Performance

Nahmani v. Nahmani

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

 

Ruth Nahmani v

1.            Daniel Nahmani

2.            Attorney-General

3.            Assuta Ltd

 

CFH 2401/95

 

 

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

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

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

Y. Türkel

 

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

 

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

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

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

 

 

 

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

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

 

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

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

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

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

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

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

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

 

 

 

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

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

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

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

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

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

 

Basic Laws cited:

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

 

 

 

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

 

Statutes cited:

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

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

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

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

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

Land Law, 5729-1969, s. 10.

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

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

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

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

 

Regulations cited:

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

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

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

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

[1993] IsrSC 47(5) 441.

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

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

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

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

170.

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

90.

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

IsrSJ 7 109.

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

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

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

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

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

[1990] IsrSC 44(3) 353.

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

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

[1993] IsrSC 47(5) 189.

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

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

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

[1992-4] IsrLR 478.

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

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

 

 

 

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

[1986] IsrSC 40(3) 235.

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

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

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

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

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

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

 

Israeli District Court cases cited:

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

 

Australian cases cited:

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

 

American cases cited:

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

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

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

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

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

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

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

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

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

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

 

English cases cited:

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

 

Jewish Law sources cited:

 

 

 

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

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

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

[61]        Mishnah, Tractate Yevamot 6, 6.

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

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

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

[65]        Genesis 1, 28; 30, 1.

[66]        Bereishit Rabba 79, 9 on Genesis.

[67]        Jeremiah 22, 10.

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

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

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

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

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

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

[79]        I Samuel 1, 27.

[80]        II Samuel 19, 1.

 

For the petitioner — Z. Gruber.

For the first respondent — D. Har-Even.

 

 

 

JUDGMENT

 

 

Justice T. Strasberg-Cohen

Introduction

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

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

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

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

 

 

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

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

Court intervention

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

 

 

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

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

The case as an exception

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

 

 

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

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

The right of parenthood

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

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

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

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

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

 

 

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

Classification of rights

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

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

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

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

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

 

 

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

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

Moreover, at p. 513:

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

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

Classification of the right to parenthood

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

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

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

 

 

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

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

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

Non-coercion of parenthood

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

 

 

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

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

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

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

 

 

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

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

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

 

 

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

The nature of consent

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

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

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

 

 

*             Ibid., at p. 503 {20}.

 

 

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

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

The consent of the Nahmani couple

 

 

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

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

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

 

 

 

*             Ibid., at p. 507 {26}.

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

 

 

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

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

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

Agreement, representation and estoppel

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

 

 

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

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

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

 

 

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

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

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

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

 

 

*             Ibid., at p. 512 {33}.

 

 

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

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

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

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

 

 

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

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

The need for consent in different legal systems

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

 

 

*             Ibid., at p. 522 {48}.

 

 

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

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

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

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

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

 

 

*             Ibid., at p. 503 {20}.

 

 

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

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

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

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

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

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

 

 

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

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

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

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

 

 

 

 

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

 

 

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

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

The right to life

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

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

 

 

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

 

 

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

„Justice‟

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

„just‟ solution to a particular problem:

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

 

 

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

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

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

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

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

He also says:

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

 

 

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

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

Conclusion

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

 

 

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

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

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

 

 

 

Justice Ts. E. Tal

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

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

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

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

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

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

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

 

 

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

†             IsrDC 5754(1) 142.

 

 

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

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

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

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

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

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

Development of the law

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

 

 

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

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

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

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

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

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

 

 

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

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

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

The conflicting interests

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

The legitimate expectations of the parties

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

 

 

*             Ibid..

 

 

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

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

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

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

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

 

 

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

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

Policy considerations

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

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

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

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

 

 

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

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

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

The right to abort

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

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

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

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

 

 

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

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

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

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

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

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

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

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

 

 

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

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

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

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

Equality

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

 

 

 

*             Ibid..

 

 

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

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

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

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

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

 

 

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

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

Jewish heritage

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

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

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

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

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

 

 

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

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

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

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

Conclusion

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

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

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

 

 

 

*             Ibid..

 

 

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

 

Justice D. Dorner

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

The facts

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

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

HaMishpat, supra, at p. 83:

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

 
full text (continued): 

Justice E. Goldberg

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

 

 

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

36) is also, in my opinion, improper.

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

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

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

I would therefore grant the petition.

 

Justice Y. Kedmi

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

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

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

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

 

 

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

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

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

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

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

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

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

 

Justice Y. Kedmi

 

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

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

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

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

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

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

 

 

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

 

Justice Y. Türkel

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

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

3.            Elsewhere I have said:

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

This has been the case since antiquity.

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

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

 

 

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

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

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

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

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

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

 

 

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

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

8.            Justice Zamir distinguishes between law and justice:

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

In my opinion, the petition should be granted.

 

Justice G. Bach

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

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

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

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

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

 

 

 

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

 

 

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

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

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

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

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

 

 

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

4.            Here I agree with the opinion of my colleagues, who believe that in the situation before us, where there is no express statute that can guide us, we must avail ourselves of our sense of justice, and make our ruling according to what seems to us to be more just, in view of all the circumstances of the case before us. I expressed my view as to finding a just solution in the absence of legislation that dictates an express solution, in my opinion in CA 499/81 Odeh v. Haduri [21], at pp. 739-740.  My opinion  in that judgment  was admittedly in the minority, but my remarks regarding the issue of considerations of justice remain unchanged. I wrote there, inter alia:

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

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

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

And further on, at p. 740:

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

My esteemed colleague, Justice Strasberg-Cohen, writes:

„Realizing the right of someone who wants parenthood by imposing an obligation on someone who does not want it conflicts with the essence of the freedom [i.e., the freedom of someone who is not prepared to undertake parenthood] and deals it a mortal blow‟ (parentheses supplied).

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

 

 

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

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

„Is it really the case that Ruth is making no demands of Daniel? I suspect that the opposite is true. She demands that his opinion should not be taken into account, that he should be removed from the picture and that his refusal should be ignored. She demands that she should be allowed use of the genetic material against his will in order to bring a child into the world. She demands that the court should give consent instead of Daniel and instruct the hospital to give her the ova so that she can continue a procedure that will lead to the birth of her and Daniel‟s joint child, without his consent. To this end she asks that his consent to fertilization should be interpreted as consent to bringing a child into the world against his will, even if he will not raise the child.‟

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

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

 

 

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

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

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

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

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

 

 

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

„The law does not require a person to have children with his spouse even if he promised to do so and changed his mind. A person who breaks a promise causes disappointment and frustration to the other. His behaviour is not “just”, but the law will not require him to keep his promise in the name of “justice”.‟

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

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

p. 574, upon which Justice Tal relies:

„One fact is of vital importance in making this judgment; the spouse who opposes implantation wanted a child at one time and submitted to the IVF process with that end in mind. The two spouses once agreed on this issue and initiated the IVF procedure in reliance on that mutual wish. Given this background, the greater injustice would be to deny implantation to the spouse who detrimentally relied on the other‟s words and conduct.

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

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

 

 

6.            Conclusion:

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

 

Justice E. Mazza

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

Deciding between rights

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

 

 

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

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

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

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

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

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

 

 

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

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

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

 

 

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

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

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

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

 

 

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

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

A comparison with other accepted distinctions

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

 

 

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

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

Restrictions on rights

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

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

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

 

 

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

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

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

 

 

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

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

 

 

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

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

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

The extent of the violation of the right

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

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

 

 

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

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

 

 

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

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

Classification of the competing rights in the Nahmani case

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

 

 

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

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

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

 

 

 

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

 

 

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

Deciding between the rights

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

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

 

 

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

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

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

 

 

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

A decision where there is no norm and no fault

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

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

 

 

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

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

Qualification of the decision

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

 

 

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

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

 

Justice T. Or

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

 

 

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

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

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

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

 

 

 

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

†             Ibid.

 

 

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

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

 

 

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

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

The result whereby cooperation and consent of both spouses is required for each of the stages is also supported by another provision of the Agreements Law. The Law revolves around the surrogacy agreement. The agreements is between the prospective parents and the surrogate mother. The prospective parents are the couple who are entering into a contract with the surrogate mother. The agreement requires the approval of a statutory committee. Under section 5(c) of the law, this committee —

„may reconsider an approval that was given if the facts, circumstances or conditions that served as a basis for its decision have undergone a substantive change, as long as the fertilized ova have not been implanted in the surrogate mother…‟.

In my opinion, even this provision shows the legislator‟s policy with regard to the issue before us. It clarifies that the status of a consent — even one that is incorporated in an agreement that received the approval of a special statutory body — is not absolute until the implantation stage. That is the decisive stage. Until this stage, a change in circumstances may lead to a termination of the procedure. In my opinion, the breakdown of the relationship between the two spouses constitutes a significant change in the circumstances for this purpose. The relationship between the two spouses is a fundamental element of the surrogacy agreement. The prospective parents must be „a man and a woman who are spouses‟ (section 1 of the law). The pregnancy of the surrogate mother is done for the „prospective parents‟ (ibid.). The statutory arrangement assumes, therefore, a relationship between the spouses. The breakdown of the relationship before implantation of the

 

 

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

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

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

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

 

 

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

 

 

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

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

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

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

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

 

 

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

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

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

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

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

I agree with these remarks.

 

 

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

 

Justice I. Zamir

On just law

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

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

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

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

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

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

 

 

 

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

 

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

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

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

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

I have now read the opinions in the further hearing, which have changed the majority opinion in the appeal into the minority opinion in this hearing. I have not been persuaded. First and foremost, I have not found in them any answers to the legal problems that arise in this case, and at any rate I have not found in them answers that are better than the answers given by Justice Strasberg-Cohen. I have also not been persuaded that justice tips the scales, notwithstanding the law, in favour of Ruth Nahmani. Therefore I remain on the path that I took and I stand by the result that I reached.

 

 

My path is close, but not identical, to the path of Justice Strasberg-Cohen.

I will present it briefly: first — the law; afterwards — justice.

On the law

6.            The legal path in this case is long and arduous. In order to facilitate our progress, I will first present the general direction of the path. Afterwards, I will present it in detail, stage by stage.

The fertilization procedure involving Ruth and Daniel was carried out by the hospital under the Public Health (in-vitro Fertilization) Regulations (hereafter — the Fertilization Regulations). Ruth asked to receive the fertilized ova from the hospital in order to continue the procedure and to implant them in a surrogate mother. But under the Regulations, the husband‟s consent to the fertilization is insufficient; his consent is also required for the implantation. Daniel notified the hospital that he is opposed to the implantation. Therefore the hospital refused to give the ova to Ruth. For lack of any other option, Ruth sued Daniel in court. The central question in the suit was whether Daniel originally agreed also that implantation would be carried out even if Daniel and Ruth were to separate from each other. The answer, in my opinion, is no. Another question is whether Daniel, even though he opposes the implantation, is estopped from arguing this. In my opinion, the answer to this question is also no. The result is that Ruth has no cause of action to force Daniel in court to give his consent to the implantation or to refrain from opposing the implantation. If so, under the law the court must dismiss Ruth‟s action against Daniel, and the hospital is not entitled to give Ruth the fertilized ova, unless and until Daniel agrees to this.

Now I will go into detail.

7.            The first step on the legal path leads to legislation. In-vitro fertilization is now regulated, in part, by the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law. But this law, which regulates in- vitro fertilization vis-à-vis a surrogate mother, did not yet exist when the dispute between Ruth and Daniel began, nor even when the matter came before the court that tried the dispute between them, whether in the District Court or in the appeal before this court. Nonetheless, this law is relevant also to the dispute between Ruth and Daniel, and the court should not ignore it. But everything has its proper place, and I should not begin at the end.

8.            About five years ago, when Ruth and Daniel began the fertility procedure, in-vitro fertilization was governed by the Fertilization Regulations.  These  regulations  do  not  regulate  the  relationship  between

 

 

spouses wishing to carry out in-vitro fertilization in a hospital, but the role of the hospital in carrying out such a fertilization, including the relationship between the hospital and the couple. Under regulation 2(a) of these regulations, in-vitro fertilization may be carried out „only in a recognized ward and pursuant to the provisions of these regulations‟. There is no dispute that the fertilization of Ruth‟s ova with Daniel‟s sperm was carried out by Assuta Hospital under the Fertilization Regulations.

Incidentally, it should be said that the Fertilization Regulations, in their original version, stated (in regulation 11) that a fertilized ovum may only be implanted in the woman who will be the child‟s mother. In other words, these regulations prohibited implantation of an ovum in a surrogate mother. But this court held that this provision was void. See HCJ 5087/94 [44]. This means that the Fertilization Regulations regulate in-vitro fertilization also for implantation in a surrogate mother.

Under the Fertilization Regulations, Ruth and Daniel could not  have begun the fertilization procedure at the hospital without their joint consent. The consent was duly given. But it is questionable whether under these regulations the consent is required only at the first stage of the procedure, which is the fertilization stage, or whether it is also required at the second stage, which is the implantation stage. This question is of critical importance in the Nahmani case, for it is clear that Daniel gave his consent to the fertilization, whereas he now opposes the implantation.

The question arose before the District Court that considered the Nahmani case. Daniel argued that under the regulations, his consent is required also for the implantation of the fertilized ova. The Attorney-General, who was summoned by the court to join the action as the party representing the public interest, supported Daniel‟s argument. But the District Court (Justice Ariel) held that both Daniel and the Attorney-General were mistaken: in its opinion, the regulations provide that for a married woman the husband‟s consent is only required for fertilization of the ovum, and no further consent of the husband is needed for implantation of the ovum. See OM (Hf) 599/92.*

I do not agree. Admittedly, under regulation 3 of the Fertilization Regulations, removal of the ovum may be done solely for the purpose of in- vitro fertilization and implantation after the fertilization. From  this it is possible to deduce that anyone who gave his consent to fertilization also agreed  to  implantation.  Notwithstanding,  the  regulations  do  not  merely

 

 

*             IsrDC 5754(1) 142, 153.

 

 

require consent to the fertilization itself at the start of the procedure. The procedure of having a child by in-vitro fertilization is so complex and sensitive that the regulations insist upon requiring informed and express consent of the husband at each stage of this procedure, including consent to implantation. Regulation 14 of the regulations states as follows:

„(a) Every act involved in in-vitro fertilization as stated in regulation 2 shall be performed only after the doctor in charge has explained to each of those involved the significance and the consequences that may follow from it, and has received informed consent of each of them separately.

(b)          Every act involved in in-vitro fertilization of a married woman shall be performed only after receiving the consent of her husband.

(c)           Consent under these regulations —

(1)          shall not be given for a specific person or for a specific matter;

(2)          shall be given in writing and in the presence of a doctor, provided that the consent of a married couple shall be given on one document.‟

It follows that under the regulations „every act‟ involving in-vitro fertilization „as stated in regulation 2‟ requires „informed consent‟ of the husband „on one document‟. And what is an act involving in-vitro fertilization as stated in regulation 2? Regulation 2(a) gives the following answer:

„A person may remove an ovum from a woman‟s body, fertilize it, freeze or implant a fertilized ovum in a woman‟s body only in a recognized ward and pursuant to the provisions of these regulations.‟

It follows then that in-vitro fertilization comprises several actions, including implantation, and each of these actions requires the husband‟s consent.

9.            If so, how did the District Court hold that the consent of the husband to the actual fertilization is sufficient, and there is no further need for his consent to the implantation? The District Court relied on clause 8(b)(3) of the regulations, which states:

 

 

„If the woman in whom the ovum is supposed to be implanted is divorced, and the ovum were fertilized with the sperm of her husband before her divorce — the ovum shall only be implanted in her after receiving the consent of her former husband.‟

The District Court made a negative inference from the positive one. It is only with regard to a divorced woman that regulation 8(b)(3) makes the express condition that the consent of the former husband is required. It follows, according to the District Court, that no such consent is required for a married woman. And this is the important point in this case: although Ruth and Daniel live separately, they are still married to one another.

But this is wrong. Regulation 14 requires the husband‟s consent for every act throughout the procedure. This is clear and simple. Nonetheless, it was still necessary to add regulation 8, which deals with the procedure for unmarried women: an unmarried woman (regulation 8(b)(1)), a widow (regulation 8(b)(2) and a divorcee (regulation 8(c)(3)). For a divorcee it was necessary to add regulation 8(b(3), and regulation 14 was insufficient, since regulation 14 requires the consent of the husband, whereas clause 8(b)(3) is intended to add the consent of the former husband.

The District Court presents the husband as if he disappears from the picture after fertilization: the husband has done his job; the husband is free to go. What business is it of his to interfere at the implantation stage and to try to prevent the continuation of the procedure? Not only this. The District Court also says that —

„There is a danger in the position that requires additional consent of  the husband  in  cases of  a dispute between them (including a dispute before divorce), as this would give preference to the husband and may lead to major discrimination against the wife…

The consent is required once, and cannot be changed according to this or that passing whim.‟

But under the regulations, the husband stays in the picture. This can be seen not only from regulation 14, which requires the husband‟s consent for every act, but also from regulation 9. This regulation states as follows:

„(a) An ovum, including a fertilized ovum, may be frozen for a period not exceeding five years.

 

 

(b) If a written request is received to extend the freezing period, signed by the woman from whose body it was taken and her husband, and approved by the signature of the doctor in charge, the hospital may extend the freezing period by another five years.‟

It is therefore clear that under the regulations, the husband‟s consent (under regulation 14(c) — written consent in the presence of a doctor) is required, for the purpose of continuing the procedure, five years after the ovum was frozen. It is required even for continuing the freezing. Is it reasonable to say that it is not needed for the implantation? It is required also when the couple is living together harmoniously. Is it reasonable to say that it is not needed when the couple are living apart and there is no peace between them? Just imagine: for five years after the freezing, the husband supposedly does not exist, is like a ghost, and the wife is entitled to take the ova from the hospital unilaterally in order to implant them in another woman at her choice. Time passes, and suddenly the husband is once again important, and it is even impossible to extend the freezing period without his consent! There is no logic in this. Indeed, in my opinion, the husband should not be said to have done his job when he gave his sperm for fertilizing the ovum, and now he is free to go. Such a statement is inconsistent with the Regulations, does not befit the idea of partnership in having children, and is unfair to the husband.

10.          The question whether the husband  must  give  his consent  to implantation was also answered, recently, in the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law. This law regulates the implantation of fertilized ova in a surrogate mother. In this respect the law concerns the case before us, because the fertilization of Ruth‟s ova with Daniel‟s sperm was done for the purpose of implanting the ova in a surrogate mother. The law was enacted only after the fertilization, and it cannot be applied retroactively to the fertilization that was carried out in this case. Nonetheless, the law now allows, for the first time, the implantation of fertilized ova in Israel. This is apparently a possibility from Ruth‟s perspective for various reasons, inter alia because the institute in the United States, with which Ruth and Daniel originally entered into a contract, requires the consent of both of them for an implantation. But the implantation in Israel, under this law, can only be performed (under section 7), inter alia, in accordance with a surrogacy agreement made and approved under this law. The law stipulates various requirements for such an agreement before it is approved. Inter alia, a „written agreement‟ must be made (under section 2)

 

 

between the surrogate mother and the prospective parents. In other words, the signature of the husband is required on the agreement, before the special approvals committee, of his own free will and after understanding the significance and the consequences of the consent (under section 5).

I am not making these remarks to say that, from a practical viewpoint, Ruth cannot carry out the implantation  in Israel under this law without Daniel‟s consent, but to show the policy of the statute, which is now the policy of the principal legislator and not merely of the subordinate legislator. According to this policy, the express and informed consent of the husband is required for the implantation, including the identity of the surrogate mother. It is inconsistent with the policy of the statute that Ruth can receive the fertilized ova and deliver them for implantation in a surrogate mother without Daniel‟s consent.

The court strives to create harmony in the legal system. This is a guiding principle in the interpretation of legislation. Interpretation tries to prevent a conflict between two statutes or between a statute and regulations. Therefore, if the new statute requires the husband‟s consent for implantation, it is not desirable to interpret the regulations (or to develop the law) in a way that makes the husband‟s consent unnecessary.

Incidentally, I would also like to raise the question whether, under the Surrogacy (Approval of Agreement and Status of the Child) Law, a woman may carry out in-vitro fertilization in Israel and then perform the implantation of the fertilized ova in a surrogate mother outside Israel, other than under the terms of the statute. Section 7 of the Law states that „In-vitro fertilization and implantation of a fertilized ovum shall be carried out only in a recognized ward and on the basis of a surrogacy agreement that was approved as stated‟. According to the language of the law, it appears that even the first stage of in- vitro fertilization should be performed only on the basis of an agreement under the law. And the law, as stated, provides various requirements for such an agreement: consent of the husband to performance of the implantation in a specific woman who is of the same faith as the prospective mother, provided that the agreement does not contain terms that harm the rights of the child that will be born, etc.. This leads to the question: is the prospective mother entitled to carry out in-vitro fertilization in Israel and afterwards, by means of implantation outside Israel, to bypass all the terms that the statute prescribes for the purpose of implantation? But this question was not argued before us, and therefore it should be left undecided. For the purposes of the case before us, it is sufficient to say once again that the new statute does not allow

 

 

implantation to be carried out without the informed consent of the husband to implantation in a specific woman.

11.          Assuta hospital was sued by Ruth to deliver to her the ova fertilized with Daniel‟s sperm for the purpose of implantation in a surrogate mother. However, as stated, the release of the ova from the hospital for implantation is, under the regulations, an act that required Daniel‟s consent. Without consent, the hospital was prohibited from delivering the ova to Ruth. Therefore it refused, and rightly so.

Moreover, the need for Daniel‟s consent to carry out implantation derives not only from the regulations, but also from private law. This is because the fertilized ova do not belong solely to Ruth nor solely to Daniel. After all, each of them gave of himself to the hospital to create the fertilized ova. The hospital received Ruth‟s ova and Daniel‟s sperm under an agreement between Daniel and Ruth on one side and the hospital on the other. Under this agreement, the hospital may not deliver the ova to one of them against the wishes of the other. Let us assume, for example, that Daniel pre-empted Ruth and contacted the hospital first to receive the ova for some reason, whether to transfer them for implantation unilaterally, or to destroy them, or for some other purpose. It is clear, in my opinion, that the hospital would not have been permitted, if only because of the tripartite agreement between Ruth, Daniel and the hospital, to deliver them to Daniel against Ruth‟s wishes.

In any case, whether under the regulations or under the agreement, Ruth is unable to receive the fertilized ova from the hospital without Daniel‟s consent, and Daniel objects. She has no choice: she must present to the hospital Daniel‟s consent or, alternatively, a judgment exempting her, or the hospital, from the need for consent. Consequently, Ruth filed the action against Daniel and against the hospital in the District Court. In practice the action is not against the hospital, since both the regulations and the agreement with the couple prevent it from delivering the ova without Daniel‟s consent, and therefore the hospital is in practice merely a formal defendant. For this reason, the action is not based on the Fertilization Regulations. These regulations lie in the background only as an explanation for the claim: it is they that forced Ruth to sue Daniel. The real claim is against Daniel, in order to establish that he consented, or to compel him to consent, and this action is not based on the Fertilization Regulations, but on the relationship between Ruth and Daniel: in the relationship between him and her, does Ruth have a cause of action against Daniel?

 

 

12.          First, does the right of parenthood give Ruth a cause of action against Daniel? Ruth has a right to be a parent. No one disputes this. The right to be a parent is a basic right. There is no dispute on this. But this is not enough. For the right to be a parent is, by its nature, a liberty, i.e., a negative right. Therefore, the right to be a parent is insufficient to support a court action of a wife against her husband, or against another man, for him to do an act in order to convert the right from theory into practice. The court may oblige a particular man to perform an act to realize the parenthood of a particular woman only if that man has a duty towards that woman: a statutory duty, an agreement, or a duty deriving from another legal source. It follows that in order to find Daniel liable towards Ruth, it is insufficient that Ruth has a right vis-à-vis society, but she also needs to have a cause of action against Daniel.

Indeed, it is an interesting and difficult question, how important is the right to be a parent, and is it more important than the right not to be a parent. But, in my opinion, it has no significance within the framework of the Ruth‟s claim against Daniel. For the purpose of this case we can assume that Ruth‟s right to be a parent is much more important than Daniel‟s right not to be a parent. This is still insufficient to impose a duty on Daniel to do an act that will allow Ruth to exercise her right of parenthood.

Imagine that A sues B for money in the name of the right to life. A will not succeed in the action, although the right to life is ten times more important than B‟s right to the money, unless he can prove that B has a duty in law to give A money.

Consequently, for Ruth to succeed in the action she filed in court, she needs to have a cause of action against Daniel. She does not have a cause of action founded in legislation, since there is no legislation that imposes on Daniel a duty to consent to implantation. Therefore the question is whether she has a cause of action against Daniel by virtue of an agreement.

13.          A preliminary question is whether an agreement between a husband and wife regarding implantation of fertilized ova in a surrogate mother is a legal agreement that can impose a legal duty on the husband. There is a view that agreements between spouses while they are living together are not legal agreements. Indeed, that may be so, but it is not necessarily so. It depends on the circumstances of each case. There is no doubt that business agreements between spouses can be contracts in all respects. And not only agreements of this sort. The law recognizes a contractual claim for breach of promise of marriage. Why, then, should it not recognize other agreements between spouses, according to the subject-matter and the circumstances of each case?

 

 

In this case, I believe that the circumstances show that the agreement made between Ruth and Daniel is a legal agreement. Regulation 14 of the Fertilization Regulations requires „informed consent‟ of each of the spouses,

„after the doctor in charge has explained to each of those involved the significance and the consequences that may follow from it‟, and it further states that the consent „shall be given in writing and in the presence of a doctor, provided that the consent of a married couple shall be given on one document‟. This, it can be said, is a strong consent, like a contract which statute requires to be in writing. Moreover, it is like a contract that must be signed before a notary. In any case, there is no doubt that this consent has a legal consequence in the field of the relationship between the spouses and the hospital: on the basis of this consent, the hospital may perform the fertilization. In my opinion, this consent also has a legal consequence in the field of the relationship between the spouses inter se. The spouses agreed between themselves to cooperate in the fertilization procedure already before they signed the document in the presence of the doctor. It may be that the consent between the spouses had, at this stage, not yet crystallized into a legal agreement. But it is clear to me that, at the latest, when the consent of the spouses found expression in the signature of both of them on one document, after they received from the doctor an explanation of the significance and the consequences that might result from the consent, a legal agreement was created between them. This agreement is a contract. It may be called, as Justice Strasberg-Cohen calls it, a weak contract. It may also be called, as I prefer, a special contract. Either way, the consent of Ruth and Daniel on the document creates a contract, not only between Ruth and Daniel and the hospital, but also, in my opinion, between Ruth and Daniel inter se. This is a contract that was signed after serious consideration, with a genuine commitment and formality that left no doubt as to the seriousness of the occasion: on the basis of the contract, each one of the parties undertook to undergo medical treatment and both of them jointly signed a preliminary agreement with the institute in the United States for carrying out the implantation in a surrogate mother. I see no reason why the mutual consent of Ruth and Daniel should not have legal force. If Daniel had retracted his consent after the ova were removed from Ruth, but before fertilization, would Ruth not have had the right to sue him for damages for the suffering he caused her?

14.          Our conclusion, therefore, is that there is no legal vacuum in the relationship  between  Ruth  and  Daniel.  Therefore  there  is  no  basis  for

 

 

following the path of Justice Tal, i.e., the court developing the law in order to create a legal norm in the relationship between Ruth and Daniel. The norm already exists, and it fills the vacuum: the agreement between them is the law. If so, how can the court force itself into this intimate sphere, and determine by itself legal rules that regulate the relationship between the spouses as the court sees fit, while ignoring the agreement, and maybe even contrary to the agreement between the spouses? The intimate nature of this sphere and the autonomy of the spouses require the relationship between them to be regulated, in so far as possible, in consent between them inter se, without the intervention of an external party, be he the legislator or the court. It is therefore preferable  to give legal validity to the  agreement between the spouses, than to determine for them an arrangement that ignores the agreement. Even if the agreement between the spouses lacks legal validity, this too is law, because it means that they wanted the relationship between them to be regulated outside the field of law. If so, why should the court come and impose its will on their will?

15.          Because the consent between Ruth and Daniel regarding the fertilization, as expressed in the document signed by both of them, created a legally valid agreement, the question is whether Ruth has a cause of action against Daniel by virtue of the agreement.

Daniel and Ruth agreed between themselves to cooperate in a procedure of in-vitro fertilization. Daniel doubtless agreed to fertilization of Ruth‟s ovum with his sperm. But, under regulation 14 of the Fertilization Regulations, this consent is not enough. The husband‟s consent is required for every act involved in the fertilization, including the implantation. Thus we must ask whether Daniel agreed also to the implantation?

The question whether consent to  a procedure of in-vitro fertilization, under the Fertilization Regulations, also includes consent to implantation depends on the circumstances of the case, including the language of the consent. In the normal case, it can be presumed that a husband‟s consent to in-vitro fertilization applies to all the acts involved in the fertilization, including the implantation, since this is the purpose of the  fertilization. Indeed, this is what happened in the case before us. There is no dispute that Daniel‟s consent, when it was given, and in the circumstances at the time, i.e., in the circumstances where Ruth and Daniel were living together, was not limited to the fertilization stage, but referred to the whole procedure, including the implantation stage.

 

 

Nonetheless, even consent to the whole procedure can be qualified. Indeed, this is Daniel‟s argument against Ruth: that his consent, even though it applied to the whole procedure, was qualified. And what is the qualification? That Daniel agrees to begin the procedure, and to continue it until it ends, only on the condition that he and Ruth continue to live together as one family. If, however, matters change and the family breaks up, the consent will automatically expire.

Such a condition can be included in an agreement in an express provision. Let us assume that such a condition was expressly stated in the agreement between the couple when they signed the consent to the fertilization. In such a case, if the condition was fulfilled after fertilization, and the husband gave notice that his consent has expired, the wife would have no cause of action against the husband, and the hospital would have no consent, as required under the regulations, for fertilization.

The agreement between Daniel and Ruth does not contain any such express condition. However, such a condition need not be express. It can also be implied. In order to determine whether there is an implied condition, we must interpret the agreement. The interpretation must be done pursuant to section 25 of the Contracts (General  Part) Law, in accordance  with the intentions of the parties, as is evident from the contract, and to the extent that it is not evident therefrom — from the circumstances. Here Justice Strasberg- Cohen and Justice Tal differ. Justice Strasberg-Cohen relies on statements of Ruth and Daniel written in the court record in order to determine that there was no consent between them with regard to the continuation of the procedure if and when they separated from one another. By contrast, Justice Tal says that we cannot know with certainty what Ruth and Daniel thought at the start of the procedure with regard to the possibility that they might separate before the procedure was completed. Therefore, he tries to establish the presumed intention of Ruth and Daniel, and is even prepared, alternatively, to give the agreement an imputed intention. Either way, he reaches the conclusion that the intention of the parties was that even in the event of separation, Daniel would not have a right to prevent the continuation of the procedure.

I disagree with this conclusion. In my opinion, human experience and common sense say that had we asked Daniel at the start of the procedure whether he would be prepared to continue and complete the procedure of having a child in all circumstances and without any conditions, and even were he to discover new facts or were new circumstances to occur, his

 

 

response would have been no. For it is possible to imagine  new circumstances in which having the child or raising the child would be very difficult, for the child or for the parents. For example, if we take an extreme example, it can be imagined that new facts might suddenly be discovered, which raise a real fear that the child who will be born will suffer from a serious genetic defect; or it is possible that one of the spouses may suddenly discover new details about the other spouse which, had they been known previously, would have prevented any relationship between them. Would the consent to fertilization, even in such cases, necessarily include, without any means of revocation, also consent to implantation? And is this so even if the consent to fertilization was obtained by fraud? But we do not need to go to extremes. Let us assume that before the procedure began, Daniel was asked as follows: if during the procedure, but before implantation of an ovum, a serious dispute will break out between you and Ruth, which will lead you to a complete separation and serious animosity, would you, even in such a situation, consent to implantation of the ovum, which would make you and Ruth joint parents of a child? In my opinion, Daniel‟s answer, as a reasonable person, would be no. And if he were asked before the start of the procedure as follows: assume that after you separate from Ruth, as a result of a serious dispute of this kind, you establish a new family for yourself and even have a child of your own with your new partner. Would you consent to implantation of the ovum, notwithstanding all this? Again, in my opinion, Daniel‟s answer would be: no and no.

Moreover, even if there remained a doubt about Daniel‟s answer, this is not enough to fulfil the requirement for consent, neither under the regulations nor even under the agreement. Under the agreement, consent is required for the implantation, even in the event that the spouses have separated, and possible consent does not constitute consent. According to the regulations,

„informed consent‟ is required for every act involved in the fertilization, including for the act of implantation, after the doctor in charge has explained to each of those concerned „the significance and consequences that might follow from it‟. A doubt is insufficient: informed consent is required. On the evidence, there is no basis for saying that Daniel gave „informed consent‟ at the start of the procedure for the act of implantation, after an explanation as required, with an understanding of the significance and the consequences that might follow from the consent, even in a situation of a separation between the spouses.

 

 

As such, there is no need even to consider what were Ruth‟s intentions at the start of the procedure with regard to the continuation of the procedure in the event of separation. Let us assume that she thought and she wanted the procedure to continue even in the event of separation. Let us go further and assume that she would not have agreed to begin the procedure had she thought that the procedure would be stopped in the event of separation. This does not change anything. This is so because the consent of one spouse is insufficient; the consent of the other spouse is also needed. This is the case under the Fertilization Regulations: the hospital may not carry out any act with the ova at the wife‟s request unless it also has the consent of the husband for that act. The same is true also for the purpose of the litigation in the court: for Ruth to succeed in her action against Daniel, the consent of both parties is required, as in any contract. In the absence of Daniel‟s consent to implantation, and as stated no such consent has been proven, not even according to the intentions of the parties, Ruth has no cause of action against Daniel. Without a cause of action, the action collapses. Therefore, under the law the court must dismiss Ruth‟s action against Daniel in so far as it relies on the agreement between them.

16.          From a legal viewpoint, Ruth is left with only one claim against Daniel: that he is estopped from arguing that he does not consent to the implantation. Admittedly, estoppel is usually used by the defendant and not by the plaintiff; it is a shield and not a sword. But estoppel has developed in several countries, so that it can be used, albeit rarely, also as a cause of action, and this may also be the case in Israel. If so, and at least for the purposes of the case, Ruth should not be denied the possibility of raising estoppel as a cause of action against Daniel, i.e., to claim that Daniel is liable, by virtue of estoppel, to give his consent to implantation notwithstanding the separation.

The claim of estoppel was examined both by Justice Strasberg-Cohen and Justice Tal. I agree with the opinion of Justice Strasbourg-Cohen rather than that of Justice Tal, and I will explain in brief.

The claim of estoppel is based on a representation. Someone who claims estoppel must prove that another person made a representation, that he reasonably relied on the representation, that he did an act on the basis of that representation, and as a result adversely changed his position. Did the elements of estoppel exist in the case before us? Ruth must prove that Daniel made a representation to her that the fertilization procedure, including the implantation, would continue even if they separated from each other. Has it

 

 

been proved that Daniel made such a representation? In my opinion, the circumstances and factors that lead to the conclusion that Daniel did not consent to the continuation of the procedure in the event of separation, also lead to the conclusion that no such representation existed. Indeed, Justice Strasberg-Cohen says, on the basis of her examination of the evidence, that no factual basis was laid before the court from which one could conclude that Daniel did or said something from which Ruth could have understood that separation would not affect the procedure. Moreover, there is not even a factual basis from which one could conclude that Ruth did what she did in reliance on a representation by Daniel, and that had she been aware of the possibility that separation would stop the fertilization procedure, she would not have begun the procedure at all. Indeed, it is most likely that Ruth and Daniel did not consider the question of the continuation of the procedure in the event of separation or, at least, did not consider it as a real possibility. If so, there was in fact no representation on one side nor any reliance on the other. In any event, the representation and the reliance were not properly proved, not even as a defence argument, and certainly not as a cause of action. The conclusion is, in my opinion, that estoppel, in the circumstances of this case, cannot replace the consent required under the law.

In conclusion, no matter how important Ruth‟s right to parenthood is, and no matter how much distress she will suffer, under the law Ruth has no cause of action against Daniel.

And what about justice?

On justice

17.          Greek mythology described justice as a goddess, standing on a pedestal, with her eyes covered. This description, even if it was relevant in those days, is not suitable in the present. I imagine justice as a person searching for the proper path, wandering around with open eyes. He stands before a thick forest of innumerable legal rules, through which there is a main road, but from which side roads, paths and narrow tracks branch off. He must pass through the forest in order to reach his destination: just law. In order to reach it, he is prepared to leave the main road, to seek another path and follow also narrow tracks. But he cannot take a shortcut straight to his destination, without passing through the forest.

