The simple interpretation of this clause, which is worded in the negative, is that until the stage of insertion of the frozen embryos, each of the parties is entitled to unilaterally cancel the agreement. In other words, prima facie, at the time of signing the affidavit, it was agreed that even after the fertilization of the eggs and before the embryos were inserted into the appellant's uterus, each of the parties would be entitled to withdraw its consent to the IVF process. In any case, as I will show, it is impossible to ignore the developments that have occurred in the relationship between the parties After Signing the affidavit.
Late consent to an affidavit
- The set of agreements between the appellant and the respondent did not amount to the signing of the affidavit. Indeed, The signing of the affidavit was an important step on the road - but it was not the end of it. An analysis of the parties' behavior shows that the nature of the agreements between them changed with the factual developments that occurred after the signing of the affidavit and moved on to fertilization of the eggs. Accordingly, we must examine the set of agreements between the parties as a whole. It is not superfluous to note, even without conducting a full comparative review, that in the United States, too, in addition to the agreements that the parties shared with the medical institution in which they received treatment, in appropriate cases, additional agreements reached orally in their relationship were also examined (see, for example: Jocelyn P. v. Joshua P., 302 A.3d 1111 (Md. App. Ct. 2023)).
- At this point, the events should be placed on the timeline again. On November 12, 2015, the appellant and the respondent met with the doctor, who recommended that they distribute the eggs so that half of them would be frozen without fertilization and half of them after fertilization, and also gave them the text of the affidavit. Five days later, on November 17, 2015, the parties signed the affidavit. A few days later, on November 23, 2015, the eggs were extracted from the appellant's body, and at the same time the respondent delivered his sperm for fertilization. On the same day, all three of the appellant's eggs were fertilized (contrary to the original consent) according to the latest medical recommendation received by the parties, and two days later, on November 25, 2015, the embryos that developed as a result of the fertilization were frozen.
- The parties therefore deviated from the prior agreement between them in accordance with the current medical recommendation (see: paragraphs 9 and 12 of the statement of claim on behalf of the appellant and respectively paragraphs 11 and 14 of the affidavit of the main witness on her behalf; paragraphs 28 and 30 of the statement of defence on behalf of the respondent, in which he admits in essence these facts). As the doctor clarified in his testimony, at this stage, above the possibility of successfully carrying out another round of egg retrieval from the appellant, a heavy cloud loomed. Thus, when the doctor was asked if both parties knew that if fertility treatments were not performed immediately, there was a chance that it would not be possible to do so in the future, he replied in the affirmative: "True. Everyone knew that this was an urgent situation" (transcript of the hearing of October 30, 2024, at p. 16). Later, when the doctor was asked whether at the time it was decided to fertilize the three eggs, the parties knew that in view of the appellant's medical condition, "there is a chance that this is over". To this, he replied: "That's right. It was clear from the outset that we were on borrowed time."Name, at p. 17).
- If so, the uncertainty regarding the appellant's medical future was well known to the parties, in a manner that led to a deviation from the original medical recommendation and the parties' initial consent (fertilization of only half of the eggs). Nevertheless, the cooperation on the part of the respondent remained complete. He He is called upon to give his sperm for the purpose of fertilization of the three eggs and did so without delay. Even afterwards - when the respondent had already arose, according to him, difficult feelings - he did not stop the process, even though he was able to do so.
- Moreover, even after a long time had passed, in which, according to the claim, the respondent had significant considerations in his heart, he stood by the appellant's side and strengthened her hands. In this case, it was held - as a factual finding of the trial court, in which the District Court did not intervene in the appeal - that after the appellant was informed of the need for a hysterectomy, the respondent sought to encourage her by mentioning the possibility of using frozen embryos in surrogacy procedures. It is also important to emphasize that the respondent did not condition his consent to the process on the continued existence of a relationship between the parties. On the contrary, the opposite is true: the respondent chose to persist in the process even after the marital relationship between him and the appellant had been undermined, according to him. This fact shows about a thousand witnesses about the respondent's willingness to participate in the fertility preservation processes regardless of the question of his marital relationship with the appellant.
