Ltd. 57929-12-24 Anonymous vs. Anonymous

LA 57929-12-24

Judge Dafna Barak-Erez:

1. A sudden and shocking health crisis, fertility treatments and marital separation.  These are the background data that underlie the proceeding before us, and when they are intertwined, they have given rise to a sharp legal dispute that is intertwined with heartache for all involved.
2. The parties began the path that led to this day as a couple.  During the period of the marital relationship, the Applicant began a process of fertility preservation against the background of the deterioration of her health condition.  In practice, Only three normal eggs were extracted from her body, all of which were fertilized with the sperm of her then-partner, respondent 1 (hereinafter: Respondent), and frozen.  Due to life-threatening medical circumstances, the Applicant was forced to immediately stop the fertility treatments.  Later, she underwent an urgent surgery to remove her uterus, thus ending the possibility of performing another cycle of pumping.  A few months later, the couple separated.  At this time, the use of frozen embryos, with the help of a surrogacy procedure, is the only option open to the applicant to realize genetic parenthood, if this is successful.  However, the respondent - who in the meantime had children from another relationship - objects to their use.  This dispute gave rise to this proceeding.  In particular, the question before us is whether the applicant is entitled to make use of the frozen embryos, which were created from the fertilization of eggs taken from her body in her partner's sperm at the time, in order to bring a child into the world through a surrogacy procedure.  It should be noted that the term "frozen embryos" is used here in accordance with the pleadings in the proceeding and previous rulings, and does not express a position regarding the medical or biological condition of the frozen genetic material.

The Ottoman Settlement [Old Version] 19163.       I will preface by noting that many of the characteristics of the dispute before us are similar to the basic elements of a previous affair that gave rise to lengthy litigation, as well as significant disagreements, and became known as the Nachmani - Beginning in the District Court (Opening Stimulus (Hai District') 599/92 Nachmani v.  Nachmani, IsrSC 5759(1) 142 [Nevo] (1993) (hereinafter: the Matter Nachmani District)) and ending with two judgments rendered in this court - First on appeal (Civil Appeal 5587/93 Nachmani v.  Nachmani, IsrSC 49(1) 485 (1995) (hereinafter: the Nachmani I)) and later in the framework of another discussion (Additional Civil Hearing 2401/95 Nachmani v.  Nachmani, IsrSC 50(4) 661 (1996) (hereinafter: the Another discussion Nachmani)).  As is well known, in the last ruling, it was ultimately decided to allow the woman, Ruthie Nachmani, to use her and her ex-partner's frozen embryos, Danny Nachmani, despite his opposition to it (although in the end the process was unsuccessful).  The decision in that case involved fundamental disputes, on the one hand, but also anchored in the concrete facts of the relationship between the spouses and of the agreements between them, on the other hand.  Therefore, the case before us requires an independent examination based on its unique circumstances.  In addition, we will have to address the question of whether developments that have occurred in Israeli law since then, first and foremost the legislation of the The Embryo Carrying Agreements Law (Approval of the agreement and the status of the newborn), 5756-1996 (hereinafter: Surrogacy Law) have an influence on the decision.  In any event, it is appropriate to begin by describing the facts of the case before us.