Ltd. 57929-12-24 Anonymous vs. Anonymous - part 12

[Respondent]: No.

Adv. Dori Schwartz: No.  In other words, the question of how the children, or the child, will come into the world, through surrogacy, by means of a pregnancy in [the appellant's] body, does not change the fact that you would not have agreed in any case.  You don't agree, period, do you?

[Respondent]: I told you my opinion, yes" (Transcript of January 31, 2022, pp.  29-30).

Thus, along the way, it was not the issue of surrogacy that aroused the respondent's objection to the appellant having children through the frozen embryos.  In this context, I accept the position of the minority opinion in the District Court, according to which the respondent wishes to hang on to this issue without seeing it as of real importance.  The respondent's objection in this matter is purely technical, and therefore does not stem from a substantive and sincere position.

103. It is appropriate to relate, even briefly, to harsh statements made by the respondent and his counsel that revolved around the removal of the appellant's uterus. The respondent noted in the affidavit of the main witness on his behalf that "I say these things with pain, but this is a fact.  The removal of [the appellant's] uterus put an end to her difficult doubts.  Her bitter fate has indeed benefited me."Name, in paragraph 9).  The respondent's counsel also slammed the appellant: "I want to tell you that as sad as it is, it was actually your hysterectomy, that was [the respondent's] insurance policy...  His insurance policy was that you had your uterus removed, and now I am free of my obligations to it" (transcript of January 30, 2022, at p.  30).  These painful words caused the appellant a real emotional turmoil, as documented in the minutes of the hearing.  Against this background, I will preface and note on the human level that we should regret these offensive statements, from which it appears that the appellant's "disaster day" is the respondent's "changed day".  Arguments of this kind, to the extent that the respondent sought to raise them, should have been formulated in a more legal and neutral manner.
104. On the legal level, I will clarify that paragraph 3 of the affidavit does not reflect a sweeping denial of surrogacy procedures, but only the fact that at that time the plan to insert the embryos into the appellant's womb was on the agenda only. As is well known, the procedure relating to surrogacy is fundamentally different.  In any event, the respondent's position in this context contradicts head-on the findings of the Family Court, in which the appellate court did not intervene and even in the current incarnation no grounds for intervening in them was presented.  In accordance with these determinations, after receiving the bitter news of the need to remove the appellant's uterus, the respondent sought to comfort her and strengthen her spirits by saying that she had nothing to worry about because the frozen embryos could still be used Through surrogacy.  This is therefore an explicit consent that is later than the signing of the affidavit, and replaces what is stated in section 3 36.
105. More than necessary, I will add that even the respondent's version of the course of events does not help him. According to him, he was sorry to hear about the hysterectomy, but did not promise the appellant anything regarding surrogacy.  In his testimony in the Family Court, he noted that "I told her it would be okay and that was it."Minutes of the day January 31, 2022, at p.  31).  However, his words are inconsistent with what is stated in his affidavit that the removal of the uterus puts an end to his doubts.  It is not clear, then, what is the meaning of his statement that "it will be fine" - and this is about six months after the egg retrieval and fertilization, i.e., about six months after the relationship has been deteriorated.  According to the respondent's own version, at this stage he therefore had no intention of allowing the appellant to have children through the frozen embryos.  His conduct is a direct continuation of the appellant's deception in the previous stages, and the respondent's arguments in this context should not be heard.

In practice: The Attorney General's outline proposal

106. As may be recalled, the Attorney General proposed an outline according to which - subject to certain factual determinations - the appellant would be able to enter into an agreement to carry embryos, in accordance with the Surrogacy Law, as a single intended mother. In the circumstances of the case, this outline may constitute a balanced and feasible solution, which will moderate the infringement of the respondent's rights.  It is worth remembering that in the Nachmani The minority justices emphasized the implications of parenthood on the human being - from a legal, human, economic, social, and other perspective (see: Matter Another discussion Nachmani, at pp.  683-684).  Ostensibly, the proposed outline provides a partial solution to the difficulties that arose in the Nachmani - In which individual surrogacy was not possible at all.  In this context, I will emphasize that the fact that the fertility treatments in this case were carried out prior to the enactment of Amendment No.  2 to the Surrogacy Law has no bearing on our case.  Indeed, this legislative amendment from 2018 - which for the first time allowed a woman to begin the surrogacy process alone as a single intended mother - is later than the fertility treatments that the parties underwent in 2015.  However, this does not raise or lower in the circumstances of the case.  This is because the agreement for carrying embryos (i.e., the surrogacy agreement) has not yet been signed during the fertility treatments.  Today, Amendment No.  2 to the Surrogacy Law is already in effect, and if the agreement is signed by virtue of it, it will not be possible to prevent the appellant from acting in accordance with the relevant provisions of the law.
107. In the hearing before us, counsel for the respondent noted that he objected to any use of frozen embryos, even within the framework of the outline, which he sees difficulties. In addition to the aforesaid, the respondent refrained from clarifying - even if only as an alternative argument - whether in a scenario in which the appeal is accepted, it would prefer to adopt the outline.  In addition, in his response of October 29, 2025, to the court's proposal given at the end of the hearing, the respondent noted that "he does not accept the proposal to adopt the recommendations of the family appellant in a compromise, while he opposes in principle and substantively the use of embryos for the purpose of fertilization in a surrogacy process." In these circumstances, it is appropriate to allow the respondent at the present stage to clarify his position with respect to the Attorney General's outline, to the extent that his sweeping objection to the use of frozen embryos is rejected and allows the appellant to continue with the surrogacy process.  The respondent must do so within 14 days, after which a supplementary decision will be issued.

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108. Before concluding, I would like to emphasize that it is hoped that the necessary lessons learned - both in the Ministry of Health and in the medical institutions - will be carried out fully and as soon as possible. Expanding the regulation in legislation of the set of rights between spouses who begin IVF proceedings could have made a decisive contribution.  At the same time, and even before the advancement of legislation on the subject, it is possible to strive for the signatures of the spouses who enter the IVF process together in a way that will encourage them to think ahead of time about critical questions from their point of view, such as the issue of the use of frozen embryos even without consent.  A good way to do this is by using a document that includes more than one alternative (for example: choosing between "embryos can be used even without joint consent" and "embryos cannot be used without joint consent") - in a way that will oblige the couple to choose an alternative Suitable for them After reaching an understanding and agreement.  A clear definition of the rules that apply to such situations can prevent the formation of another painful affair of the kind that we have heard before us.
109. Finally: If my opinion is heard, I will suggest to my colleagues that the appeal be accepted without the charge of costs, in the sense that the judgment of the District Court will be annulled.  The appellant will be able to make use of the frozen embryos, but the operative instructions in this regard will be given after the submission of the respondent's position as detailed above.