Discussion and Decision
- After reviewing the judgment and the applicant's arguments, I found no reason to order an additional hearing.
First of all, it is appropriate to reiterate the unique and charged circumstances of the case, which were also discussed by the judges of the panel. While the parties were in a relationship, the Respondent was required to undergo complex medical treatments due to her serious illness, and was recommended to undergo a fertility preservation procedure. The parties initiated such a proceeding, in the framework of which they signed an agreement that was given to them by the Soroka Center. Subsequently, and due to the medical recommendation given to the parties at that time, they decided to fertilize the three eggs that were extracted from the respondent's body – and later it became clear that it was not possible to extract additional eggs. It later became clear that when the applicant's sperm was extracted (and close to the date of fertilization of the eggs), doubts began to nest in him regarding the future of the marital relationship; However, the Applicant did not share his doubts with the Respondent, but rather remained by her side and supported her, and even Indicate to her (after she was informed of the need for a hysterectomy) that they still have the frozen embryos. After the respondent recovered, the parties parted, and after a few years she asked to make use of the frozen embryos. For the Respondent, her wish embodies her last chance for genetic parenting; And for the applicant, this is a proceeding that is expected to create a parental relationship for him against his will, with all that this entails.
There is no doubt that this is a sensitive and complex issue on the interpersonal level, and I do not take lightly the weighty implications of the judgment on each of the parties, and on the applicant in particular. However, the question that needs to be decided now is whether the judgment established a new rule that meets the rigid criteria that justify the holding of an additional hearing – and to this I believe the answer is negative.
- As is well known, the additional hearing is an exceptional and rare procedure reserved for those cases in which "the ruling of the Supreme Court contradicts a previous ruling of the Supreme Court, or because of the importance, difficulty, or novelty of a ruling that has been ruled" it is appropriate to hold an additional hearing (Section 30(b) of the Courts Law [Consolidated Version], 5744-1984). Against this background, the case law held that "a new rule must be open and explicit in the face of the judgment" (Additional Civil Hearing 67314-09-24 Anonymous vs. Anonymous, paragraph 9 [Nevo] (19.10.2025) (hereinafter: Additional Civil Hearing 67314-09-24); Additional Civil Hearing 5046/23 Peretz v. Cohen, paragraph 10 [Nevo] (17.7.2023)); and that the additional hearing was not intended as a means of re-examining a judgment but due to the complexity of the outcome determined therein (Additional Civil Hearing 62866-05-25 Anonymous vs. Anonymous, paragraph 26 and the references therein [Nevo] (June 22, 2025) (hereinafter: Additional Civil Hearing 62866-05-25)).
- The Applicant's arguments focus mainly on the fact that the judgment deviated from the agreement between the parties, according to him. In this context, I will mention that the common denominator between the opinions of the judges Barak-Erez And as Kosher, he was concerned with the doctrine of estoppel, when the judge Kosher Reservations about the judge's ruling Barak-Erez regarding the change in the array of agreements, so that this position remains the opinion of an individual, and as such it does not amount to a "halakha" for the purposes of further discussion (Additional Civil Hearing 5363/24 Agoda Company Pte. Ltd v. Tzvia, paragraph 13 [Nevo](January 18, 2026)). I will also mention that the doctrine of estoppel has long been recognized in Israeli law, in particular as a derivative of the duty of good faith in the performance of a contract (see: paragraph 93 of the judge's judgment Barak-Erez, and paragraph 6 of the judge's judgment Kosher; As for the use of the doctrine of estoppel by virtue of representation in relation to relationships between family members or spouses, see, for example: Gabriela His "promise, silence and good faith" Law 16 295, 310-312 and the references there (1986); Civil Appeal Authority 7831/99 Tzuriano v. TzurianoIsrSC 57(1) 673, 685-686 (2002); Also compare: LA 1398/11 Anonymous v. Anonymous, paragraphs 21-23 of the judge's judgment Y. Danziger [Nevo] (December 26, 2012)). Therefore, in this regard, the majority opinion did not establish any new rule.
- Even the decision regarding the existence of a duty of disclosure on the part of the applicant does not establish grounds for further hearing. It is true that the specific duty of disclosure recognized by the majority opinion adds a layer to the existing case law, which recognized the duties of disclosure between spouses in other contexts – and in particular economic – but had reservations about the duty of disclosure that is rooted in the interpersonal and intimate level (see paragraph 92 of the judge's judgment Barak-Erez and paragraphs 8-9 of the judge's judgment Kosher and the references therein). However, the principled policy reasons against recognizing such a duty did not go unnoticed by the panelists, who all noted the concern about the "judgment" of emotional and interpersonal relationships (LA 5827/19 Anonymous vs. Anonymous, paragraph 48 [Nevo] (16.8.2021); and compare to my judgment Other Municipality Requests 8489/12 Anonymous vs. Anonymous [Nevo] (October 29, 2013), where I noted that "tort law is not a sword hanging over the couple's bed, and the tort of negligence is not the 'third passenger' hidden between the sheets, like a foreign plant that is liable to suddenly wake up from its slumber and trample on the most intimate-emotional corners of a human being" (ibid., at paragraph 6)). Nevertheless, the majority opinion was of the opinion that this concern is limited in the specific circumstances of the case at hand. This is especially so, since in our case we are not dealing with the implantation of external legal norms into the marital relationship, but rather with the question of the interpretation and implementation of a legal agreement that in any case stands at the basis of the dispute between the parties (see paragraph 92 of the judge's judgment Barak-Erezand paragraphs 11 and 13 of the judge's judgment Kosher); At this point, it is worth reiterating that the agreement between the parties does not necessarily reflect a standard wording applied in fertility preservation proceedings wherever they may be (compare in this context: Additional Civil Hearing 7322/21 Kalkuda v. Israel Land Authority, paragraphs 14-16 [Nevo] (7.3.2022)). Also, the judge Kosher He went on to discuss the reasons that established the justification, according to him.Overcoming" on the difficulties that arise in this context (paragraph 10 of his judgment). These reasons are also based on the specific and exceptional circumstances of the case at hand: the extent of the harm caused to the respondent as a result of the applicant's silence, and the fact that the conclusions regarding the applicant's state of mind were not based on his interrogation on the witness stand or on reliable determinations, "but on the version that he voluntarily gave in the affidavit of the main witness that he submitted" (paragraph 12 of his judgment).
Therefore, the recognition of the duty of disclosure in the concrete case before us does not give voice to a general and sweeping rule regarding the duty of disclosure between spouses in general, or on issues related to fertility preservation proceedings in particular. Rulings on this sensitive subject develop heel to thumb, based on the specific factual circumstances of each and every case, and all this in view of the general rule that one must guard against the introduction of legal norms into marital and interpersonal relationships. It is therefore clear that in future cases whose circumstances are similar (if they arise), the court may reach a different result, to the extent that justification arises for doing so (see and compare: Additional Civil Hearing 2140/23 Anonymous vs. Anonymous, paragraph 15 [Nevo] (May 8, 2023) (hereinafter: Additional Civil Hearing 2140/23); Additional Hearing High Court of Justice18/15 Anonymous v. The Special Conversion Courts, paragraph 20 [Nevo] (30.4.2015)).