In this case, I have not tried to take a shortcut. I have followed the main road, although it was arduous, and have reached this conclusion: between Ruth and Daniel, the law is on Daniel‟s side. I suppose that another path

 

 

could have been chosen among the paths of the law, and that perhaps a different result could have been reached by that path. However, the important point in my opinion is that the court must follow one of the paths of the law. I concede that had I seen that the path was leading me to a result of injustice, I would have stopped along the way and sought out another path, from among the abundance of legal rules, that might lead me to a just result. Moreover, even at the end of the path I am still ready and prepared to look and see whether I have reached an unjust result. For if so, I am prepared to retrace my steps and start the journey over again in an attempt to reach a more just result. But have I really, in the result that I have reached, not dispensed just law?

No-one has a monopoly on justice. It has been said that justice to one person is injustice to another. Justice Strasberg-Cohen shows how many forms and shades of justice there are. No less than the paths of the law. In law, at least, there are pre-established rules, and even if they are sometimes obscure and flexible, they contain a large degree of objectivity. Justice, on the other hand, is an open field, in which everyone can go in whichever direction he sees fit, with a subjective viewpoint, without road markings and without signs. The direction that seems right to me is different from the direction that seems right to my colleagues. Does this mean that they are correct?

About five hundred years ago, the Lord Chancellor of England wished to free himself of the inflexibility of the common law, which not infrequently resulted in injustice, and he chose a new approach: equity. He took it upon himself to decide each case according to his sense of justice. And what did they say of him? That justice depends on the length of the Chancellor‟s foot. Each foot is a different length. What judge is prepared to declare that his foot, and only his foot, has the right length?

Naturally, this does not mean that for this reason the court may ignore justice. On the contrary: the court must consider justice in every case. But it must weigh justice, as it were, in the scales of law. Only in this way can just law be carried out.

18.          Even when the court considers justice, in itself, it must place it on the scales, since justice itself contains various elements and even conflicting directions, and the question is what has greater weight, as a rule or in a particular case.

First, we must distinguish between general justice and individual justice. General justice states that the interpretation or application of a particular

 

 

legal rule in a specific way will not lead to a just result in a class of cases, and therefore a different interpretation or application should be preferred. Individual justice states that the interpretation or application of a legal rule in a particular way will cause injustice in the special circumstances of a specific case, and therefore another path should be chosen. But general justice and individual justice do not necessarily lead in the same direction. It is possible that the path leading to general justice will cause injustice in the individual case, and vice versa. In such a case, the question is which prevails, general justice or individual justice?

In my opinion, it is not proper for the court to do justice in the concrete case before it, before examining and determining what general justice demands in that case. It is only after this that the court can and should consider individual justice, which is the justice of that person whose case the court is required to decide, as opposed to general justice, which is the justice of many others who may be affected by the decision of the court. In general, when there is a conflict between the individual and the public that cannot be reconciled, the public prevails. One should follow the majority. It is not just to do justice in one case if as a result an injustice will be done in many cases. Naturally, this rule also has exceptions, according to the circumstances and considerations in each case. Notwithstanding, no matter what case it is, it is not proper, in my opinion, to decide in favour of individual justice without first ascertaining what general justice says.

19.          What does general justice say? When trying to arrive at general justice, we must take into account the values of society, including values outside the law. Justice is one of the values, and harmony is required between all the values. Among the values, we should mention, in this context, the principle that having children is a matter for the autonomy of the individual, or, to be more precise, of the couple. They, and no others, must act in this sphere with consent and with equality. This is a reason for preventing the forcing of the will of one spouse on the other spouse, or preferring the will of one over the will of the other, by means of a State authority. If matters have gone wrong and there is no longer any consent between the spouses, there is no longer any basis for continuing the process. That is also what has happened here: the relationship has come undone. The common will has split: his will against her will. Should the court intervene and say that her will takes precedence over his will? The court usually avoids intervening in intimate matters, and it leaves them to the couple to sort out on their own, for better or

 

 

for worse. This is the accepted policy. This is also the proper policy. Has the court now decided to depart from this policy?

It is for this and additional considerations that a widespread opinion has developed amongst bodies that have examined this topic throughout the world, whereby in-vitro fertilization should not be performed, and this includes implantation, without existing and continuing consent of the two spouses. As Justice Strasberg-Cohen says —

„In most enlightened countries there can be seen an unambiguous approach that requires the informed consent of the two spouses to performing the fertilization procedure at each stage. Because in-vitro fertilization is a complex procedure that is carried out in stages which may extend over a period of time, if the relationship between the spouses is disrupted and they quarrel about the fate of the fertilized ova, the general tendency is to demand the consent of both parties for the continuation of the procedure.‟*

Have these countries chosen the path of injustice? The same has happened also in Israel. The Minister of Health and the Minister Justice appointed (in July 1991) a public-professional commission to examine the topic of in-vitro fertilization. The members of the commission were diverse and very distinguished: it was chaired by (ret.) Justice Shaul Aloni, and among its members were Rabbi Yisrael Lau, who at the time held the office of Chief Rabbi of Tel-Aviv, and the top specialists in the fields of medicine, philosophy, sociology, etc.. In the Report of the Professional Public Commission for Examining the Issue of In-vitro Fertilization (July 1994) the commission unanimously said, on p. 36:

„The Commission was of the opinion that giving permission for fertilization should not be regarded as consent to implantation, and there must be consent of both spouses to the implantation, for two reasons. First, having children when there is a dispute should not be encouraged. Second, the involvement of the father in making the decision should be encouraged.

The Commission considered another option, that in the absence of joint consent the matter would be referred to a multi- disciplinary statutory committee, which would be authorized to

 

 

 

*             IsrSC 49(1) 485, at p. 503; [1995-6] IsrLR 1, at p. 20.

 

 

approve exceptions to the fundamental requirement of ongoing consent. Notwithstanding, the Commission had difficulty in conceiving of considerations that would justify departing from the aforesaid principle. The Commission considered the possibility that the genetic mother or the genetic father would have no other way of realizing genetic parenthood. But giving permission to have a child in such a situation, without joint consent, means forcing fatherhood or motherhood, both from the legal viewpoint and from the emotional viewpoint, in that there will be a child who is born without their consent. The commission was of the opinion that a man or woman should not be forced to be a father or mother against their will, even if they initially consented to this… Therefore the commission recommends that in the absence of joint and continuing consent, no use should be made of the fertilized ova that were frozen until the end of the freezing period agreed by the spouses, but consent that was given at the beginning of the treatment shall be deemed to continue as long as neither of the spouses revokes it in writing‟.

Did this Commission also choose the path of injustice? And it was not only the Commission. The legislator chose this path. The Fertilization Regulations require the informed consent of the husband to every act involved in the fertilization, including the implantation. And now we have statute, namely the Surrogacy Agreements (Approval of Agreement and Status of the Child) Law, which says that there shall be no implantation without the informed consent of both spouses. Moreover, the Attorney- General, who was summoned by the court to submit arguments on behalf of the public, also expressed the opinion that implantation should not be performed without the consent of the prospective father. Are all of these perverting justice?

In my opinion, all those who require ongoing consent of both spouses as a condition for implantation, whether legislators or experts, are expressing the public interest, and therefore they reflect and serve general justice.

In summary, the legal result, whereby the law is on Daniel‟s side, is consistent with general justice.

20.          My fellow justices, who reached the opposite result, believe that this result is required by individual justice, i.e., by the special circumstances of the Nahmani case. But in my opinion, just as one can only arrive at justice by

 

 

way of the law, so too one can only arrive at individual justice by way of general justice. Individual justice does not exist in a vacuum. It must be considered against the law on one side, and general justice on the other. It is certainly possible that in a particular case, even if individual justice tends in one direction, the pan of the scales containing the law and general justice will tend in the opposite direction. In fact this is an everyday occurrence in every court.

In this case, I do not know for certain what individual justice in itself demands. But I do know this: individual justice for Ruth is not individual justice for Daniel. But am I able to weigh reliably one against the other and determine which weighs more? Indeed, there is no doubt that the medical treatment which Ruth underwent was much more difficult than the medical treatment that Daniel underwent. However, is the medical treatment that was carried out in the past the criterion that should decide the case, as opposed to, for example, the suffering of each party on an aggregate over time? But which of the parties will, on aggregate, suffer more? To this question I have no answer. At most, I can guess how I would feel and how much I would suffer were I in Daniel‟s position or in Ruth‟s position. But in doing so, I would not be doing individual justice, because I am not Daniel and I cannot know what he feels, and I am not Ruth and cannot know what she feels. In order to do individual justice, in a way that will compensate for personal suffering, I would need to enter into the hidden recesses of their personalities and the secrets of their souls. But I can not examine feelings and thoughts. Therefore I have no authoritative answer to the question which of them is more justified on the individual level.

In any event, even if I assume that individual justice tends more in Ruth‟s favour, I do not feel that the difference between Ruth‟s individual justice and Daniel‟s individual justice is so great that it should weigh the scales in favour of a result that is inconsistent with the law and even with general justice.

In principle, one should not depart from the main path of the law except in a case where it is clear that justice, in a proper balance between general justice and individual justice, requires us to follow a different path. This is not such a case.

Alas for me because of my Maker and alas for me because of my inclination? Not in this case. My Maker and my inclination do no conflict. I do not think that I am dispensing law whereas my colleagues, who have reached another result, are dispensing justice. I feel that I, according to my

 

 

approach, am dispensing just law. Therefore I agree wholeheartedly with the opinion of Justice Strasberg-Cohen that Ruth‟s petition should be denied.

 

 

 

 

 

President A. Barak

1.            I agree with the opinions of my colleagues, Justices Strasberg-Cohen, Zamir and Or. Like them, I too think that all decisions concerning the fertilized ova — as long as they are outside a woman‟s body — must be made with the joint consent of the spouses. In the absence of joint consent, there is no possibility at all of continuing the stages of the in-vitro fertilization procedure. This conclusion of mine reflects existing law. It is consistent with the requirements of justice. Law and justice go hand in hand. Underlying my opinion concerning law and justice there is a simple and basic proposition: parenthood is a singular and special status. It involves human existence. It involves duties and rights. It is built on a partnership. It is based on going hand in hand. It relies on love and mutual respect. When the partnership dissolves, when separation occurs, when the love and mutual respect disappear, the one and only basis that allows decisions with regard to the fertilized  ova disappears. Without  consent, there is no possibility of beginning the fertilization procedure. Without consent there is no possibility of continuing it. Indeed, there is no possibility of separating between the beginning of the procedure and its continuation. Each of its stages — in so far as it is done outside the woman‟s body — must have the consent of both parties. A unilateral action that continues the procedure of having children is not possible. There is no possibility of separating between one of the parties becoming a parent and the other party automatically becoming a parent. Indeed, we must remember: Ruth Nahmani is not merely asking to be a mother. Ruth Nahmani is asking to be the mother of the child of Daniel Nahmani. For this, the consent of Daniel Nahmani is needed. This consent is needed for the fertilization stage. This consent is needed — as long as the fertilized ovum is not in a woman‟s body — for every stage thereafter, because the parenthood of each of the parties — and the special status that it involves — ensues from the completion of all the stages.

2.            The conclusion that I have reached reflects, in my opinion, existing law. It is required from every possible legal perspective. From the constitutional viewpoint, of course, we recognize the constitutional liberty to be a parent or not to be a parent. This liberty derives from human dignity and the right to privacy. Therefore we recognize Ruth Nahmani‟s constitutional liberty to be a mother, just as we recognize Daniel Nahmani‟s constitutional liberty not to be a father. But Ruth Nahmani‟s constitutional liberty to be a mother does not lead to a constitutional right to be a mother to the child of

 

 

Daniel Nahmani. Therefore we do not have before us any conflict of the liberty to be a parent and the liberty not to be a parent. Just as it is inconceivable that — in the name of Ruth Nahmani‟s constitutional right to parenthood — we should impose a duty on Daniel Nahmani to deliver his sperm for the purposes of fertilization, so too it is inconceivable — in the name of Ruth Nahmani‟s constitutional right to parenthood — to impose a duty on Daniel Nahmani to deliver the fertilized ovum to a surrogate mother. Daniel‟s constitutional status with regard to his sperm is identical to Ruth‟s constitutional status with regard to the ovum. As long as the fertilized ovum is outside a woman‟s body, both of them have an identical constitutional status that requires the continuing consent of each of them. Consent in the past to one of the stages — such as fertilization of the ovum — cannot replace continuing consent, since the whole procedure is a continuing one, and it requires consent at every stage. Indeed, both from the biological viewpoint and from the constitutional viewpoint, there is no possibility of separating the various stages in the procedure of having children. They all require cooperation and consent. This conclusion is required also from the perspective of private law. Underlying the consent between the parties — whether we regard it as a contract, or whether we regard it as a non- contractual agreement, or whether we regard it as joint property or whether we regard it as a „legal phenomenon‟ of an unique kind — there is a basic premise of a joint life. When this basis is removed, the basis on which the relationship between the parties is removed. Had Daniel Nahmani been asked before beginning the fertilization procedure whether he would be prepared to continue it after separating from Ruth Nahmani, his reply would certainly have been no. This too, we may assume, would have been the reply of Ruth Nahmani. Admittedly, they did not consider this question, but the essence of the agreement (or the understanding) between them — an agreement to have a joint child — is based on this premise. This is the legitimate expectation of Ruth and Daniel Nahmani. This is the basis for any act with regard to the fertilized ova. This is the basis for their whole existence. This is the foundation of their parenthood. This is not a „one-family‟ parenthood. The sperm donor is not anonymous. This is joint parenthood in every respect. Indeed, in my opinion, should one of the parties waive ab initio the need for his consent at every stage of the procedure, this waiver would be contrary to public policy. Public policy requires that the procedure — which is an unique and intimate procedure, whose final outcome is the joint child of  the parties — should be born only as a result of joint consent „throughout the whole procedure‟.

 

 

3.            The need for the consent of each of the spouses at every stage is derived from the requirement of justice. Justice, in the context before us, means the realization of joint parenthood. There is no justice in forcing someone to be a parent against his will. Just as justice does not require one of the parties to a relationship to donate his genetic material in order to realize the desire of the other party for parenthood, so too justice does not demand that the only one of the parties should have control over the fertilized ovum. Justice demands equality in the power to make decisions concerning joint parenthood. This is the just decision in the circumstances of the case. Would justice be different if Ruth Nahmani had children of her own (from a previous marriage) and Daniel Nahmani had no children at all? Would justice be different if it transpires — as may very well be the case — that Ruth Nahmani has ova that can be fertilized by another male? Would justice be different if it transpired — and this is merely a hypothetical assumption — that additional ova were removed from Ruth Nahmani that have not yet been fertilized and they may be fertilized by another donor? And would justice be different if it transpired that Daniel Nahmani were seriously ill and the news that he would have a child and the need to care for it might cause him very serious harm? In my opinion, the answer to all these questions, and to many others, is that all these details do not affect the just solution. Justice is equality, and equality is giving a joint power of making decisions to the two parties. Let us assume, for example, that the roles were reversed, and that Daniel Nahmani was the one wanting to continue the fertilization procedure, and Ruth Nahmani was the one refusing to be the mother of their joint child. I suspect that were this the case that we were deciding, then Daniel Nahmani‟s application would be denied. We would say that motherhood should not be forced on a woman who does not want it; that motherhood is a relationship so intimate and natural that it should not be forced on a woman against her will; that just as a woman is entitled to make a decision with regard to the abortion of her child without her husband‟s consent, she is entitled to oppose the continuation of the fertilization procedure being carried out outside her body; that the cry of Ruth Nahmani — like the cry of our ancestress Rachel — „Give me children, else I die‟ (Genesis 30, 1 [8]) is no stronger than the cry of a woman „I cannot be the mother of Daniel‟s child, and if I will be, I will die‟; if we would indeed decide this way, this would indicate that in our deepest feelings we are not treating Daniel and Ruth equally and that justice is compromised. Indeed, I believe that it is not considerations of justice that support Ruth Nahmani‟s suit, but considerations of compassion. I accept that compassion and consideration of suffering are

 

 

important values that should be taken into account. But justice lies not in giving the power of making decisions to one spouse, but in recognizing the joint power of the spouses to decide the fate of the fertilized ovum. Having children is a matter too important, too experiential, too existential, to leave it, at any stage, to one party only. If we do not act accordingly, we will encounter situations that we will be unable to deal with normatively. What will we do, for example, if there is no consent as to the identity of the surrogate mother? What will we do if it transpires that there is a genetic defect — whether serious or not — and there is a recommendation not to continue the procedure of having the child for this reason? What will we do if it transpires that one of the spouses — say, Ruth Nahmani — is very ill to the extent that she cannot care for the child that will be born? What is the normative compass that will guide us? When will we consider the welfare of the child? Will we continue — and if so, to what stage — to give weight to Ruth Nahmani‟s expectations and the great suffering she has undergone in the past? I do not argue that these questions may not have proper answers. I am arguing that the just normative arrangement should be that the answer to all these questions lies in the joint will of the parties. This is the only will that started the procedure. This is the only will that can support its continuation. Without this will, and without a continuing partnership of the parties in the fateful decision that they made, there is no basis — from the viewpoint of justice — for continuing the procedure. Fertilization and creation ex nihilo is a procedure so existential, so natural, so great and powerful that only the continuing and day-to-day will of the parties can serve as a basis for it.

4.            I have discussed how, according to the law — the just law — continuing consent of each of the parties  is required for continuing the fertilization. Non-consent of one of the parties prevents the continuation of the procedure. Notwithstanding, non-consent — like every legal act — requires good faith. The court may determine that consent was given exists where the non-consent is not in good faith. Thus, for example, had it been proven to us that one of the parties — in this case Daniel Nahmani — wished to extort financial benefits as a condition for giving his consent, I would think that this could be regarded as bad faith. But in the case before us, is the non-consent of Daniel Nahmani not in good faith? In my opinion, the answer is — and so the trial court held — that Daniel Nahmani is acting in good faith. Good faith is an ethical objective concept. It is examined according to the conflicting values in the circumstances of the case. Daniel‟s non-consent should  be  examined  in  its  context.  We  are  dealing  with  an  intimate

 

 

relationship between the spouses. We are concerned with a relationship in which love, companionship, mutual respect, partnership and affection are an inseparable part. We are dealing with a relationship based on a continuing emotional bond. In these circumstances, the cooling of relations and severance of the emotional bond are part of the realities of life. Love and friendship cannot be attained by force. Mutual respect, cooperation and affection are emotional matters, which frequently are not governed by logic. Such is our life. This is the destiny that rules us. These are the risks of life. Every couple that marries, at every stage of their marriage, is aware of this possibility. The law provides various tools for solving such difficulties. A separation between spouses because of a rift between them is not a crime. The possibility of a rift occurring is an integral part of intimacy itself. Not giving consent because the feeling of love, companionship, mutual respect, partnership and affection has disappeared is not, in itself, bad faith. This is something that is done without any intention of harming the other party; this is something which is done without the aim of extorting something from the other party; this is something that happens between people who live together. This is the price of partnership in life. I am sorry for Ruth Nahmani, but just as Daniel Nahmani cannot be prevented from ending the relationship with her, and just as it cannot be said that for this reason alone he is acting in bad faith, he cannot be prevented — as part of ending the relationship — from refusing to give his consent to the continuation of the fertilization procedure, and it cannot be said that because of this he is not acting in good faith. Ending a relationship, the dying of love, are part of life itself, just like the creation of the relationship and igniting the spark of love.

5.            Before I conclude, I wish to point out that I have assumed that the fertilized ovum is not an „embryo‟; that it is at the „pre-embryonic‟ stage. As my colleague Justice Strasberg-Cohen, said, „We are not speaking of preserving life that has been created, but with the creation of life ex nihilo‟. We have therefore not considered at all the constitutional status of the embryo, and we have not considered the constitutional aspects from this perspective. The dilemma of life or no-life was not put before us. The only question that we have examined is the relationship between Ruth Nahmani‟s desire to be a mother of Daniel Nahmani‟s child, and Daniel Nahmani‟s opposition to this.

For these reasons, my opinion is that the petition should be denied.

 

 

Petition granted by majority opinion, President A. Barak and Justices T. Strasburg- Cohen, T. Or and I. Zamir dissenting.

28 Elul 5756

12 September 1996.

Amir v. The Great Rabbinical Court in Jerusalem

Case/docket number: 
HCJ 8638/03
Date Decided: 
Thursday, April 6, 2006
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

 

The Supreme Court, sitting as the High Court of Justice, granted the petition and held (per Her Honor Justice A. Procaccia, with the concurrence of His Honor Vice President (Ret.) M. Cheshin and His Honor S. Joubran) that –

 

The High Court of Justice's intervention in religious court decisions is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal.  The subject matter of the petition justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it.

 

The Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom, and it has only those jurisdictional powers that the state law has given it.

 

The original powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built of exclusive powers by virtue of the law and powers that are parallel to the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The case law has recognized the existence of the judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the law, and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past.

 

Is the Rabbinical Court vested with jurisdiction to decide a dispute by virtue of the parties' agreement, where such jurisdiction is not in the scope of the statute that empowers the Rabbinical Court or within the ancillary powers that are vested in it? The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement, irrespective of the provisions the Rabbinical Courts Jurisdiction Law; the other, agreement intended to empower the Court to deliberate and decide on a dispute as an arbitrator. A court's jurisdiction is vested by law and it has no power to derive it from the parties' agreement except were the law itself has seen fit to recognize such agreement in certain circumstances as the source of jurisdiction. A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to deliberate and adjudicate a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. The Rabbinical Court does not have power to hear and decide a matter that is not one of those that is within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their agreement to its jurisdiction. According to the same way of thinking, the Rabbinical Court has no power to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter which by its nature is not within its legal jurisdiction.

 

Is the respondent's answer against the petitioner within the bounds of the Rabbinical Court's subject matter jurisdiction? The respondent's cause of action is the enforcement of a contractual indemnity provision concerning property in the divorce agreement that obtained the force of a judgement of the Rabbinical Court, further to which the parties' divorce was completed. The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce in accordance with the Rabbinical Courts Jurisdiction Law does not apply because the subject of the claim is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is not involved. Nor is it a matter "connected with a divorce suit". The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce award, based on a divorce agreement. The Rabbinical Court does not have jurisdiction either by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. Subject matter jurisdiction under section 9 is limited solely to the matters mentioned in it – matters of "personal status" as defined in the Palestine Orders in Council or the Succession Ordinance. In a dispute that does not relate to those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court. The Rabbinical Court therefore has no original jurisdiction to hear the respondent's claim.

 

The Rabbinical Court does not have "ancillary" inherent jurisdiction to try the respondent's claim. In the instant case, the Rabbinical Court's ancillary jurisdiction, insofar as it relates to setting aside a divorce award by reason of a defect in making the divorce agreement, that might have given the Rabbinical Court ancillary jurisdiction to try its revocation, is of no relevance. Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after making the divorce award that justifies setting aside the divorce agreement and the divorce award since the respondent's claim is for the specific performance and enforcement of the divorce agreement. Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction. The second respondent finally and unconditionally adjudicated herein and awarded the force of judgement to the divorce agreement. A property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law.

 

Nor does the Rabbinical Court have jurisdiction to hear the matter by virtue of the doctrine of "continuing jurisdiction". Continuing jurisdiction is vested where an instance has tried a particular matter in the past and in special circumstances need has arisen to set aside or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based.  The claim seeks to enforce the agreement and has no place in the continuing jurisdiction vested in the Rabbinical Court.

 

The Rabbinical Court does not have ancillary jurisdiction to try the new cause arising further to the divorce agreement in order to interpret the agreement. Having completed and exhausted its power to rule on the matter of divorce, it no longer has ancillary power to interpret the divorce agreement or the divorce award. Moreover, in the instant case no question of interpreting the divorce agreement has arisen and a claim for its enforcement has been brought instead.

 

A rabbinical court cannot be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. In the instant case, it also appears from the divorce agreement that its contents cannot be construed as an arbitration clause, equal to "an arbitration agreement" between the parties. The power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. The condition precedent for arbitration is the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement.

 

By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification provision in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the first and second respondents are void.

 

 

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

In the Supreme Court

Sitting As the High Court of Justice                                             HCJ 8638/03

 

Before:

His Honor, Vice President (Ret.) M. Cheshin

Her Honor, Justice A. Procaccia

His Honor, Justice S. Joubran

 

 

 

 

 

 

 

 

The Petitioner:

Sima Amir

 

 

 

 

v.

 

 

 

The Respondents:

1. The Great Rabbinical Court in Jerusalem

 

2. The Regional Rabbinical Court in Jerusalem

 

 

3. Yoseph Amir

 

 

 

 

 

 

 

On Behalf of the Petitioner:

Adv. Michael Korinaldi

 

 

 

 

On Behalf of the Third Respondent:

Adv. Nechama Segal

 

 

 

 

On Behalf Of the Rabbinical Courts System:

Adv. S. Jacoby

 

 

 

 

 

JUDGEMENT

 

Justice A. Procaccia

 

1.         This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

 

2.         The petition concerns the petitioner's motion to vacate the decisions of the Great Rabbinical Court in Jerusalem – the first respondent – of May 4 and June 9, 2003, which dismissed the petitioner's appeal against the judgment of the Regional Rabbinical Court of Jerusalem – the second respondent – of May 27, 2002, and its decisions of March 5, 2001 and June 18, 2002.

 

Background and Proceedings

 

3.         The petitioner and the third respondent (hereinafter: “the respondent") were married in 1980 and have three children. Their relationship became unstable and they motioned the Regional Rabbinical Court of Jerusalem in 1992 in order to arrange for divorce proceedings. As part of that proceeding, the couple requested the Regional Rabbinical Court to approve a divorce agreement that they had made. In the agreement, the couple agreed on the act of divorce, the custody and support of the children, and various financial and property arrangements, as follows: the three children would be in the custody of the wife until reaching the age of 18 (clause 3); the husband would pay child support in the sum of NIS 1,000 per month for all three of the children until they reach the age of 18; the sum of the child support as set in the agreement would not be increased, and in exchange, the husband would transfer his share of the couple’s apartment to the wife, including his share of the apartment’s contents and the gold objects, ownership of which would all be transferred to the wife (clauses 4(a) and (b)); the husband also undertook to discharge the balance of the mortgage loan each month (clause 6(c)). The agreement also included a condition whereby the wife undertook not to sue the husband in any court for an increase in child support, either directly or indirectly, and if the husband were sued, the wife would compensate him in such a way that he would receive half of the apartment, half of its contents and half of the gold (clauses 4 and 5 the agreement). Taking out a stay of exit order inhibiting the husband's departure from the country would also be deemed a breach of the agreement and lead to the same result (clause 13). In order to secure the wife's obligation in accordance with the agreement, a cautionary note would be registered against the apartment, pursuant whereto one half of the apartment would be transferred into the husband's name if he were sued to increase child support. The relevant provisions of the agreement are as follows:

 

                        "4.       Child Support

 

                                    (e)       For the avoidance of doubt and without prejudice to the generality of the aforegoing, child support under the agreement shall unequivocally cover all the children's needs without exception… until the children reach the age of 18.

 

                                    The mother undertakes not to sue the father in any legal instance for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest), and if the husband is sued, the wife shall compensate him and he shall receive one half of the apartment, one half of its contents and one half of the gold. The obligation is in perpetuity.

 

                                    …

 

                        5.         Indemnification

 

                                    (a)       The mother undertakes and takes it upon herself not to sue the father in any legal instance whatsoever for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest).

 

                                    (b)       If, contrary to the abovementioned, the father is sued for an increase in child support and/or satisfaction of any of the children's needs, whether the lawsuit is brought by the mother and/or the mother in the name of the children or by an entity, authority, institution and/or anyone who now and/or in future has an interest, beyond what the father has undertaken in this agreement, then the mother undertakes to transfer one half of the apartment into the father's name and one half of its contents and one half of the gold. The obligation is in perpetuity.

 

                                    (c)       To secure the wife's obligations in this agreement, a cautionary note shall be registered, pursuant whereto one half of the apartment shall be transferred into the husband's name if the husband is sued to increase child support…"

 

            The agreement also includes a provision with regard to the exclusivity of the Rabbinical Court's jurisdiction in the event of a dispute between them after the divorce, in the following terms:

 

                        "9.       Cancellation of Mutual Claims And/or Complaints

 

                        …

 

                        10.       …

 

                        11.       If after the divorce, differences arise between the couple, they undertake to file the lawsuit solely in the Rabbinical Courts.

 

                        12.       …

 

                        13.       The wife undertakes not to take out a stay of exit order preventing the husband's departure from the country, and taking out such an order shall constitute a breach of this agreement, and the husband shall be entitled to obtain one half of the value of the apartment, of the contents and of the gold.

 

                        …"

 

            The divorce agreement was given the effect of judgement by the Rabbinical Court, and on May 26, 1992 the couple was divorced.

 

4.         About five years later, in June 1997, the couple's children (through the petitioner) filed a child support motion against the respondent in the Jerusalem Family Court (FC 10330/97). The motion was mainly intended to increase the child support upon which the couple had agreed in the Rabbinical Court to NIS 6,700. This was, inter alia, due to the petitioner's claim that the respondent was not paying the mortgage payments as undertaken by him in the divorce agreement. In the answer of defense, the respondent defended the claim on its merits. According to him, he was living off a general disability pension of NIS 1,200 per month, from which he was paying child support. The Family Court (per Judge N. Mimon) held in its judgement that the children's monthly support should be increased to a total of NIS 2,000 for both minor children together, and the sum of NIS 500 for the other child until his enlistment to the IDF; with respect to the minors, it was further held that from the time they reached the age of 18 until they completed their service in the IDF, the child support for them would be reduced by NIS 700, and upon completion of their military service the liability for their support will be terminated; if they do not enlist, the liability for them would be terminated when they reach the age of 18. With regard to the other child, upon his enlistment to the IDF and until his discharge, support of NIS 300 would be payable for him.

 

            On September 20, 1997, about three months after the motion to increase child support was filed in the civil court, the respondent filed a motion in the Regional Rabbinical Court of Jerusalem "for a declaratory judgement and specific performance" of the divorce agreement. In the motion, he pleaded that the petitioner had breached the divorce agreement several times and in several different aspects, as follows:

 

                        "8        (a)       The defendant (the petitioner – AP) filed a motion to increase child support in the name of the minors before this Honorable Court on February 28, 1993 – a motion that was dismissed by the Court

 

                                    (b)       The defendant filed another motion on November 6, 1994 and at the end of that motion the wife again applied for an increase in child support.

 

                                    (c)       The defendant motioned for a stay of exit order that was cancelled on July 21, 1997.

 

                        9.         (a)       The defendant went further, and when she saw that her motions were being dismissed by the Honorable Rabbinical Court, she  filed a motion to increase the child support in the name of the minors in FC 10330/97 in the Jerusalem Family Court.…

 

                                    (b)       As part of the motion in Family Court, the wife applied for a stay of exit order that the Court approved.

 

                                    (c)       Moreover, at about the time she filed the motion, the defendant filed a motion for a stay of exit order on July 22, 1997, after the previous order inhibiting departure from the country had been set aside, and the Chief Execution Officer approved it".

 

            He pleaded that the wife had therefore breached clauses 5 and 13 of the divorce agreement. On the basis thereof, the respondent sued the wife for one half of the apartment and its contents and one half of the gold.

 

5.         After filing his motion to the Regional Rabbinical Court, the respondent traveled abroad for more than two years and abandoned his motion. After returning to Israel, he renewed the motion in the Rabbinical Court. The petitioner pleaded in her defense, that the subject of the motion was " breach of a divorce agreement" and according to the law laid down in HCJ 6103/93 Sima Levy v. The Great Rabbinical Court in Jerusalem, PD 48(4) 591 (hereinafter: "Sima Levy Case") the Rabbinical Court did not have jurisdiction to adjudicate the motion. As for the merits of the motion, the petitioner argued that the respondent had come to court with unclean hands because he had breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The Regional Rabbinical Court, in its decision of February 25, 2001, referred the issue of jurisdiction raised by the petitioner to the Rabbinical Courts' then legal counsel on rabbinical jurisdiction, Adv. E. Roth, for his opinion.

 

            During the same month (February 2001) the petitioner filed a lawsuit in the Jerusalem Family Court against the respondent for "declaratory judgement as to the revocation of the indemnity provision in the divorce agreement" (FC 10331/97). This was based, inter alia, on the argument that the respondent breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The petitioner further requested that the Court declare the revocation of clauses 11 and 13 of the divorce agreement, pleading that they were "contrary to public policy and the law". The respondent argued in his defense that the claim should be summarily dismissed due to the proceedings conducted on the same issues in the Rabbinical Court.

 

            On March 4, 2001, and before the Family Court had awarded its decision on the respondent's motion for the summary dismissal of the petitioner's claim, the opinion of the legal counsel on rabbinical jurisdiction, Adv. Roth, was filed in the Rabbinical Court. In his opinion, with reference to clause 5(b) of the divorce agreement, the Rabbinical Court did not have jurisdiction to adjudicate the respondent's motion after the divorce. Nevertheless, he believed that clause 11 of the divorce agreement could be treated as an arbitration clause in accordance with the Arbitration Law, 5728-1968 (hereinafter: "the Arbitration Law"). By virtue of the rules of arbitration, the Rabbinical Court is empowered to adjudicate the suit as an arbitrator in accordance with the rules and restraints governing an arbitrator. He further added that, in his opinion, it was unnecessary for the couple to sign an arbitration deed, since clause 11 of the divorce agreement constituted an arbitration deed in all respects.

 

            Following the opinion of the legal counsel, Adv. Roth, the Regional Rabbinical Court decided on March 5, 2001 that it was vested with jurisdiction to adjudicate the respondent's suit "since in the Court's opinion clause 11 constitutes an arbitration deed".

 

            On May 14, 2002, and before the Regional Rabbinical Court's judgement had been awarded in the respondent's suit, the Family Court awarded its decision in the respondent's motion for the summary dismissal of the petitioner's suit. It reviewed the question of the Rabbinical Court's jurisdiction to try the respondent's claim, whether as a court empowered by virtue of statute or as an arbitrator, but it decided to stay the award of its decision on jurisdiction on the ground that:

 

                        "Mutual respect of legal instances requires that after a decision has been awarded by the Rabbinical Court holding that it has jurisdiction to adjudicate the suit that has been filed with it as an arbitrator, the award of a decision on jurisdiction should be stayed until the proceedings in respect of jurisdiction have been exhausted by the plaintiff, who will perhaps wish to act by applying on appeal to the Great Rabbinical Court or by applying to the High Court of Justice to clarify whether her position with regard to jurisdiction will be allowed, or even by motioning to vacate an arbitral judgment as provided in section 24 of the Arbitration Law…"

 

            On May 27, 2002, the Regional Rabbinical Court awarded its judgement in the respondent's motion. The court was divided in its opinion between the three judges, and the decision was made, in the words of the judgement, in accordance with –

 

                        "the third opinion, which was the decisive one of the three, since there are several doubts regarding the interpretation of the agreement, and there is a doubt as to whether it constitutes a breach according to Halachic authorities and the circumstances. Therefore, the case should be decided according to the law, and if the apartment has already been transferred into the wife's name, it is not possible to take away her ownership of the apartment because of a doubt, and of course the wife is liable to comply with all of the obligations in the divorce agreement.... If the apartment has not yet been transferred, it is not possible to order the plaintiff ... to transfer his share of the apartment into the wife's name ....

If the plaintiff has already signed a power of attorney and delivered it to the wife, it would appear that the wife cannot be precluded from exercising the power of attorney in order to transfer the plaintiff's share of the apartment into the wife's name…. On the other hand, if the husband still needs to sign transfer documents and the like, he should not be made to help transfer the dwelling into the wife's name in any way whatsoever….

With regards to the gold objects that the wife has received, it would also appear that she cannot be made to return them to the husband because they are in her possession and in this way her possession is valid…"

 

            As mentioned above, according to the Rabbinical Court's decision of March 5, 2001 it decided the respondent's suit as an arbitrator, but on June 18, 2002 it awarded another decision that was headed "Clarification", according to which:

 

                        "The Rabbinical Court makes it clear that it was the Rabbinical Court that approved the agreement and that there was an undertaking that all matters involved in the agreement would be tried solely by the Rabbinical Court. Therefore, since both parties undertook in the agreement, and the Rabbinical Court also approved the agreement, the Rabbinical Court consequently has jurisdiction to hear and adjudicate the matter, and the Rabbinical Court awarded the judgement by virtue of its jurisdiction, and there was no need for the Rabbinical Court to adjudicate the same as arbitrator, and although the Rabbinical Court could also adjudicate the matter as an arbitrator, the Rabbinical Court also had jurisdiction to try the matter as an adjudicating court in accordance with the aforegoing".

 

6.         The petitioner appealed to the Great Rabbinical Court against the Regional Rabbinical Court's judgement of May 27, 2002. Her main plea in the appeal was that the Regional Rabbinical Court did not have jurisdiction to adjudicate the respondent's suit, either as a competent court by virtue of the law or as an arbitrator, and its judgement is therefore void. As to the actual merits, she argued that the Regional Rabbinical Court had made an error "of judgement" and "disregarded facts" by not giving proper weight to the fact that it was the respondent who was in breach of the divorce agreement by not making the mortgage payments as he had undertaken in the divorce agreement. Consequently, on that ground too, on the merits of the case, the Regional Rabbinical Court's judgement should be vacated. The respondent also appealed to the Great Rabbinical Court against the said judgement.

