12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2)
The judgment that is the subject of the application
- On December 22, 2024, the Respondent filed an application for leave to appeal to this Court. In the proceeding, a hearing was held in the presence of the parties, and on January 29, 2026, the judgment was rendered, in which the court granted the request for leave to appeal and accepted the appeal on its merits by a majority opinion (the judge Barak-Erez And the Judge Kosher against the judge's dissenting opinion Knafi-Steinitz), so that it was determined that the Respondent would be entitled to make use of the frozen embryos.
- The Judge Barak-Erez, which wrote the main opinion, emphasized that the legislative provisions regarding IVF are partial, and that the regulation of the issue is limited to secondary legislation, procedures and case law. The judge also ruled Barak-Erez that the agreement was intended primarily to regulate the level of relations between the Soroka Center and the parties, and that its content left a large opening for misunderstandings. The Judge Barak-Erez was of the opinion that the status of the agreement as a binding contract could not be denied, but determined that the conduct of the parties after the signing – including their decision to fertilize all three eggs, as well as the fact that the applicant encouraged the respondent After she was informed of the need for a hysterectomy, he noted that they still have the frozen embryos - Indicates a change in the set of agreements between the parties.
Copied from Nevo7. The Judge Barak-Erez She added that according to the Applicant's testimony, with the delivery of the sperm, there was a significant change in circumstances for him and his relationship with the Respondent was undermined, but he did not share these feelings with her – in a manner that arises, according to the judge Barak-Erez, in order to misrepresent. The Judge Barak-Erez It held that in the circumstances of the case, the Applicant had a duty of disclosure towards the Respondent in relation to his feelings, and that the non-disclosure had irreversible consequences for the Respondent, whose choice was denied at the date prior to the fertilization of the eggs. The Judge Barak-Erez In this context, she referred to the need to be careful of "judging" emotional and interpersonal relationships by imposing duties of disclosure in these contexts – but according to her, in this case, the legal aspect was already present in the relationship between the parties, since it is a matter of "Marital consent also has formal aspects, when it comes to IVF" (paragraph 92 of its judgment). In conclusion, the judge Barak-Erez determined that the Applicant's misrepresentation led the Respondent to rely on him and to change her situation for the worse. In this situation, it was determined that the applicant was subject to estoppel that prevented him from acting contrary to the representation he made to the respondent.
- Subsequently, the judge Barak-Erez reviewed extensively what was determined in the Nachmani Known (Civil Appeal 5587/93 Nachmani v. NachmaniIsrSC 49(1) 485 (1995); And later on. Additional Civil Hearing 2401/95 Nachmani v. Nachmani, IsrSC 50(4) 661 (1996)), and noted the similarities and differences between that case and our case. Approach The Judge Barak-Erez, the circumstances of the case in our case do not justify a decision different from that determined in the Nachmani.
- Regarding the manner in which frozen embryos are used, the judge Barak-Erez It ruled that this was a secondary issue of importance, since the main dispute between the parties related to the very act of parenting through the frozen embryos – and not to the question of the use of the surrogacy procedure – and even from the applicant's point of view, this was not the main reason for his objection to the continuation of the process. The Judge Barak-Erez She further determined that the clause in the agreement that dealt with the insertion of embryos into the respondent's womb did not reflect a sweeping negation of surrogacy procedures, but only the fact that at that time this was the only option on the agenda. The judge also mentioned Barak-Erez that after the parties became aware of the need to remove the respondent's uterus, the applicant told her that they still had the frozen embryos, and it was determined that by doing so he had given explicit consent that was late to the signing of the agreement and which replaces what was stated therein.
- Finally, the judge Barak-Erez was of the opinion that the consultant's outline may constitute a balanced and feasible solution, which will moderate the violation of the applicant's rights. In light of all of the above, the judge Barak-Erez held that the appeal should be accepted so that the respondent could make use of the frozen embryos, while the operative instructions in this regard would be given after the applicant's position was submitted to this court as to the consultant's outline.
- The Judge Knafi-Steinitz Disagreement on the judge's ruling Barak-Erez, and was of the opinion that the appeal should be dismissed. At the outset, The Judge Knafi-Steinitz referred to the comparison of the case at hand to the Nachmani, and held that the circumstances of the case were different in a way that did not allow To adopt the way of balancing rights that was conducted there.
- From here she passed The Judge Knafi-Steinitz To examine the agreement, which according to it is at the center of the decision. The Judge Knafi-Steinitz noted that this is a binding legal document in the relationship between the parties, and that the agreement granted the applicant the right to withdraw from the proceeding at any stage until the date of insertion. In any case, the judge Knafi-Steinitz She was of the opinion that even in the absence of an agreement, and in view of the circumstances of the Respondent's fertility preservation procedure, the Applicant cannot be regarded as having consented in advance to all stages of the fertilization process until the birth of a child. According to her, the applicant cooperated with the fertility preservation process in reliance on the agreement, while the questions regarding the establishment of a family and the introduction of a child into the world were permitted for the future. In this state of affairs, she believed The Judge Knafi-Steinitz Because it is difficult to shock that the applicant will be forced to complete the fertilization process to the fullest, without giving his consent.
