Ltd. 57929-12-24 Anonymous vs. Anonymous - part 13

Judge Gila Kanfi-Steinitz:

I read the comprehensive opinion of my colleague the judge D.  Barak-Erez, and I cannot join her conclusion.  If my opinion is heard, as detailed below, we will dismiss the appeal.

1. As in any case in which the question of parenthood of any of the litigants is at stake, the affair before us also details the emotional threads. It seems that this is even more true in our case, in view of the difficult medical circumstances that led to the appellant's inability to exercise biological parenthood; the fertilized eggs being the "last chance" available to them for genetic parenting; and the questions that arise regarding the proper conduct of the parties - all of these are circumstances that intensify the emotional baggage of the affair.  Naturally, it is not possible, and it is not appropriate, to ignore the human-emotional aspect of the affair and the feelings it evokes.  However, when we come to decide the dispute, the only tool at our disposal is the law: neither emotion nor inclination of the heart.  This should be remembered and mentioned asa bar at the beginning of things.
2. These, in summary, are the facts of the case, which were detailed at length in the opinion of my colleague: the appellant and respondent 1 (hereinafter: the respondent; and together: the couple) had a marital relationship for about two years, without marrying. During the relationship, a malignant tumor was discovered in the appellant's body, which required surgery to remove her ovary and the beginning of chemotherapy treatments that could have harmed her fertility.  As a result, and prior to the beginning of medical treatment, the appellant was recommended to undergo an "emergency" fertility preservation procedure, which she underwent with the respondent's accompaniment and with his participation as her spouse.  The medical recommendation given to the couple was to fertilize half of the eggs that would be extracted in the respondent's sperm, and to freeze the other half without fertilizing them.  There is no dispute, in fact, that in order to begin the proceeding, the couple signed an "affidavit" in front of a lawyer whose wording was given to them at the hospital.  The affidavit states, among other things, that each of the spouses is entitled to unilaterally withdraw his consent to continue the fertilization process until the stage of returning the fertilized eggs to the woman's uterus.  As part of the first round of extraction, only three normal eggs were extracted, and for this reason - on the recommendation of the doctors and with the consent of the couple - all of them were fertilized with the respondent's sperm.  Shortly thereafter, the appellant's medical condition deteriorated, which led to the termination of another round of egg retrieval in which she began, and later the removal of her uterus and her remaining intestine.  About eight months after the end of the fertility preservation process, the respondent informed the appellant of his decision to end the marital relationship between them.  Since then he has married another woman and brought children with her, while the appellant has not married and has no children of her own.  Years after the occurrence described, the appellant petitioned to be allowed to exercise the only opportunity available to her for genetic parenting - by returning the fertilized eggs in the respondent's sperm to the womb of a surrogate.  The hospital does not allow this in the absence of the respondent's consent; who refuses to do so.  Hence the need for our decision.
3. My course of action will be as follows: I will begin with a preliminary remark regarding the similarity and difference between the Nachmani case and the case before us, and the implication of the decision there, if at all, on the case before us; I will then examine the status of the "affidavit" signed by the couple as a binding contract; from there I will turn to discuss my colleague's position that the respondent's conduct after signing is capable of changing the set of agreements between the parties; I will continue with the argument that the respondent made a false representation on which the appellant relied, the "silencing" of him from refusing to give consent to the use of the fertilized eggs; I will conclude with a few concluding remarks.

Between the Nachmani case and our matter

4. As my colleague noted, the last time this court was required to decide in similar circumstances - albeit different in important respects, as will be clarified - was about three decades ago, in the well-known Nachmani case (Additional Civil Hearing 2401/95 Nachmani v. Nachmani, IsrSC 50(4) 661 (1996) (hereinafter: the Nachmani case); preceded the decision in the additional hearing, the judgment in the appeal: Civil Appeal 5587/93 Nachmani v.  Nachmani, IsrSC 49(1) 485 (1995) (hereinafter: the Nachmani I case)).  In that case, we were talking about a married couple who, against the background of the woman's loss of ability to conceive after an operation she underwent, created together - as part of an IVF procedure - fertilized eggs, which they planned to return to the uterus of a surrogate.  In order to implement their plan, which encountered various legal difficulties, the two waged a lengthy legal battle.  However, at the end of this process, and before they entered into a relationship with a surrogate, the couple separated.  The woman asked to make use of the fertilized eggs, as the last way for her to realize genetic parenthood.  The man, who has since had children with another woman, refused.

Despite the striking similarities, I do not believe that there is any Nachmani to assist in our decision.  As will be clarified below, an examination of the opinions of the majority justices shows that a common point of departure for the discussion there was Lack of explicit consent of the couple regarding the fate of the fertilized eggs in the event of the couple's separation.