 

            The Great Rabbinical Court, in its decision of May 4, 2003, dismissed the petitioner's appeal with respect to jurisdiction and held that the interpretation of the divorce agreement indicated that it concerned the couple's agreement for "property in consideration for child support". That interpretation affects the substance of the complaint that the respondent filed to the Rabbinical Court, and it demonstrates that it is a suit to revoke the divorce agreement as opposed to a motion for the enforcement of an indemnity provision. That being the case, the Rabbinical Court had jurisdiction to adjudicate the respondent's motion by virtue of its original (primary) authority because "indemnification was not involved, but property and child support and the connection between them, and those matters of property division and child support are certainly matters of personal status that are governed by section 9 of the Rabbinical Courts Jurisdiction Law". The Rabbinical Court was also vested with original (primary) jurisdiction to adjudicate the suit in view of clause 11 of the divorce agreement, which provides that if differences arise between the petitioner and the respondent after the divorce, the two undertake to file the motion solely to the Rabbinical Courts. The Rabbinical Court mentions that at the hearing, the respondent also pleaded avoidance of the Get and the divorce because according to him the Get had been given by mistake. Consequently, on that ground too, the Rabbinical Court had original (primary) jurisdiction to adjudicate the claim. According to the Rabbinical Court, it also had jurisdiction by virtue of its "continuing" jurisdiction, because the respondent was "applying expressly for the revocation of the property arrangement as a result of a change in circumstances concerning child support". Finally, the Great Rabbinical Court held that the jurisdiction to adjudicate the respondent's suit was vested in the Regional Rabbinical Court, when "the jurisdiction is the essential jurisdiction vested in the Rabbinical Court, rather than jurisdiction by virtue of the Arbitration Law". The Great Rabbinical Court adjourned the deliberation on the appeal itself to a later date.

 

            On June 9, 2003 the Great Rabbinical Court awarded another decision, this time with regard to the respondent's appeal against the Regional Rabbinical Court's judgement. In its decision, the Great Rabbinical Court ordered the matter to be remitted to the Regional Rabbinical Court for it to try the argument, which had not been tried in the Regional Rabbinical Court, that the petitioner had breached the divorce agreement by suing for increased child support in the Regional Rabbinical Court in 1993.

 

The Petition

 

7.         In her petition before us, the petitioner seeks to set aside the decisions of the Great Rabbinical Court and the Regional Rabbinical Court, according to which the Rabbinical Court had jurisdiction to adjudicate the respondent's motion, both as original (primary) jurisdiction and by virtue of an arbitration clause.

 

            This Court issued an order nisi in the petition.

 

The Parties' Arguments

 

8.         The petitioner's essential argument in her petition herein is that the Rabbinical Court lacks jurisdiction to adjudicate the property dispute that has arisen between her and the respondent in respect of the divorce agreement that was made between them. According to her, the Rabbinical Courts are not vested with original (primary) jurisdiction to adjudicate the suit. Moreover, they do not have continuing jurisdiction to hear the respondent's suit. The respondent's motion to obtain one half of the property, which was transferred to the wife, is based on the cause of enforcing an indemnity provision in the divorce agreement. This cause is based on a plea of breach, if one occurred, after the divorce agreement was made and the judgement of the Rabbinical Court giving it force and effect was awarded, and after the couple had been duly divorced. A subsequent breach of the divorce agreement in respect of property after the parties' divorce cannot be bound in retrospect with the divorce agreement and the judgment that materialized in the past. From the divorce and onwards, motions that relate to the breach of the divorce agreement are not a part of matters of personal status. The Rabbinical Court therefore lacks jurisdiction to adjudicate them, and jurisdiction in respect of them is vested in the civil court. Moreover, it was argued that the respondent himself breached the divorce agreement by not paying the mortgage payments as he had undertaken to do in the divorce agreement. His breach of the agreement has civil-financial character, which also demonstrates that his suit after the divorce is subject to the jurisdiction of the civil, rather than religious, court. The petitioner further pleads that clause 11 of the divorce agreement does not amount to an arbitration clause and does not purport to establish an agreement for arbitration. Instead, its wording and contents merely demonstrate its determination, by agreement of the parties, to which court the couple's motions after the divorce should be filed. This agreement, per se, does not vest jurisdiction in the Rabbinical Court. In view of all of this, and based on other grounds too, upon which we shall not focus, the Rabbinical Courts' decisions on jurisdiction are void.

 

9.         The respondent's position in his petition is that the Rabbinical Court is vested with jurisdiction to adjudicate the suit he filed to it. In this respect, he relies on the provision of the divorce agreement, according to which the parties expressly agreed to vest the Rabbinical Court with jurisdiction to try any future dispute between them concerning the agreement. He pleads that, according to case law, a matter that can be bound from the outset with the divorce suit, such as property matters, and it was agreed in the divorce arrangement to vest jurisdiction in the Rabbinical Court in respect to them, is also within its jurisdiction after the divorce. He further asserted that the meaning of the cause of the action that he filed was the revocation of a conditional undertaking given under the agreement, as opposed to the enforcement of a contractual indemnification arrangement. That is to say that the respondent entered into a conditional undertaking to transfer property to the petitioner in consideration for the child support being set in a binding amount and not being increased, and for motions not to be brought in this matter. Since that condition had not been fulfilled, the property undertaking that he had given is void. A contractual indemnification provision is not to be treated in the same way as a conditional property undertaking, with regard to which the Rabbinical Court has continuing jurisdiction even after the divorce. Alternatively, it is argued, the Rabbinical Court has jurisdiction to entertain the respondent's suit according to the law of arbitration, by virtue of clause 11 of the divorce agreement, which constitutes an arbitration agreement, even if the word "arbitration" is not mentioned in it.

 

Judgment

 

10.       This Court's intervention in the decisions of religious courts is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal (sections 15(c) and (d)(4) of the Basic Law: the Judiciary; HCJ 323/81 Vilozni v. The Great Rabbinical Court, PD 36(2) 733; HCJ 1689/90 E'asi v. The Sharia Court, PD 45(5) 148, 154-155; HCJ 1842/92 Blaugrund v. The Great Rabbinical Court PD 46(3) 423, 438; HCJ 5182/93 Levy v. The Rehovot Regional Court PD 48(3) 1, 6-8).

 

            The subject matter of the petition herein justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it for the reasons explained below.

 

The Question

 

11.       The couple signed a divorce agreement containing property and child support arrangements. In the scope of the property arrangements, they agreed to limit and not increase child support. They added a condition according to which if motions to increase child support were filed by the wife, directly or indirectly, or if she took out stay of exit orders, these actions would have certain property consequences. The parties further agreed that if differences arose between the couple after the divorce, they undertook to conduct the claims solely in the Rabbinical Courts. Indeed, after the divorce, disputes did arise between the parties following motions to increase child support that were brought against the husband, and stay of exit orders were taken out. Further thereto, the husband filed a suit in the Rabbinical Court claiming a breach of the divorce agreement by the wife and requesting to receive one half of the property because of that breach. In those circumstances, after the couple's divorce, is the Rabbinical Court vested with jurisdiction to adjudicate the husband's property suit, which is based on an alleged breach of the divorce agreement by the wife? Or is the exclusive jurisdiction to deliberate and adjudicate that claim vested in the civil court?

 

            The subsidiary questions that are to be decided can be divided into two:

 

            First is whether the Rabbinical Court has jurisdiction by virtue of the law to adjudicate a property claim based on a breach of the divorce agreement after the divorce has been completed, by virtue of one of the following:

 

            (a)       Original-primary jurisdiction by virtue of statute to hear and adjudicate issues pertaining to the divorce;

 

            (b)       the Court's "ancillary" jurisdiction to adjudicate matters connected with the divorce after its completion, as interpreted and expanded by case law.

 

            The Second is whether the Rabbinical Court has jurisdiction to decide a property claim based on the breach of a divorce agreement by virtue of the parties' agreement, and what legal significance is to be given to this agreement.

 

            We shall consider these questions.

 

The Starting Point

 

12.       The starting point underlying the analysis of the Rabbinical Court's scope of jurisdiction is based on several fundamental assumptions:

 

            First, the Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom. As such a state judicial instance, the bounds of the Rabbinical Court's powers are defined and fashioned in accordance with the state law.

 

            Second, every state judicial instance, including the religious court, has merely those jurisdictions that the state law has granted it; it is the statute that established it, and it is the one that defined its powers and assigned them to it. In doing so, the statute assumed, as part of the basic concept of democratic government, that in the granting of judicial powers also lay judicial limitations. Anything that has not been granted to the judicial instance is outside and beyond its power, and it must not surpass its acknowledged boundaries and into areas that have not been entrusted to it and go beyond its responsibility. That is the principle of legality that characterises the structure of democratic government, upon which rests the perception of the status of the government authorities, including the courts. It is on the basis of this principle that the realm of jurisdiction that is vested in the state judicial instances, of which the Rabbinical Courts form part, extends.

 

            Third, the definition of the judicial powers of the various different courts, including the Rabbinical Courts, derives from statute, and statute is subject to interpretation by case law. The case law's interpretation of the extent of the powers vested in the judicial instance is intertwined with the provisions of the statute as the primary source of the power vested in the judicial instance, and it is intended to serve its purpose. In reviewing the boundaries of the religious court's power we shall therefore assume that the religious court is vested with the powers that have been granted to it by the statute, as they have been interpreted by case law, and it has only what the law has given it. As the Court stated (per Justice Landau) in HCJ 26/51 Menashe v. The Chairman and Members of the Rabbinical Court in Jerusalem, PD 5 714, 719:

 

                        "The Rabbinical Courts of our country exist in accordance with the general law, which determines their place in the state courts system, and the questions relating to the spheres of their jurisdiction should generally be resolved in accordance with the same principles as govern other courts".

 

            This is what distinguishes Rabbinical Courts from arbitrators, internal tribunals and voluntary tribunals, which are not established by virtue of statute but mainly by virtue of contract or regulations, and the scope of their jurisdiction is determined pursuant thereto. These entities are essentially governed by the principles of the private law that creates them and they are not part of the country's state judicial system.

 

            As Justice Zamir stated in HCJ 3269/95 Yosef Katz v. The Jerusalem Regional Rabbinical Court, PD 50(4) 590, 602:

 

                        "The Rabbinical Court is established by virtue of statute and its jurisdiction derives from the statute. Its budget comes from the State Treasury and its judges receive salaries like state employees; it sits in judgement beneath the symbol of the State and it writes its judgements on State paper; the orders that it issues speak in the name of the State and are enforced by the State. The Rabbinical Court is not a private entity but a state institution. It is therefore subject to public law and review by the High Court of Justice. Amongst other things, the Rabbinical Court is obliged to respect and observe the fundamental principle that governs every government agency, namely the principle of legality. According to that principle, the Rabbinical Court has nothing other than the power granted to it in accordance with the statute" (emphasis added).

 

            In this respect Justice Cheshin stated in the Sima Levy Case (ibid, p. 616):

 

                        "The legal system takes a grave view of a judicial entity acting beyond the bounds set for it by the law; hence, the case law holds that a lack of subject matter jurisdiction plea stands out and the court will consider it at any stage of the litigation, even where a party first raises it on appeal".

 

            (See also HCJ 816/98 Eminoff v. Eltalaff, PD 52(2) 769, 796-7; HCJ 512/81 The Hebrew University Archaeology Institute v. The Minister of Education, PD 35(4) 533, 543-4; HCJ 30/76, MF 150/76 Siho v. The Karaite Jewish Community Religious Court, PD 31(1) 15, 17-18.)

 

            The state judicial system, and its various different courts, both civil and religious, is built on common norms that govern all its agencies. Thus, for example, it has been held in the past that the fundamental principles that govern civil judges also apply to rabbinical judges. The rabbinical judge, like the civil judge, is part of the judicial authority and in his position he is subject to the same basic rules as obligate any judicial officer:

 

                        "He is not an arbitrator between parties who voluntarily apply to him. He operates by virtue of state law and his authority extends over the whole public with all its diversity, opinions and views. Like a civil judge, a rabbinical judge enjoys independence in matters of judgement. The laws concerning conditions of service, immunity, appointment, discipline and the like that govern the rabbinical judge are very similar to those that govern a civil judge. Like the civil judge, so too the rabbinical judge must, by his action, ensure the public's trust in his judgement. The public is not only the religious public. The rabbinical judge deals with the whole people and he must by his conduct ensure the trust of the whole people, both secular and religious". (Per Justice Barak in HCJ 732/84 MK Tzaban v. The Minister of Religious Affairs, PD 40(4) 141, para. 16.)

 

            In this context, case law has also drawn a clear distinction between a person's fitness as a rabbinical judge of the Israeli Rabbinical Court and his fitness as a community rabbi. On enactment of the Dayanim (rabbinical judges) Law a clear separation was created between judicial and rabbinic functions, and a mix between the two in judicial work is no longer consistent with the concept of state law. In the words of the Minister of Religious Affairs Warhaftig, when he presented the Dayanim Law draft on first reading in the Knesset, as cited in the Tzaban Case:

 

                        "With the establishment of the State of Israel we adopted this course. We distinguished between those functions and separated between rabbis and rabbinical judges" (Knesset Proceedings Session 5457, 1954, p. 2182).

 

 

 

            As Justice Goldberg added on this subject in the Tzaban Case:

 

                        "The main power of the Rabbinate rests in its traditional authority over those who come 'to seek God', whilst the rabbinical judges' authority when sitting in judgement does not depend on the wishes of the litigants but is enforced in the context of the judicial system prescribed for it by the legislature. In this sphere, the rabbinical judges perform the function of 'judging the people', with its varied opinions and views".

 

 

            The religious function of the rabbinical judge as rabbi is not intertwined with the judicial function that he performs as a rabbinical judge and is separate from it. The Rabbinical Court cannot therefore rely on its religious power in order to assume jurisdiction in a matter that exceeds its powers and authorities in accordance with state law (Schiffman, Family Law in Israel, 5755, Vol. I, p. 42).

 

            Against this background there is difficulty with the argument that is sometimes made that the Rabbinical Court might perform a dual function: on the one hand, a state judicial function imposed upon it by virtue of state law, and on the other hand, a religious court in monetary matters by virtue of the parties' agreement. Like any public entity that performs a function in accordance with the law, so the Rabbinical Courts, which operate by virtue of statute must also discharge the responsibility owed by them by virtue of statute and decide the matters entrusted to them. As part of the state judicial system, they possess only the jurisdiction that the statute has placed in their hands. That is the essence of the principle of legality that underlies public administration and the judicial system (Katz Case, ibid, p. 607); hence, even if Jewish law and tradition permit a Rabbinical Court to adjudicate and decide disputes in a certain manner, that does not suffice to authorize it to do so because "the Rabbinical Court, as a state institution, must act within the authority vested in it by state law" (Katz Case, ibid, p. 607). To the same extent, a civil court, which is part of the judicial authority, may not assume an authority or function that does not derive from state law (Tzaban Case, ibid, p. 152).

 

            It is against this background that we shall examine the question of the Rabbinical Court's jurisdiction to decide the respondent's property suit against the petitioner based on a breach of the divorce agreement, and the relief deriving therefrom. A comprehensive analysis of the issue of jurisdiction in a similar context can be found in the judgement of Justice Cheshin in the Sima Levy Case and it will guide and direct us.

 

The Rabbinical Court's Original – Primary Jurisdiction

 

13.       The original primary powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built on two tiers: exclusive powers by virtue of the statute; and parallel powers of the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The exclusive powers comprise matters of marriage and divorce, as well as matters that are duly bound up in the motion for divorce, including wife and child support. Parallel jurisdiction that is vested by agreement relates to matters of personal status in accordance with article 51 of the Palestine Orders in Council and the Succession Ordinance. The relevant provisions are as follows:

 

                        "1.       Jurisdiction in matters of marriage and divorce

 

                        Matters of marriage and divorce of Jews in Israel, nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts.

 

                        …

 

                        3.         Jurisdiction in matters incidental to divorce

 

                        Where a suit for divorce between Jews has been filed in a rabbinical court, whether by the wife or by the husband, a rabbinical court shall have exclusive jurisdiction in any matter connected with such suit, including support for the wife and for the children of the couple.

 

                        …

 

9.         Jurisdiction by consent

 

In matters of personal status of Jews, as specified in article 51 of the Palestine Orders in Council, 1922 to 1947, or in the Succession Ordinance, in which a rabbinical court does not have exclusive jurisdiction under this Law, a rabbinical court shall have jurisdiction after all parties concerned have expressed their consent thereto."

 

The Rabbinical Court's powers – both the exclusive ones (marriage, divorce and matters bound with divorce) and the jurisdiction in accordance with the parties' agreement in matters of personal status – are original-primary powers by virtue of the statute to hear and rule on the matters that fall within the scope of those powers.

 

Power Ancillary to Original Jurisdiction

14.       The Case law has recognized the existence of a judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the statute and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past. Such is, for example, the jurisdiction of the civil and religious courts to vacate a judgement awarded by them that is based on an agreement between the parties, in the making of which there has been a defect. Such a material defect might lead to the revocation of the agreement and therefore also to revocation of the judgment that rests upon it, and the instance empowered to decide its revocation is the one that rendered the judgment (HCJ 124/59 Glaubhardt v. The Haifa Regional Rabbinical Court, PD 13 1490; CA 151/87 Artzi Investment Co. v. Rachmani PD 43(3) 489, 498-500). Additional expression of such ancillary jurisdiction occurs when there is a material change in the circumstances of the matter, that has occurred after the award of judgement by consent, which makes its continued performance unjust (Sima Levy Case, ibid, pp. 605-6; CA 442/83 Kam v. Kam PD 38(1) 767, 771; CA 116/82 Livnat v. Tolidano PD 39(2) 729, 732; CA 219/87 Rachmani v. Shemesh Hadar, Building Company Ltd et al. PD 43(3) 489, 498-500). The recognition of this ancillary jurisdiction is intended to bring about a proper balance between the judgment’s finality on the one hand, and the interest not to leave in effect a judgment, the enforcement of which has become extremely unjust due to a change in circumstances. Inherent jurisdiction is also vested in the judicial instance, including the Rabbinical Court, to retain jurisdiction in respect of a matter that is pending before it until the proceedings have been completed. So long as final judgement has not been awarded, jurisdiction continues until the judicial court has completed its work. Once a final, unconditional judgment has been awarded, the work is completed (Sima Levy Case, p. 607; CA 420/54 Ariel v. Leibovitz PD 9 1337; ALA 2919/01 Daniel Oshrovitz v. Yael Lipa (Fried) PD 55(5) 592; J. Zussman, The Civil Procedure (seventh edition, 5755) 550).

One of the expressions of ancillary jurisdiction relates to the existence of the Rabbinical Court's "continuing jurisdiction", the essence of which is that, under certain conditions, where the Rabbinical Court has in the past heard a particular matter, its continuing jurisdiction to hear it again will be recognized. The continuing jurisdiction also derives from the inherent power of the judicial instance. Its basic purpose is to give expression to the duty of mutual respect and the need for harmony between judicial instances where there is parallel jurisdiction between them, and in order to avoid parties running from one judicial instance to another. It has nevertheless already been explained that continuing jurisdiction is not intended to undermine or derogate from the original powers vested in the judicial instances in accordance with statute. Its purpose is essentially "to vest power to vacate or modify an earlier decision due to a change that has occurred in the circumstances upon which the first decision was based" (per Justice Cheshin in the Sima Levy Case, ibid, p. 608, 610). Such are matters of child support and custody, which by their nature are subject to material changes of circumstance, and the original judicial instance therefore has inherent jurisdiction to reconsider them when the appropriate conditions arise.

It should be made clear that no inherent power has been recognized for a civil or religious court to exercise its original authority again in order to interpret a judgement awarded by it. Hence, a Rabbinical Court that has granted a divorce does not have inherent jurisdiction to interpret the divorce agreement and the judgement that awarded it force and effect (Sima Levy Case, ibid, pp. 612-13).

These are the characteristics of the original jurisdiction that is vested in the Rabbinical Court in accordance with the statute, alongside its ancillary powers that are sparingly exercised in special circumstances by virtue of its inherent jurisdiction, in order to complete the judicial act and make it a complete and just deed.

We shall now examine the question of whether the Rabbinical Court has jurisdiction to adjudicate a dispute by virtue of the parties' agreement, where such jurisdiction is not set in the statute empowering the Rabbinical Courts, and is not within the scope of the ancillary jurisdiction vested in it.

The Rabbinical Court's Jurisdiction by Virtue of the Parties' Agreement

15.       The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement to grant the Court jurisdiction in a particular case, regardless of the provisions the Rabbinical Courts Jurisdiction Law; second, agreement intended to empower the Court to hear and rule on a dispute as an arbitrator. Can such agreement by the parties vest power in the Court that is not granted to it by the empowering statute or embodied in its ancillary powers?

The Israeli state judicial system and the various different judicial instances, derive their powers from statute. It is the statute that establishes them, it is what delineates the bounds of their activity and it is what defines the sphere of their subject matter and territorial jurisdiction. This is also the case in respect to the civil judicial instances; and so it is with respect to the special judicial systems, including the courts of Israel's different religious communities. These include the Rabbinical Courts in Israel.

By defining the powers of the various different judicial instances in Israel, the statute intended not only to delineate the function and responsibility of the system and its various different arms. It also sought, at the same time, to deny the power of a judicial instance to hear and adjudicate a matter which it was not charged with by the statute and which is not within its inherent jurisdiction. The definition of the judicial instances' powers has a dual dimension, both positive and negative: it constitutes a source of power and responsibility on the one hand, while denying the exercise of authority and power that have not been so conferred; the judicial instance has only what the statute that established it has vested in it, and insofar as it has been made responsible to adjudicate disputes within the scope of the power vested in it, it is under a duty that derives from the statute and the concept of democratic government not to try or adjudicate a matter that is beyond its statutory power.

A preliminary and mandatory condition for the satisfactory activity of any judicial system is a clear and exhaustive definition of the framework of powers and the apportionment of functions that rest with its various different instances. Without an exhaustive and specific definition of powers the systemic structure, built in accordance with the statute, is blurred and the stability of its functioning is not secured. The harmony necessary in the area of operation of the different judicial arms and the relationship between them is impaired; the allocation of professional, administrative and budgetary resources to the different instances is disrupted, and direct harm might occur to the efficacy of the judicial system and the level of judicial performance. The uniqueness of the responsibility owed by the judge, which requires the existence of a clear framework of authority, alongside which is the responsibility and duty to rule, becomes blurry. Thus, recognizing the power of a judicial instance to adjudicate matters, the power and responsibility for which have not been legally transferred to it, might materially disrupt the internal balance required in the structure of the judicial system and severely undermine its standing and performance.

A consequence of the aforegoing is that the power of a judicial instance, as such, be it civil or religious, is acquired by law and it has no power to be derived from the parties' agreement, except where the statute itself has seen fit to recognize such agreement in certain circumstances as a source of the power to adjudicate. Thus, for example, with regard to the effect of the parties' agreement, the law has distinguished between the apportionment of subject matter jurisdiction and territorial jurisdiction between judicial instances. It is willing to acknowledge, in certain conditions, the parties' agreement as a valid source for changing the territorial jurisdiction that has been prescribed. Section 5 of the Civil Procedure Regulations, 5744-1984 provides that when an agreement between parties as to the place of jurisdiction exists, the lawsuit will be filed to the court in that area of jurisdiction. The relative flexibility regarding territorial jurisdiction, and the willingness to recognize the parties' agreement as the source of such jurisdiction, stems solely from the statute and derives its power from its provisions. That is not the case in respect of subject matter jurisdiction. Generally, the law does not recognize that the parties' agreement has power to depart from the rules of subject matter jurisdiction, as crafted by state legislation.

A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to hear and rule a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. In general, a judicial instance is not supposed to adjudicate a matter that is referred to it as arbitrator. However, in certain circumstances, the law has expressly recognized the power of a civil instance to adjudicate a dispute in departure from the ordinary rules of procedure. Thus, for example, in the area of small claims, section 65 of the Courts Law (Consolidated Version), 5744-1984 provides that if a lawsuit has been filed in the small claims court, the judge may, with the parties’ consent, try the claim as arbitrator, and the provisions of the Arbitration Law will govern the matter, with certain restrictions; in addition, a court hearing a civil matter has been empowered, with the parties’ consent, to decide a matter before it by way of settlement (section 79A of the Courts Law) or to refer a matter, with the parties' consent, to arbitration or conciliation (sections 79B and 79C of the Courts Law). The said authorities are all vested in the court by virtue of statute. They assume that the subject of the dispute is within the subject matter jurisdiction of the court hearing the case and they give it special procedural means that are intended to facilitate and expedite the process of deciding the dispute and bringing about a just result. The various judicial instances have not been generally empowered by law to hear and decide matters that are not included in the scope of their subject matter jurisdiction by virtue of the parties' agreement, either as arbitrators or otherwise. Since such authority has not been conferred to them, it is, ipso facto, denied and does not exist.

The Rabbinical Courts are an integral part of the Israeli judicial system. They were established by virtue of the Rabbinical Courts Jurisdiction Law and they derive their power and authorities from the state statute. They have nothing other than what is vested in them by the statute, and they are subject to the set of powers of the statute in their judicial work, as interpreted over the years by case law. Along those lines, this Court has held in the Katz Case that the Rabbinical Court is not empowered to issue a Letter of Refusal in monetary matters that is intended to compel a party to submit to the Rabbinical Court's jurisdiction by ostracizing and disgracing the recalcitrant party; and in HCJ 2222/99 Gabai v The Great Rabbinical Court PD 54(5) 401, the opinion was expressed that the Rabbinical Court lacks legal authority to issue a forced settlement decision, without the parties' consent, thus forcing a judgment on the parties without determining facts on the basis of evidence, if it is unable to decide in accordance with the law.

It emerges from this that the parties' agreement as such cannot, per se, grant jurisdiction to the Rabbinical Court, unless, it has been recognized by the law as a primary source of authority. Thus, the parties' agreement has been recognized as a source of the Rabbinical Court's jurisdiction pursuant to section 9 the Rabbinical Courts Jurisdiction Law, in matters of personal status of Jews pursuant to article 51 of the Palestine Orders in Council or according to the Succession Ordinance, which are within the parallel jurisdiction of the Rabbinical Court and the civil instance. Nevertheless, the Rabbinical Court does not have power to hear and decide a matter that is not of the kind found within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their consent to its jurisdiction. Such agreement does not derive from a legally recognized source of authority in the law and it cannot, per se, vest jurisdiction in a state judicial instance.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Agreement

16.       According to the same line of reasoning, the Rabbinical Court has no power and authority to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter, which by its nature is not within its legal jurisdiction. The Court has not been vested with jurisdiction by law to decide disputes as an arbitrator and the parties' agreement cannot vest it with such power.

The issue of the Rabbinical Court's jurisdiction to arbitrate financial and other matters that go beyond the powers granted to it in accordance with the Rabbinical Courts Jurisdiction Law has caused consternation and confusion over the years. It appears that, in reality, the Rabbinical Court assumes the role of arbitrating matters that are beyond the scope of its subject matter jurisdiction (Katz Case, ibid, pp. 606-8; CA 376/62 Bachar v. Bachar, PD 17(2) 881, 882, 885; CA 688/70 Doar v. Hamami, PD 25(2) 396, 399; M. Alon, Jewish Law – History, Sources and Principles, third edition, vol. III, 5748, 1529). Justice Barak considered the inherent difficulty of a state judicial instance's need to adjudicate a dispute by arbitration where it was not empowered to do so by law, saying:

"The first possible argument is that the motion to the Rabbinical Court is like that to an arbitrator and embodied in the Arbitration Law, 5728-1968. That possibility – which has used in practice and can be encored as a year-long custom - raises serious problems in principle. Thus, for example, it can be asked whether it is proper for a judicial entity, whose powers are prescribed by law, to assume additional judicial powers, by being empowered as an arbitrator. Is it conceivable that parties would motion the magistrate’s court to try a pecuniary claim, that is outside its jurisdiction, as an arbitrator? From the state's point of view, is it justifiable to use judicial time and tools (whether of the civil or religious courts) for matters outside the jurisdiction that the law has granted the judicial authorities? Is there no fear that the public be confused as to which decisions the judicial instance has awarded as the government and those that it has awarded as arbitrator?"

(HCJ 3023/90 Jane Doe (a minor) v. The Rehovot Regional Rabbinical Court PD 45(3) 808, 813-14; see also S. Ottolenghi, Arbitration, Law and Procedure (fourth edition, 5765) 167-8; Schiffman, ibid, vol. I, 37.)

In HCJ 2174/24 Kahati v. The Great Rabbinical Court, PD 50(2) 214, this Court (per Justice Dorner) once again referred to the practice, adopted from time to time by the Rabbinical Courts, of deciding disputes as arbitrators in matters that are not within their jurisdiction. It expressed skepticism with respect to the validity of the practice. However, as in the previous case, it again left this question open without making any conclusive ruling, since such a ruling was not necessary in that case (cf. Aminoff, ibid, pp. 792-3).

17.       There is indeed an inherent difficulty in recognizing the Rabbinical Court's power to decide a dispute in a matter on which it has not been given jurisdiction by law (cf. Ottolenghi, Dispute Resolution by Alternative Means, Israeli Law Yearbook, 5752-5753, p. 535, 550-1). In the past, the Mandate government empowered the Rabbinical Courts to act as arbitrators by means of section 10(d) of the Israel Knesset Regulations of 1927, but upon the establishment of the State, the “Israel Knesset”, within its meaning under the Mandate, ceased to exist and it was held that those Regulations no longer had any force or effect (Crim. App. 427/64 Yair v. The State of Israel PD 19(3) 402; HCJ 3269/95, ibid, p. 622-3; Schiffman, ibid, p. 39). It cannot therefore be argued that the said section might serve as the source of the Rabbinical Courts' power as arbitrators. Moreover, upon enactment of the Arbitration Law, it was proposed that an arbitration decision made by a religious court when ruling as an arbitrator would in all respects, except with regard to the appeal, be treated as a judgement of the court sitting in accordance with its jurisdiction prescribed by statute, and that the award would not require confirmation under the Arbitration Law. That proposal was not accepted (Knesset Proceedings 5728, pp. 2966-7).

It is indeed difficult to settle the governing perception that views the judicial system as an arm of government, which derives its power and authority from statute, while acknowledging the possibility that the selfsame system can acquire other subject matter authorities deriving merely from the parties' agreement that do not originate from the empowering law. The Israeli Rabbinical Courts, that are part of the Israeli judicial system, integrate with the said perception and, like the other judicial instances, operate in accordance with the principle of legality of the arms of government (see the dissenting opinion of Justice Tal in the Katz Case, distinguishing between the power of religious courts as a state authority and the power they have, in his opinion, by virtue of Jewish law, which is not connected with state law).

18.       Apart from the essential difficulty inherent in the judicial decision of the Rabbinical Court as an arbitrator, which is not consistent with the principle of legality of the government authorities, other difficulties arise from the said procedural practice. The practice blurs the spheres of the Court's own activity in respect of the procedural basis upon which its decision rests: is it a decision within the scope of the Court's state power that is subject to review by the High Court of Justice in accordance with section 15 of the Basic Law: the Judiciary, or is it an extra-statutory power that is built on a different foundation originating from the parties' agreement and subject to review by a different judicial instance, like the District Court, in accordance with the Arbitration Law (cf. Jane Doe Case, ibid, para. 7)? In more than a few cases the parties might misunderstand the nature of their agreement to vest jurisdiction in the Rabbinical Court as they do not always understand the meaning and implications of their consent. Moreover, usually, in the course of such adjudication, strict attention is not paid to enquiring into the existence of an arbitration agreement or the application of the Arbitration Law and the rules pursuant thereto, such, for example, the mechanism for the confirmation and revocation of an arbitral award and the role of the District Court as the competent instance in accordance with the Arbitration Law (Ottolenghi, ibid, p. 168; Dichovski, The Standing of a Rabbinical Court Dealing with Property Law As Arbitrator, The Jewish Law Yearbook 16-17 (5750-5751) 527; MF 268/88 Delrahim v. Delrahim, DCJ 49(3) 428; SC 2329/99 Kfir v. Kfir, PD 55(2) 518, para. 5). An arbitral judgment made by the Rabbinical Court frequently does not undergo confirmation or revocation proceedings in the District Court as required by the Arbitration Law for the purpose of its execution, and the Rabbinical Court has no power to confirm an arbitral judgment (Kahati, ibid, p. 220; HCJ 5289/00 Mograbi v. The Great Rabbinical Court, Takdin Elyon 2000(2) 581; Kfir Case, ibid, para. 5). Furthermore, a situation in which the District Court, by virtue of the Arbitration Law, might oversee the Rabbinical Court's decisions as an arbitrator might harm the proper balance between the instances and aggravate the tension between the civil and religious judicial arms (A. Porat, The Rabbinical Court As Arbitrator, Kiriat Mishpat II (5762) 503, 521-4; Dichovski Case, ibid, p. 529).

The Rabbinical Court, purporting to act as an arbitrator between the parties, still operates under cover, and with the characteristics, of its state role. To that end it makes use of the court's physical and organizational system, which is financed by the state; it adjudicates disputes as an arbitrator in the scope of the court calendar, as part of its ordinary work; the overall services, the organizational and professional arrangement and the government budget are also used by it in that function, which by its nature does not have a state character. The time that it should devote to matters of personal status in its official capacity is partly assigned by it to a different judicial function that is not for the state, despite appearing to carry the state seal in the eyes of the public at large, who finds it difficult to distinguish between the judicial function and the extra-statutory function performed by the Court. This intermingling of functions is inconsistent with the principle of legality and a correct definition of the functions and powers of a state judicial instance (Katz Case, ibid, p. 608; Schiffman, ibid, pp. 37-8).

19.       Mention ought to be made to the approach of Prof. Shochatman in his paper entitled The Rabbinical Courts' Jurisdiction in Matters Other Than Personal Status (Bar Ilan University Yearbook on Humanities and Judaism, vols. 28-29 (5761) p. 437, p. 449 et seq.). As he sees it, the Rabbinical Court might acquire jurisdiction by virtue of the parties' agreement in matters outside its jurisdiction in accordance with the Rabbinical Courts Jurisdiction Law by virtue of section 15(d)(4) of the Basic Law: the Judiciary, thereby acquiring jurisdiction as an arbitrator. According to that Law, which defines the High Court of Justice's power to review religious courts, the question of a religious court's jurisdiction can only be referred to this instance when it was raised at the first opportunity. The author infers from this that where there is prior agreement between the parties to vest subject matter jurisdiction in the religious court, a party who has so agreed may not later dispute jurisdiction. By virtue of that preclusion the religious court acquires subject matter jurisdiction, and the High Court of Justice is itself precluded from intervening therein. According to this approach, such an agreement vests subject matter jurisdiction and is not limited solely to matters of personal status. It might encompass numerous spheres that are beyond the subject matter jurisdiction of the religious court, as defined in the Rabbinical Courts Jurisdiction Law.

I cannot agree with this position. The interpretation expressed by Prof. Shochatman assumes that it is possible to recognize the existence of subject matter jurisdiction of an Israel state judicial instance by means of the parties' consent, combined with the doctrine of preclusion and estoppel that prevents someone who has agreed to jurisdiction from later disputing it. That approach is fundamentally inconsistent with the principle of legality that obligates judicial instances, including the religious courts. It is not consistent with the starting point whereby subject matter jurisdiction is vested in a judicial instance by a positive arrangement, and its existence is not to be inferred by an indirect interpretation of provisions of law concerning estoppel and preclusion. The Rabbinical Court's powers are granted to it by virtue of the Rabbinical Courts Jurisdiction Law and they cannot be added to by an indirect interpretation of statutory provisions, the purpose of which is not the vesting of power. Moreover, it has already been held (in Sima Levy Case, ibid, p. 618-19) that the element of preclusion emerging from section 15(d)(4) of the Basic Law: the Judiciary was not intended to vest in the Rabbinical Court subject matter jurisdiction that is not vested in it by virtue of the Rabbinical Courts Jurisdiction Law. The said preclusion is based on the assumption that the matter being adjudicated by the Rabbinical Court is of the type that are within the parallel jurisdiction of the civil court and Rabbinical Court, and regarding the latter, jurisdiction is conclusively consummated if both parties have agreed to it. In those circumstances, and only in them, a party's prior agreement or silence, or subsequent denial of jurisdiction, might lead to preclusion with respect to a lack of jurisdiction argument in the High Court of Justice - that and nothing more. An interpretation that takes the doctrine of preclusion out of context, and assumes the existence of a potentially unlimited Rabbinical Court subject matter jurisdiction, the final consummation of which is dependent only upon the parties' agreement, is directly opposed to the principle of legality, upon which the concept of democratic government is based. It is inconsistent with the subject matter jurisdictions vested by statute in the arms of government, including the judicial system.