- Subsequently, the judge Knafi-Steinitz examined the conditions for the existence of estoppel due to representation in light of the circumstances of the case. The Judge Knafi-Steinitz It insisted that the estoppel "due to silence", which is the relevant instance in our case, is based on three elements: the existence of a representation; The other party's reliance on the same representation and the change in its situation for the worse due to that reliance; and the existence of a duty of disclosure. As for the duty to disclose, the judge ruled Knafi-Steinitz Because, as a rule, A person should not be under a legal obligation to disclose to his spouse that he has doubts about the future of the marital relationship; and that there is concern that recognition of the legal duty of disclosure in these situations will lead to problematic broad consequences. Even beyond the principled reasons of policy, the judge emphasized Knafi-Steinitz that at the relevant time, the respondent was in a difficult medical struggle for her health, and it is doubtful that a reasonable spouse would have seen those moments as an appropriate time to share his feelings with his spouse. She further emphasized The Judge Knafi-Steinitz the tight time frame in which the events took place: thus, from the date of the consultation to the fertilization of the eggs, 11 days passed; and"Between the date of the removal of the sperm – when the respondent began to have doubts – and the decision to fertilize the eggs, A period of time of just one day or even a few hours has passed(Paragraph 42 of the judgment [emphasis in the original – 10]). It was further noted that at the time the eggs were fertilized, the parties were not aware that this was the Respondent's last chance for genetic parenting; The applicant did not know for sure that he would not continue to cooperate with the fertilization procedure; Nor did he make a decision to dissolve the marital relationship. In the light of the aforesaid, it held The Judge Knafi-Steinitz Because The Applicant's conduct should not be regarded as creating a misrepresentation.
- In the same way, she held The Judge Knafi-Steinitz that the evidence also negates the existence of the element of reliance, since the respondent's choice to fertilize the eggs was not based on her reliance on a misrepresentation presented by the applicant, "but rather on the set of chances and risks underlying the fertility preservation procedure" (paragraph 50 of her judgment). In light of all of the above, The Judge Knafi-Steinitz believed that The applicant may refuse to use the frozen embryos, but if it is decided otherwise, the applicant must be given an opportunity to clarify whether he wishes to sever the parental relationship, or if he prefers to be a father.
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- The Judge Kosher Join the judge's conclusion Barak-Erez, and he also held that the appeal should be accepted. At first he expressed The Judge Kosher Agreeing with the position of The Judge Knafi-Steinitz Because there is no such thing in Parashat Nachmani In order to decide the fate of the case at hand; that the agreement signed between the parties should be regarded as binding; and that the conduct of the parties after the signing does not indicate a change in the agreements between them. However, the judge Kosher held that "under the circumstances Uniqueness and Exceptionalities of the case at hand, the conditions of estoppel by virtue of representation are met.", which prevents the Applicant from objecting to the Respondent's use of the frozen embryos (paragraph 1 of his judgment [emphasis in original – 11]). The Judge Kosher noted the case law regarding the difficulty in imposing a duty of disclosure in the relationship between spouses, but held that in the present case this difficulty is relatively less, since the set of rights and obligations between the parties on the subject at the center of the proceeding was settled from the outset by a binding agreement, and therefore "the law is already in the room" (ibid., at paragraph 11). The judge also emphasized Kosher the harm caused to the respondent as a result of the applicant's silence, and the harm that might be caused to her if it were determined that he did not have a duty to disclose. Subsequently, the judge Kosher Held that Prior to the fertilization of the eggs, the applicant was aware that there was a real risk that the three eggs extracted were the respondent's last chance for genetic parenting; and that at that time he already had real doubts as to his willingness to consent to the use of eggs after fertilization.
- In this state of affairs, and on the basis of the duty of good faith in section 39 The Contracts (General Part) Law, 5733-1973, stipulates that the applicant is obligated to disclose to the Respondent – prior to the fertilization of the eggs – "that its reliance on him and his consent, in the future, to the use of the eggs involves a risk, which is highly likely, that his consent to the use of the fertilized eggs will not be given" (paragraph 16 of his judgment). On the operative level, the judge agreed Kosher that the applicant should be given an opportunity to present his position regarding his rights and obligations regarding the fate of the child to be born (if he is born).
The Applicant's Arguments
- Hence the application before me, in which the Applicant argues, in essence, that in the judgment a new rule was established according to which a written contract can be overcome by means of the doctrine of estoppel due to silence. According to him, this ruling has broad implications for the stability of fertility agreements, which are drawn up on a regular basis; the ability of parties to rely on the same agreements; And about the laws of contracts in general. It was argued that the judgment contradicts the agreement signed by the parties, in which it was clearly determined that the eggs to be fertilized were intended only for the respondent's uterus; as well as the relevant laws for IVF procedures, which require informed consent for each of the stages of fertilization. In addition, the Applicant argues that the non-disclosure of a person's personal thoughts does not amount to a breach of the duty of good faith in contract law. The Applicant emphasizes that he relied on the agreement, according to which his consent is required at every stage of the proceeding, and he claims that the doubts that arose in his heart after the conclusion of the agreement are natural in view of the weight of the decision. Finally, the Applicant has arguments against the consultant's outline, which was allegedly ratified in the judgment. According to the Applicant, the outline is contrary to the provisions Embryo Carrying Agreements Law (Approval of Agreement and Status of the Newborn), 5756-1996 (hereinafter: Surrogacy Law), inter alia, that the outline It allows ignoring the child's best interest and his right to know his origin.
Simultaneously with the filing of the motion for an additional hearing, the Applicant filed a motion to delay the execution of the judgment until a decision is made on the request for an additional hearing.