5. In the second hearing held in the same case, the pens of eleven justices were broken, which ultimately ruled in favor of the woman by a majority of seven to four. Almost every one of the justices took a different path to his decision, with some of the majority justices paving ways for themselves that were explicitly not based on the law, but on perceptions of justice in the individual case (see, for example, the opinion of Justice Goldberg, at pp.  728-729; of Justice Turkel, at p.  735; and of Justice Bach, at pp.  742-744; see also David Head, "Justice and Moral Justice - An Further Study of the Nachmani Case," Mishpatim 29, 507; 525 (1998) (hereinafter: Echo, Mishpat Tzedek)).  The main determination on which the majority opinion was based is that in such a case, in which the woman has no other possibility of exercising genetic parenthood, while the man has already exercised his parenthood, the woman's right to parenthood is at stake, as opposed to the man's right not to be a parent to children born from the fertilized eggs; when the first right, being of more weight, prevails (see, for example, the Nachmani case, at pp.  702-703, 719-720, 737, 759-760; It should be noted that in similar cases that have been discussed in case law since then, in which the plaintiffs already had children of their own or were able to have children in a way that did not involve the use of the fertilized eggs, the scales were decided against them, see: in Tax Appeal 7185/10 Anonymous v.  Anonymous [Nevo] (February 7, 2011); Family Case (Chai Family) 25008-11-16   Z-S v.  S.  [Nevo] (December 25, 2017)).  It was this balance of rights that was at the heart of the decision.
6. I will comment, because my own opinion is different. Although a woman has no other way to realize her genetic parenthood except by means of the fertilized eggs, her claim is not for a right in principle to parenthood, but rather to a certain right to parenthood for those offspring that will be born from the man's eggs and sperm - parenthood that entails, in the circumstances, implications for the man's rights (see also the opinion of President Barak in the Nachmani case, ibid., at p.  790).  For this reason, it is not possible to determine a priori that a woman's right to parent in this way outweighs the man's right not to be a parent, and the balance between the rights must be made according to the concrete circumstances of each case (see: Haim Ganz, "The Frozen Embryos of the Nachmani Couple: A Response to Andrei Marmor," Iyunei Mishpat 19(2) 453, 462 (1995)).

Alongside the recognition of the harm to a woman who is unable to exercise her parenthood, the severity of the injury to a man who is forced to parent against his will should not be underestimated.  Parenthood is one of the formative experiences in a person's life, and forcing it on a person against his will - even if we neutralize its legal consequences - carries with it a heavy moral and emotional weight that will accompany him throughout his life (see High Court of Justice 4077/12 Anonymous v.  Ministry of Health, IsrSC 66(1) 274, 314-318 (2013) (hereinafter: the Sperm Donor); In a Tax Appeal 4181/22 Anonymous vs.  Anonymous, paragraph 5 of my opinion [Nevo] (May 19, 2024) (hereinafter: the Matter Paternity Scam)).  In both cases, at stake is the autonomy of the individual's will derived from the right to dignity - the freedom given to each person to control his or her own destiny through his choices, and to be "the author of his life story" (Matter Paternity Scam, in paragraph 5 of my opinion; Interest Sperm Donor, at pp.  314-320); And we can distinguish from the opinion expressed in Dafna Barak's article:Erez "On symmetry and neutrality: Following The Nachmani Affair" Law Studies 20(1) 197 (1996) (hereinafter: Barak-Erez, On Symmetry)).

7. However, even if we assume that a woman's right to parenthood is more important than a man's right not to be a parent, this determination alone does not establish a legal ground for her to use fertilized eggs from a particular man's sperm, nor is it a man's legal obligation to allow it. For this purpose, a clear normative source is required - in law or in an agreement - that establishes such a legal obligation (in this sense, my opinion is similar to that expressed by the minority justices in the Nachmani case, and see there at pp.  697, 771, 781; and see also Haim Ganz, "The Frozen Embryos of the Nachmani Couple," Iyunei Mishpat 18(1) 83, 99-101 (1993)).
8. In any event, I do not see the need to elaborate on this analysis, since this is not necessary in our case. In the Nachmani case , the majority justices needed a balance of rights, against the background of what they perceived as a "normative vacuum", i.e., a lack of a relevant legal norm that could serve as a basis for a decision (see, for example, the Nachmani case, at pp.  723, 760-761).  See also Echo, Mishpat Tzedek, at p.  511).  In particular, the justices pointed to the absence of legislation regulating the possibility of one of the spouses withdrawing his consent to the use of the fertilized eggs in the event of separation or some other change of circumstances, and more importantly for our purposes - the absence of a contract or explicit consent of the parties in this matter.
   My colleague Justice Barak-Erez is of the opinion that there is no real difference between our case and the Nachmani case, when there too "there were also agreements signed by the couple that required the consent of each of them for the insertion of the embryos." According to her, this was not controversial, not even among the majority justices, who nevertheless ruled as they did.  This assertion, with all due respect, is mine in my eyes.  On the factual level, the agreement to which my friend is referring - which was signed between the Nachmani couple and the surrogacy institute - did not address the issue of the couple's consent to the return of the embryos.  In fact, another agreement with the surrogacy institute that was intended to settle this issue, "[]was supposed to be signed there by the Nachmani and was not signed" (Nachmani, at p.  691).  Emphasis added; See also ibid., at p.  768).  Beyond that, my colleague relies on a single statement of Justice   Zamir in his opinion, according to which in the agreement signed between the Nachmani couple and the hospital, it was determined that "the hospital is not permitted to deliver the eggs to one against the will of the other" (ibid., at p.  780).  However, this determination is not only not reflected in the rest of the opinions, but stands in direct contradiction to what is stated therein.  The factual point of departure in the Nachmani case, which hovers over the many pages of the judgment, was that no agreement was drawn up regulating the use of the fertilized eggs (see, for example, and without exhausting, the opinion of Justice T.  Strasberg-Cohen, at p.  691, as well as her opinion in the Nachmani I case, at p.  497; the opinion of Justice T.  E.  Tal, at p.  706; the opinion of Justice T.  Or, at pp.  763-764; Opinion of Justice D.  Dorner, at p.  717).