Alternative Decision-Making Systems

20.       The need of various different circles in the religious world to entertain alternative systems for the resolution of disputes is proper and recognized. Indeed, alternative rabbinical judicial systems that are not associated with the state rabbinical judicial system, which decide disputes between litigants in the community, are recognized. They can be granted powers to act as arbitrators by agreement of the parties. The need of different communities for alternative dispute resolution systems specific to them can be met by reference to internal arbitration frameworks that are not part of the state judicial system, within which disputes can be settled by virtue of the parties' agreement. This alternative course to litigation in the state judicial instances can be developed and strengthened in accordance with the different needs and preferences of the communities. This was considered by Justice Zamir in the Katz Case (ibid, p. 606), who stated:

"As is known, there are still observant Jews who prefer to litigate in matters of property according to religious law before a religious court rather than the state court. The state's law does not preclude that, if both parties to the dispute so desire, and it is even willing to give the force of arbitration to such litigation, if the litigants fulfil the provisions of the Arbitration Law. Indeed, in practice, such courts exist in various communities around Israel, not by virtue of state law or as official institutions but as private entities. That is, for example, the case of the rabbinical court of the Edah Chareidis [the Haredi Community] in Jerusalem. However… in these cases we are not dealing with a private entity but a state court, and the law applies to it just as any other of the state's courts. Like any court, in fact, like any government agency, the Rabbinical Court is also subject to the principle of legality, meaning that it has nothing other than what was granted to it by the law… In this respect, the Rabbinical Court in Jerusalem is distinguished from the rabbinical court of the Edah Chareidis in Jerusalem. The Israeli Rabbinical Court, which has jurisdiction in accordance with the Basic Law: the Judiciary, is not like one of the rabbinical courts of the Jewish communities in the Diaspora. Unlike them, it has the power and authority of a government institution. So too, unlike them, it is also subject to the restrictions that apply to any government institution".

Consensual Resolution – Looking to the Future and to the Past

21.       The scope of the Rabbinical Courts' subject matter jurisdiction to decide a dispute by virtue of the parties' agreement outside the framework of the law looks to the past and the future. It calls into question the validity of the Court's rulings based on the parties' agreement outside the scope of the statute, not merely henceforth, looking to the future, but also with respect to the past. The outlook to the future seeks to find a binding definition of the limits of the Rabbinical Court's jurisdiction and to strictly observe those limits hereafter. However, the outlook to the past calls into question the binding legal validity of the Rabbinical Court's decisions that have been made over the years by virtue of the parties' agreement as aforesaid. That issue is far from simple; there is no need to decide it here, and it will wait until its time comes.

From the General to the Particular

22.       Let us return to the respondent's suit against the petitioner in the Rabbinical Court and examine whether it is within the subject matter jurisdiction of the Rabbinical Court; the test of jurisdiction depends on the nature of the cause of action, and whether the cause falls within the jurisdiction of the Rabbinical Court.

The Cause of Action – Enforcement of a Contractual Indemnity Clause

23.       The respondent's cause of action in the Rabbinical Court is the enforcement of a contractual clause concerning property, which is contained in the divorce agreement that was made between the couple for the purpose of the divorce proceedings. It provided that if the respondent were sued for an increase in child support and the satisfaction of any of the children's needs or if a stay of exit order was granted at the initiative of the wife, then the petitioner would compensate him, in the language of clause 4(e) of the agreement, with half the property. That provision is also mentioned in clause 5 of the agreement, which is headed "Indemnification", and according to the substance of the provision, and also its location and wording, it is an indemnity clause. The respondent sues for the enforcement of a property condition for his indemnification due to a breach of contract by the wife, and he gave expression thereto by heading his claim as one for "specific performance". That is to say, we have here a property claim for the enforcement of the contractual indemnity clause in a divorce agreement that received the effect of a judgement of the Rabbinical Court and further to which the parties' divorce was completed.

The Rabbinical Court's Jurisdiction to Adjudicate a Property Claim for the Breach of a Contractual Indemnity Clause in a Divorce Agreement after the Parties' Divorce

Does the respondent's suit, according to its cause, fall within the scope of one of the sources of the Rabbinical Court's jurisdiction? Because of the great similarity between the instant matter and the case of Sima Levy, we shall draw guidance and direction from that case.

 

 

Original – Primary Jurisdiction

24.       The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce, as provided in section 1 of the Rabbinical Courts Jurisdiction Law, does not apply in the instant case because the subject of the suit is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is, no longer involved. Nor is it a matter "connected with a divorce suit", including support for the wife and children, within the meaning of section 3 of the Law. After divorce, a property claim in respect of the breach of an indemnity clause is not connected with the divorce suit, which has ended and no longer exists. The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce judgment, based on a divorce agreement. The cause is based on the breach of a divorce agreement after the award of the divorce and completion of the couple's divorce, and such a new cause is naturally not to be bound up with the matters that were in the past connected with the divorce suit.

With regard to the property cause of action, which surrounds the breach of an indemnity clause of a divorce agreement, the Rabbinical Court does not have jurisdiction by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council and the Succession Ordinance. Section 9 of the Rabbinical Courts Jurisdiction Law raises the question of whether jurisdiction can be vested in the Rabbinical Court by consent in a matter included in its parallel jurisdiction after completion of the divorce, or whether its jurisdiction pursuant to that provision is limited solely to matters within its parallel subject matter jurisdiction that arise in connection with, and until, the divorce and its completion, but not afterwards. Whatever the answer to this question, it is in any event clear that the subject matter jurisdiction pursuant to section 9 is limited solely to the matters mentioned therein, that is, matters of "personal status" as defined in the Palestine Orders in Council and the Succession Ordinance. In a dispute that is not within the bounds of those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court (Schiffman, ibid, vol. I, p. 37; Jane Doe Case, ibid, p. 812). The power of the parties' stipulation is restricted solely to the matters defined by the statute (MF 358/89 Zalotti v. Zalotti PD 43(4) 41, 42; Porat, ibid, p. 510).

Clause 11 of the divorce agreement in this matter looks to the future, and provides that if differences arise between the couple after the divorce, then they undertake to bring their claims solely in the Rabbinical Courts. That agreement is effective only to vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law in respect of matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. A property claim for the enforcement of a contractual indemnity clause in a divorce agreement is not a matter of personal status within the meaning of the Palestine Orders in Council or the Succession Ordinance, and thus, the parties' contractual agreement in respect of such a dispute cannot vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law.

The Rabbinical Court therefore does not have original jurisdiction to adjudicate the respondent's claim.

"Ancillary" Inherent Jurisdiction

25.       Does the Rabbinical Court have "ancillary" inherent jurisdiction to adjudicate the respondent's claim? The answer is in the negative.

            In the instant case, the Rabbinical Court's ancillary jurisdiction is irrelevant insofar as it relates to the revocation of a divorce award because of a defect in the making of the divorce agreement. It is not a defect of fraud, mistake, deceit, duress or similar that occurred in the making of the agreement and that might have given the Rabbinical Court ancillary jurisdiction to consider its revocation.

            Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after granting the divorce judgment that allegedly justifies revoking the divorce agreement and the divorce judgment in order to achieve a just result. On the contrary, the respondent's suit is for the specific performance and enforcement of the divorce agreement, not its revocation. Although, in the Great Rabbinical Court, the respondent pleaded that his suit was to revoke the divorce agreement because, according to him, the Get had been given by mistake (the Great Rabbinical Court's decision of May 4, 2003). These arguments were made as an "embellishment" at a late stage of the trial and do not reflect the real cause of action; the motion to revoke the divorce agreement and the act of divorce is inconsistent with the respondent's claim in his suit to compensate him with half the property (the apartment, the contents and the gold), which is nothing other than a claim for the enforcement of the divorce agreement (cf. CA 105/83 Menashe v. Menashe PD 38(4) 635; Yadin, The Contracts (Remedies for Breach of Contract) Law 5731-1970, Second Edition, 5739, p. 44).

            Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction in this case. The Regional Rabbinical Court had granted a final and unconditional judgment and awarded the effect of judgement to the divorce agreement. Indeed, the divorce agreement does contain an indemnification provision, which by its nature looks to the future, but this fact cannot transform a judgement that gave effect to a divorce agreement into a judgment that is not final, leaving the Rabbinical Court with jurisdiction that has not yet been exhausted to continue adjudicating with respect to the divorce agreement's future performance in this property matter. A financial-property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law (see Sima Levy Case, pp. 607-608; CA 468/85 Dondushanski v. Don PD 40(2) 609; D. Bar Ofir, Execution - Proceedings and Law (Sixth Edition, 2005, pp. 164-5)).

            Nor has the Rabbinical Court acquired jurisdiction to hear this matter by virtue of the doctrine of "continuing jurisdiction". It should be kept in mind, that continuing jurisdiction is vested where an instance has tried a particular matter in the past and, in special circumstances, a need has arisen to vacate or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based such, for example, in matters of child support and custody. The instant case is fundamentally different. The motion does not seek to modify or revoke the divorce agreement made between the parties. On the contrary, it seeks to enforce the agreement, and such a claim has no place within the continuing jurisdiction vested in the Rabbinical Court. A decision on property matters is a final one and not a matter for continuing jurisdiction, as the Court stated in Sima Levy (Justice Cheshin, ibid, p. 611):

                        "As distinct from decisions concerning the payment of support or child custody – which by their nature are not final and the doctrine of continuing jurisdiction applies to them – a decision on a property matter is in principle a final one" (emphasis added).

            The property aspect of the divorce agreement, including the indemnification clause, and the divorce judgment that gave it effect, are therefore not within the Rabbinical Court's continuing jurisdiction.

            And finally, the Rabbinical Court does not have ancillary jurisdiction to adjudicate the new cause that arose following the divorce agreement in order to interpret the agreement. Firstly, the Rabbinical Court, having completed and exhausted its power to rule on the matter of divorce, no longer has ancillary power to interpret the divorce agreement or the divorce judgment (cf. HCJ 897/78 Yigal v. The National Labour Court, PD 33(2) 6, 7; CA 5403/90 The State of Israel v. RAM Revhiat Ibrahim PD 46(3) 459). Moreover, in the instant case, the question of the agreement’s interpretation hasn’t risen as such, but a claim for its enforcement has been brought instead. Hence, the Rabbinical Court does not have ancillary jurisdiction in this respect either.

            In conclusion: the Rabbinical Court does not have primary original jurisdiction, or ancillary inherent jurisdiction, to adjudicate a property claim for enforcement of a contractual indemnification clause in a divorce agreement that has given the effect of judgement, once the couple's divorce has been completed.

The Rabbinical Court's Jurisdiction by Virtue of Consent

26.       As can be recalled, clause 11 of the divorce agreement provides that differences between the couple after the divorce are to be adjudicated solely in the Rabbinical Courts. The couple's agreement as such cannot vest the Rabbinical Court with jurisdiction where there is no legal source for it. The agreement in this case concerns something that is not a matter of personal status according to section 9 of the Rabbinical Courts Jurisdiction Law, and it was therefore given for this purpose outside the scope of the law, and is ineffective.

            Indeed,

                        "where the subject of the litigation is not within the jurisdiction of a particular judicial entity, no agreement in the world has power to grant the entity jurisdiction that the statute has not given it; it is the statute that gives and it is the statute that takes away" (Sima Levy, p. 617).

            The Regional Rabbinical Court's decision of June 18, 2002 and the Great Rabbinical Court's decision of May 4, 2003, according to which the Rabbinical Courts have jurisdiction in principle to try the claim by virtue of the law, are inconsistent with its provisions.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Arrangement

27.       It was further argued that clause 11 of the divorce agreement is an arbitration provision that vests the Rabbinical Court with power as an arbitrator to adjudicate the respondent's claim of a breach of the agreement's indemnification provision. Although not strictly necessary, we have considered the question in principle of whether a Rabbinical Court can be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. We have answered that question in the negative and the answer is applicable to the case herein.

            In the instant case, the conclusion that the Rabbinical Court lacks jurisdiction to try the matter as an arbitrator is also reinforced by another reason. Studying the contents of clause 11 of the divorce agreement shows that it cannot be construed as an arbitration clause, equal to an "arbitration agreement" between the parties. It is well known that the power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. Without an arbitration agreement, no arbitration arises. An "arbitration agreement", according to the Arbitration Law, is "a written agreement (between parties) to refer to arbitration a dispute that arises between them in the future, whether an arbitrator is named in the agreement or not" (section 1 of the Arbitration Law). The condition precedent for arbitration is therefore the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement (ALA 4928/92 Aziz Ezra Haj v. Tel Mond Local Council PD 47(5) 94; Ottolenghi, ibid, pp 9-41).

            In this case, the parties undertook to refer any disputes arising between them after the divorce solely to the Rabbinical Courts. No intention can be inferred from that agreement to refer such disputes to the Rabbinical Court qua arbitrator. In Jane Doe (para. 6 of Justice Barak's opinion), as in the case herein, the couple mistakenly believed that their consent to the Rabbinical Court's adjudicating disputes connected with the divorce agreement could vest it with power to decide as a state judicial instance, rather than as an arbitrator. Indeed, the wording and contents of clause 11 of the divorce agreement do not demonstrate the parties' intention to treat it as an arbitration clause purporting to empower the Rabbinical Court to act as arbitrator. Consequently, even if we assumed that the Rabbinical Court could be empowered to act as an arbitrator in matters in which it has no original or ancillary jurisdiction by virtue of the law, there is still no effective arbitration agreement, as pleaded.

A Note before Closing

28.       The issue of the Rabbinical Court's power to adjudicate by virtue of the parties' agreement, outside the scope of the law, has arisen in earlier contexts in the past, and although different opinions have been expressed in such respect by the courts, no binding decision has been necessary in connection therewith. This absence of a ruling has permitted the continuation of a procedural practice that is inconsistent with the organizational structure of the courts and the division of powers between them in accordance with state law. This custom has enabled a judicial practice that is inconsistent with the principle of the administration's legality and the legality of the judicial system. The time has come to move from the stage of expressing an opinion to the stage of making a ruling, which is necessary to ensure the proper function of the judicial system within the scope of its powers, and thereby to protect the basic foundation that defines the boundaries of its activity based on the principle of legality and the rule of law. This will not harm, in a any way, the need and ability of various social groups to entertain alternative resolution systems outside the state judicial instances, based on the principles of arbitration regulated by law or on the basis of other agreed and recognized rules of procedure. However, at the same time, it is necessary to safeguard, and protect against blurring the boundaries between the state judicial systems and alternative resolution systems that are built on the parties' agreement, in order to protect the proper operation of the different arms of the judicial system and the public's confidence in the way in which its powers are exercised and its judgments.

Conclusion

29.       By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification clause in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the Regional Rabbinical Court and the Great Rabbinical Court in the respondent's claim are void. The result is that the order nisi that has been awarded should be made absolute. The respondent shall bear the petitioner's professional fees in the sum of NIS 12,000.

 

Vice President (Ret.) M. Cheshin

 

            I concur.

 

Justice S. Joubran

            I concur.

Therefore, held as stated in the opinion of Justice Procaccia.

Awarded today, this eighth day of Nissan, 5766 (April 6, 2006).

 

___________________

___________________

___________________

Vice President (Ret.)

Justice

Justice

 

Doe v. Ministry of Health

Case/docket number: 
HCJ 4077/12
Date Decided: 
Tuesday, February 5, 2013
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

This is a petition against the First and Second Respondents’ decision not to permit the Petitioner (a single woman, born in 1974) to use sperm donations by an anonymous donor (the Third Respondent), which were preserved for her (for a fee). The Petitioner had her first daughter from the Third Respondent’s donation. She is now interested in undergoing an additional insemination process with that same donation in order to ensure a full genetic match between her children. The Respondents’ decision was made in light of the donor’s decision to withdraw his consent and his donation due to changes in his worldview – becoming a “Ba’al Tshuva”, i.e. an observant Jew – so that sperm donations he had made in the past would no longer be used. It should be noted that the consent form sperm donors (currently) sign is silent on a donor’s right to change his mind. The Petitioner argues that the Respondents’ decision to prevent her from using the sperm donations that were preserved for her violates both her constitutional and contractual rights, is unreasonable, and must be overturned. Generally, the Petitioner’s arguments may be divided into two categories – the first, is on the public law level, primarily in terms of violating her right to parent. The second are arguments on the civil law level, including claims stemming from contracts between the parties, property rights and others. The donor claims he has autonomy rights in terms of deciding whether his sperm can be used.

 

The High Court of Justice (in a decision authored by Justice Rubinstein, with Justices Barak-Erez and Amit, concurring) rejected the Petition for the following reasons:

 

Needless to say that the High Court of Justice – as well as the attorney for the Respondents and even the anonymous donor himself – sympathizes with the Petitioner, who wishes that her children, conceived with the help of sperm donations, will carry the same genetic code. However, the donor’s position and his personal autonomy must prevail. As much as we understand the Petitioner’s arguments in terms of civil law, contract law, even in terms of administrative law, and her reliance interest – as values, these cannot dominate over personal autonomy in these circumstances. The donor formed his position as a “Ba’al Tshuva” and it seems his position has a religious aspect. But even absent the religious aspect, one’s position reached thoughtfully – although it did not occur to him in the past when he decided based on whatever considerations to donate sperm – that he does not wish for there to be any additional children in the world whom he did not choose and whose mother he did not choose, with whom he would have no relationship, and whom he would not raise is understandable. This is even if he owes them no duty under existing law (and incidentally, it is possible that under Jewish law, even if they have no right to his support, they may have a right to his estate). The autonomy aspect eclipses other considerations.

 

The right to parent is seemingly a significant value in and of itself, it is natural and primal and holds a top spot on the human list of priorities. This is joined by the autonomy reflected in the personal choices that come along with the right to parent. The right not to parent, on the other hand, does not include a protected independent value, but is designed to protect one’s personal autonomy in electing it (that is, electing not to parent, or not to co-parent with a particular man or woman). It should be noted that even those who support defining this right as merely an interest apparently still view it as one that must be legally protected.

 

However, limiting the Petitioner’s right to be impregnated by a particular person, or her right to a child with a particular genetic background is not a violation of the right to parent. This limit does not reach the core of the right to parent – the actual ability to enter the class of parents – and to bear a child. At most, and this is highly doubtful, this is a limitation at the periphery protected by the right to autonomy (without addressing, at this point, the issue of the scope of this protection, and whether indeed the right was infringed and whether under proper balancing it is worthy of protection).

 

Still, and if presumably according to existing law the donor owes no financial, social or other duties to the child, it is clear that the harm to the donor in terms of genetically parenting additional children against his will constitutes a violation of his autonomy. In this context, it has been pointed out, among others, that the harm to the donor is not merely in inability to choose not to be a father, but also includes his autonomy to decide about his status as a father. In other words, a man who sees his genetic-biological parenthood, or “blood ties”, as creating his moral obligations as a father, suffers injuries to his autonomy both in terms of lack of choice and in terms of failing to fulfill his duties according to his conscience or religious beliefs.

 

This is not to say that in any event a sperm donor’s request not to use his sperm would prevail. The stage in which the request is made is relevant, even crucial. There may be good and weighty reasons not to permit a donor to change his mind and the Court lists these potential considerations (this is not an exhaustive list). Such was the situation in Nachmani, let alone when a pregnancy has already occurred. But outside of such circumstances, the right to change his mind and the violation of his right are weighty and tip the scale in his favor. Indeed, the donor gave consent and accepted payment, but it is not a regular “transaction”, rather an issue that holds strong emotional aspects. The donor’s conscience and feelings are a matter of values and cannot be quantified in the simple legal sense.

 

Even had we assumed that the issue is a violation of the Petitioner’s autonomy to choose whom to parent with, she cannot prevail. This is a choice that needs the cooperation of two (whether within a marriage or other family unit, including – even if with significantly mitigated force – a same-sex family unit requiring a sperm donation) or some third party as a sperm bank, in order to be realized. Of course, these situations may be distinguished, and may under certain circumstances change the outcome, but in this matter there is no justification for the donor’s interest to yield to that of the Petitioner’s.

 

Protection for the Petitioner’s right to have children of the same genetic code ends where it clearly conflicts with the donor’s rights. In a regime of relative rights, there is no right that affords its holder absolute supremacy in its exercise. Therefore, the obvious interests at the basis of the Petitioner’s claims succumb to the donor’s right to autonomy.

 

Even had we assumed, for argument’s sake, that the Petitioner’s right to autonomy is violated, and Justice Rubinstein does not believe it was – in any event, not to a great extent – as distinguished from Nachmani, the conflict and determination here concerns the Petitioner’s right to autonomy in the face of the donor’s right to autonomy. In the conflict between these two autonomy rights is seems the donor should prevail because, from his perspective, we are dealing with “active” law – a use of his sperm, while for the Petitioner this is “passive” law – preventing the use of the donor’s sperm.

 

Before concluding, Justice Rubinstein briefly adds Jewish law’s perspective on the issue of sperm donation and the status of the donor. This analysis demonstrates that applying the law and principles mentioned above lead to the same outcome under contract law as well. Among others, Justice Rubinstein emphasized that the option of withdrawing a donation does not constitute a donor’s “veto right” at every point in the process. The point of no return, where the balance of rights and interests shifts and the donor loses the legal possibility of terminating the contract and withdraw his donation, may change according to various considerations. In our case, several considerations lead to accepting the donor’s withdrawal of consent, particularly a lack of any physiological link between the donation and the Petitioner at this stage.

 

The primary concern arising from this matter is the harm to the stability of sperm banks in Israel by permitting carte blanche to donors who may wish to pull their donations. The concern is that beneficiaries of donations, such as the Petitioner, who have requested that a specific sperm bank preserve additional donations for them, would discover this option is no longer guaranteed. The stability of this institution is a human and public interest of the highest order. The uncertainty that exists as a result of the tenuous statutory regulation, harms, from the outset, the public’s possibility to rely on sperm donations. The cure for this is in the legislature’s hands.

 

In the interim, and as a temporary measure, the Petitioners ought to amend donors’ and beneficiaries’ consent forms to ensure that all the parties involved know and understand their rights. As long as legislation that regulates and defines the possibility of a donor to withdraw consent is lacking, sperm banks must accurately present to beneficiaries the legal context in order not to guarantee what may not be realized.

 

Finally, the decision to donate sperm must be a result of deep thought and consideration. Donors must know that their informed consent to give sperm to another is relied upon by others who seek to plan their lives and produce offspring. This however, is not a decision that can be taken back easily, and the ability of withdrawing consent is in any event not guaranteed. It is contingent upon the stage of the process, that in the absent of a comprehensive statutory regime, is subject to the considerations detailed in the opinion.

 

Justice Barak-Erez joins the crux of the conclusions, and adds her position regarding some of the rationales behind them. Justice Amit also joins the outcome, though in his opinion, in the conflict between the Petitioner and the donor through the lens of civil law alone, the Petitioner must presumably prevail. (The choice whether to opt for applying only civil law depends on the value-based issue of the weight we are willing to attribute to the sperm’s uniqueness as “property”.)

 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

At the Supreme Court sitting as the High Court of Justice

 

HCJ 4077/12

                       

Before:                                                            The Honorable Justice E. Rubinstein

The Honorable Justice I. Amit

The Honorable Justice D. Barak-Erez

 

The Petitioner:                                     Jane Doe

                                               

V e r s u s

 

The Respondents:                               1. The Ministry of Health

2. The Sperm Bank – In Vitro Fertilization Unit Rambam Medical Center

3. John Doe

 

Petition to grant an order nisi and an interim order

 

Date of Hearing:                                  Heshvan 29, 5773       (November 14, 2012)

 

On behalf of the Petitioner:                Adv. Gali Nagdai

 

On behalf of the Respondents:           Adv. Danna Bricksman

 

Judgment

 

Justice E. Rubinstein:

 

  1. The petition before us concerns an apparently precedential case of the request of a sperm donor, John Doe (Respondent 3), to retract his consent and donation due to changes that have occurred in his world view; such being subsequent to the Petitioner having her first-born daughter by his sperm donation, and being presently interested in undergoing another insemination procedure by the same donation, in order to maintain full identity of the genetic constitution of her children. The Petitioner seeks to receive the donor's additional sperm donation, which is stored at the sperm bank. The position of Respondents 1-2 is that there is no justification to allow this. We are concerned with an issue of a sort unimagined by our forefathers, which was impossible several decades ago, and which developments in medicine and technology have created.

 

  1. The "genetic era" and the increasing use in recent decades of artificial reproductive techniques, have brought a real blessing to many who would have remained childless "in the old world"; reality has changed immeasurably, and technology presently enables many of those whose path to parenthood was previously blocked, to bring children into the world and have a family. This is one of the dramatic developments, which creates a new social and legal reality, and gives rise to complex and sensitive human questions. The

 

legal world has not yet had the time to properly address these issues, and it falters behind them, as it does following the other dramas of the superior technology era. This was described nearly two decades ago by author Y. Green (In Vitro Fertilization through the Prism of Consent (1995)):

 

"The longing for a child is common knowledge that requires no proof. Spouses, who experience difficulties in having children, make and will make any effort in order to be blessed with children: emotional, physical and financial. They are also willing to 'sign' any undertaking, provided that their heart's desire is fulfilled. Medical technology in the fertility field has developed at an incredible pace in recent years. Solutions, which were considered science fiction only a few years ago, are slowly becoming an almost daily reality. There is a great blessing alongside this development, which grants more and more couples of various degrees of infertility a chance to expand the family. However, as chances increase and the potential of being blessed with children increases, so increases the risk involved in the various stages of the process, both to those born (sic.) and to the infant to be born in this way" (ibid, p. 9).

 

Before us is a chapter in this complex whole, on an unfinished road, and we will clearly not attempt – nor need we in this case – to encompass the full human issue, nor the legal one, relating to parenthood in the modern era; as we shall hereinafter see, this issue may be reviewed through the prism of more than one family of law, but none is exhaustive. As President Shamgar (Retired) stressed already at the outset:

 

"Any conversation with respect to issues of birth affairs is, by nature, pretentious and stirs oversensitivity. It is pretentious – since before us are complex and multifaceted issues, the legal aspect of which is unable to exhaust their nature and description. There is a kaleidoscope of elements here, which are anchored in various disciplines, medical, philosophical, theological and social, which do not fit within the standard legal compartmentalization and are not fully exhausted by the employment of legal criteria alone. Thus, in such areas, cautious legal treading is suitable… These issues evoke oversensitivity, because they directly touch on the exposed nerve of existence. Although the vast majority of legal issues of various types are taken, by mere nature, from life, there are issues that attack the problematic nature of our human existence head-on, at the core, rather than indirectly…" (President Meir Shamgar "Issues on Matters of Fertilization and Birth" 39(a) HaPraklit 21 (1989).

 

  1. This is also the case before us, and therefore we shall guide ourselves with this advice before we embark on the journey. This is the order of the discussion: firstly, we shall briefly address the normative framework concerned, the factual background of the case and the parties' claims; we shall examine the nature of the right to parenthood, and we shall examine the standing of the Petitioner vis-à-vis the standing of the donor, who asserts autonomy in deciding the use of his sperm, in view of this right. We shall thereafter briefly address additional aspects of the issue, and mainly the contractual regulation of sperm donation. Finally, we shall articulate the evident need, in this case, for the in-principle regulation of the entire field by the legislator.

 

  1. We shall forerun and state the principal part of our ruling. Needless to say, we feel – as does the attorney for the Respondents and even the anonymous donor himself – human sympathy for the Petitioner, who requests that her children by a sperm donation carry an identical genetic constitution, which apparently proved successful – thank God – with her first-born daughter. However, we have come to the conclusion that precedence should be afforded to the donor's position and to his personal autonomy. With all due understanding of the Petitioner's claims in the field of private law, contract law and even in the field of administrative law, with respect to the reliance interest – these do not amount in value to the dominancy of the aspect of personal autonomy under the circumstances of the case. The donor has formed his position, according to what he stated orally (his written response is more general) as a penitent (Chozer B'Tshuva), and it appears that there is also a religious facet to his position. However, even without such facet, one can understand the position of a person who, after reflection, reached the conclusion – which had not occurred to him in the past, when deciding to donate sperm for such or other considerations – that he no longer wants there to be children by his sperm in the world, whom he did not choose and whose mother [he did not choose], with whom he has no relation and who will not be raised by him; it being [the case] even if he is not liable to them under the presently practiced law (and incidentally, there is a possibility that under Hebrew law, even if they are not entitled to child support from him, they are entitled to inherit him). In our opinion, the autonomy aspect overshadows the other considerations, as we shall explain below.

 

The Normative Framework

 

  1. Sperm donation and the management of sperm banks in Israel are currently not regulated by primary legislation, but rather by the Public Health  (Sperm Bank) Regulations, 5739-1979 (the "Regulations") and circulars of the Director General of the Ministry of Health, which are issued thereunder (these regulations were promulgated by the Minister of Health by virtue of the Consumer Services Act (Sperm Bank and Artificial Insemination), 5739-1979; for criticism, see Pinhas Shifman "Determination of the Paternity of a Child Born by Artificial Insemination", 10 Mishpatim 63, 85 (1980); further see (in respect of the status of administrative directives) Yoav Dotan Administrative Directives (1996), 27-39). The last Director General Circular, of May 22, 2008, entered into effect on January 1, 2009, and is the principal part of the normative basis, on the administrative directives' level, for our discussion at this point. The Director General Circular mainly regulates the conditions for recognition of a sperm bank and prescribes rules with respect to the retention of information regarding sperm units and donors – a problematic issue in and of itself, as we shall briefly mention hereinafter. The Director General Circular also defines the procedure required both of the donor and of the recipient of the donation.

 

  1. The donor, alongside whose donation there is a certain financial benefit, fills out a "Donor Card" form (Exhibit B to the Respondents' response), which requires general details, including name, identity number, a general description of appearance, and data regarding physical examinations, which are intended to negate the existence of illnesses in his body. The donor also fills-out a "Consent of a Sperm Donor" form (Exhibit C to the Respondents' response), in which he declares by his signature as follows:

 

"I agree to donate of my sperm for use thereof for the artificial insemination of women or for research purposes, according to the considerations of the sperm bank. I hereby agree and declare that I will not be entitled to receive any details of the identity of the women, and their identity shall remain confidential. Furthermore, my name and my identity or any detail about me will not be provided to any person and will also remain confidential, except for a cross-check of these data with a center for national donor registration and national registration of persons ineligible to marry".

 

This statement is required under Section 25(e) of the Director General Circular, which determines that "[T]he sperm of a donor shall not be taken nor received nor used for artificial insemination, unless the donor shall have given his consent to the use of the sperm" (emphasis added - E.R.). The donor also states that he is willing to undergo medical examinations and that to the best of his knowledge he is not suffering from an illness or family history, which might disqualify his donation. The forms do not address the issue of consent withdrawal or additional issues such as a quantitative limit of the possible amount of inseminations by the donation (such as inseminations that produced a pregnancy, as distinguished from unsuccessful attempts).

 

  1. A similar personal data card is filled-out by the recipient of the donation (Exhibit D of the Respondents' response), which one of two consent forms is added to, in accordance with her family status: one consent form for spouses, and another consent form for a single mother [who is] a "single woman" (Exhibit E-1 and Exhibit E-2 to the Respondents' response). The second form, which is the one relevant to the case at hand, mainly includes a statement as to the explanation the recipient of the donation received with respect to complications and side effects (and a waiver of future claims in respect of such matters), and as to the practical prospects of impregnation as a result of the insemination. As pertains to the sperm and the donor, the recipient of the donation states as follows:

 

"I consent that the donor or donors of the sperm that will be used in the insemination, or the sperm itself, be chosen by the physician and according to his discretion and with his consent and I will not be allowed to know the identity of the person whose sperm is used, or his attributes, or any other detail related to him or to his family" (emphasis added – E.R.).

 

  1. As we can see, the only documents that include the parties' consent, each separately, do not address the issue of donation withdrawal at all. These matters were presented somewhat in length, since, in the situation before us – a ruling on which is "the lesser of two evils", and involves a measure of harm to one of the parties – it is appropriate to examine how to avoid such situations in the future, rather than merely how the current situation will be resolved.

 

The Case At Bar

 

  1. The Petitioner is a single woman, born in 1974, holding Israeli and American citizenships, and a resident of the Unites States for the past 17 years. In 2010, the Petitioner's first-born daughter was born via fertilization treatments, during which use was made of the sperm donation of an anonymous unknown donor (Respondent 3, hereinafter the "Donor"), which the Petitioner received from the sperm bank at the Rambam Medical Center in Haifa (Respondent 2, hereinafter: the "Sperm Bank"), which is under the supervision of Respondent 1 (hereinafter: the "State"). Following the birth of her first daughter, the Petitioner purchased - apparently at the first opportunity she had – the option to use five additional sperm units of the Donor, to be kept at the Sperm Bank for an annual fee. For this purpose, the Petitioner filled out a sperm reservation form and paid the required amount. It was stated on this form that:

 

"The sperm bank undertakes to use its best efforts to keep these sperm units, but will not be responsible in any manner for a loss, harm or other use of these sperm units" (emphasis added – E.R.; Res/3).

 

  1. On December 1, 2011, the Sperm Bank received a letter from the Donor, in which he stated his wish that use of the sperm donation that he had made in the past be discontinued, among other things, in view of a change in his lifestyle (Res/4); following is his letter verbatim:

 

"My name is ________, in the past I was a sperm provider to the sperm bank managed by you and I ceased this activity several years ago.

Due to a change in my lifestyle, use of my sperm by the sperm bank at the present and future time raises a problem for me. I approached you several months ago with a request to cease use of my sperm. At first I was told that I had no right or say on the matter, and afterwards it was said that in any event the use of my sperm had already been discontinued, so that there was no problem.

After a medical-legal inquiry, it was clarified to me that I have a veto right on the matter, despite the contract between us.

My request to you is a formal letter of statement that no use is presently made nor will it be made in the future by the entity managed by you (the sperm bank)".

 

Following this letter, the Bank notified the Petitioner (on January 10, 2012), that she would no longer be able to use this sperm donation. Subsequently and in view of the Petitioner's appeals to the Bank's manager, the Bank's manager contacted the legal advisor to the Ministry of Health and forwarded the reply of the legal office to the Petitioner, whereby "[A] consent which is unlimited in time is not "everlasting" and the sperm donor who previously agreed to donate his sperm may recant at any time [so long] as "irreversible reality" has not been created". It was stated that under the facts of the case, such a reality had not been created, and it was assured that the money that had been paid for reservation of the sperm units would be refunded (letter of January 11, 2012 by Dr. A. Leitman, Manager of the Sperm Bank; Res/5). The Petitioner requested not to destroy the donation and to allow her to exhaust the legal avenues; the Sperm Bank's manager accepted her request.

 

The Petition

 

  1. On May 22, 2012, the present petition was filed claiming that the Respondents' decision to prevent the Petitioner from using the sperm units that had been saved for her infringes upon her constitutional and contractual rights, is unreasonable and should be annulled. The Petitioner's claims may be separated, in general and for the sake of discussion, into two levels. The first, claims on the level of public law, and mainly the impingement on her right to parenthood. The second, on the level of civil law, rights by virtue of a contract between the parties, by virtue of proprietary ownership and more.

 

First Level – the Right to Parenthood

 

  1. The Petitioner claims that there is presently no dispute as to the standing and importance of the right to parenthood, a "fundamental human right which every person is entitled to", a natural right which is established in Basic Law: Human Dignity and Liberty; hence, this right may be limited – as argued – only under the conditions of the Limitation Clause (to substantiate her position, the Petitioner referred to the rulings of this court in CA 451/88 John Does vs. the State of Israel, IsrSC 44(1), 337 (1990); in CFH 2401/95 Nachmani vs. Nachmani, IsrSC 50(4) 661 (1996); in HCJ 2458/01 New Family vs. the Committee for Approval of Embryo Carrying Agreements, the Ministry of Health, IsrSC 57(1) 419 (2002)). The Respondents' decision impinges – so it is mentioned – on her right, since following the birth of her first-born daughter it may "seal the Petitioner's fate, remaining a mother of a single child only, and forgoing her wish to have the family she was hoping to have" (Paragraph 21 of the Petition).

 

  1. Moreover, per the Petitioner's position, there is a parallel infringement upon her right to a family, another derivative of the protection of human dignity and the autonomy of individual will. To her mind, this right has a higher status than the other constitutional human rights, such as the right to property and to freedom of occupation. Furthermore, beyond the infringement on her constitutional rights – so it is argued – the Respondents' decision is marred by unreasonableness, and is therefore void ab initio. It is further argued that the Respondents' decision impinges upon her daughter's rights to siblings in general, and to biological siblings in particular.

 

Second Level – Contractual and Other Causes

 

  1. The Petitioner also claims that the Donor gave his consent to use of his sperm – informed consent; and therefore his present request to prohibit the use of his sperm constitutes a breach of contract, both vis-à-vis the State and the Sperm Bank, and vis-à-vis herself, as a third party to the contract. Moreover, the State and the Bank are themselves in breach of the contract they entered with the Petitioner: the Petitioner fulfilled the procedure determined thereby as required; she gave financial consideration for the sperm units. As stated, at no stage of the proceedings was the possibility of the Donor withdrawing his consent raised before her. Since the Petitioner relied on this representation (in view of the manner of presentation of the sperm donation by the State and the Director General Circular) and chose to bring her first born daughter into the world from the Donor's donation, it may no longer be said, per her position, that an "irreversible reality" has not been created. It is difficult – so it is argued – to assume that the Petitioner would have consented to undergo the insemination process knowing that the Donor might change his mind at any time. It is further argued that the Donor sold his sperm, and therefore cannot retroactively demand that no use be made of the donation without cause under law, like any other sale contract that confers ownership upon the purchaser.