- If so, the respondent's conduct in the later stages of signing the affidavit attests to a change in the set of agreements between him and the appellant, in accordance with the developments and the changes in circumstances that reality has summoned to the parties. In any event, there is no clause in the affidavit that limits the ability of the parties to change the agreements between them (even verbally or in conduct). Just as there is room to give validity to the agreements that were expressed in the text of the affidavit itself, so too in my opinion the agreements that were formed later - in the conduct and statements of the parties - should also be regarded as binding. At this time, and since the frozen embryos are the only path that may enable the appellant to become a genetic mother, the respondent cannot withdraw from these agreements.
Misrepresentation on the part of the Respondent and the Appellant's reliance on it
- Further to the above, even if someone is found to claim that the late agreements to sign the affidavit are not sufficiently clear, in the circumstances of the case, the respondent's position is not expected for any additional reason. This is because, in my opinion, the respondent is silenced from withdrawing the consent he gave to the use of the eggs, in view of his conduct prior to fertilizing them. In relation to this, it is worth quoting the manner in which the respondent described in the affidavit of the main witness on his behalf the delivery of the sperm for the purpose of fertilization:
"It can certainly be said that the moment [the appellant] pumped my sperm was the moment when our relationship was undermined. I felt embarrassed, humiliated and exploited. In my mind's eye, I saw myself associating myself in those unpleasant moments as atonement being milked with a coarse hand. How do you get out of it now? I asked myself. I shared my difficult feelings with my mother that day. She reassured me and her that without my consent [the appellant] would not be able to make use of the fertilized eggs with my sperm in any case, so I still have the possibility of regretting my hasty consent to fertilize [the appellant's] eggs with my sperm" (ibid., at paragraph 16).
- Thus, with the delivery of the sperm, there was a significant change in circumstances from the respondent's point of view. From his point of view, his relationship with the appellant was deteriorated. However, the respondent's feelings, his difficult feelings, the doubts that attacked him - all these were hidden from the appellant, and it was not known that they came to him. He hastened to share his heretical thoughts with his mother, but left the appellant under the impression that he continued to stand behind his agreement to cooperate with the IVF process, even though at that stage this was not the state of affairs as it was. In other words, a gap was created between the respondent's subjective position in relation to the relationship between the parties and the fertility proceedings, and the external expression he gave her. In my view, this conduct of the respondent amounts to a misrepresentation as to the nature of his intentions. In view of the substance of the issue at hand and its dramatic implications for the appellant's future, and in particular on her right to parenthood, I am of the opinion that in these circumstances the respondent has a duty of disclosure towards the appellant. He had to tell her in real time that his heart had turned.
- To the Island-The discovery in the circumstances of the case had dramatic and irreparable consequences. The respondent's presentation led the appellant to change her situation for the worse dramatically. Egg fertilization is irreversible. Once done, the wheel should not be turned back. The hope of the parties that additional eggs would be extracted from the appellant's body was quite slim at the time, and in the end it was indeed disappointed. It is possible that this is the "wisdom of the retrospective." But from the testimonies heard in the proceeding, it was clear that a big question mark hovered over the possibility that another pumping would indeed succeed. It is not for nothing that when it became clear that only three eggs were extracted, the medical recommendation was changed from fertilizing half of them to fertilizing all of them. This change in itself indicates the uncertainty that has arisen regarding the chances of success down the road.
- Before I go further into the results of the representations in this matter, it is appropriate to emphasize the uniqueness of the case before us. Without derogating from the well-known importance of honesty and integrity in close relationships, and thus also in family relationships, this court has traditionally been wary of imposing liability for misrepresentation between spouses in contexts such as the disclosure of sexual orientation or fidelity in marriage (see, for example: Civil Appeal 1581/92 Valentin v. ValentinIsrSC 49(3) 441 (1995); Civil Appeal 8489/12 Anonymous vs. Anonymous [Nevo] (29.10.2013); LA 5827/19 Anonymous vs. Anonymous [Nevo] (August 16, 2021)). This, to a large extent, is out of concern about the "judgment" of emotional and interpersonal relationships. However, when we are dealing with conjugal consent, there are also formal aspects, when it comes to IVF, the legal aspect is already present, and it is inevitable.
