 of the opinion of Justice A. Procaccia).

9.            Admittedly it is possible to find instances in Israeli case law in which it appears that a prisoner’s rights were in practice denied as a part of his punishment. In this regard, the following examples can be mentioned: the refusal of a prison governor to allow a prisoner to have use of a ‘sex doll’ in order to release his tensions and as a substitute for having marital relations (LHCJA 4338/95 Hazan v. Israel Prison Service [20]); a refusal to allow a book that was held to contain inflammatory and inciting content into a prison (HCJ 543/76 Frankel v. Prisons Service [42]); a decision not to allow prisoners on a hunger strike salt and milk powder and to remove these products from their cells, where it was held that the right to allow a prisoner to participate in a hunger strike is not one of the rights granted to him when he is in prison (HCJ 7837/04 Borgal v. Israel Prison Service [43]); a prohibition against security prisoners having radio receivers (HCJ 96/80 Almabi v. Israel Prison Service [44]). Naturally it is possible to point to many more examples, but for the sake of brevity I will not mention them. But it is important to note that all of these cases concerned a restriction of the prisoner’s rights that derived from the principle that his punishment was exhausted by his being placed behind bars, and any additional restriction was intended to serve the needs of the imprisonment only. Thus, in all the examples that were mentioned above, the restriction of the additional rights was made in order to ensure the proper running of the prison and the disciplinary and security arrangements in the prison. Notwithstanding, in order that these case law rulings with regard to the importance of preserving the human rights of the prisoner do not become empty words, the court should ensure that the Israel Prisons Service does not make improper use of its power to ensure the proper functioning of the prison as a means of restricting additional rights of prisoners, even where this is not necessary. The remarks of Justice H. Cohn in HCJ 144/74 Livneh v. Prisons Service [45] are pertinent in this regard:

‘Many evils that are a necessary part of prison life are added to the loss of liberty. But we should not add to the necessary evils that cannot be prevented any restrictions and violations for which there is no need or justification. The powers granted to prison governors to maintain order and discipline need to be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without any real justification.’

10. It is proper at this stage to make two additional points. First, it is possible to mention incidents that can perhaps be regarded as expressing the second approach. These are cases where certain aspects of the sentence of imprisonment reflect to some extent purposes that go beyond those concerning the restriction of liberty. Thus, for example, s. 9 of the Release from Imprisonment on Parole Law, 5761-2001, provides that among the considerations that should be taken into account when considering the question of the early release of a prisoner from imprisonment, there are considerations concerning the severity and type of the offence, the circumstances in which it was committed, its scope and consequences, and also considerations relating to the prisoner’s criminal record. Moreover, s. 10 of the same law states that:

‘In cases of special seriousness and circumstances in which the board is of the opinion that the parole of the prisoner will seriously harm the public, the legal system, law enforcement and the deterrence of others, when the severity of the offence, its circumstances and the sentence handed down to the prisoner are unreasonably disproportionate to the term of imprisonment that the prisoner will actually serve if he is released on parole, the board may also take these factors into account in its decision.’

Another example of this can be found in the duty imposed on every prisoner to work in the course of the sentence of imprisonment imposed on him (s. 48 of the Penal Law, 5737-1977, together with s. 25 of the Prisons Ordinance [New Version] (hereafter — the ordinance)). According to what is stated in s. 56(30), if a prisoner refuses to work, this will lead to the sanctions listed in s. 58 of the ordinance. Thus, even though the rationale underlying this provision is a rationale that is intended to rehabilitate the prisoner, it does involve a conflict with his freedom of choice.

Notwithstanding, it is important to point out that in all of these examples and others, the violation of the prisoner’s rights in addition to his actually being held in prison is enshrined in a specific provision of statute (see for example Golan v. Prisons Service [15], at p. 152 {502}). The position is different when the Prison Service Commissioner wishes to violate additional rights that are not inherent to the loss of liberty without such a power being given to him expressly in statute.

11. Second, there is an additional category of cases in which the gravity of the offence or the fact that a prisoner has not expressed regret for his actions would appear to have an effect on the scope of the violation of rights that is not necessarily inherent to the loss of liberty. Even though the circumstances relating to the severity of the offence do not constitute in themselves a justification for violating the rights of the prisoner, they are capable of indicating the risk presented by him, and consequently they are capable of justifying imposing additional restrictions that violate the basic rights given to him. Notwithstanding, it is important to note that this is not a continuation of the sentencing or an additional sentence resulting from these circumstances, but a violation that is incidental to the actual sentence of imprisonment (see and cf. LHCJA 5614/04 Amir v. Israel Prison Service [2]).

12. In conclusion, as I pointed out in my opening remarks, I agree with my colleagues that in the circumstances of the present case there was no reason to prevent the second respondent realizing his right to have children by means of artificial insemination. Notwithstanding, I saw fit to add these remarks, in order to try to focus upon the difficulty in the issue before us and to clarify why even when we are dealing with someone who committed one of the most abhorrent crimes in the history of our state, we are obliged to continue to adhere to the principles that lie at the heart of our legal outlook.

Petition denied.

17 Sivan 5766.

13 June 2006.