 

  1. The Petitioner also claimed that a change in the circumstances of the Donor's life may not serve as cause for his retraction of the consent, and the reversal of the Respondents' decision does not constitute an impingement on the best interests of the child or on public policy. It was further argued that the damage to be caused to the Petitioner as a result of the upholding of the Respondents' decision is disproportionate; it is argued that the Petitioner's time to undergo another fertilization is running out, beyond the fact that the mere impediment to having additional children who have the same genetic constitution, as aforesaid, might prevent her from having more children. Conversely – it is so claimed – the Donor "has finished his part", and no cooperation is required of him for the purpose of continuing the process; he is not the parent of the child to be born, and therefore this does not involve the coercion of parenthood; his right to personal autonomy is thus not violated.

 

  1. It is finally argued that upholding the Respondents' decision will have severe across-the-board implications on sperm recipients of donations in Israel. The donor's option to retract his consent at any time creates uncertainty in the planning of a future family, as it leaves the recipients of donations under the shadow of the "concern that the donor they chose will change his mind". This compromises the ability to plan a family according to the circumstances of every woman's life and wishes. This might – as asserted – lead to many donors withdrawing their consent, and gravely harm sperm banks in Israel and their stability. In order not to render the Petition redundant, an interim order has been sought to order the Respondents to prevent the disposal of the donation until the Petition is decided.

 

The Response of the Respondents and the Hearing before us

 

  1. On July 10, 2012, the State's response was filed, which argued that indeed it is undisputed that the core of the right to parenthood and the right to family gives rise to a protected constitutional right deriving from the right to dignity, and established in Basic Law: Human Dignity and Liberty. However, the case at bar does not concern the exercise of the right to parenthood, but rather the right to birth children who are full biological siblings, and the right of a child to a sibling or a full biological sibling; these rights do not exist in law, and therefore the Petitioner cannot point to an infringement on her constitutional rights. The State emphasizes that the Petitioner's aspiration is understandable in and of itself, yet under the circumstances of the matter – even if the Petitioner's position is accepted as to the infringement on the rights conferred upon her – her right is outweighed by the right of the Donor not to be a biological parent against his will. It is argued that, although in re Nachmani it was decided to hold the right to parenthood superior to the right not to be a parent, the factual situation in that case was such that Ms. Nachmani no longer had the option of being impregnated by other sperm, i.e., a situation of the absence of a possibility of biological parenthood other than by means of Mr. Nachmani's sperm. This is not – so it is argued – the situation at hand, and the Petitioner has other options for exercising her right to parenthood. Furthermore, the Petitioner has no "biological link" to the sperm contemplated in the Petition, as was the case in re Nachmani (which, as may be recalled, concerned fertilized ova) – and a fertilization process has not commenced in the case at hand.

 

  1. With respect to the second level of arguments, it is maintained that although the Sperm Bank offers recipients of donations a same-donor sperm storage service (for a fee), such storage, at most, creates "a priority" over other recipients of donations; such storage does not ensure use of the sperm, nor does it obligate the sperm donor or the bank to make use of the sperm in circumstances where this is impossible. It is further asserted that the Petitioner cannot claim that had she been aware that the Donor may retract his consent she would have used other sperm, because this right is available to each one of the sperm donors, whoever they are, so long as no irreversible reality has been created. It is emphasized that in the consent form that the Petitioner signed, it was clarified that the choice of sperm is ultimately entrusted to the physician according to his discretion; that is to say, the choice is subject to the discretion of the representative of the sperm bank from the outset, and is not guaranteed to the recipient of the donation in advance. On the contractual level, it is argued that a contract whose expiration date has not been determined is not in force and effect forever and ever, and after a reasonable time, in the framework of the duty of good faith, a party to the contract may – so it is claimed – notify the other party of his intention to be released from the contract; such – in view of the elapse of time and change of circumstance.

 

  1. To reinforce its position, the State sought to draw an analogy from the Ova Donation Law, 5770-2010, which expressly regulates the option of an ovum donor to withdraw her consent "at any time prior to the performance of the act, which she agreed to designate the ova retrieved from her body to, and in respect of consent to designate ova for implantation – at any time prior to the fertilization of the ova" (Section 44 of the Ova Donation Law). It is also claimed that a similar analogy may be drawn from the Patient's Rights Law, 5756-1996, which prescribes that the patient's consent is required not only at the medical treatment stage, but throughout the continued treatment in its entirety (Section 13(a) of the Patient's Rights Law). According to the State's position, it emerges from these two laws that the legislator adopted an approach whereby infringement upon a person's right to autonomy is only merited in rare events of concern of grave danger, or at the stage of "irreversible reality"; this is not the case in the matter at hand. It was agreed that an interim order be issued, which prevents the disposal of the sperm donation until the court rules on the Petition. It was also requested that the Donor be joined as a respondent in the Petition, as the person whose rights might be compromised as a result of the Petition.

 

  1. The Donor, who was joined in as a respondent, had been requested to provide his response to the Petition (the decision of Justice Solberg of July 13, 2012, in which the interim order in consent was issued, as well as aforesaid), and after numerous attempts and efforts by the Sperm Bank's manager his response was received. At first, the Donor had notified the Sperm Bank's manager that he was willing to meet outside hospital grounds, in order to refrain from exposure "due to his current situation as a penitent", but failed to hold the appointment (notice by the State of August 15, 2012). Following the decision of November 6, 2012 (toward the hearing), in which the Donor's position had been requested once more, and it had been stated that if such response is not presented, "the court may consider this conduct in his ruling, without, of course, expressing an opinion as of this time", the Donor provided his position. In a letter of November 13, 2012, the Donor noted that, at the time of the donation "I had considered the act an ideal thing for childless women, and I am not playing innocent here, the money given was also a motive, but the desire to do good was the main thing"; however, "Afterwards, I changed my lifestyle and beliefs. The aforesaid act is presently incompatible with my world view, and in my opinion, the damage it holds is greater than the benefit, both to me, to my relatives, and to the woman who is the recipient of the donation and her children who are born by the sperm of a stranger". The Donor expressed his sympathy for the Petitioner's wishes, he also explained that since providing the donation, he got married and had a son; he is not interested in adding injury to his wife and hurting his children by adding a terrible uncertainty to their lives, "in the knowledge that they have siblings they do not know"; and it was further stated: "I am not interested in having a child born by me, without me being able to give him love, and without me loving his mother". At the bottom line, the Donor requested that use no longer be made of his sperm and expressed his apologies to the Petitioner for all the sorrow he had caused her as a result of these proceedings.

 

  1. In the hearing before us, on November 14, 2012, the Petitioner's attorney reiterated her arguments with respect to the infringement on her right to parenthood and her reliance on the representation before her. At the same time, the State's attorney reiterated the difficulty in recognizing the Petitioner's right, and asserted the need to regulate the area through primary legislation.

 

 

Ruling

 

  1. We are not dealing with a binary decision between "good and bad", or between right and wrong – both of the parties before us are "right" from their subjective point of view; we are dealing with human emotions of the both of them, and as pertains to the Donor – also internal feelings that derive from a current viewpoint. I believe that our decision must reflect the weight of the values of the law in a proportionate manner; there is no illegitimate position before us, as stressed by Justice (his former title) Witkon a long time ago:

 

"As with most problems of law and of life in general, it is not the choice between good and bad that makes the decision difficult for us. The difficulty lies in the choice between various considerations, all of which are good and worthy of attention, yet in contradiction with one another, and we are required to determine the order of priority among them" (CA 461/62 Zim Israel Navigation Company Ltd. vs. Maziar, IsrSC 17(2)1319, 1337 (1963)).

 

Such is also the case before us. It does not concern the elimination of one of the interests that lie in the balance, but rather the relative preference of one over the other. As we have noted at the outset, this case raises questions of numerous fields of law. The issue may be looked at through the prism of contract law, property law, and, naturally, from the angle of administrative law. Each one of these perspectives may serve as fruitful grounds for a rich and innovative discussion. However, I believe that, at the end of the day, the most appropriate and correct perspective for a ruling on the issue is through the right to dignity and autonomy conferred upon any person to tell the story of his life, as we shall see below. Therefore, the discussion will principally revolve around this angle of the subject, yet, as aforesaid, we shall also address some of the claims raised by the parties on the other levels of discussion. We shall already state at this point that it is worthy to once more call upon the legislator to regulate the issue through primary legislation.

 

Preface – Of Interests and Rights

 

  1. Legal reality often summons a fundamental contest between various legitimate considerations and values; obviously, such cases raise uncertainties and the need for an objective outline, to the greatest possible extent, of the craft of ascribing priority among them. Not every interest is protected by the law, and it depends upon circumstances even where a fundamental legal right has been recognized by law (of the classification of interests as rights, see HCJ 1514/01 Gur Aryeh vs. Second Television and Radio Authority, IsrLR 267, 275 (2001), in the judgment of President Barak, and compare to the dissenting opinion of Justice Dorner, ibid, p. 284; HCJ 6126/94 Senesh vs. the Chairman of the Broadcasting Authority, IsrSC 53(3)817 (1994); Oren Gazal Ayal and Amnon Reichman, "Public Interests as Human Rights", 41 Mishpatim 97 (5771)). Thus – for example – freedom of speech, which is recognized as a fundamental right in our legal system (HCJ 806/88 Universal City Studios vs. Films and Plays Censorship Board, IsrSC43(2)22 (1989)), receives legal protection on the political level, as the core of the right, but will not necessarily receive a similar protection on the level at the distant periphery of the recognized right, which collides with other interests; the farther you go from the core of the recognized right, so it is possible that under certain circumstances a certain act will not fall within the protection of the law. The question is thus twofold: whether the act falls under the definition of the fundamental right, and whether, under the circumstances, it is protected by the law, after the balance against other interests and rights (see ibid, p. 33-34, President Barak). In order to complete the picture, we shall note that the classification of the considerations at stake as rights or as interests defines the formula of the balance between them, and the normative superiority of one value over the other or their equal value (see Re Gur Aryeh, p. 284); however, the mere classification and the balancing manner ("horizontal" or "vertical") do not necessarily decide the concrete question before the court, since a weighty interest in vertical balancing, such as the interest of the security of the State and the public, may prevail in certain cases over a fundamental right (see HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel vs. Minister of the Interior, [2006](1) IsrLR 202, 339 - President Barak; and compare with the position of former Deputy President Cheshin, p. 457-459, and the position of Justice (his former title) Rivlin, p. 555-559 (2006)).

 

  1. The tough question – which was raised in re Nachmani under the special circumstances thereof – with respect to the classification of the right to parenthood against the right not to be a parent and the normative status of the one against the other, is not raised in the case at bar; because, as we shall see, harm to the core of the right to parenthood has not been proven, and, in fact, if harm has taken place in the matter at hand, it pertains to the right to autonomy; in this situation again, at most the issue concerns the right of the Donor to autonomy against the right of the Petitioner to autonomy, all as shall be specified below.

 

Of the Right to Parenthood

 

  1. Indeed, on the one hand, the Petitioner stands before us with her heart's desire to bring into the world another child from the Donor's donation, having full genetic siblinghood with her daughter. On the other hand, there is the Donor, who asks to prevent further use of the sperm donation he made in the past, and prevent an insemination process, that would make him, against his will, a genetic father to at least one more child, even if without ties with the child and obligations to him. Justice Strasberg-Cohen described this in re Nachmani as two sides of the same coin (see re Nachmani, p. 682), yet, according to her statements as well, a mixture of interests lies at the balance, and even if these interests may be referred to under the general term of right to parenthood and the right no to be a parent, this matter is not thereby exhausted; see the essay of the scholar Daphne Barak-Erez, "Of Symmetry and Neutrality: Reflections on the Nachmani Case", Iyunei Mishpat, 20(1)197, 198 (5756). I shall note already at this point that I do not believe that this case requires legal innovation with respect to the right to parenthood and the right not to be a parent, since the Petitioner's right to parenthood is undisputed, and the question is whether one should recognize the interest of parenthood necessarily by the sperm of the specific donor, as protected under one of these rights.

 

  1. Indeed, despite the different reasoning in re Nachmani and the disagreement between the members of the panel, including among the justices of the majority, it appears that there is presently no longer a dispute with respect to the status in-principle of the right to parenthood – and this is true also in the case at bar. In other cases as well, the perception that the natural right to parenthood is conferred upon every person has been established, as emphasized in CFH 7015/94 the Attorney General vs. Jane Doe, IsrSC 50(1)48, 102:

 

"It is the law of nature that a mother and father will naturally hold their son, raise him, love him and see to his needs until he grows and becomes a man. This is the instinct of existence and survival in us – 'the call of blood', the ancient longing of a mother to her child – and it is common to man, beast and bird. 'Even sea-monsters [jackals – M.C.] offer their breast and nurse their young' (the Book of Lamentations, 4:3)…this tie is stronger than anything, and is beyond society, religion and state…the law of the state did not create the rights of parents toward their children and toward the entire world. The law of the state addresses something already made, it aims to protect an inborn instinct within us, and it transforms an 'interest' of parents to a 'right' under law, to the rights of parents to hold their children" (Justice (his former title) M. Cheshin).

 

            And elsewhere, Justice Cheshin emphasized:

 

"The State argues and maintains as follows: a woman does not have the "right" to surrogacy; it is as though the issue of surrogacy is 'off-limits' and therefore a discrimination argument is an unmerited argument. According to this claim, because a woman is not entitled, ex hypothesi, to need a surrogacy process, a woman's claim of discrimination will consequently not be heard …I have found this argument difficult to comprehend…undoubtedly, the argument of a 'right' under law is a misplaced argument, certainly after the Surrogacy Law, which regulates the issue of surrogacy as it does. Whereas prior to the Law (and the regulations that preceded it), and there being no prohibition on surrogacy, one might argue that a woman, any woman, did have, a 'right' to surrogacy. In any event, the argument of a right to surrogacy is not to the point, yet, the main thing is that the 'right' we speak of – the right to parenthood – is a right that nature brings to us; it is of this right that we speak, not of the right to surrogacy by law (HCJ New Family, p. 445; emphasis added – E.R.).

 

  1. These words are also relevant to the matter at hand (also see HCJ 2245/06 Dovrin vs. the Israel Prison Service (June 13, 2006): "Family and parenthood are the consummation of the natural urge for the continuity of generations and the self-fulfillment of the individual in society"; ibid, paragraph 12 – Justice Procaccia). It is only natural that we mention at this point, that one of the first and foremost commandments is "[B]e fruitful and multiply and fill the earth" (Genesis, 1:28). And this is a deep aspiration, not to be taken lightly. Rachel says to Jacob (Genesis, 30: 1) "[G]ive me children, or else I die". The longing of the mothers, Sara, Rebecca and Rachel, and Hanna, the mother of Samuel, as well as the mother of Samson, all of these are documented in the Bible. The divine promise is " [T]here shall be no male or female barren among you..." (Deuteronomy, 7:14). The visitation of barren women is entrusted to the Almighty and to the righteous (Genesis Rabbah, 77), but the key of birth ("key of life" – "Maftea'ch shel Haya") is not entrusted to an agent and remains in the hands of the Almighty (Babylonian Ta'anit 2, 1-2); see also the ethics book Messillat Yesharim [lit. "Path of the Upright"] by the RaMHaL (Rabbi Moshe Haim Luzzato), the Sanctity chapter. Indeed, in any situation in which the person claiming a right to parenthood requires the approval of use of a new technology in order to enter the world of parenthood, a claim may be voiced that such person does not "hold the right to a particular treatment", he does not hold the right to insemination treatments, to surrogacy and the like. However, the core of the right to parenthood is the practical ability to bring children into the world. Just as the State does not require a "parenting license", so it may not prejudice a person's right to parenthood without weighty pertinent reasons (see CA 413/80 Jane Doe vs. John Doe, IsrSC 35(3)57, 81-82 (1981)). In such situations, wherein a person requires a certain medical treatment in order to be included in the parent circle, non-administration of the treatment infringes upon his right. Naturally, the right to parenthood is also relative, but there can be no dispute that in such cases there is a concrete infringement on the protected interest.

 

  1. I shall briefly address the classification of the right to parenthood (also see the words of Justice Goldberg, re Nachmani, p. 723-724). This point was extensively articulated by Justice Strasberg-Cohen (in a dissenting opinion) in re Nachmani:

 

"The classification of norms that regulate activity in relationships between man and his fellowman has occupied more than a few legal scholars and academics of various fields…legal rights in their strictest sense are the interests that the law protects by imposing duties on others in respect thereof. Conversely, legal rights, in their broadest sense, also include interests that are recognized by the law, against which there is no legal duty. These are liberties…Where a person has a right, which is a liberty or permission, he is under no duty toward the State or toward another to refrain from committing the act, just as he is under no duty to commit the act, which he is at liberty not to commit. A right, which is a freedom or a liberty, does not hold the power to impose a duty on another and to demand that he commit an act, which he is free not to commit…

 

The right to be a parent is, by its very nature, essence and characteristics, a natural, innate right, inherent to human beings. It is a liberty against which there is no legal duty, neither in the relationship between the State and its citizens nor in the relationship between spouses. The right not to be a parent is also a liberty, it is the right of an individual to control and plan his life. Indeed, non-parenthood in and of itself is not the protected value. The protected value in non-parenthood is the liberty, privacy, free choice, self-fulfillment and the right to make intimate decisions..." (ibid, p. 681-682; emphasis added – E.R.).

 

            And like her, Justice Dorner in the same case:

 

"Liberty in its fullest sense is not merely the freedom from outside interference by the government or by others. It also includes a person's ability to direct his lifestyle, fulfill his basic wishes and choose from a variety of possibilities while exercising discretion. In human society, one of the strongest expressions of an aspiration, without which many would not consider themselves to be free in the full sense of the word, is the aspiration for parenthood. This is not merely a natural-biological need. It concerns a freedom, which, in human society symbolizes the uniqueness of man. 'Any man who has no children is as good as dead' said Rabbi Yehoshua Ben Levi (Nedarim, 64, B [19]). Indeed, whether man or woman, most people consider having children to be an existential necessity that gives their lives meaning. Against this basic right, which constitutes a key layer in the definition of humanness, we are required to examine the right not to be a parent. The foundation of the right not to be a parent is the individual's autonomy against the interference of the authorities in his privacy." (re Nachmani, p. 714-715).

 

  1. Hence, the right to parenthood is a liberty, in the legal sense thereof – the right that fellowman and the State not interfere in the individual's actions and not obstruct the fulfillment thereof; a right against which there is no positive duty to act. However, an additional distinction emerges from these words, which pertains to the two layers of this right. The first layer, which holds value in and of itself, is the ability to fulfill the reproductive ability and become a biological mother or father. The second layer, which is also the one underlying the right not to be a parent, is the ability of a person to choose how to fulfill his natural right, i.e., the first layer. The second layer is at the periphery of the right to parenthood, it is not intended to protect the value of bringing children into the world in itself, but rather other values, such as the right to privacy, autonomy and the free choice of with whom, how and when, if at all, to bring children into this world (including the ability to plan a family). This point was articulated by the scholar Green in his aforementioned book:

 

"There are two facets to the right to be a parent: one facet, which to distinguish from the other shall be referred to as the factual, biological-physical facet, namely the right to belong to the parent population and have the status of a parent. The other facet is the right to decide if, when, with whom and in what way to exercise the first facet of the right to parenthood" (Green, p. 68).

 

  1. The right not to be a parent, as aforesaid, is based on the protected value of autonomy; on the face of it, in Israeli society in particular and perhaps in the free world in general, there is presently no value in and of itself in not being a parent; even if the Sages have said "[I]t is better for a man not to have been created than to have been created" (Babylonian, Eruvin, 13, 72), they added in the same breath "[and] now that he has been created, let him examine his deeds". In re Nachmani (p. 710-711), Justice Tal emphasizes the commandment "[B]e fruitful and multiply" (Genesis 1:28), which we have mentioned, and the words of the Sages (Babylonian Yevamot 63, 2): "Tanna, Rabbi Eliezer says that every person not engaged in bearing fruit and multiplying is as though spilling blood". Indeed, Rabbi E.M. Shach, may he rest in peace, told the story of the Chofetz Chaim, Rabbi Israel Meir HaCohen, may he rest in peace (HaMe'ot, the 19th-the 20th), who was deliberating in his times whether to give a couple a blessing for fertility because "children are an immense responsibility, it being a deposit from Heaven", and he saw the difficulty in raising children in a generation whose behavior is lawless and immoral (see Rabbi Asher Bergman The Use of Torah (Year 5758), 139). However, one way or another, everyone, or virtually everyone, would certainly agree that the right to parenthood includes a core value which stands on its own – to bring children into the world – and protects the value of autonomy. Scholar Barak-Erez wrote of this rationale in her aforementioned essay:

 

"This assumption of symmetry between the rights requires further inspection. Albeit captivating, it is far from being self-evident. It is not at all clear whether the right to be a parent and the right not to be a parent should be discussed on the same level only due to their allegedly being symmetric. In other words, the existence of symmetry between the two rights may not be assumed merely because they hold both ends of the rope of parenthood.

 

As a rule, the right to "have" and the right to "not have" are not always equivalent. Is the right to life completely equivalent to the right to die? ... This is not a sole example. From the fundamental principle of freedom of speech develops both the right to speak and the right to be silent. However, does it thence result that the right to speak is always equivalent to the right to be silent? … In order to decide the question of balancing the rights, one must address the justifications that underpin them … Justice Strasberg-Cohen determines that 'the right to parenthood derives from the right to self-fulfillment, liberty and dignity'. If the focus is on 'self-fulfillment', the right to parenthood is part of the idea of the autonomy of will: the law respects the individual's choices, including the choice of self-fulfillment through parenthood. When the right is perceived in this way, when it is the will that takes the focus, the balance between it and the decision to avoid parenthood is supposedly simple, since the court also respects this decision in the name of the autonomy of will.

 

However, there is only a semblance of simplicity here. Firstly, even were we to deem the right to parenthood and the right to avoid parenthood merely as derivatives of the autonomy of will, the symmetry between them would not be imperative. We do not respect every will, nor should every will be respected to the same degree. Beyond this, the main criticism is directed against the narrow perception … in my opinion, one should unravel in it [in the right to parenthood – E.R.] many additional facets. The right to be a parent is an independent right, rather than a mere expression of the autonomy of individual will. The realization of the option of parenthood is not just a possible way of life, but rather it is rooted in human existence. One may find it a cure for loneliness; another will thereby cope with the consciousness of death. Indeed, the choice to avoid parenthood is a possible way of life, which society and law need to respect" (p. 199-200).

 

  1. We shall also recall the position of Justice Goldberg, who noted in re Nachmani that "[I]n the dispute before us a positive right and a negative right face one another", both of which are derived from the right to autonomy (ibid, p. 723); but, in contrast, the position of Justice Turkel in that same case, who emphasized:

 

"The modern view, social and legal, recognizes the autonomy of the will of the individual. Hence derive and stand, ostensibly, one against the other, the right to be a parent and the right not to be a parent… Indeed, as cited by Joseph Raz from the essays of Prof. Gans and Dr. Marmor: 'An autonomic person is a person who writes his life story himself'. However, to use this simile, is there indeed symmetry between the rights of each of the spouses to write his own life story himself? In my view, there is no symmetry between the rights, despite the 'external' similarity between them, and the right to be a parent may not be deemed merely as a derivative of the autonomy of will, which stands against the right not to be a parent. Still, even if we deem both of the rights as such derivatives, they are not of equal value and standing, as though existence and nonexistence are equal to one another, and as though they are the symbols 1 and 0 on the computer under the binary method" (ibid, p. 736-737).

 

I believe that this last position is closer to the position I support, whereby the right to parenthood includes an independent value component that exceeds the right to the autonomy of will, unlike the right not to be a parent, which is anchored in the autonomy.

 

  1. We have thus found that the right to parenthood is, on the face of it, a cardinal value in and of itself, natural and primeval, and with high-ranking on a human scale of values; this is joined by the autonomy embodied in the choices of the individual related thereto. We have also seen that, in contrast, the right not to be a parent does not include a protected independent value, but is rather intended to protect the personal autonomy of a person in his choice (not to be a parent, or not to be a co-parent with a certain woman or man). It shall be noted that even those who side with this right being only an interest, see it – so it appears – as an interest that should be protected legally; see the words of Justice Tal in Re Nachmani (ibid, p. 701), who had reservations with respect to this classification. Now that we have established the characterization of the right to parenthood and the right not to be a parent, we shall now move forward to an examination of the standing of the Petitioner and the Donor.

 

Of the Standing of the Petitioner

 

  1. It appears that, in the case at bar, the infringement upon the Petitioner's right does not pertain to the core of the right to parenthood. The primary basis of this right is the practical ability to be included in the "parent circle", and bring a child into this world; there is no actual dispute that such option is, thank Heavens, available to her from a practical standpoint. The Petitioner is healthy and fit to bring a child into this world and is not bound (as was the situation with Ms. Nachmani at her time) to the Donor in the case at bar. She is able to act soon to receive another sperm donation at her preferred timing for undergoing additional insemination treatments. The Petitioner claims that impingement upon the ability to choose with whom to bring children into this world is sufficient in order to be sheltered by the legal right to parenthood. However, in practice, this is not an infringement upon the right to parenthood, but rather, as explained above, at most, and this is highly doubtful, an infringement upon the periphery protected by her right to autonomy (without, for now, addressing the question of the scope of protection, whether the right was indeed violated and whether, on proper balance, it is deserving of protection). It is a major question, and I believe that as a rule the answer thereto will not be positive, whether the right to autonomy has been infringed upon by the focusing thereof on the sperm of John Doe the Donor and no other, at any rate where an anonymous donor is concerned.

 

  1. It is claimed in this respect that "once the Petitioner arrived at the decision to bring children into this world from one donor only, and once she executed this decision when giving birth to her first-born daughter…the Respondents' decision infringes upon the Petitioner's right to parenthood" (Paragraph 21 of the Petition). However, as emerges therefrom, the Petitioner is not seeking protection of the core of the right to parenthood or of her autonomy, but rather of her right to parenthood from a specific person, or her right to a child having a specific genetic constitution.

 

  1. In order to assert the difficulty in legally protecting the Petitioner's interest to again conceive by the same genetic constitution, we shall compare her situation with the situation of a married woman who gave birth to a first child in wedlock, and whose husband promised her that they would have another child. This is not identical, of course, but both of them hold the same promise in-principle, that the second child to join the family would have the same genetic constitution of the first child, i.e. a biological son or daughter by the same father. Can the law enforce this promise when the husband decides to dissolve the marriage, and consequently also infringe on the mother's interest of parenthood to children of the same genetic constitution (or the right of the child to a full genetic sibling)? Can one point to a protected legal interest, other than the interest of reliance, and the prima facie interest that contracts should be honored, although, of course, one may not, as a rule, disparage them? It is my opinion that the answer to these questions cannot be affirmative, and the power of the interest of reliance and agreement is insufficient. Moreover, the infringed interest in the case of the married woman as described may even be stronger in relation to the case at hand, since her reliance is perhaps greater in view of the close relationship between her and her husband; it is recalled that in the case at hand the choice is also subject to the discretion of the treating physician, as aforesaid (see above, according to Annex E-2 to the Director General Circular). Indeed, on the face of it, one might argue that the contractual relationship in a case of sperm donation attests to a choice to follow a different path to parenthood, "businesslike" or "financial", of the type that grants security that is not extant in an intimate set of understandings. We shall hereinafter return to an analysis of the issue on this basis, and shall already state here that this proposition cannot be held.

 

Interim Summary

 

  1. We have addressed the nature of the right to 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

 

  1. 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.

 

  1. 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).

 

  1. 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.

 

  1. 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.).

 

  1. 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.).

 

  1. 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

 

  1. 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)).

 

  1. 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.

 

  1. 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…"

 

  1. 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)).

 

  1. 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)).

 

  1. 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".

 

  1. 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

  1. 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.
  2. 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).
  3. 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.

  1. 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. 
  2. 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.
  3. 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

  1. 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).
  2. 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.
  3. 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).
  4. 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 13th 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).
  5. 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

  1. 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.
  2. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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

  1. 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.
  2. 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.
  3. 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

  1. 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.
  2. 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. 
  3. 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.
  4. 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

  1. 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.
  2. 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

  1. 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.
  2. 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.
  3. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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

  1. 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)).
  2. 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.
  3. 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.
  4. 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?
  5. 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).
  6. 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.
  7. 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. 4th 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 

  1. 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?
  2. 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.
  3. 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".
  4. 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

  1. 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.
  2. 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

  1. 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.
  2. 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

  1. 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

  1. 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.
  2. 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)).
  3. 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

  1. 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

  1. 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

  1. 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

  1. 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.
  2. 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.

  1. 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.

  1. 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.
  2. 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".

  1. 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.
  2. 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.
  3. 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?     

  1. 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

  1. 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.

  1. 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.

  1. 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)).  

  1. 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.

  1. 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.

  1. 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.

  1. 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.
  2. 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.
  3. 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

  1. 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

  1. 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

  1. 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

  1. 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.

  1. 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.

  1. 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).
  2. 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).

Justice

Justice

Justice

 

 

State of Israel v. Apropim

Case/docket number: 
CA 4628/93
Date Decided: 
Thursday, April 6, 1995
Decision Type: 
Appellate
Abstract: 

Facts: Because of large-scale immigration from the countries of the former Soviet Union, the appellant wished to encourage the speedy building of residential apartments. This was done within the framework of a ‘Programme Contract’, which gave incentives to builders in the form of a State guarantee to buy apartments that were not sold on the open market, and it provided for sanctions in the event of delays. The incentives were particularly significant in development areas, where the State undertook to buy all the apartments that were not sold on the open market. However, the contract was drafted carelessly, and it left room for the respondent to argue that although it provided sanctions for building delays in desirable areas, there was no such sanction for building delays in development areas.

 

The District Court accepted the respondent’s argument, holding that the Contracts (General Part) Law, 5733-1973, mandated a two-stage approach to contractual interpretation, whereby only if the language of the contract was unclear, could the court consider the surrounding circumstances. The District Court held that the language of the contract was clear, and therefore it could not take account of the circumstances, and particularly the underlying purpose of the contract.

 

Held: Whereas Justice Mazza (in the minority opinion) upheld the ruling of the District Court, the majority rejected the District Court’s interpretation of the programme contract; the outcome that there was no sanction for building delays in development areas was inconsistent with the underlying purpose of the progamme agreement. Vice-President Barak rejected the two-stage doctrine of interpretation.

 

Appeal allowed.

 

Voting Justices: 
Author
majority opinion
Author
majority opinion
Author
dissent
Full text of the opinion: 

CA 4628/93

State of Israel

v.

Apropim Housing and Promotions (1991) Ltd

 

The Supreme Court sitting as the Court of Civil Appeals

[6 April 1995]

Before Vice-President A. Barak and Justices D. Levin, E. Mazza

 

Appeal on the judgment of the Jerusalem District Court (Justice Ts. E. Tal) dated 22 June 1993 in OM 46/93.

 

Facts: Because of large-scale immigration from the countries of the former Soviet Union, the appellant wished to encourage the speedy building of residential apartments. This was done within the framework of a ‘Programme Contract’, which gave incentives to builders in the form of a State guarantee to buy apartments that were not sold on the open market, and it provided for sanctions in the event of delays. The incentives were particularly significant in development areas, where the State undertook to buy all the apartments that were not sold on the open market. However, the contract was drafted carelessly, and it left room for the respondent to argue that although it provided sanctions for building delays in desirable areas, there was no such sanction for building delays in development areas.

The District Court accepted the respondent’s argument, holding that the Contracts (General Part) Law, 5733-1973, mandated a two-stage approach to contractual interpretation, whereby only if the language of the contract was unclear, could the court consider the surrounding circumstances. The District Court held that the language of the contract was clear, and therefore it could not take account of the circumstances, and particularly the underlying purpose of the contract.

 

Held: Whereas Justice Mazza (in the minority opinion) upheld the ruling of the District Court, the majority rejected the District Court’s interpretation of the programme contract; the outcome that there was no sanction for building delays in development areas was inconsistent with the underlying purpose of the progamme agreement. Vice-President Barak rejected the two-stage doctrine of interpretation.

 

Appeal allowed.

 

Statutes cited:

Contracts (General Part) Law, 5733-1973, ss. 13, 16, 25(a), 25(b), 26, 39, 41, 44, 45, 46.

Foundations of Justice Law, 5740-1980, s. 1.

Government and Justice Arrangements Ordinance, 5708-1948, s. 10A.

Inheritance Law, 5725-1965, ss. 30(b), 54.

Palestine Order in Council, 1922, s. 46.

 

Israeli Supreme Court cases cited:

[1]        CA 554/83 Atta Textile Company Ltd v. Estate of Yitzhak Zolotolov [1987] IsrSC 41(1) 282.

[2]        CA 450/82 State of Israel v. Hiram Landau Earth Works, Roads and Development Ltd [1986] IsrSC 40(1) 658.

[3]        CA 191/85 State of Israel v. Neveh Schuster Co. Ltd [1988] IsrSC 42(1) 573.

[4]        CA 5795/90 Sakali v. Tzoran Ltd [1992] IsrSC 46(5) 811.

[5]        CA 492/62 Shahaf Port Shipping Co. Ltd v. Alliance Insurance Co. Ltd [1963] IsrSC 17 1898.

[6]        CA 464/75 Promotfin Ltd v. Calderon [1976] IsrSC 30(2) 191.

[7]        CA 406/82 Nahmani v. Galor [1987] IsrSC 41(1) 494.

[8]        CA 479/89 Coptic Mutran v. Halamish — Government-Municipal Corporation for Housing Renovation in Tel-Aviv-Jaffa Ltd [1992] IsrSC 46(3) 837.

[9]        CA 453/80 Ben-Natan v. Negbi [1981] IsrSC 35(2) 141.

[10]     CA 46/74 Mordov v. Schectman [1975] IsrSC 29(1) 477.

[11]     CA 627/84 Nudel v. Estate of Tzvi Pinto [1986] IsrSC 40(4) 477.

[12]     CA 327/85 Kugler v. Israel Lands Administration [1988] IsrSC 42(1) 97.

[13]     CA 552/85 Agasi v. I.D.P.C. Israeli Data Processing Company Ltd [1987] IsrSC 41(1) 241.

[14]     CA 345/89 Neot Dovrat v. Israelift Elevators Y.M.S. Ilan Management and Investments Ltd [1992] IsrSC 46(3) 350.

[15]     CA 631/83 HaMagen Insurance Co. Ltd v. Medinat HaYeladim Ltd [1985] IsrSC 39(4) 561.

[16]     CA 3804/90 Delta Investments and Commerce (Keren Shomron) Ltd v. Supergas Israeli Gas Supply Co. Ltd [1992] IsrSC 46(5) 209.

[17]     CA 702/84 Yuval Gad Ltd v. Land Appreciation Tax Director [1986] IsrSC 40(4) 802.

[18]     CA 650/84 Stern v. Ziuntz [1987] IsrSC 41(1) 380.

[19]     CA 170/85 Zaken Bros. Contracting Company v. Mizrahi [1989] IsrSC 43(2) 635.

[20]     HCJ 47/83 Air Tour (Israel) Ltd v. General Director of Antitrust Authority [1985] IsrSC 39(1) 169.

[21]     CA 603/79 Avargil v. Peleg & Shitrit Building and Development Co. Ltd [1984] IsrSC 38(1) 633.

[22]     CA 703/88 Morgan Industries Ltd v. Batei Gan Leasing Ltd [1990] IsrSC 44(1) 288.

[23]     CA 1395/91 Winograd v. Yedid [1993] IsrSC 47(3) 793.

[24]     CA 5597/90 Cohen v. C.B.S. Records Ltd [1993] IsrSC 47(3) 212.

[25]     CA 765/82 Alter v. Alani [1984] IsrSC 38(2) 701.

[26]     CA 1932/90 Peretz Bonei Hanegev — Peretz Bros. Ltd v. Buchbut [1993] IsrSC 47(1) 357.

[27]     CA 536/89 Paz Oil Co. Ltd v. Levitin [1992] IsrSC 46(3) 617.

[28]     CA 154/80 Borchard Lines Ltd, London v. Hydrobaton Ltd [1984] IsrSC 38(2) 213.

[29]     CA 832/81 Ralpo (Israel) Ltd v. Norwich Union Fair Insurance Society Ltd [1985] IsrSC 39(1) 38.

[30]     CA 685/88 Kotterman v. Torah VaAvodah Fund [1993] IsrSC 47(2) 598.

[31]     CA 708/88 Shelomo Schepps & Sons Ltd v. Ben-Yakar Gat Engineering and Building Co. Ltd [1992] IsrSC 46(2) 743.

[32]     HCJ 1683/93 Yavin Plast Ltd v. National Labour Court [1993] IsrSC 47(4) 702.

[33]     CA 5559/91 K.Z. Gas and Energy Enterprises (1982) Ltd v. Maxima Air Separation Centre Ltd [1993] IsrSC 47(2) 642.