- The respondent's representations led the appellant to rely on him - a reliance that was certainly reasonable at the time, all the more so given her sensitive situation at the time. In the said situation, the respondent is subject to the estoppel stemming from his representations, which prevents him from denying them and acting contrary to them. The principle of estoppel has been assimilated into Israeli law since its inception, has been recognized as part of the duty of good faith, and has been applied in various legal contexts (see, for example: Civil Appeal 23/49 Y. Tzagla & Co. BTax Appeal v. Aharon Hayut Ltd.IsrSC 475, 484-485 (1950); Civil Appeal 1662/99 Haim v. HaimIsrSC 56(6) 295, 341 (2002); High Court of Justice 8948/22 Sheinfeld v. Knesset, paragraph 20 of my judgment (January 18, 2023). See also: Gabriela His "promise, silence and good faith" Law 16 295, 310-315 and 318-319 (1986)). In the context relevant to our case, the doctrine of estoppel was also examined as part of the litigation in the Nachmani. While the minority justices Strasberg-Cohen andNightingale They believed that this did not apply in the absence of a representation or a promise on the part of Danny Shruti that could have been relied upon (see: Interest Another discussion Nachmani, p. 688-689 and pp. 784-785. See also: Matter Nachmani I, at pp. 517-518), the majority justices reached a different conclusion. Thus, the judge Anonymous Explain why the doctrine applies in its entirety (see: Interest Another discussion Nachmani, at p. 704. See also: Matter Nachmani I, at pp. 525-528) and the judge Dorner It noted that even if the decision between the rights of the parties is not based on the estoppel per se, weight should be attributed to it in the framework of the balance of interests ( Another discussion Nachmani, at pp. 721-722).
- It should be noted that in our case, the representation on the part of the respondent was much clearer than in the Nachmani. In that case, there was no allegation that Danny had misled Ruthie, lied to her, or concealed his true intentions. On the other hand, in the present case, the respondent failed to make a real misrepresentation, which also reflects on the reasonableness of the appellant's reliance on him. The respondent's conduct here is therefore more serious and in this sense places him in an even more difficult legal position than that of Danny Nachmani. It is perhaps possible to understand the feeling of the Egyptians in which the respondent found himself, who was afraid to reveal his thoughts to the appellant during her illness. However, this does not absolve him of responsibility for the consequences of his actions.
- It should also be noted on the level of the appellant's reliance that there is no reason to expect her to prove by signs and wonders how she would have acted if the respondent had revealed to her the secrets of his heart. It is sufficient for me that the respondent's conduct closed the door for the appellant to examine other reasonable alternatives, such as freezing the eggs without fertilization, despite the reduction of the chances of survival of the genetic material later on. It is impossible to know whether this or that solution was practical at the time, and whether it would have worked well in the end. In any event, depriving the applicant of the option of choice in this manner, in my opinion, amounts to a change in the situation for the worse at the level necessary for our case.
Does the affidavit really distinguish the case from the Nachmani affair?
- It is appropriate to add that in the circumstances of the present case, the existence of the affidavit was presented by the respondent, and even by the majority opinion of the District Court, as a detail that establishes a material difference between our case and the Nachmani. However, an in-depth examination of the judgments rendered there shows that this is not the case. In fact, even in Parashat Nachmani The couple's agreements were mentioned, both with the Assuta Hospital, where IVF was performed, and with the Surrogacy Institute in the United States. In the judgment in the Another discussion Nachmani It was noted that these agreements, according to their language, required the consent of both spouses at every stage. With regard to the agreement with the hospital, it was noted as follows:
"The hospital received the eggs from Ruthie and the sperm from Danny according to an agreement between Ruthie and Danny on the one hand and the hospital on the other. According to this agreement, the hospital is not allowed to deliver the eggs to one against the will of the other. Suppose, for example, that Danny would have preceded Ruthie and went to the hospital first to receive the eggs for some purpose: either to transfer them for implantation on his own, or to destroy them, or for some other purpose. It is clear, in my opinion, that the hospital was not entitled, if only because of the tripartite agreement between Ruthie, Danny and the hospital, to deliver them to Danny against Ruthie's wishes" (as stated in the judgment of Justice Zamir, ibid., at p. 780).