[34]     CA 5187/91 Maximov v. Maximov [1993] IsrSC 47(3) 177.

[35]     CA 324/63 HaLevy Segal v. Georgiani Maggi Co. Ltd [1962] IsrSC 18(4) 371.

[36]     CA 655/82 Grover v. Farbstein [1986] IsrSC 40(1) 738.

[37]     HCJ 15/56 Sofer v. Minister of Interior [1956] IsrSC 10 1213.

[38]     CA 161/59 Balan v. Executor of Litwinski’s Will [1960] IsrSC 14 1905.

[39]     HCJ 163/57 Lubin v. Tel-Aviv Municipality [1958] IsrSC 12 1041.

[40]     FH 32/84 Estate of Walter Nathan Williams v. Israel British Bank (London) (in liquidation) [1990] IsrSC 44(2) 265.

[41]     HCJ 306/86 State of Israel v. National Labour Court [1987] IsrSC 41(2) 639.

[42]     CA 783/86 Reuven Gross Ltd v. Tel-Aviv Municipality [1989] IsrSC 43(4) 595.

[43]     CA 719/89 Haifa Quarries v. Han-Ron Ltd [1992] IsrSC 46(3) 305.

[44]     CA 819/87 Development of part of Parcel 9 Block 9671 Co. Ltd v. HaAretz Newspaper Publishing Ltd [1989] IsrSC 43(2) 340.

[45]     CA 196/87 Shweiger v. Levy [1992] IsrSC 46(3) 2.

[46]     CA 779/89 Shalev v. Selah Insurance Co. Ltd [1994] IsrSC 48(1) 221.

[47]     CA 226/80 Kahan v. State of Israel [1981] IsrSC 35(3) 463.

[48]     CA 702/80 Galfenstein v. Avraham [1983] IsrSC 37(4) 113.

[49]     CA 757/82 Israel Electricity Co. Ltd v. Davidovitz [1985] IsrSC 39(3) 220.

[50]     CA 565/85 Gad v. Nevi’i [1988] IsrSC 42(4) 422.

[51]     CA 449/89 Flock v. Wright [1992] IsrSC 46(2) 92.

[52]     CA 2738/90 Yahav v. Ben-Tovim [1993] IsrSC 47(1) 695.

[53]     CA 530/89 Bank Discount v. Nofi [1993] IsrSC 47(4) 116.

[54]     CA 424/89 Farkash v. Israel Housing and Development Ltd [1990] IsrSC 44(4) 31.

[55]     CA 403/72 HaMeretz Automobile Chassis and Metalworks Ltd v. Grayev [1973] IsrSC 27(1) 423.

[56]     BAA 4/72 Sofran v. Bar Association Tel-Aviv District Committee [1973] IsrSC 27(2) 125.

[57]     HCJ 188/63 Batzul v. Minister of Interior [1965] IsrSC 19(1) 337.

[58]     CA 126/79 Fried v. Appeals Committee under Nazi Persecution Victims Law, 5717-1957 [1980] IsrSC 34(2) 24.

[59]     HCJ 932/91 Central Pension Fund of Federation Employees Ltd v. National Labour Court [1992] IsrSC 46(2) 430.

[60]     CA 72/78 Israel Land Administration v. Raab [1978] IsrSC 32(3) 785.

[61]     HCJ 305/82 Mor v. District Planning and Building Committee, Central District [1984] IsrSC 38(1) 141.

[62]     BAA 663/90 A v. Bar Association Tel-Aviv District Committee [1993] IsrSC 47(3) 397.

[63]     HCJ 4267/93 Amitai — Citizens for Good Government and Integrity v. Prime Minister [1993] IsrSC 47(3) 441.

[64]     CA 528/86 Polgat Industries Ltd v. Estate of Yaakov Blechner [1993] IsrSC 47(3) 821.

[65]     CA 39/47 Asher v. Birnbaum [1948] IsrSC 2 533.

[66]     HCJ 59/80 Beer-Sheba Public Transport Ltd v. Jerusalem National Labour Court [1981] IsrSC 35(1) 828.

[67]     CA 627/78 Weizman v. Abramson [1979] IsrSC 33(3) 295.

 

English cases cited:

[68]     Raffles v. Wichelhaus (1864) 159 All ER 375 (Ex.).

[69]     Heydon’s Case (1584) 76 All ER 637 (K.B.).

[70]     Prenn v. Simmonds [1971] 1 W.L.R. 1381 (H.L.).

[71]     Reardon Smith Line Ltd v. Hansen-Tangen [1976] 1 W.L.R. 989 (H.L.).

[72]     Antaios Compania S.A. v. Salen A.B. [1985] A.C. 191.

[73]     Glynn v. Margetson & Co. [1893] A.C. 351.

[74]     Grey v. Pearson (1857) 10 All E.R. 1216 (H.L.).

 

For the appellant — R. Dotan, senior assistant to the District Attorney, Jerusalem.

For the respondent — P. Gladstein.

 

 

JUDGMENT

 

 

Justice E. Mazza

This is an appeal on a judgment of the Jerusalem District Court (the honourable Judge Ts. E. Tal), in which the court accepted the position of the respondent and rejected the position of the State, regarding the correct interpretation of clause 6(h)(3) of the ‘1990 Programme Contract’.

            The programme contract

2.    At the end of 1990, the Government decided to encourage the building of apartments for new immigrants and other persons entitled to housing. To advance this policy, the Ministry of Building and Housing prepared an incentive programme, which was based on the allocation of land for building by the Israel Lands Administration, and its undertaking to purchase from the contractors the apartments that would be built, wholly or in part. Within the framework of the steps taken to realize the incentive programme, a standard form of a programme contract was prepared. The form of this contract (which is the ‘programme contract’) constituted, from this point onward, a binding basis for contractual relationships (for which ‘specific contracts’ were also prepared) between the State (the Building and Housing Ministry), the contractors and the various building promoters. The programme contract imposed on the State a liability to buy from the contractor, at his request, a fixed quota of the apartments that would be built, at a price to be calculated in accordance with the provisions of clause 6(f) of the programme contract (hereinafter — the calculated price).

With regard to the obligation of the State to buy from the contractor, at his request, the apartments that would be built, the programme contract distinguished between two types of project: the first type included agreements to build apartments in sought-after areas, whereas the second type included agreements to build in development areas. One distinction between the types was in the quota of apartments that the State was liable to buy from the contractor: with regard to apartments of the first type, the State was liable to buy up to half (50%) of the apartments, whereas with regard to the second type, the purchase obligation applies to all (100%) of the apartments to be built. A further difference between the types concerns the date when the contractor’s right to demand that the State carry out its purchase undertaking could be invoked; from clause 6(b)(1) of the programme contract it transpires that with regard to apartments of the first type, the contractor’s right to demand purchase arises, at the earliest, when the building of the structure is complete (in the language of the contract: ‘stage 40’); with regard to apartments of the second type, the contractor may (under clause 6(b)(2) of the contract) present his demand to the State earlier, as soon as the building frame and the partitions are finished (‘stage 18’). We should point out that the programme contract did not limit the period during which the contractor might present to the State his demand to carry out the purchase undertaking, but (as will be clarified below) a delay in presenting his demand beyond defined periods affects the extent of the contractor’s entitlement to receive from the State, in return for the apartments, the full calculated price.

3.    Clauses 6(g) and 6(h) of the programme contract defined several cases where the contractor would lose his right to receive from the State the full calculated price, and in each of these cases, the programme contract established the amount of the reduction that the State would deduct from the calculated price. It was the nature of one of these cases, the one stipulated in clause 6(h)(3) of the programme contract, that was the focus of the dispute of interpretation on which the District Court gave judgment and which is the subject of the appeal before us.

Before I deal with the disputed interpretation of clause 6(h)(3), I will first quote in full clauses 6(g) and 6(h) of the programme contract:

‘(g) With regard to apartments purchased under clause 6(b)(1) above that are completed after the end of the performance period in the specific contract, notwithstanding what is stated in the contract with the contractor that will be signed or that was signed between the company and the Ministry, an amount equal to 2% of the apartment price shall be deducted from the purchase price calculated under sub-clause (f) for each month of delay in performance.

(h) Notwithstanding what is stated in this clause above —

(1) Should the purchase undertaking be invoked after the end of the performance period, the interest shall be calculated as stated above only until the end of the performance period;

(2) Should the purchase undertaking be invoked more than 18 months after the end of the performance period, an amount of 2% shall be deducted from the apartment price, that will be determined as stated in sub-clause (f) above, for each month after the end of the period of 18 months as stated;

(3) Should the purchase undertaking be invoked with regard to projects for which a purchase undertaking was given for an amount of 100% after the end of the performance period, an amount of 5% shall be deducted from the apartment price, that will be determined as stated in sub-clause (f) above, for each month after the performance period.’

Factual background and scope of the dispute

4.    The respondent company is a building contractor. On 27 March 1991, in consequence of an agreement reached between it and the Ministry of Building and Housing, the respondent signed the programme contract. When the contract was signed by the State (on 31 July 1991), pursuant to what was stipulated therein, the parties proceeded to enter into two specific building contracts, whereunder the respondent undertook to build 748 residential units in a development area in the south of the country. We are therefore concerned with agreements for the building of apartments, which for the purpose of the distinction set out in the framework contract, are projects of the second type.

On 27 February 1992, when the building of some of the apartments reached the end of ‘stage 18’, the respondent presented a demand to the Ministry of Building and Housing to invoke the State’s undertaking to purchase these units from it. The State approved the demand for the purchase of the apartments, but the respondent failed to comply with the date agreed (in the specific contracts) as the date for completing the building. With the State’s consent, the contractual period was extended to 29 November 1992, but in practice the respondent only completed the building of the apartments on 3 January 1993.

Against this background, a dispute arose as to whether the respondent was entitled to receive from the State, in return for the apartments (at this stage this referred to 165 apartments that were completely built), the full calculated price. In a calculation made by the Ministry of Building and Housing, 6% of the calculated price was deducted (in other words, the respondent was offered a payment equal to only 94% of the calculated price). The State argued that under clause 6(h)(3) of the programme contract, it was entitled to make a deduction from the calculated price at a rate of five percent for each month of delay in carrying out the building, in relation to the agreed performance period, and in this instance the delay amounted to a month and five days. The respondent disputed the State’s contention and insisted that it was entitled to the full calculated price. According to the respondent, clause 6(h)(3) referred to a delay of the contractor in presenting his demand to the State to fulfil its undertaking to purchase the apartments. It follows that this clause and the delay in completing the performance of the building are unrelated.

The District Court judgment

5.    The respondent applied to the District Court, by way of an originating motion, and put before it the question in dispute. It should be noted that, ab initio, its application also raised a factual dispute. This dispute mainly revolved around the question whether a document entitled ‘Supplement to the Agreement’, which was prepared by the State but signed only by the respondent, applied to the relationship between the parties. The respondent argued that this document constituted a part of the programme contract, and it also sought to rely on its contents to support its position with regard to the construction of clause 6(h)(3). Although the State did not deny that the document was prepared by the Ministry of Building and Housing, it argued that it did not apply to its relationship with the respondent. But when the action came to trial, the parties agreed to limit the dispute merely to the question of the construction of clause 6(h)(3), and to ignore their disagreement as to the facts, including the question of the application of the ‘Supplement to the Agreement’ on the relationship between the parties. In view of this agreement, the learned judge considered the question of the construction of clause 6(h)(3) within the framework of the programme contract only, without reference to the questions of fact. When he reached the conclusion that the respondent’s construction was correct, the trial judge did not need to do more than merely allude to the respondent’s claim that what was stated in the ‘Supplement to the Agreement’ also supported its position.

6.    By accepting the respondent’s position, the District Court held that clause 6(h)(3) referred to a case of a delay in submitting the contractor’s request to invoke the State’s undertaking to buy the apartments from it. The judge’s main reason was that this construction was required by the clear language of the clause and also from its being part of clause 6(h). The judge pointed to the identical expressions used by the contract in the three sub-clauses of clause 6(h), and attributed to these expressions in clause 6(h)(3) the same meaning possessed by them in the two preceding clauses (clauses 6(h)(1) and 6(h)(2)), where there was no dispute as to the subject of matters discussed therein. This comparison showed that only the construction proposed by the respondent equated interpreted clause 6(h)(3) consistently with the two preceding clauses. On the other hand, the judge emphasized that the language of the provision contained not even a hint that it referred, as the State argued, to a delay in carrying out the building. By way of comparison, he referred to clause 6(g), which concerns a reduction in price because of a delay in carrying out the building in projects of apartments of the first type; here it is expressly stated that for apartments ‘whose building is completed after the end of the performance period in the specific contract… the calculated purchase price under subsection (f) would be reduced by an amount equal to 2% of the price of the apartment for every month of delay’.

7.    The argument of the State in the District Court was that the language of clause 6(h)(3) (on its own) was not unambiguous, and that due to the haste with which the programme contract was drafted, no interpretative conclusion should be drawn from the structure of the contract, the position of the clause in the contract and any comparison between the language of the clause and the language used in other clauses. In construing clause 6(h)(3) — the State argued — the construction that is consistent with the purpose of the programme contract should be preferred. Since its purpose was to encourage contractors and to speed up the building, the contracts can be presumed to have intended to provide a sanction for delay in completing the building. The proof of this is that for projects to build apartments of the first type, for which the State was liable to buy only half the apartments, the programme contract provides (in clause 6(g)) for a reduction of the price by a rate of 2% for every month of delay in finishing the building. In these circumstances, it would not be reasonable to assume that, for projects to build apartments of the second type, where the State is liable to buy all the apartments from the contractors, a contractor who is late in finishing the building will escape without any sanction. Surely the need for a sanction with regard to projects of the second type is required a fortiori?

The learned trial judge rejected this argument. First, he held that since the language of the contract left no doubt as to the contents of the provisions of clause 6(h)(3), there was no need to ascertain the intentions of the parties on the basis of external circumstances. Second, he further determined that even if the argument were accepted, the result would be that the contract was deficient, since then it would lack a clause providing for a reduction of the price as a result of a delay in presenting the contractor’s demand. Therefore, it would be best to leave clause 6(h)(3) as it stands and to construe it according to its plain meaning; and if, in any specific instance, the State should suffer damage as a result of a delay in carrying out the building of apartments of this type, it should sue for compensation for its damages under the laws of contract. He hinted, without needing to do so, that the State might find a remedy for cases of this type even in the ‘Supplement to the Agreement’, since he was not required to rule on its application to the relationship between the State and the respondents, and he refrained from doing so.

The appeal

8.    In the appeal before us, the State once again relies on the argument that clause 6(h)(3) of the programme contract should be construed, not in accordance with the language of the clause, nor on the basis of its position in the text of the contract, but according to the fundamental and main purpose of the programme contract as an overall framework. The purpose of the programme contract, the State emphasizes once again, was to induce contractors to carry out the building. Clearly, this purpose is frustrated unless the contractors comply meticulously with the agreed timetable. The commercial logic of the programme contract therefore requires a construction of clause 6(h)(3) such that it applies to a case of delay in carrying out the building. For this purpose, clause 6(h)(3) should be regarded as parallel to clause 6(g): just as clause 6(g) causes a reduction of the calculated price as a result of a delay in finishing the building of projects of the first type, so clause 6(h)(3) causes a reduction of the calculated price as a result of a delay in finishing the building of projects of the second type. And since the damage caused by a delay in finishing the building of apartments in development areas is greater than the damage caused by a delay in finishing the building of apartments in sought-after areas, the amount of the reduction from the calculated price, prescribed by clause 6(h)(3), is greater than the amount of the reduction prescribed by clause 6(g).

The premise for this argument is that the language of clause 6(h)(3) is unclear and in any case it may be construed also differently from the construction of the learned judge. But alternatively, the State claimed that even if the language of the clause is clear, a construction based on its purpose should be preferred to its literal meaning. This is required (according to counsel for the State) by the commercial nature of the contract and by commercial logic, which can be presumed to have guided the parties. In this respect, it should be noted that counsel for the State does not dispute that the learned judge was correct in his finding that adopting the State’s interpretation would leave the State without any sanction for a delay by the contractor in presenting his demand to invoke the State’s undertaking to buy the apartments. But she claims that the State will not have any difficulty in accepting this result. The reason for this is that some delay in presenting the demand does not entail much damage; at times, it might even be in the State’s interest that the contractor should delay in presenting its demand. This is not the case when the contractor delays in completing the building by the agreed time. Such a delay is likely to cause great damage, and therefore it cannot reconcile itself to a construction that deprives the State of a means of control over compliance by contractors with a binding timetable.

A literal interpretation of clause 6(h)(3)

9.    With regard to the construction of clause 6(h)(3), I agree with the learned judge in the District Court. I too believe that the language of the section is simple and clear. The text of the section and the context in which it is positioned indicate that its provisions apply to a case where the contractor’s demand to invoke the State’s undertaking to buy apartments, in projects of the second type, is presented to the State by the contractor after the end of the performance period.

10. The language of clause 6(h)(3) refers to a case ‘of invoking the purchase undertaking… after the end of the performance period’. There was no dispute between the parties (and this is also implied by the definition of this concept in the programme agreement) that ‘the end of the performance period’ means the date on which, according to what is agreed between the contractor and the State in the specific contract, the contractor is liable to complete the building of the structure. The words that require construction are ‘invoking the purchase undertaking’. In my opinion, there is no doubt that this expression refers to the contractor’s demand, presented to the State, to carry out its undertaking to buy the apartments from it (and not, for example, the act of the purchase itself).

This is clearly required by the context in which this expression is used in the first two sub-clauses of clause 6(h); Sub-clause (1) — which applies to projects of both types of apartment — restricts the contractor’s right to payment of interest ‘until the end of the performance period’ only; whereas sub-clause (2), which applies only to projects of the first type of apartment, provides for a reduction of the calculated price by an amount equal to 2% for each month after the end of the eighteen months during which the contractor should have presented his demand. The two provisions apply to cases where the contractor’ demand that the State complies with its purchase undertaking is presented by him at a late date: the first case (governed by sub-clause (1)), refers to a demand presented ‘after the end of the performance period’. The provision is that, in such a case, the contractor is only entitled to the payment of interest until the end of the performance period; the same is also true of projects to build apartment of the first type, with regard to which the contractor is entitled to delay his demand to invoke the undertaking for eighteen months from the end of performance, without being deprived of his right to receive the full calculated price (including linkage differentials). The second case (governed by sub-clause (2)), is one where the contractor’s demand to invoke the purchase undertaking is presented by him to the State more than eighteen months after the end of the performance period. The clause provides that, in such a case, the calculated price will be reduced by an amount of 2% for each month after the end of the eighteen-month period.

It is not superfluous to add that the term ‘invoke the purchase undertaking’ (or similar language) appears also in other parts of clause 6 of the programme contract, and wherever it is used the context shows (both literally and contextually) that it refers to the contractor’s demand. On the other hand, it appears that whenever the programme contract refers to the State’s act of purchasing the apartments, this is stated in different language (‘performance of the purchase undertaking’, ‘date of purchase’, etc.).

11. A reading of the provisions of clause 6(h)(3), while attributing the said literal meaning to the first part of the clause, leaves no room for doubt that the deduction in the last part of the clause refers only a case where the contractor’s demand to invoke the purchase undertaking is presented to the State after the end of the performance period. The deduction from the calculated price, which the clause prescribes, is clearly designed to encourage the contractor to present his demand — which, as stated, he is entitled to do as early as the completion of the building frame and the partitions (‘stage 18’) — no later than the end of the performance period. This provision, which relates to projects of the second type, is clearly the parallel of the preceding one (the provision in clause 6(h)(2)), which refers to a reduction in the calculated price, in projects of the first type, for a delay in the contractor’s demand of more than eighteen months after the end of the performance period.

The interpretation proposed by the State, as the learned judge has already pointed out, has no basis in the language of clause 6(h)(3), where the term ‘performance delay’ (or any similar term) does not appear at all. In view of the necessary comparison of the wording of the clause with the wording of clause 6(g) — which refers to a delay by the contractor in completing the building work on time and which uses for this purpose the express words ‘performance delay’ — the absence from clause 6(h)(3) of a similar term cannot be accidental.

Moreover, accepting the construction suggested by the State, with regard to the case where the deduction prescribed by the end of clause 6(h)(3) applies, would make the beginning of the clause meaningless. As can be seen from the first part, the clause refers to a ‘case of invoking the purchase undertaking… after the end of the performance period’. If it were correct that the section governs cases where the contractor was late in completing the performance, there would be no logic in restricting the reduction of the calculated price to be paid to him only to a case where he presented to the State a demand to invoke the undertaking after the end of the performance period. In other words, if the deduction from the calculated price discussed in the clause is directed at a case of delay in completing the performance, what significance is there to the question of when the demand was presented by the contractor?

The purpose of the contract as reflected in its language

12. Approving the perspective of the District Court with regard to the plain meaning of the text and the clear intention of clause 6(h)(3) exempts me from the need to consider the circumstances in which the programme contract was signed as a separate source of interpretation. The rule set out in section 25(a) of the Contracts (General Part) Law, 5733-1973, applies in this respect, and this provides that:

‘A contract shall be construed in accordance with the intentions of the parties, as is evident from the contract, and to the extent that it is not evident therefrom — from the circumstances.’

 ‘The “intentions” of the parties are the purposes or objectives which were in their minds at the time of making the contract’ (Justice Barak in CA 554/83 Atta Textile Co. Ltd v. Estate of Yitzhak Zolotolov [1]), at p. 305). It is also a well-established rule that when a contract has such clear language that it leaves no room for doubt as to its intention, the parties’ intentions should be derived from it, and one should not examine for this purpose the circumstances in which it was made (see the remarks of Justice Barak in Atta v. Estate of Zolotolov [1], at p. 304; the remarks of Vice-President Ben-Porat in CA 450/82 State of Israel v. Hiram Landau Earth Works, Roads and Development Ltd [2], at pp. 667-668, and in CA 191/85 State of Israel v. Neveh Schuster Co. Ltd [3], at p. 579; and recently in CA 5795/90 Sakali v. Tzoran Ltd [4], the remarks of Justice S. Levin at p. 830). Note that the significance of this rule is not that clear language prevails over a clear purpose that conflicts with the language, but its significance is that clear language indicates the intentions of the parties and the purpose of their contract. If the language is clear, then the purpose is also known, and the court will not resort further to examine the hidden thoughts of the parties on the chance that in their minds they had a different purpose, to which they did not give expression. In the words of Justice Cheshin in Sakali v. Tzoran [4], at p. 817:

‘The interpreter must pass two stages in assessing the intentions of the parties: the first stage is (assessing) the intentions of the parties as these are evident from the contract, and the other stage is — in so far as their intentions are not evident from the contract — (assessing) the intentions of the parties as they are evident from the circumstances’ (emphasis added).

13. In her alternative argument, counsel for the State challenged the correctness of the District Court’s conclusion, even if it is found that it was correct in determining that the language of clause 6(h)(3) is clear. According to her argument, the judge should have construed the provisions of the clause in the spirit of the purpose of the programme contract, while taking into account the commercial logic that undoubtedly guided both parties.

This argument should be rejected. The rule of section 25(a) of the Contracts (General Part) Law applies also to the construction of contracts, since logic (the logic of the construer) implies that the parties had a certain objective. This is the case, inter alia, also with regard to commercial and business contracts, which the court is obliged to construe by applying a criterion of business logic. The remarks of Justice Berinson in this context are well known:

‘We are concerned with a commercial transaction and we must try to give it logical validity in the same way that businessmen would in view of all the circumstances of the case’ (in CA 492/62 Shahaf Port Shipping Co. Ltd v. Alliance Insurance Co. Ltd [5], at pp. 1901-1902).

See also the comments of Justice (later President) Y. Kahan in CA 464/75 Promotfin Ltd v. Calderon [6], at p. 195. But this can be done and should be done only if the language of the contract is ambiguous, or can support the construction that according to the logic of the construer befits the logical purpose of a contract of that sort. This is not the case if the language of the contract is clear in a manner that leaves no room for doubt as to its meaning; then, the intentions of the parties should be assessed on the basis of what is implied by the language used, and not according to the logic of the construer. This was discussed by Justice Bejski in CA 406/82 Nahmani v. Galor [7], at p. 499:

‘Indeed, it sometimes happens that when the court comes to consider and construe the intentions of the parties, they will examine for this purpose the objective that the parties wanted to achieve, and the intentions that guided them when they drafted the document… but section 25(a) of the Contracts (General Part) Law, 5733-1973, directs us to construe the intentions of the parties as it is evident from the contract, and if it is not evident therefrom — from the circumstances. If the contract is clear and the language is unequivocal, there is no further need to consider the circumstances, and certainly not the commercial logic or economic viability, which may have been influenced by personal or speculative considerations of one of the parties, which he is not required to reveal to the other party or set out in the contract’ (emphasis added).

This is the law in this case too. When the language of the clause was found to be clear, and its provisions are consistent with all the provisions of the contract, there is nothing to be gained by the argument that logic dictates that the parties intended something else. The apparent objective of the clause prevails over the probable objective that one may wish, to no avail, to fit into the language. In the words of Justice Barak, in Atta v. Estate of Zolotolov [1], at p. 304: ‘True, interpretation is not limited merely to the words, but the words limit the interpretation’. Such is the case before us. If we were required to construe the clause according to the order of priorities required by the business purpose and commercial logic of the programme contract, I would indeed have inclined to accept the State’s position. But the clear wording prevents us from pursuing any external criteria.

14. I would like to emphasize: in my judgment I considered the construction of clause 6(h)(3) only within the framework of the programme contract. I adopt no opinion about the relief that may be available to the State for a delay in completing the performance of the building in other transactions to which the programme contract applies, whether under the programme law or according to the document entitled ‘Supplement to the Agreement’ which the State argues does not apply to its relationship with the respondent.

Additional remarks after seeing the majority opinion

15. My learned colleagues do not accept my opinion and I am therefore in the minority. My colleagues think that the provisions of clause 6(h)(3) of the programme contract can and should be construed as applying to a delay in building the apartments in development areas. My colleague, Justice D. Levin, bases this conclusion on the intentions of the parties, which, in his opinion, is implied by the contract, as a complete entity that indicates its purpose. My colleague, the Vice-President, does so — as he thinks should be done in every case — on the basis of a broad interpretative process, in which one should examine and consider not merely the language of the contract as it integrates into all its provisions, but also the external circumstances. In this respect, my colleague unfolds a broad doctrine. He rejects the correctness of the accepted distinction between the stage of assessing the intentions of the parties from the contract, and the stage of assessing their intentions from the circumstances. In his opinion, the time has come to abandon the ‘doctrine of the two stages’ and to unify the interpretation process. Within the framework of the broader process, the purpose of the contract will be examined and the intentions of the parties will be assessed on the basis of this. The language of the contract is merely a point of origin. The goal is to clarify the purpose of the contract, and where the language is not consistent with the purpose, the judge may depart from the language. Moreover, when the purpose of the contract becomes clear to the judge, but something is lacking in the contractual arrangement prescribed for achieving it, the judge may fill in what is missing.

16. I am of the opinion — and my colleague Justice D. Levin agrees with this — that the path of interpretation, dictated by section 25(a) of the Contracts (General Part) Law is indeed divided into two stages. This does not imply that clear language and a coherent structure of the contract constitute a complete barrier that prevents the court from reaching the external circumstances. At least, one must agree that there may be situations (probably special and unique ones) where external evidence will be needed to clarify the subjective meaning of expressions whose objective meaning is clear. My colleague, the Vice-President, gave a convincing example of this: if in a contract it is written that the parties agree to the sale of a horse, but it becomes clear from a code commonly used by them that they could only have been referring to a machine called by them ‘horse’, it is hard to believe that a court could assess the intentions of the parties from the contract (whose language is ostensibly clear) and ignore the true purpose of their agreement, as can be understood from the circumstances. I choose not to consider the overall and complex question of distinguishing between the stages of clarifying the intentions or unifying them. Both parties refrained from presenting any evidence to the District Court, and in any event no circumstances were revealed to the court except for those that are implied by the contract itself. From this it also follows that in summary of my position with regard to the appeal before us, it is sufficient for me to refer to the opinion of my colleagues — for only in this respect, it appears, are they in agreement — that according to the intentions of the parties, as they are evident from the contract, clause 6(h)(3) of the general contract should be construed as providing a sanction for a delay in carrying out the building of the apartments in development areas. I have three comments with regard to this position.

17. As my first comment, I would like to point out that I too accept that assessing the intentions of the parties from the contract is not a process limited to a literal construction of the words used by the parties, but a process that seeks to arrive at an examination of the purpose of the contract, as is evident from it, as a whole. Nevertheless, in so far as there is no evidence to the contrary in the other provisions, I attach great importance to the presumption that the parties intended what they actually wrote. In general, I believe that it is proper to assume that people tend to take care and be particular about the wording of their contractual agreements. Where the written word has a clear meaning and its reasonable intention is consistent with the subject of the contract, it is still, in my opinion, the most reliable source for assessing the intentions of the parties, and also the safest guarantee of preserving their reliance interest on written contracts. Therefore, in order to construe a contract according to what appears (to the interpreter) to be the purpose of the contract, there must be at least a basis for this in the language used by the parties; in any event, I cannot support a ‘purpose-oriented’ construction that is isolated from, conflicts with or is inconsistent with the language. This restriction on the power of the interpreter has particularly great weight when in the contract — and in the same context —repeated use is made of the same expressions. The repeated use of the same expressions cannot be accidental. It attests to the existence of a common denominator between the contexts, which the interpreter cannot ignore.

I am afraid that my colleagues’ construction of clause 6(h)(3) of the programme contract does not pass this test. To illustrate this, let us again use the example of my colleague, the Vice-President. Suppose (as an imaginary and remote hypothesis) that an express agreement of parties for the sale of a ‘horse’ can be interpreted as an agreement for the sale of a machine, even if the circumstances that attest to the parties’ lexicon are evident from the contract. Now let us assume that in the said contract it was agreed, in identical language, on two different transactions which both concern the sale of a horse, and there is no dispute between the parties that the first of the two does indeed concern the sale of a horse. In such a situation, is it conceivable, on the basis of assessing the intentions of the parties as they are evident from the contract, that in the second transaction the parties were referring to the sale of a machine? And suppose the said contract also included a third sale transaction that expressly spoke of a sale of a machine? Would it not be understood in that case how important it is to restrict the power of the interpreter to determine that the second transaction, even though it speaks of a ‘horse’ (like in the first transaction), refers to a machine (like in the third transaction)? In view of the use of identical terms, the programme contract is similar to the last case described. In each of the three sub-clauses of clause 6(h) the term ‘invoke the purchase undertaking’ is repeated, while in clause 6(g) the term ‘delay in performance’ is used. Since no-one disputes the meaning of the expression ‘invoke the purchase undertaking’ in clauses 6(h)(1) and 6(h)(2), I cannot accept that the very same term in 6(h)(3) should be interpreted as a ‘delay in performance’. It is clear from clause 6(g) that the expression ‘delay in performance’ was well-known to the drafter of the contract; if clause 6(h)(3) was intended to deal with an issue similar to that dealt with in clause 6(g), the presumption is that the draughtsman would have used this term in clause 6(h)(3) as well. From the use of the term ‘invoke the purchase undertaking’ in clause 6(h)(3) as well, it can be concluded that the subject of this clause is not similar to the issue set out in clause 6(g), but similar to the issue set out in clauses 6(h)(1) and 6(h)(2).

18. My second comment refers to the scope of the disagreement presented by the parties for the decision of the District Court.

The basis of my colleagues’ interpretation of the provisions of clause 6(h)(3) is the assumption that the provisions of clause 6(h)(2) — which provides for the amount of the reduction in the price in cases where the contractor delays in presenting his demand to invoke the purchase undertaking — should be construed as applying both to apartments in sought-after areas as well as those in development areas. The problem is that my colleagues’ assumption with regard to the construction of clause 6(h)(2) is of their own invention. Not only did the State not suggest this construction in its pleadings before the District Court, but even in its pleadings before this Court (as I have already pointed out in paragraph 8 above), counsel for the State did not dispute the correctness of the learned judge’s ruling that accepting the State’s construction of clause 6(h)(3) will leave the State without a sanction for a delay by the contractor in presenting his demand to invoke the State’s undertaking to buy the apartments of the second type (apartments in development areas). Moreover, counsel for the State even explained that the State would have no difficulty in accepting this outcome, since some degree of delay on the part of the contractor in presenting his demand will not cause serious damage and in some cases may even be in the State’s interests.

Matters progressed in the following manner: although in the respondent’s action that was submitted to the District Court the issues were presented in rather vague language, there was an implied argument that clause 6(h)(2) deals with cases of a delay in a demand to take advantage of the undertaking to buy apartments of the first type. On the basis of this assumption, and relying on identical terms in the two sub-clauses and their proximity to one another within the framework of clause 6(h), the respondent sought to interpret clause 6(h)(3) as dealing with the same topic with regard to apartments of the second type. In its reply and final arguments, the State did not dispute the correctness of the respondent’s assumption regarding the contents and the scope of the provisions of sub-clause 6(h)(2); its main argument was that, despite the identical language and proximity of the two sub-clauses, clause 6(h)(3) should be construed as dealing with a different issue. In the absence of an express argument by the State that the respondent’s assumption with regard to the construction of clause 6(h)(2) should be rejected, the inevitable conclusion was that with regard to the construction of this clause there was an (at least implied) agreement between the parties. Indeed, the disagreement between the parties, before the District Court and before us, focused merely on the construction of clause 6(h)(3).

No wonder, then, that in construing the provisions of clause 6(h)(3), the learned trial judge was not required to construe the other clauses, including clause 6(h)(2). He was not required to rule on this issue, since prima facie it was not in contention, and it would appear that he was not entitled to rule on it. The rule is that a civil court does not rule contrary to a position that is accepted by the litigants, and this rule applies here too: since the litigants only disputed the construction of clause 6(h)(3) — whereas they presented (at least by implication) a position accepted by both of them with regard to clause 6(h)(2) — the District Court was not entitled, on its way to construe clause 6(h)(2), to go contrary to the construction of clause 6(h)(2) that was accepted by the parties. The contract was made between the parties, and an agreement between the parties with regard to the construction of one of its provisions raises an absolute presumption that the construction of the parties is correct. Just as the court does not make a new contract for the parties, which is different from the one they made themselves, so too it does not construe a provision in the contract contrary to the position accepted by the parties with regard to its construction.

19. My third comment refers to the extent of use of the mechanism of rectifying a contractual lacuna. My colleague, the Vice-President, believes that examination of the programme contract according to the meaning given to it in my opinion leads to the conclusion that the contract has a lacuna that requires rectification. This position also has no support in the State’s pleadings, and this in itself should be sufficient to make any consideration of it unnecessary. But in my opinion the conclusion about the existence of a lacuna is not a necessary result of construing the contract as I did. It should be noted that the contractual provisions under discussion do not refer to the definition of the reciprocal obligations of the parties, but to prescribing agreed contractual sanctions for various breaches of the terms of the contract. In this respect, our case is diametrically opposed to the case considered in my opinion in CA 479/89 Coptic Mutran v. Halamish — Government-Municipal Corporation for Housing Renovation in Tel-Aviv-Jaffa Ltd [8], cited by my colleague as an example of relying on the principle of good faith as a norm for rectifying a lacuna. The fact that the parties agreed upon a contractual sanction for one kind of breach and left another kind of breach without a similar agreed provision does not constitute sufficient basis for a determination that the contract has a lacuna that requires rectification. When there is a breach without an agreed sanction, does the injured party not have the possibility of suing for relief under the law? Where the injured party may find his remedy by a straight path, the court is not required to pave for him an alternative path, which involves — in any event — a degree of intervention in contractual freedom.

20. In my opinion, the appeal of the State should be denied.

 

 

Justice D. Levin

1.    In the case before us, my opinion is different from that of my colleague, the honourable Justice Mazza. In my opinion, we should allow the appeal. The appeal before us concerns the construction of the programme contract that was signed between the State of Israel, through the Ministry of Building and Housing, and various contractors and property developers, including the respondent company.

2.    In this case the circumstances in which the programme contract was made and the background that led to its drafting are of great importance. This was a period of a large wave of immigration from the Soviet Union, and the Government was concerned that a serious shortage of apartments in Israel might be the consequence. The Government therefore wished to encourage the speedy building of apartments, by means of an incentive programme, which was prepared by the Ministry of Building and Housing, and which was intended to create an incentive for contractors and property developers to build a large number of apartments within a short time. Benefits were given to the companies carrying out the building, in addition to additional incentives for starting to build and reducing the length of the building period.

3.    These benefits and incentives are reflected in the programme contract under discussion in various clauses.

The main benefit was an undertaking by the Government to buy from the contractors the apartments that they did not succeed in selling on the open market. In this respect, two types of project were stipulated in the specific contracts signed with the contractors: the first type involved projects -in sought-after areas, where the market risk was not high, and therefore the State gave purchase undertakings only up to 50% of the apartments. The second type involved projects in development areas, where the market risk was relatively high, and therefore the State gave purchase undertakings to up to 100%.

An additional benefit that was given to contractors concerned the date when they could demand that the Government carry out the purchase undertaking. Here too a distinction was made between the two types of projects; for the first type (the sought-after areas), the contract provided that the purchase undertaking could be invoked when the building had been completely built —at the end of stage 40 (clause 6(b)(1)), whereas for the second type (development areas) the contract provided that undertaking could be invoked as soon as the building frame and partitions were finished — at the end of stage 18 (clause 6(b)(2)).

So we see that very significant benefits were granted to companies building in development areas, of which the respondent company was one, both with regard to the extent of the purchase undertaking and with regard to date of invoking it. The purpose for which these benefits were given was, as stated, to encourage contractors to build a large number of apartments, in the shortest possible time, while allaying the contractors’ fears about their inability to sell the apartments on the open market. Since this fear is greater in development areas, more substantial benefits were given to contractors building in those areas.

4.    Notwithstanding, it cannot be doubted that such a system of benefits and incentives made it necessary to create mechanisms to supervise those contractors and to provide ‘sanctions’ that would ensure that the purpose of the aforesaid contract, namely increasing the number of apartments in Israel within a very short time, would indeed be realized. A main ‘sanction’ was stipulated in clause 6(g) of the contract, referring to apartments of the first type — ‘apartments bought under clause 6(b)(1)’ — which established a reduction of 2% of the calculated price for each month of delay in carrying out the building. An additional supervisory mechanism is found in clause 6(h)(1) of the contract, which states that should the purchase undertaking be invoked after the end of the performance period, the interest would be calculated only up to the end of the performance period. This clause does not refer to a particular type of project, and everyone agrees that it refers to both types.

The logic of this determination is that a contractor who wanted to sell his apartments on the open market could do so, but if he did not succeed and chose finally to invoke the Government’s undertaking, he would know that the interest on the amount stipulated would be calculated only until the end of the performance period and not until the date on which the purchase undertaking was actually carried out.

A further sanction was provided in clause 6(h)(2) of the contract, which states:

‘Should the purchase undertaking be invoked more than 18 months after the end of the performance period, an amount of 2% shall be deducted from the apartment price, that will be determined as stated in sub-clause (f) above, for each month after the end of the period of 18 months as stated.’

This section also does not state that it refers to a particular type of project, and therefore I cannot agree with the conclusion of the learned trial judge, with which my colleague, Justice Mazza, also agrees, that clause 6(h)(2) applies only to projects of the first type. This section, like the preceding one, is worded generally, and therefore, on the face of it, it applies to both types of projects.

The purpose of this clause is clear: to prevent contractors from excessive delays in submitting the purchase demand and to prevent a situation in which contractors would keep a stock of apartments, that might be in various stages of building, in their possession for more than a year and a half after the end of the performance period, not sell them on the open market and also not demand that the Government honour its undertaking. In such a situation, the main purpose of the agreement, to increase the number of available apartments in Israel, would be thwarted. Therefore the said ‘sanction’ was provided, whereby as of a year and a half after the end of the performance period, 2% of the price of the apartment would be deducted for each month of delay as stated.

The next ‘supervisory clause’, which is the clause in dispute in this case, is clause 6(h)(3), which states that:

‘Should the purchase undertaking be invoked with regard to projects for which a purchase undertaking was given for an amount of 100% after the end of the performance period, an amount of 5% shall be deducted from the apartment price, that will be determined as stated in sub-clause (f) above, for each month after the performance period.’

5.    The appellant asks us to find that the said clause 6(h)(3), in the intentions of the parties, was intended to be a parallel provisions to the supervisory mechanism stipulated in clause 6(g). In other words, the clause should be construed in such a way that for companies building in development areas, which received a 100% purchase undertaking and for which the undertaking can be invoked at the end of stage 18, 5% of the purchase price should be deducted for each month of delay in completing the performance of the project. The trial court construed this clause as referring to a delay in presenting the request to invoke the purchase undertaking and not to delay in carrying out the building. In the opinion of the learned judge, the wording of this clause is identical to that of the preceding one (clause 6(h)(2)), and therefore he concludes that it too refers to a delay in submitting the request to invoke the undertaking, but it refers to projects of the second type only, whereas clause 6(h)(2) refers to projects of the first type.

6.    This construction results in a situation in which there is no sanction at all for a delay in performance of the building of projects of the second type. Without doubt this outcome is not logical, for there is no reason to stipulate a sanction for a delay in completing the building of projects of the first type, and not to stipulate a corresponding sanction for projects of the second type. A sanction is required for projects of the second type a fortiori, since the benefits given to contractors building these are much more substantial, and therefore a more substantial means of supervision is required.

The learned trial judge was aware that his method of construing the contract would mean that there was no sanction for a delay in carrying out the building of projects of the second type, but he thought that:

‘Clause 6(h)(3) should be construed in accordance with its simple language and its position, and not according to the “intentions of the parties”… were the language of the clause unclear or ambiguous, there would be a basis for considering the background to the contract and the “intentions of the parties” and to assess these. But this sub-clause, even if not absolute perfection, leaves no room for doubt.’

This opinion is shared also by my colleague, the honourable Justice Mazza.

7.    My conclusion in this regard is different.

I accept the remarks of my colleague, Justice Mazza, that under section 25(a) of the Contracts (General Part) Law, 5733-1973, the intentions of the parties should be assessed from the contract, and only where it is not evident from the contract, should we consider the circumstances in which it was made. But it is well known that the construction of a clause in a contract from the contract itself does not end with an examination of the literal meaning of the words written in it. Construction of the contract itself has a much wider meaning. In this respect, the remarks of my colleague, Justice Barak, in Atta v. Estate of Zolotolov [1], at p. 305, are apposite:

‘The judge learns of the intentions of the parties, first and foremost, from the contract itself. Indeed, various provisions of the contract may shed light on the purpose and objective of the contractual provision that the judge wishes to construe. A contract is an integrating framework. Its different parts are combined and entwined with one another. Its various limbs affect one other. In construing a contract, therefore, we must, on the one hand, regard it as a whole, with a comprehensive view, and, on the other hand, examine the relationships between the various provisions, with the aim of deriving from them the intentions of the parties. In this context, of great importance are the nature of the transaction, its general legal structure and its economic and social objectives. All of these shed light on the intentions of the parties.’

The learned trial judge examined the wording of clause 6(h)(3), compared it with the words appearing in the preceding clauses, and as a result reached the conclusion that the literal meaning of the clause was unequivocal and therefore there was no need to resort to the ‘intentions of the parties’ and to assess their intentions. But we have already ruled more than once that when a court seeks to construe a term in a contract, it should not confine itself to the narrow, literal meaning of the words, when regarding the contract as a whole, against the background of its objectives and the circumstances in which it was made, indicates an intention other than the one that is derived from the normal literal objective of the words.

The aim is —

‘… to loosen the shackles of the written words and arrive at an examination of the real intention that was before the parties’ (see CA 453/80 Ben-Natan v. Negbi [9], at p. 145).

Justice Y. Cohn said in CA 46/74 Mordov v. Schechtman [10], at p. 481:

‘A cardinal rule of contract interpretation is that the court is bound to construe the contract in a manner that reflects the intentions of the parties, and although one should approach the examination of the intentions with the assumption that the parties intended what they wrote in the contract, not infrequently have the courts construed contracts in a way that is inconsistent with the ordinary meaning of the words that the parties used.’

In CA 627/84 Nudel v. Estate of Tzvi Pinto [11], I pointed out, at p. 482, that:

‘The words used by persons drafting the document, although important, are not conclusive, for one should read the document as a whole and construe it according to its general idea, and as stated… according to its purpose… the words and expressions used by the litigants should be read in the overall and whole context.’

Admittedly, the first step of the interpretation process is the language of the contract, but when the narrow literal construction leads to a result that is inconsistent with the overall context, we must proceed further to examine other possible constructions. At this stage, we must rely upon the contract as a whole and its underlying purpose and objective.

In this respect, the remarks of President Shamgar in CA 327/85 Kugler v. Israel Lands Administration [12], at p. 102, are apposite:

‘The guideline for interpretation formulated in the rulings of this court is therefore that where a difficulty arises in understanding or implementing one of the provisions of a contract, one should first study the contract in its entirety in order to discover its underlying purpose and objective, and then to return to the concrete provision and to give it the meaning that is consistent with the principles of the contract already recognized.’

8.    In my opinion, both a reading of the clause under discussion as part of the context in which it appears and a reading of it as a part of the contract as a whole and in view of its objective and spirit and the background to making the contract make it necessary to construe it as imposing a sanction for a delay in completing the building of projects of the second type. Let me explain:

The system of ‘sanctions’ prescribed in clauses 6(g) and 6(h) of the programme contract must be regarded as a whole, and clause 6(h)(3) should be construed as a part thereof. This system is divided into ‘sanctions’ for delay in completing the performance of the building and ‘sanctions’ for a delay in submitting a request to invoke the undertaking.

Clauses 6(h)(1) and 6(h)(2) deal with delays in submitting the application to invoke the purchase undertaking and they speak generally of the two types of project. One limits the payment of interest only until the end of the performance period (even when the application to invoke the undertaking was submitted thereafter), and the second provides for a reduction of 2% of the apartment price per month, when the application is submitted more than a year and a half after the end of the performance period.

On the other hand, clause 6(g) deals with a delay in carrying out the building and refers to projects of the first type only, whereas clause 6(h)(3), which refers expressly only to projects of the second type, is indeed worded in a manner similar to clauses 6(h)(1) and 6(h)(2), and prima facie on the basis of its wording, it too deals with delays in submitting the application to invoke the undertaking. But if we construe it in this way, we will reach a result that is illogical, since a situation of ‘double sanctions’ will be created for projects of the second type in cases of delay in submitting the application to invoke the undertaking, and no sanction at all for a delay in carrying out the building of these projects.

Undoubtedly, this is not be what the parties intended.

The rule is that:

‘… The words in the contract should be construed in a way that prevents a result that is absurd or that imposes on a party to the contract an undertaking, which it is unreasonable to assume he undertook’ (Mordov v. Schectman [10], at p. 482).

In his book, Legal Interpretation, vol. 1, ‘The General Law of Interpretation’, Nevo, 1992, Professor Barak explains on page 328 that literal interpretation sometimes leads to a precise and clear meaning, and yet the result may be absurd and inconceivable. In such a case, Professor Barak holds the opinion that:

‘There must exist an additional means of interpretation — apart from the linguistic means — which will remove the absurd and the illogic. This means must be extra-lingual, because the language is what created the absurd, and therefore it is unable to remove it.’

The result reached is absurd mainly in view of the fact that in projects of the second type the building company can demand that the Government honour its undertaking already when it finishes building the building frame and the partitions. Such a company, that asked the Government to honour its undertaking already at that stage, has no real interest in finishing the building on time, since the purchase undertaking is already in its possession. As a result, a situation is created in which the Government has no means of supervision to ensure that the company complies with the agreed timetable, and it should be remembered that in the circumstances of the case before us there is special importance to complying with the agreed timetable, as has been explained above.

It follows that this is a clear case in which a sanction is required for a delay in completing the building, and this fact is also consistent with what is provided in the clause about a reduction of 5% for each month of delay, in contrast to clause 6(g), which applies to projects of the first type and which provides for a reduction of only 2%. With regard to projects of the first type, the sanction required is indeed less severe, since the purchase undertaking is given only after the building is completed, and therefore the building companies have a real interest in finishing the building on time.

9.    When construing a contract, just as when construing a statute, a will or any other norm requiring interpretation, we must consider the underlying objective and do our utmost to give it effect. In this case we are concerned with a commercial contract, and the rule is that a commercial contract should be construed in a manner consistent with its commercial objective, and it should be given a meaning that is reasonable from the viewpoint of businessmen entering into such a contract.

In Promotfin v. Calderon [6], at p. 195, Justice Y. Kahan expressed this idea, noting that:

‘It is a known rule that a commercial contract should be construed in a manner consistent with the commercial objective of the transaction, and the court should give effect to such a contract in a reasonable way, just as businessmen would do in the circumstances of the case…’

See also the remarks of Justice Bach in CA 552/85 Agasi v. I.D.P.C. Israel Data Processing Co. Ltd [13], at p. 245:

‘Under the aforesaid section 25(a), we are required to construe a contract… “in accordance with the intentions of the parties, as is evident from the contract, and to the extent that it is not evident therefrom — from the circumstances’, and in order to comply with this instruction, we must take into account the character and nature of the transaction made between the parties and the purposes of the parties to the contract, both from an economic perspective and from professional, social and other perspectives.

In the absence of direct evidence as to the aforesaid purposes, we must ask ourselves, in view of all the circumstances, what could have led the ordinary reasonable person to enter into a contract of this type, and we must endeavour to construe the contract in a manner best adapted to reaching those desired goals.’

It has also been stated on this subject, in CA 345/89 Neot Dovrat v. Israelift Elevators Y.M.S. Management and Investments Ltd [14], at p. 355, by Justice Cheshin:

‘Our present concern is the construction of an agreement, and we are bound to try and fathom the intentions of the parties to the agreement as reasonable businessmen trying to achieve a common commercial purpose.’

10. As explained above, the objective and main purpose of the programme contract under discussion were to speed up building processes in Israel and to increase the supply of apartments in Israel with an emphasis on doing this in the shortest possible time. In view of this general purpose, the illogic in there being no sanction for a delay in carrying out the building becomes starker, particularly for the type of projects where the contractors do not have any real interest in finishing the building on time, after they have already received purchase undertakings from the Government.

Therefore the proper interpretation that is also consistent with the purpose of the contract is that the aforesaid clause 6(h)(3) provides a sanction for a delay in completing the building of projects of the second type. In other words, with regard to companies building in development areas that received 100% purchase undertakings which can be invoked at stage 18, if they do not complete the building of the apartments on time, 5% will be deducted from the apartment price for each month of delay in carrying out the building.

We thus obtain a proper relationship between the alternatives set out in the programme contract (the two types of projects): with regard to the rate of interest, in both cases it is calculated only until the end of the performance period. With regard to submitting the request to invoke the undertaking more than 18 months after the end of the performance period — in both types there will be a reduction of 2% from the price for each month of delay in excess of the period of eighteen months. But with regard to a delay in completing the building, for projects of the first type there will be a reduction of 2% for each month of delay, and for projects of the second type there will be a reduction of 5% for each month of delay.

We see that this interpretation gives the contract completeness and creates a reasonable and logical relationship between the parts, a relationship that is completely consistent with the intention and objective underlying the contract.

11. Indeed, clause 6(h)(3) was worded defectively, and this was apparently — so the appellant alleges — because of the haste in which the contract was drafted and because of the urgency in finishing its preparation quickly which was essential at that time.

However, in view of all the aforesaid, it seems to me that the clause should be construed in the manner proposed by the appellant, which is required by a reading of it in the context, in view of the contract as a whole and in view of the objective underlying it and the background that led to its wording.

In CA 631/83 HaMagen Insurance Co. Ltd v. Medinat HaYeladim Ltd [15], at p. 572, I said the following:

‘No-one disputes that the said method of interpreting the text, according to the literal, simple and reasonable meaning of the words, is a convenient and good point of origin for understanding its significance, for it is natural and self-evident that the parties to a written contract wished to give expression to their true intentions and the scope of their agreements in words that were chosen in the drafting process…

‘However, as I emphasized above, the set of rules is much wider, and we must consider the overall wording and the words chosen to give expression to the intentions of the parties from a general and deep inspection that pierces through to the purpose of the legislation or the text of the agreement and the objective that they sought to achieve. Therefore there are many exceptions to the initial and simplistic rule, to which counsel for the respondent referred, and it appears that, where appropriate, it is permissible and even proper to interpret the text liberally, even if this appears to conflict with the actual words written in the policy. This is done in order to arrive at the logical and true meaning intended by the parties to the policy, and this is the case, naturally, when an overall reading of the text leads us to the conclusion that the words in their simple meaning do not represent the intention of the text.’

These remarks that were made with regard to the interpretation of an insurance policy, are also relevant to the construction of contracts in general. It seems to me that the case before us is one of those cases where it is permissible, and also proper, to give the text a liberal interpretation, even if it appears to conflict with the actual words, in order to reach the logical and true meaning intended by the parties.

12. I have read the comprehensive opinion of Vice-President Barak and I agree with its main points. I regard it as an expansion of the principle and rules that have discussed in this opinion and in other decisions referring to the interpretation of contracts and statutes, from additional and more thorough perspectives, which supplement what I have stated above.

13. I would therefore allow the appeal, and hold that the proper interpretation of clause 6(h)(3) of the programme contract is that which was proposed by the appellant, namely, that the clause concerns a reduction of the price of the apartment as a result of a delay in carrying out the building. In view of the result, the respondent shall pay the appellant’s costs in both courts in a total amount of NIS 15,000, and naturally the liability of the appellant for costs in the trial court is cancelled as a result of the appeal being allowed.

 

 

Vice-President A. Barak

This appeal raises a classic problem of interpretation. The issue is the proper relationship between the ‘body’ of the text (verba) and the ‘spirit’ (voluntas) that encompasses it. It is the question — that arises with regard to the interpretation of all legal texts (constitutions, contracts and wills) — about the relationship between the text and its purpose. This problem arises in the appeal before us, according to what is stated in the opinion of my colleague, Justice Mazza, in two contexts: first, the power of the judge-interpreter to go beyond the letter of the text in order to achieve its objective; second, the power of the judge-interpreter to give the language of a document a meaning that it cannot support, in order to realize its objective. Justice Mazza adopted a clear position on both of these questions. In view of his position, he reached the conclusion that the appeal should be dismissed. My position is different from his on both of these questions, and it agrees with the position of my colleague, Justice D. Levin. Therefore I agree with his position that the appeal should be allowed. I will state the reasons for my position, while analysing each of the two problems separately.

A. Clear language and purpose from the circumstances

The position of my colleague, Justice Mazza

1.    The appellant argued before us that the language of the provisions of clauses 6(g) and 6(h) of the programme contract should be construed according to the purpose of the programme contract, and that this purpose may be derived from the nature of the contract, the types of arrangements it contains, the social context in which it was made and the circumstances surrounding the contract. To these arguments my colleague, Justice Mazza, replies that ‘when a contract has such clear language that it leaves no room for doubt as to its intention, the parties’ intentions should be derived from it, and one should not examine for this purpose the circumstances in which it was made’. My colleague further says that this answer is not based on the view ‘that clear language prevails over a clear purpose that conflicts with the language.’ According to my colleague’s outlook, his position is based on the fact that ‘clear language indicates the intentions of the parties and the purpose of their contract’. My colleague sums up his approach by stating that if ‘the language is clear, then the purpose is also known, and the court will not resort further to the hidden thoughts of the parties on the chance that in their minds they had a different purpose, to which they did not give expression’.

What, then, is the purpose according to my colleague’s position?

2.    Against this background, the following question immediately arises: what, according to my colleague, is the underlying purpose of the contract, in view of which he interprets its language? In vain have I searched his opinion for an answer to this question. My colleague’s opinion analyzes the wording of the sub-clauses of clause 6, compares them with one another, and reaches a conclusion as to the meaning of the text. But what is the purpose that even in my colleague’s opinion is essential for the interpretation of the text? What, then, are the intentions of the parties, and what is the underlying purpose in the arrangement that they reached? Despite my efforts, I could not find any. The most that appears in his opinion is that the provision of clause 6(h)(3) was intended ‘to encourage the contractor to present his demand… no later than the end of the performance period’. Anyone who looks at the opinion of my colleague will be convinced that this is a conclusion that my colleague reaches after he concluded the interpretative process, and not a criterion (purpose) that guided him in making the interpretation. Indeed, my colleague does not ask at all why the parties want to encourage the contractor, who is building a project of the second type, beyond the incentives that the contract provides for both types of project. An incentive for the contractor to present his demand can already be found in clause 6(h)(2) of the contract. Why is another incentive required? Why is the existing ‘sanction’ (in clause 6(h)(2)) insufficient in an area of the second type? Moreover, from the language of clause 6(f) of the contract, it can be seen that the parties sought to establish civil ‘sanctions’ for delays in carrying out the building of the first type of project (sought-after areas). Why is there no similar purpose underlying the provisions of clause 6(h)(3) of the agreement, which deals with the second type of project (development areas)? Moreover, in rejecting the alternative argument of the State, my colleague points out fairly that —

‘If we were required to construe the clause according to the order of priorities required by the business purpose and commercial logic of the programme contract, I would indeed have inclined to accept the State’s position. But the clear wording prevents us from pursuing any external criteria.’

How does this approach fit in with his position that ‘clear language indicates the intentions of the parties and the purpose of their contract’? In our case, the purpose of the agreement between the parties — this my colleague is willing to accept within the framework of the alternative argument — conflicts with the one that arises from the clear language of the contract. My colleague pointed out, in his opinion, that ‘when a contract has such clear language that it leaves no room for doubt as to its intention’, it is interpreted in accordance with the intention that arises from it, without resorting to the circumstance. But how can my colleague say that the language of the contract has ‘such clear language that it leaves no room for doubt as to its intention’ when the external circumstances — to which my colleague referred within the framework of the appellant’s alternative argument — indicate that serious doubt exists with regard to the intentions and wishes of the parties, in view of the material conflict between the objective arising from the text of the provision and the objective arising from the circumstances of the contract?

The two stage doctrine and its inherent difficulties

3.    My comments are not intended to pick at one detail or another in my colleague’s interpretative thinking process. They are intended to point out the inherent difficulties raised by his position. The premise for my colleague’s interpretative position is that the interpretation process should be divided into two independent and distinct stages. The first stage concentrates on the wording of the contract and the intentions of the parties that are evident from it. The second stage focuses on the circumstances that are external to the contract and the intentions of the parties that are evident from these circumstances. Passing from the first stage to the second is determined by the ‘clear language’ test. If the language of the contract is clear, the contract will be construed according to the intentions of the parties to the contract as evident from the clear language, and reference will not be made to external circumstances. If the language of the contract is not clear but is ambiguous, the contract is construed according to the intentions of the parties to the contract as evident from the external circumstances. This two-stage approach — or ‘the two-stage doctrine’ as I will call it — is not new. Justice Bejski made reference to it and said:

‘… section 25(a) of the Contracts (General Part) Law, 5733-1973, directs us to construe the intentions of the parties as it is evident from the contract, and if it is not evident therefrom — from the circumstances. If the contract is clear and the language is unequivocal, there is no further need to consider the circumstances, and certainly not the commercial logic or economic viability, which may have been influenced by personal or speculative considerations of one of the parties, which he is not required to reveal to the other party or set out in the contract’ (Nahmani v. Galor [7], at p. 499).

In a similar vein, President Shamgar wrote:

‘… The point of origin in the interpretation process can be found in the contract itself… resorting to the text of the contract requires, first and foremost, consideration of the linguistic meaning of the terms and provisions found in the contract… If this does not lead to a clear conclusion, the second stage arrives, in which the court must choose, from the range of possible linguistic meanings, the meaning that achieves the contractual purpose’ (CA 3804/90 Delta Investments and Commerce (Karnei Shomron) Ltd v. Supergas Israeli Gas Supply Co. Ltd [16], at p. 213).

The ‘two-stage doctrine’ makes a distinction between ‘internal interpretation’ (which interprets the language of the contract without referring to external circumstances) and ‘external interpretation’ (which interprets the language of the contract on the basis of information external to the contract). See CA 702/84 Yuval Gad Ltd v. Land Appreciation Tax Director [17]. The criterion that distinguishes between the two types of interpretation is the clear language of the contract. ‘… There is no basis for hearing external evidence of the parties’ intentions when the language of the document is clear…’ (Justice Netanyahu in CA 650/84 Stern v. Ziuntz [18], at p. 384); ‘if the relevant term is clear, then there is no basis for resorting to external circumstances, and the court must decide the meaning of the words as it sees fit… referring to the circumstances is an alternative that arises only when the written text has no clear meaning’ (Justice Bejski in CA 170/85 Zaken Bros. Contracting Co. Ltd v. Mizrahi [19], at p. 638). The difficulty inherent in this method of interpretation is that the clarity of the language must be established at the end of the interpretative process and not at the beginning. The clarity of the language is not determined by the linguistic intuition of the judge prior to interpretation, but it is the product of an interpretative conclusion that is reached at the end of the interpretative process. Only by referring to external sources may persuade the interpreter that the language is not clear. What appears on the surface to be clear may turn out to be unclear in view of the circumstances. Since it is universally accepted that the intentions of the parties is a proper interpretative criterion, it can be determined that the language is clear only after the judge completes the interpretative process, i.e., when he has determined the intentions of the parties and interpreted the language of the contract accordingly. The language of the contract is clear only when it implements the intentions of the parties. Indeed, the science of linguistics and the science of law reject the proposition that language is clear ‘of itself’. I discussed this in one case, where I said:

‘No words are “clear” in themselves. Indeed, nothing is as unclear as the assertion that words are “clear”. Justice Traynor rightly pointed out that:

“Plain words, like plain people, are not always so plain as they seem...”

… The meaning of a statute is not clear as long as it is inconsistent with a clear statutory purpose…

The feeling of clarity that arises upon the first reading of the statute is only preliminary and temporary. It gradually disappears when it becomes clear that this “clear” meaning does not achieve the purpose of the legislation’ (HCJ 47/83 Air Tour (Israel) Ltd v. General Director of Antitrust Authority [20], at p. 176).

These remarks were made with reference to the interpretation of legislation. But they are not restricted merely to statutory interpretation. As my colleague, Justice D. Levin, rightly said:

‘It makes no fundamental difference whether we are concerned with interpretation of legislation or interpretation of a contract or interpretation of any other document including an insurance policy. The basic rules of interpretation that have been developed and have become part of the case-law accepted by us are set out, inter alia, in the comprehensive opinion of Justice Barak in HCJ 47/83…’ (HaMagen v. Medinat HaYeladim [15], at p. 570).

Indeed, the contract is the law between the parties (cf. article 1134 of the Napoleonic Code), and basic interpretative principles — of which the most fundamental is the principle that the wording of the text must be interpreted according to its objective, and the objective of the text is derived from any reliable source and is developed at the discretion of the interpreter on the basis of the relative importance of the purposes that arise from the various sources — apply to the interpretation of all legal texts.

The boundary between the two stages is blurred

4.    Moreover, the move from the first stage to the second stage is not at all clear. The boundary itself is blurred. Justice Cheshin rightly pointed out that:

‘… the boundary between the “contract” and the “circumstances” in which the “contract” was made can be slender, and the two fields influence one another. When interpreting a contract, we are not concerned with mere linguistic research, and we know that the interpretation is directed at the intentions of the parties. But the intentions of the parties are not an abstract, theoretical concept: it is, inter alia, a product of the circumstances in which the contract was prepared.

… in examining the intentions of the parties to a written contract, our first stop is that text, which the parties agreed upon and created, but this is not our final stop in our quest to discover their joint intention. Intentions, joint intentions, assessing the intentions of the parties — and these are the area of our investigations in interpreting a contract — are all abstract concepts that are intangible… since we aim to clarify the extent and scope of that abstract concept — the intentions of the parties — at all events we cannot limit ourselves to the mere literal interpretation of the contract’ (Sakali v. Tzoran [4], at p. 818).

Indeed, the first stage (extrapolating the intentions from the clear language) may begin the interpretative process. It should not end it. The interpreter must move on to the second stage (extrapolating the intentions from the external circumstances), and return to the first stage and then to the second, back and forth, without any restrictions of ‘clear language’ or ‘vague language’, until he is satisfied that he has succeeded in ascertaining the intentions of the parties to the contract. With this vital ‘fact’, he will proceed to extract the legal meaning from the variety of linguistic meanings of the text. Only then will he be satisfied that the language of the contract is clear.

The two-stage doctrine does not seriously consider the intentions of the parties

5.    Moreover, the approach that if the language of the contract is clear we should determine the (joint) intentions of the parties to the contract only from the contract raises difficult questions. If the interpreter seriously considers the intentions of the parties as an interpretative criterion, why is he limited merely to the language of the contract in establishing its contents? If indeed the underlying purpose of interpreting the contract is ‘to reach the true intentions in the minds of the parties’ (Justice Türkel in Ben-Natan v. Negbi [9], at p. 145), and if the basis of the contract is its ‘true intentions’ (CA 603/79 Avargil v. Peleg & Shitrit Building and Development Co. Ltd [21], at p. 637), and if ‘the intentions of the parties controls how we determine the interpretation of an expression in the contract…’ (President Shamgar in CA 703/88 Morgan Industries Ltd v. Batei Gan Leasing Ltd [22]), and if indeed ‘the art of interpretation is designed to ascertain the true intentions of the parties to the contract (President Shamgar in CA 1395/91 Winograd v. Yedid [23], at p. 800), and if indeed the job of the interpreter is to ‘ascertain the exact intentions of the document’s drafters’ (Justice D. Levin in Nudel v. Estate of Pinto [11], at p. 482), and if indeed ‘the essence of interpreting a contract is searching for the intentions of the parties’ (Justice Dorner in CA 5597/90 Cohen v. C.B.S. Records Ltd [24], at p. 217) — if indeed we are devoted and dedicated to the (joint) intentions of the parties — why should the interpreter be restricted to the language of the contract itself, and only if that language is unclear, he may refer to external circumstances? Does not the approach that, if the language is clear, there is no reason to examine the intentions according to the external circumstances, mask the approach that it is not the intentions that count but it is the clear language that counts? For if the intentions are so essential for interpreting a contract, and if the pursuit of these is the main parameter, is it not vital to give the judge-interpreter the (interpretative) freedom to refer to every reliable source — whether this is the language of the contract or the external circumstances — in order to ascertain from them the intentions of the parties, which is so essential for the art of interpretation? Naturally, in most cases, the intentions that are evident from the language of the contract are ‘safer’ and more reliable than the intentions derived from the circumstances. It has rightly been pointed out that the court must refrain from giving ‘validity and significance to a hidden intention of a party that he kept in his thoughts and hid from the other party and which was not expressed in the contract…’ (President Shamgar in CA 765/82 Alter v. Alani [25], at pp. 710-711). But this is far removed from the rigid rule much underlying the two-stage approach. No argument has been made that the external circumstances are not sufficiently reliable for ascertaining the intentions of the parties. Quite the contrary: the external circumstances are certainly a reliable source, from which we can ascertain the intentions of the parties, and section 25(a) of the Contracts (General Part) Law expressly refers the interpreter to this source. Other provisions of the Contracts Law also require ascertaining the intentions of the parties through external circumstances (see, for example, section 13 (contract for appearances sake) and section 16 (clerical error) of the Contracts (General Part) Law). Moreover, if external circumstances are in fact a reliable source for ascertaining the intentions of the parties when the language is unclear, why should the external circumstances be unreliable — to such a degree that referring to them is prohibited — when the language is clear? Who can guarantee that in all circumstances the joint intentions of the parties are indeed enshrined in the ‘clear’ language? Perhaps it is possible to find the intentions of the parties in the external circumstances? Indeed, what is needed is not a strict rule of evidence about the ‘inadmissibility’ of evidence about external circumstances — and such is the rule that regards clear language as the criterion for not referring to external circumstances (see Stern v. Ziuntz [18], at p. 384, that refers to the laws of evidence in this matter) — but a flexible weighting rule with gives greater weight to evidence of the intentions of the parties deriving from the language of the contract than to evidence of the intentions of the parties deriving from the external circumstances. Of course, among the external circumstances we will take no account of ‘individual or conjectural considerations of one of the parties’ (see Nahmani v. Galor [7], at p. 499), nor of a ‘supposed intention that is not translated into the language of the text’ (Justice Netanyahu in Stern v. Ziuntz [18], at p. 384). The court will not examine ‘the hidden thoughts of the parties, in case in their deepest thoughts they had a different purpose that they did not express’ (in the words of my colleague, Justice Mazza). The court will rely on reliable data that were openly revealed (in writing, orally or in any other behaviour) with regard to the joint intentions of the parties. Of course, against my approach concerning this move from rules of ‘admissibility’ to rules of ‘weight’ it may be argued that it creates insecurity and uncertainty, whereas the two-stage approach reduces insecurity and creates certainty in all those cases where the language of the contract is clear. I cannot accept this argument. The modern tendency in many areas of the law is to move away from prohibiting the admissibility of information to allowing it to be brought while taking into account its reliability for the purposes of its weight: ‘Between truth and stability — truth is preferable’. Moreover, the security and certainty of the two-stage doctrine are in fact illusory. The determination whether the language of the contract is clear or not is not made according to legal rules, but by intuition, which naturally leads to insecurity. What is seen by one judge as clear language is seen by another as vague language. An arbitrary examination of the clarity of the language should not be the main criterion in the interpretation of a legal text. Language becomes clear only in its context, and a rule of interpretation that limits the context to the text itself is, by its very nature, arbitrary. It replaces the intellectual struggle with the meaning of the text with an intuitive conclusion based on a feeling for language (for strong criticism, see M. Zander, The Law-Making Process, London, 4th ed., 1994, at p. 126).

The two-stage doctrine is inconsistent with general contract law

6.    The two-stage doctrine of contractual interpretation is not consistent with the law of contracts as a whole. It is inconsistent with significant parts of the laws of interpreting contracts. As we have seen, this doctrine is based on the assumption that, for the purpose of interpreting a contract, ‘clear language indicates the intentions of the parties and the objective of their agreement’. This establishes a kind of presumption that may not be rebutted that the intentions of the parties is what is evident from the clear language of the contract. The intentions of the parties that can be proven from external circumstances are not taken into account. But this presumption is inconsistent with the law of contracts as a whole. Indeed, formulating the laws of interpreting contracts must fit into the overall fabric of the law of contracts. Laws of interpretation do not stand in isolation. The laws of interpretation do not stand alone. They must be integrated into basic contractual outlooks. Why should we develop laws of interpretation that would result in a contract that according to its contents was never made (because there is no decision to be bound within the framework of the laws of offer and acceptance)? Or what logic is there in making a contract (within the framework of the first stage of the two-stage doctrine) that gives a broad power to one (or both) of the parties to rescind the contract because of a defect in making it (because an operative mistake was made with regard to it)? What purpose is there in determining that the contents of the contract are as they appear from the clear language of the contract (the first stage of the two-stage doctrine of interpretation), if it is also held that such an interpretation conflicts with the principle of good faith?

7.    The basic premise is that the law of contracts is based on the autonomy of will of the individual. This autonomy of will of an individual is not the secret desire of the individual. It is his (subjective) will that is given open expression. Indeed, the basis of the contract is the joint subjective intentions of the two parties. When there exist such intentions, it forms the basis for contractual analysis. Only when joint intentions do not exist, and the intentions of one party are different from those of the other party is the contract examined on the basis of objective criteria. The ‘objectification’ of the law of contracts begins only when there is no joint subjective basis for interpreting the contract. The objective doctrine of contracts accepted today in the law of contracts (see D. Friedman and N. Cohen, Contracts, Aviram, vol. 1, 1991, at p. 156) applies only where there is no joint subjective decision of the two parties. Indeed, the objective doctrine endeavours to protect the reliance interest. Where there is no reliance — because the two parties agreed in accordance with their subjective outlook — there is no basis for the doctrine of objectivity. President Shamgar rightly pointed out that:

‘It should be remembered that the purpose of the objective test is to protect the party that relies on the representation of the other party. The appellant cannot argue reliance, and therefore there is no basis at all for applying this test in this case’ (CA 1932/90 Peretz Bonei Hanegev — Peretz Bros. Ltd v. Buchbut [26], at p. 365).

It follows that the logical conclusion is that where there is a subjective decision of the two parties, and this can be proved on the basis of reliable external circumstances (such as written evidence), the existence and contents of the contract are determined on the basis of this decision, and not according to an objective approach (i.e., the behaviour of the parties as reasonable persons) to the contract, which is evident from the clear language of the contract, since otherwise the (objective) construction of the contract will lead to its destruction (in the absence of such a decision). Such a strong suicidal desire is not characteristic of the law of contracts. Consider the following famous example (Raffles v. Wichelhaus (1864) [68]: A made a contract with B, to sell him cotton that will be sent to him on the Peerless, a ship sailing from Bombay. There are two ships of this name sailing from Bombay. One sails in October, and the other in December. A disagreement arises as to which of the two ships the contract refers. The objective approach to the law of contracts holds, rightly, that the (interpretive) answer to this question is found by examining the parties’ behaviour as reasonable persons. The test is objective (see CA 536/89 Paz Oil Co. Ltd v. Levitin [27], at p. 627). According to this, it is possible that a valid contract was made referring to carriage on one of the ships, and it is possible that no contract was made at all, because there was no decision made. But the law of contracts stipulates in addition that if the two parties agreed (subjectively) on the ship Peerless that sails in December, whereas from their behaviour as reasonable people it can be deduced (by considering the ‘clear’ language of the contract) that the agreement refers to the ship Peerless sailing in October, then the agreement made by the parties is for carriage on the ship Peerless sailing in December, and not in October. This is discussed by Professor Farnsworth, who points out:

‘… a seemingly simple case can be disposed of. Suppose that it is shown that, when the parties made the contract, both had in mind the same ship, say the December Peerless… if one party does show this, should that party not prevail? Surely if one party shows that the other party attached the same meaning that the first party did, the other party should not be able to avoid that meaning by showing that a reasonable person would have attached a different one. According to Corbin, “it is certain that the purpose of the court is, in all cases, the ascertainment of the ‘intention of the parties’ if they had one in common”.’ (E. A. Farnsworth, On Contracts, Boston, Toronto and London, 1990, vol. II, at p. 245)

Against this background, we can understand what is stated in Restatement, 2nd, Contracts - § 201 (1) that:

‘Where the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning.’

Indeed, a contract is a legal act of two parties. The intentions are of both parties (see CA 154/80 Borchard Lines Ltd, London v. Hydrobaton Ltd [28], at p. 223). When the two parties have a joint subjective understanding — which can be deduced from external circumstances — about their intentions, the contents of the contract should be interpreted accordingly, and not according to an (objective) intention that arises from the (clear) language of the contract. Therefore, ‘no meaning should be attached to the language of the contract, which, although semantically possible, is accepted by both parties not to reflect their intentions’ (CA 832/81 Ralpo (Israel) Ltd v. Norwich Union Fair Insurance Society Ltd [29], at p. 45). It also seems to me that the rule of interpretation that ‘if a contract may be construed in several ways, a construction according to which it is valid is preferable to a construction according to which it is void’, (s. 25(b) of the Contracts (General Part) Law, 5733-1973) also supports this approach. What point is there in ignoring the joint subjective intentions of the parties — intentions that are evident from reliable external circumstances — even if it is not evident from the clear language of the contract? Is it not preferable to recognize the existence of the contract that the two parties wished to make? What purpose is there in declaring the contents of a contract according to the intentions of the parties that are evident from the clear language of the contract, and afterwards declaring it not to exist, because there is no joint resolve (cf. State of Israel v. Hiram Landau [2], at p. 667)? Do we not require a correlation between ‘resolve’ (within the framework of making the contract) and ‘intentions’ (within the framework of its interpretation)? We have already seen that the objective test of the law of contracts is designed to protect the reliance interest of the parties to the contract. But where both parties have a joint subjective understanding, what interest are we protecting if we ignore that understanding? President Shamgar rightly pointed out that:

‘Preferring the objective representation over the hidden subjective intention was designed to promote business certainty and commercial security. As such, the emphasis on the objective representation is to protect the party that relies on the representation of the other party, and therefore if there was no such reliance, there is no reason to prefer the objective representation…’ (CA 685/88 Kotterman v. Torah VaAvodah Fund [30], at p. 602).

Does it not follow that the language of the contract should be construed according to the joint subjective intentions of the parties, which is evident from the external circumstances, and not according to the objective intentions that are evident from the clear wording of the contract?

8.    Take, for example, the case where A says to B: I offer to sell you a horse that I own at a certain price. B replies that he wants to buy A’s horse at that price. Both parties intended an old machine in A’s possession which, in the parlance of both of them, is called ‘horse’. What is the contract that was made? Let us assume that from the clear language of the contract — which concerns the purchase and sale of a horse — it is evident that the intention of the parties is the sale of a four-legged animal which in English is called ‘horse’. This would be the understanding of any (objective) reasonable reader. What point would there be in recognizing a contract with this content, when both parties resolved to sell an old machine, which external circumstances show them to have called ‘horse’? It is a rule that —

‘In establishing the scope of linguistic meanings of a contractual text… the interpreter acts as a linguist. He asks himself, what are the meanings that can be attributed, in the language in which the contract was made — and if the parties have a private parlance of their own, within the framework of this parlance — to the language of the contract’ (CA 708/88 Shelomo Schepps & Sons Ltd v. Ben-Yakar Gat Engineering and Building Co. Ltd [31], at p. 747).

Why should we not allow the parties the opportunity to show, within the framework of reliable evidence (such as prior correspondence) as to external circumstances, that in the contract between them the word ‘horse’ has a special meaning? Surely, if a mistake had been made in the contract, and instead of writing ‘machine’ the parties had written ‘horse’, the law would allow the mistake to be rectified, and the error is not a ground for rescinding the contract (see section 16 of the Contracts (General Part) Law). Why should it be impossible to reach the same result when the parties made no mistake at all, but in their special parlance they used the word ‘horse’ for what everyone else calls a ‘machine’? What legal logic is there in the approach that we should force on the two parties a contract, which according to their joint intentions they did not want at all, when it is possible to point to a contract which according to their joint (subjective) intentions they did want?

9.    As stated, we should aim for harmony between the rules of interpretation and the general law of contracts. Take, for example, the subject of mistake. The mistake acts in the gap between the subjective intention of a party and the objective meaning of the contract:

‘Even if a contract is made, according to the objective test, it is possible that it may still be rescinded by the party for whom there was a gap between his subjective intentions and the intention that is evident from the representation that he made. The laws of defects in chapter 2 of the law were designed for this’ (President Shamgar in State of Israel v. Neveh Schuster [3], at p. 603).

What point is there in opening and expanding this gap, when the two parties have a joint subjective intention that is not evident from the clear language of the contract? What interest does such an interpretive approach protect? It does not protect the reliance interest, nor does it promote security and certainty. It merely allows one of the parties, for whom the terms of the transaction have ceased to be convenient, to extricate himself from it. This outcome is not desirable. A harmonious interpretation of the law of contracts must take account of all of the laws. It must create a harmony between the rules of interpretation and the laws of mistake. Such a harmony does not exist if we adopt the two-stage doctrine for interpreting contracts. After completing the first stage, the court may give the contract an (objective) interpretation, whose result would allow the parties to extricate themselves from it (because of an operative mistake) without this being warranted by the balance of interests that require protecting. Moreover, section 16 of the Contracts (General Part) Law states that ‘if the contract contains a clerical error or any other similar mistake, the contract should be amended in accordance with the intentions of the parties, and the mistake is not a ground for rescinding the contract’. But how can the Court know the intentions of the parties if it can only learn this from the clear (but mistaken) language of the contract? Clearly this provision assumes a possibility of referring to external circumstances in order to derive from them the intentions of the parties. But how will this information be obtained if the Court determines (at the outset), according to the two-stage doctrine, that the language is clear and there is no basis for referring to external circumstances? And how will the judge determine that the contract is merely for the sake of appearances (s. 13 of the Contracts (General Part) Law) if the only appearance that the judge sees is the clear language of the contract?

The two-stage doctrine is inconsistent with the principle of good faith

10. A principle central to civil law in general, and to the law of contracts in particular, is the principle of good faith. The provision regarding ‘good faith’ is a ‘multi-faceted, “majestic” one’ (see HCJ 1683/93 Yavin Plast Ltd v. National Labour Court [32], at p. 708). One aspect of the principle of good faith is that a contract should be interpreted in good faith (see Ben-Natan v. Negbi [9]; Coptic Mutran v. Halamish [8], at p. 845; CA 5559/91 K.Z. Gas and Energy Enterprises (1982) Ltd v. Maxima Air Separation Centre Ltd [33], at p. 649; CA 5187/91 Maximov v. Maximov [34], at p. 186). In several legal codes, this is stated expressly (see, for example, article 157 of the German Civil Code (the B.G.B.), which states that contracts shall be interpreted reliably, faithfully and taking account of accepted practice; article 1366 of the Italian Civil Code, which states that a contract shall be interpreted in good faith). In Israel, this is derived from the general principle of good faith (see D. Pilpel, ‘Section 39 of the Contracts (General Part) Law, 5733-1973, and its Relationship to German Law,’ Hapraklit, 36 (1984-1986) 53, at p. 63). The interpretative requirement that a contract shall be interpreted in accordance with the principle of good faith has several ramifications. As we shall see (in paragraph 18, infra), the purpose of the contract is also its objective purpose. This was determined, inter alia, on the basis of the principle of good faith. Therefore the assumption is, for example, that there is equality between the parties. Moreover, the principle of good faith acts as a springboard for filling a lacuna in a contract (see paragraph 33, infra). For our purposes, what is important is another interpretative aspect: interpreting a contract in good faith means giving a meaning to a contract that is consistent with the joint intentions of the two parties. Professor Shalev discussed this, noting that:

‘In Israel we derive this rule of interpretation from the general principle of good faith… the foremost of these rules is that the art of interpretation was intended to ascertain the true intentions of the parties to the contract. Searching for this intention, by freeing oneself from the burden of the literal interpretation, is consistent with the principle of good faith’ (G. Shalev, The Laws of Contracts, 2nd edition, 1994, at p. 316).

In a similar vein, President Shamgar noted that:

‘The art of interpretation was designed to ascertain the true intentions of the parties to the contract. The search for this intention, by freeing oneself from the burden of the literal interpretation, is consistent with the principle of good faith’ (Winograd v. Yedid [23], at p. 800).

But how can this rules of interpretation be reconciled with the approach — which underlies the two-stage doctrine — that where the language of the contract is clear, the intentions of the parties are also clear and the contract will be interpreted accordingly. Certainly, the meaning of the principle of good faith is not that the ‘intentions of the parties’ — which we wish to uphold — are merely the intentions that arise from the language of the contract. Quite the contrary: the entire purpose of the principle of good faith is to prevent one of the parties from invoking a meaning that can be derived from its language (‘the literal meaning’), which is inconsistent with the (subjective) intention known to the other party. Indeed, internal harmony within the framework of the laws of contracts requires a correlation between the principle of good faith and the laws of interpretation. Such a correlation is inconsistent with the two-stage doctrine.

The two-stage doctrine is inconsistent with the preference of intention over language

11. A golden thread that runs through case law and legal literature is the principle that: ‘in a conflict between the language of the contract and the intention of its makers — the latter prevails over the former’ (Shalev, The Laws of Contracts, supra, at p. 303). This principle is not ours exclusively. It is accepted in other legal systems. Thus, for example, article 1156 of the French Civil Code (‘the Napoleonic Code’) provides that, in interpreting a contract, one should seek the joint intentions of the parties and not stick to the language of the contract. Similarly, article 133 of the German Civil Code, the B.G.B., provides that, when interpreting a declaration of intention, one should ascertain the true intention and not hold fast to the literal meaning of the expression. In a similar vein, article 1362 of the Italian Civil Code provides that a contract should be interpreted according to the joint intent of the parties, which is not restricted by the literal meaning of the words. Article 18 of the Swiss Code of Obligations provides that in interpreting a contract, one should investigate the true and joint intentions of the parties without being restricted to expressions or terms used by them. A similar approach has existed in Israel for a long time. More than thirty years ago, Justice Berinson discussed this, holding that:

‘The first rule of interpreting a document is to attempt to fathom the author’s true intention on the basis of what is written in the entire document, and taking account of the known background to the case. The literal meaning of the words used is not always decisive. The written words should not be regarded as the only factor, when the context and the circumstances surrounding the case indicate a contrary intention to the one that is evident from the ordinary meaning of the text’ (CA 324/63 HaLevy Segal v. Georgiani Maggi Co. Ltd [35], at p. 373).

In approving these remarks, Justice Y. Kahan added:

‘An important rule in the laws of interpretation of contracts is that it is the duty of the courts to interpret the contract in a way that reflects the intentions of the parties, and although one should approach the examination of the intention with the assumption that the parties intended what they wrote in the contract, more than once the court has interpreted contracts in a way that is inconsistent with the ordinary meaning of the words used by the parties’ (Mordov v. Schectman [10], at p. 481).

Similar statements have been made by judges in this court since the enactment of the Contracts (General Part) Law (see, for example, Avargil v. Peleg & Shitrit [21], at p. 737). The following remarks of Justice Türkel are well-known:

‘It appears that the rulings of the courts in recent years point increasingly to that trend of relaxing the constraints of the written word and reaching the true intention that was in the minds of the parties’ (Ben-Natan v. Negbi [9], at p. 145).

In a similar vein, my colleague Justice D. Levin wrote:

‘As far as possible, it is desirable to interpret a document from within, on the basis of what is stated in it and on the basis of its text, language and spirit. However, there is nothing sacred about words in themselves and, if it is necessary to consider all the circumstances that surrounded the making of the contract in order to establish its objective, it is permissible and even desirable to consider these as well, and thereby to reach the intentions of the parties when they entered into the contract…’ (CA 655/82 Grover v. Farbstein [36], at p. 743).

See also Nudel v. Estate of Pinto [11], at p. 482.

President Shamgar also discussed this cardinal rule of contractual interpretation. In one instance he wrote:

‘… Indeed, it is a rule that the intentions of the parties is learned, first and foremost, from the language of the contract, but, in the words of Professor G. Shalev, The Laws of Contract, Din, 1990, 311:

“In a conflict between the language of the contract and the intentions of its makers, the latter prevails. The proper interpretative trend is to ‘relaxing the constraints of the written word and reaching the true intention’. Therefore, there may be cases where the construction of the contract according to its purpose will override its literal construction, and this is when the context indicates an intention different from the one evident from the words”.’ (Winograd v. Yedid [23], at p. 799).

If this is indeed the case, then how this be reconciled with the approach that ‘If the language is clear, then the purpose is also known, and the court will not resort further to examine the hidden thoughts of the parties’. If in fact we are not to regard the written words as the whole picture, and if we can give a contract an interpretation that is inconsistent with the ordinary meaning of the words, how can we persist with the outlook that if the words are clear then the purpose is clear, and if the purpose is clear then the words should be given their clear meaning? How, according to this approach — which is the two-stage doctrine — will the interpreter ever reach the conclusion that there is a conflict between intention and language? If the intention is what is evident from the clear language, how can there be an intention that conflicts with the clear language? How can we relax the constraints of the words that are written and arrive at the true intention, if the rule is always that the true intention is merely what is evident from the clear words that are written? How then can we hold that, in a conflict between the language of the contract and the intentions of its makers, the intention prevails, if the intention is what arises from the ordinary language and if from the very definition of these terms such a conflict, in the first stage, is impossible? Indeed, it appears to me that the answer to these questions is that the two-stage doctrine is inconsistent with the basic rule that ‘in a conflict between the language of the contract and the intentions of its makers — the latter prevails’ (Shalev, The Laws of Contracts, supra, at p. 330).

The two-stage doctrine is based on an outdated interpretative approach

12. The two-stage doctrine is an interpretative doctrine that was accepted in nineteenth-century English law. It is the ‘literal rule’, whereby a legal text (statute, contract) is interpreted according to the intention of its maker. The intention may only be learned from the clear language of the text. Only when the language is not clear may one go beyond the framework of the text to learn the intent of the maker (the rule in Heydon’s Case (1584) [69]). A more moderate version of this rule can be found in the ‘golden rule’, according to which one may go beyond the framework of the text in order to learn the intention of the maker of the text even when the language is clear, but only if the literal interpretation leads to an absurd outcome (see F. A. R. Bennion, Statute Law, London, 2nd ed., 1983, at p. 91). This doctrine has been subject of severe criticism in England (see M. Zander, The Law Making Process, supra, at p. 108; The Interpretation of Statutes (Law Com. No. 21), paragraph 80). It is no longer applied strictly to the interpretation of legislation (see F. A. R. Bennion, Statutory Interpretation, London, 1984, at p. 325). It has been largely abandoned in the interpretation of contracts. The modern approach to contractual interpretation finds expression in the following remarks of Lord Wilberforce:

‘The time has long since passed when agreements, even those under seal, were isolated from the matrix of facts in which they were set and interpreted purely on internal linguistic considerations… We must inquire beyond the language and see what the circumstances were with reference to which the words were used, and the object, appearing from those circumstances, which the person using them had in view’ (Prenn v. Simmonds (1971) [70], at pp. 1383-1384).

In another case, he added:

‘No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what it is legitimate to have regard to is usually described as “the surrounding circumstances” but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating’ (Reardon Smith Line v. Hansen-Tangen (1976) [71], at pp. 995-996).

13. A similar trend exists in the United States. At first the English literal rule was adopted, with its exceptions, in the interpretation of laws and contracts. In view of the severe criticism levelled at it, it was abandoned for the interpretation of legislation (see R. Dickerson, The Interpretation and Application of Statutes, 1975, at p. 230). A similar trend exists with regard to the interpretation of contracts. No longer is it required, as a condition for ascertaining the purpose of the contract from external circumstances, that the language of the contract should be unclear. It is always permissible to refer to external circumstances. Professor Farnsworth wrote:

‘The overarching principle of contract interpretation is that the court is free to look to all the relevant circumstances surrounding the transaction… Since the purpose of this inquiry is to ascertain the meaning to be given to the language, there should be no requirement that the language be ambiguous, vague or otherwise uncertain before the inquiry is undertaken’ (E. A. Farnsworth, On Contracts, supra, at pp. 255-256).

14. A similar process has taken place in Israeli law. During the Mandate period, we assimilated the English rules of interpretation for interpreting a legal text (law, regulation, contract, will). When the State was established, we continued this tradition (see HCJ 15/56 Sofer v. Minister of Interior [37], at p. 1221; CA 161/59 Balan v. Executor of Litwinsky’s Will [38], at p. 1916). With time, the law has also changed. The feeling grew that ‘the time had come to remove the thorns from our vineyard’ (Justice Silberg, in HCJ 163/57 Lubin v. Tel-Aviv Municipality [39], at p. 1065; see also G. Tedeschi, Research in the Law of our Land, M. Newman, 2nd ed., 1959, at p. 51). Israeli rules of interpretation have been developed to reflect the fundamental outlooks of Israeli law. With regard to the interpretation of legislation, it seems to me that the accepted approach is that a statute is interpreted according to its purpose. The interpreter may ascertain the purpose of legislation from any reliable source:

‘Any question of interpretation begins with the statute, but it does not end with it. The human brain must assimilate all information that is relevant and give weight to it according to its reliability’ (my opinion in Air Tour v. Antitrust Authority [20], at p. 175).

A similar tendency should apply to the interpretation of contracts. A contract is interpreted according to the intentions of the parties. ‘One can learn of the intentions of the parties from any reliable source’ (in Atta v. Estate of Zolotolov [1], at p. 304). We must not turn back the clock to the methods of interpretation that were accepted in nineteenth-century England.

The two-stage doctrine is not required by section 25(a) of the Contracts (General Part) Law

15. It may be argued that the two-stage doctrine is enshrined in section 25(a) of the Contracts (General Part) Law. The interpreter is not allowed to deviate from the provisions of statute. Indeed, were the two-stage doctrine enshrined in the provisions of statute, we would, as faithful interpreters of the law, be required to obey its provisions. In my opinion, the two-stage doctrine is not enshrined in the provisions of the statute, which is worded as follows (s. 25(a)):

‘A contract shall be construed in accordance with the intentions of the parties, as is evident from the contract, and to the extent that it is not evident therefrom — from the circumstances.’

Examination of this provision shows that it contains no reference to a distinction between clear language and language that is unclear. It does not say that the interpreter learns of the intentions of the parties from the clear language of the contract. It does not say that ‘if the language is clear then the purpose is clear’. Nor does it say that ‘if the language of a contract is clear to an extent that it leaves no room for doubt as to its intention, the intentions of the parties should be derived from it, and no reference should be made for this purpose to the circumstances in which it was made’. The clause does not create two stages of evidence that are separated by the clear or unclear language of the contract. Section 25(a) of the Contracts (General Part) Law does not discuss the laws of evidence at all. It is not a section that concerns the admissibility of information. It does not adopt any position about the sources (the language of the contract or external circumstances) from which the interpreter learns of the intentions of the parties.

16. The normative message deriving from section 25(a) of the Contracts (General Part) Law is twofold: first, the main criterion for the interpretation of a contract is the intentions of the parties to the contract. These intentions are the (subjective) purposes, objectives, goals and interests (that found external expression) that the parties wished (jointly) to achieve through the contract. This intention may be evident from the contract, and it may be evident from the circumstances. Second, if after examining the language of the contract and the external circumstances, there still remains a conflict between the intentions of the parties as evident from the contract, and the intentions of the parties as evident from the circumstances, the intentions of the parties as evident from the circumstances prevails. Indeed, section 25(a) of the law establishes a deciding principle, which gives absolute preference to the intentions as evident from the contract over the intentions as evident from the external circumstances of the contract. Note that section 25(a) of the law does not provide that after ascertaining the intentions of the parties (as evident from the contract), no reference is to be made to circumstances external to the contract. Section 25(a) of the Contracts Law does not forbid any reference to the external circumstances in order to understand better the intentions that is evident from the contract. All that section 25(a) of the law establishes is a deciding principle that interpretative validity will be given first and foremost to the intentions that are evident from within the contract; and, only if such intentions are not evident from it —from the circumstances. Therefore, if it is possible and proper to avail oneself of the circumstances external to the contract in order to understand better the intentions of the parties as evident from the contract, one should do this. This was discussed by Professor Zeltner, when he said:

‘One should, therefore, carry out a twofold act: first one must clarify what the parties wished to say, and after that one should qualify the result with the question: did this wish find expression in the declaration’ (Z. Zeltner, The Law of Contracts in the State of Israel, Avuka, 1974, at p. 103).

In the same vein, in an attempt to clarify the English ‘literal rule’ (which underlies the two-stage doctrine), Professor Glanville Williams wrote:

‘… it is a misleading formulation of the problem of interpretation to say that there are two separate questions to be asked: first, “Is the Act plain and unambiguous?” Secondly, if it is not, “Can the words be interpreted so as to further the probable intention of parliament?” The first question is not independent of the second, and sometimes it better reflects the actual process of interpretation to reverse them. The primary question then is “What was the statute trying to do?” Next comes the question: “Will a particular proposed interpretation effectuate the object?” and only, lastly “Is the interpretation ruled out by the language?” ’ (G. Williams, ‘The Meaning of Literal Interpretation’, 131 New L. J., 1981, at pp. 1128, 1150).

Note that there is no fixed timetable for arriving at the intentions of the parties. One interpreter may refer first to the language of the contract and thereafter to the external circumstances. Another interpreter may first refer to the external circumstances and thereafter to the language of the contract. Whatever the order — and usually it will be an oscillating movement from the language to the circumstances and from the circumstances to the language — the final result must be the intentions as evident from the contract. If the intentions as evident from the contract are irrelevant for solving the interpretative problem that is before the judge, he will refer to the intentions implied by the external circumstances. In all of these cases, moving from the language of the contract to the external circumstances is not at all dependent on the question whether the language of the contract is clear or unclear.

Interim summary

17. In summary, a contract is interpreted according to the intentions of the parties. These intentions are the purposes, the goals, the interests, and the plan that the parties wished to achieve together. The interpreter learns of the intentions from the language of the contract and the circumstances external to it. Both these sources are ‘admissible’. With their assistance, the interpreter can ascertain the joint intentions of the parties. Moving from the internal source (the language of the contract) to the external source (the external circumstances) is not dependent on the fulfilment of any preconditions. No preliminary examination is required as to whether the language of the contract is clear or not. The answer to that question will become apparent only at the end of the interpretation process. I discussed this in one instance when I stated:

‘We can learn about the purpose of a contract from within it, from the nature of its provisions and its structure, and also from sources external to it, such as the negotiation process between the parties and their behaviour after making the contract, other contracts that exist between them, the commercial practice that was known to them or that we can presume them to have known, and from other sources that may indicate the objective of the contract and its purpose’ (FH 32/84 Estate of Walter Nathan Williams v. Israel British Bank (London) (in liquidation) [40], at p. 274).

See also Borchard Lines v. Hydrobaton [28], at p. 223.

After the interpreter has ascertained the (joint) intentions of the parties, he examines whether these intentions are ‘evident’ — i.e., they are enshrined — in the contract. If the answer is yes, the contract will be interpreted according to these intentions, which were ascertained by using a fusion of information that came from the contract and from outside it.

18. Before I end this part of my opinion, I would like to make two points: first, in this decision — as in all case-law — the terms ‘intentions’ of the parties and ‘purpose’ of the contract are used interchangeably (see, for example: Ralpo v. Norwich Union [29], at p. 55; HaMagen v. Medinat HaYeladim [15], at p. 572; Grover v. Farbstein [36], at p. 747; Nudel v. Estate of Pinto [11], at p. 482; Atta v. Estate of Zolotolov [1], at p. 305; HCJ 306/86 State of Israel v. National Labour Court [41], at p. 664; CA 783/86 Reuven Gross Ltd v. Tel-Aviv Municipality [42], at p. 597; CA 719/89 Haifa Quarries Ltd v. Han-Ron Ltd [43], at p. 312). Within the framework of this decision, there is no need to clarify these concepts. I will, however, say this: a contract is interpreted according to its purpose (see the opinion of Lord Diplock in Antaios Compania S.A. v. Salen A.B. (1985) [72], at p. 201, where he states that the method of  ‘purposive construction’ has been transferred from the interpretation of legislation to the interpretation of contracts). This purpose is a normative concept. It is a legal construction. It includes a subjective purpose and an objective purpose. The objective purpose is the intentions of the parties. These are the purposes, the interests and objectives that the parties decided upon and to which they gave external expression in their behaviour (and therefore not hidden thoughts and secret feelings: Cohen v. C.B.S. Records [24], at p. 218). Section 25(a) of the Contracts (General Part) Law is concerned with these intentions. Notwithstanding, the interpretation of a contract should not be restricted merely to the criterion of the intentions of the parties. Section 25 of the law does not constitute a closed list of rules for interpreting a contract. The vast majority of rules for interpreting contracts are found in case-law and are outside the framework of section 25(a) of the law. Indeed, sometimes the intentions of the parties cannot be ascertained. We should always remember that the relevant intentions are not the subjective intentions of one of the parties, but the joint subjective intentions of both of them, or at least the (subjective) intentions of one of the parties of which the other party is aware and which he knows is the basis of the first party’s understanding of the contract party (see Borchard Lines v. Hydrobaton [28], at p. 223; Atta v. Estate of Zolotolov [1], at p. 305; CA 819/87 Development of part of Parcel 9 Block 9671 Co. Ltd v. HaAretz Newspaper Publishing Ltd [44], at p. 344; Maximov v. Maximov [34], at p. 186 (‘a meeting of wills requires a joint intention’ — Justice Dorner); Cohen v. C.B.S. Records [24], at p. 218: ‘… a contract is not interpreted on the basis of the subjective, internal intention of one party to the contract, but on the basis of the external manifestation of the joint intention of the two parties’ — Justice Dorner). Therefore, if the (subjective) intentions of one of the parties differs from that of the other, there is no basis for ascertaining the joint subjective intentions. The contract will be interpreted in this case, as in other cases where the joint subjective intentions are irrelevant for solving the interpretative problem before the judge, according to its objective purpose. The objective purpose of a contract consists of the purposes, interests and goals that a contract of this sort or type is designed to achieve. The objective purpose is deduced from the ‘character and nature of the transaction made between the parties’ (Justice Bach in Agasi v. I.D.P.C. [13], at p. 245; CA 196/87 Shweiger v. Levy [45], at p. 20). This is the ‘common sense of reasonable and honest businessmen…’ (Justice M. Cheshin in Sakali v. Tzoran [4], at p. 819). Indeed —

‘This objective purpose means the typical purpose that takes into account the usual interests of fair parties to a contractual relationship. It may be learned from the kind of agreement and the type of contracts to which it belongs. It is derived from its logic. It is deduced from its language’ (my opinion in CA 779/89 Shalev v. Selah Insurance Co. Ltd [46], at p. 228).

This is an objective test. It is influenced by the principle of good faith and the value system which it expresses. It is deduced from logical considerations (see CA 226/80 Kahan v. State of Israel [47], at p. 471 (‘one should prefer the interpretation that, more than any other interpretation, is consistent with logic…’ (per Justice D. Levin); CA 702/80 Galfenstein v. Avraham [48], at p. 119 (‘one should prefer the rational interpretation over the interpretation that does not allow any possibility of performing the contract, not only according to the text and the language, but also according to its spirit’ (per Justice Sheinboim)). When the contract has an economic or commercial purpose, the objective purpose is determined according to the ‘economic logic’ or the ‘commercial logic’ underlying it (see CA 757/82 Israel Electricity Co. Ltd v. Davidovitz [49], at p. 223; CA 565/85 Gad v. Nevi’i [50], at p. 430; K.Z. Gas v. Maxima Air Separation [33], at p. 649). The objective purpose is established on the basis of considerations of reasonableness (see CA 449/89 Flock v. Wright [51], at p. 102: ‘one should choose also the most reasonable interpretation of the contract’ (per Justice Malz); CA 2738/90 Yahav v. Ben-Tovim [52], at p. 703; Cohen v. C.B.S. Records [24], at p. 219: ‘… a commercial contract is designed to achieve a business purpose, and should be given an interpretation that facilitates this purpose, as reasonable persons would do…’ (per Justice Dorner); CA 530/89 Bank Discount v. Nofi [53], at p. 125); ‘in ascertaining the objective purpose, we must take account of business efficiency and similar considerations ‘as fair parties, protecting their typical interests, would have designed it’ (Shalev v. Selah Insurance [46], at p. 229). ‘It is the purpose that reasonable and decent parties would have aimed to achieve’ (per Justice Or, ibid., at p. 237). The (ultimate) purpose of the contract is ascertained on the basis of the subjective purposes (‘the intentions of the parties’) and the objective purposes of the contract. Notwithstanding, in a conflict between them, the subjective purpose (‘the intentions of the parties’) will prevail. This, as we saw, is the central message that is derived from section 25 of the Contracts (General Part) Law. Moreover, within the framework of the subjective purpose, normative preference is given to the intentions that are evident from the ordinary and natural language of the contract, over the intentions that arise from its unusual use of language or external circumstances. ‘The presumption is that the purpose of the contract will be achieved, if the language of the contract is given the ordinary meaning that it has in the language used by the parties. The burden is upon the party who claims a special meaning’ (my opinion in Estate of Williams v. Israel British Bank [40], at p. 274); ‘There is a presumption that the ordinary meaning of the language chosen by the parties in the contract reflects what they agreed between them, and that effecting what was agreed between the parties is also the purpose of the contract’ (Justice Or in Shalev v. Selah Insurance [46] at p. 238). It follows that the correct test is not the two-stage test where the clear or the unclear language of the contract acts as a cut-off point for evidence of the meaning of the contract, but a one-stage test, involving unceasing movement from the language of the contract to the external circumstances, while creating a rebuttable presumption that the purpose of the contract is what is evident from the ordinary language of the contract. This presumption can be rebutted by all the circumstances.

19. Second, examination of decisions that I myself have written in the past shows that I too at times relied on formulae that resemble the two-stage doctrine. This, for example, is what I wrote in one case:

‘Indeed, just as a law is construed according to the “intentions” of the legislator, the creator of the law, so a contract is construed according to the “intentions” of the parties, the creators of the contract. The intentions of the parties can be derived from any reliable source. The most reliable source, and therefore also the first and foremost, is the contract itself. But it is not the only source. The court may — where the contract itself is insufficient to indicate the intentions of the parties — refer to the “circumstances”, i.e., the factual framework within which the contract was made. Note that in all these situations the judge is confronted with a contract, i.e., a “text” (express or implied, written or oral) and the question before him is, what meaning should be given to the contract and what is its scope. The court discovers this meaning according to the “intentions of the parties”, which it learns from the contract itself and from the circumstances’ (Atta v. Estate of Zolotolov [1], at p. 304).

The stipulation that reference to the circumstances is only possible ‘where the contract itself is insufficient to indicate the intentions of the parties’ is, of course, influenced by the two-stage doctrine. Even though I did refer to the concept of clear/unclear language, there is an echo of this approach in the wording of the decision. I regret this. I will merely point out that at a relatively early stage of developing the case-law, I noted that —

‘My colleague distinguishes between “internal interpretation” and “external interpretation”. Even this distinction raises very difficult problems, and I would like to reserve judgment with regard thereto’ (my opinion in Alter v. Alani [25], at p. 715).

Reference to external sources should be done in every case, and it is not limited merely to cases where the contract itself does not indicate the intentions of the parties. Notwithstanding, section 25(a) of the Contracts (General Part) Law mandates that, in a conflict between the intentions evident from the contract and the intentions that can be derived from the circumstances — the former prevail.

From the general to the specific

20. It transpires that we may refer to all the data — the contract as an integral entity and the external circumstances — in order to ascertain the purpose of the ‘programme contract’. This purpose — so it appears from all the date presented to the District Court — is to effect the rapid building of apartments for sale by contractors to new immigrants and young couples on the open market. The plan is based on incentives designed to encourage the building of a large number of apartments in a short time and their sale on the open market. The main incentive is the undertaking that the State made to buy from the contractors those apartments that are not sold on the open market (in desirable areas (type A) — half of the apartments, and in development areas (type B) — all the apartments). This reduces the marketing risk of the building companies. An additional benefit that was given to the contractors allows them to demand that the State honour its undertaking (for type A, when the building is finished, and for type B, upon completion of the walls and the partitions). The contract is also based on additional incentives to encourage contractors to start building, such as special grants if the building is completed within a relatively short time, and partial financing of the building. Together with these (positive) incentives, several sanctions (or negative incentives) were stipulated, which were designed to motivate the contractors to comply with every stage of the timetable and sell the apartments on the open market. The main ‘sanction’ that the State reserved for itself — in order to encourage contractors to complete the building on time and to sell the apartments to new immigrants on the open market — was a reduction of the purchase price if the contractors were late in carrying out the building. This main sanction, according to the language of the contract, applies only to a delay in the desirable areas. This is a ‘presumed purpose’ that is evident from its wording. This presumption, although strong, conflicts with the (objective) purpose that is evident from the other parts of the contract, and from a reading of the contract as an integrating entity, based on positive and negative incentives that integrate with one other. This purpose was to give the State a (civil) sanction in the form of a price reduction should the performance be delayed, for all types of apartment. Indeed, accordance to the nature and the internal logic of the contract, this sanction should apply to both types of projects, and it should not be restricted only to the first type. Inspection of the contract in view of its circumstances shows that the main mechanism available to the State to make the contractors comply with the timetable for building in development areas is its power to reduce the purchase price if the contractor is late in performance. An additional ‘sanction’ is a reduction of the apartment price if a long period of time passes between completing the performance period and invoking the government’s purchase undertaking. In ascertaining this purpose, the interpreter is helped by the language of the contract and the external circumstances, as presented by the parties to the District Court. In view of this purpose, we can proceed to the second question that arises in this appeal, which concerns the accomplishment of the said purpose within the framework of the programme contract.

B. Accomplishing the purpose within the framework of the contract

Accomplishing a purpose that the language cannot support

21. As I stated at the beginning of my opinion, my colleague, Justice Mazza, established two propositions. The first concerns the purpose of the programme contract. My colleague sought to establish that the purpose of the contract is what is evident from the clear language of the contract. On the face of it, it is not the purpose of the programme contract to provide sanctions for building delays in development areas. I have until now been discussing this proposition. My conclusion was — and in this I agreed with the opinion of my colleague, Justice D. Levin — that the judge should not be restricted to the language of the contract in ascertaining its purpose, and that we may determine the purpose of the programme contract on the basis of all the data (whether internal or external). Consequently, I discussed the purpose of the programme contract, which includes also a provision for a sanction for a delay of the contractor in carrying out the building. Against this background, the second (and alternative) proposition determined by my colleague arises. This is the proposition that the purpose of the contract — as derived from all of the circumstances — may be ascertained by the judge-interpreter ‘only if the language of the contract can be interpreted in different ways, or can sustain the interpretation which according to the logic of the interpreter is appropriate for the logical purpose of a contract of that sort’. In this context, my colleague quotes my remarks in a different case, (Atta v. Estate of Zolotolov [1], at p. 304), that ‘the words restrict the interpretation’. In my colleague’s opinion, one should not force into the language of the programme contract (clause 6(h)(3)), which refers to apartments with regard to which the contractor has invoked the purchase undertaking of the State (‘Should the purchase undertaking be invoked… after the end of the performance period’), any reference to apartments for which there was a delay in completing the building (their performance ‘was completed after the end of the performance period’). A provision (section 6(h)(3)) relating to invoking the undertaking the undertaking of the State to buy apartments cannot, according to its language, sustain a meaning that refers to a delay in completing the building of the apartments. ‘The clear words of the clause block our path to external criteria.’ It transpires that the main sanction (reduction of the price) that is available to the Government should there be a delay in performance in the first type of cases (desirable areas — clause 6(g) of the programme contract) is not available in the second type of cases (development areas). Therefore, when a contractor who is building in a development area, submits a demand to invoke the Government’s undertaking — a demand that he is entitled to make upon completion of the walls and partitions — the State must pay the price that was determined, without any ability to reduce the price because of the delay. This conclusion is problematic. True, it is evident from the language of the contract, and in this my colleague is correct. The language of clause 6(h)(3) of the programme contract cannot — as a text written in Hebrew — sustain the meaning required by the whole purpose underlying the contract. Does it follow from this, as my colleague Justice Mazza is correct in saying that the appeal must be denied? In my opinion the answer is no. My colleague limits himself merely to interpretation in its narrow sense. He does not widen the scope of his examination to interpretation in its broad sense. Within the framework of this distinction lies the answer to our problem. This answer is different from that of my colleague, Justice Mazza. It accords with that of my colleague, Justice D. Levin. I will now clarify my train of thought.

Construction in the narrow sense and construction in the broad sense

22. Normative judicial activity with regard to a legal text is of various kinds. At the centre of this activity is interpretation in its ‘narrow sense’ (see Borchard Lines v. Hydrobaton [28], at p. 223;