The aforementioned starting point was also expressed in the legal literature, which referred to the lack of explicit consent of the couple in the matter Nachmani Regarding the fate of the fertilized eggs in the event of separation, as taken for granted (see the plural: Yehezkel Margalit Determining Legal Parenthood by Consent In Israel 137 (2023) (hereinafter: Margalit); Nili Cohen "Consent and contract involved in procreation" The Book of Gabriela Shalev - Studies in the Theory of Contracts 331, 339-340 (Yehuda Adar, Aharon Barak, Effi Zemach eds., 2021)).  In fact, even my friend, in an academic article she wrote following the judgment in the Nachmani I, noted that: "One of the questions that the court deliberated on was: Did the Nachmani couple agree on the fate of the fertilized eggs in the event of a separation between them? There is no dispute that they did not explicitly agree that the surrogacy process would continue anyway, even if they separated.  There is also no dispute that there was no explicit agreement to the contrary." (Barak-Erez, On Symmetry, at pp.  212-213).
I will add that On the legal level, the same single statement of the judge Nightingale, served as support for his conclusion that this agreement should be respected, and ruled in favor of the man.  In other words, at most, this supports In the Minority Opinion In the matter Nachmani It was also held by the judge Nightingale.  As for the majority justices, they did not choose to ignore an agreement that requires an ongoing agreement, but rather believed - rightly or wrongly - that such an agreement did not exist.

9. This point - which is a central point - lies the decisive difference between our case and the Nachmani case. In contrast to the situation there, in our case there is an explicit consent of the couple that allows each of them to withdraw his consent to the IVF process up to the stage of inserting the fertilized eggs into the appellant's uterus.  This consent was anchored in writing in an "affidavit" that they signed before a lawyer going to perform the fertilization procedure.  This agreement was not challenged in a proceeding that took place in the lower courts, and it is also the focus of the proceeding before us.
10. Before we turn our attention to the "affidavit", which is the main thing, it is worth mentioning another important aspect that distinguishes our case from the Nachmani case - which relates to the circumstances in which the fertilization procedure was taken. Whereas in the Nachmani case, the couple made a conscious decision to bring a child into the world through IVF, and even worked with determination and full discretion over the years to promote this goal, until their separation, the couple in our case never decided to have a child together.  The fertilization procedure was, in fact, imposed on the couple in an emergency proceeding due to the appellant's special medical condition, and was carried out within a few days in order to try to "save her fertility" (see: the doctor's interrogation at p.  13 of the minutes of the District Court hearing of October 30, 2024 (hereinafter: the doctor's interrogation)); when at the height of the times, no discussion was held between them as to the various situations that fertilization is likely to summon for them in the future.  In fact, according to the respondent, it was the same agreement, the provisions of which left him with an opening of retreat, that enabled him to take part in the fertilization process.  I will return to this issue later.
11. To summarize this chapter: Once there is a written and explicit agreement of the parties in our case, there is no other common basis that justifies adopting the method of balancing rights as was done in the Nachmani case. The point of gravity of the decision therefore shifts to the examination of the affidavit.  Let us, therefore, return to our matter and focus our gaze on the status and validity of the affidavit.

About the affidavit

12. The "affidavit" signed by the couple is not a technical detail accompanying the fertilization procedure, but rather the foundational document on which the entire process rests. As described, at the time of the consultation with the attending physician, before the fertilization procedure began, the doctor gave the couple a document entitled "Affidavit", which was drafted by the hospital.  The couple was required to sign this document in front of a lawyer, as a condition for initiating the fertilization process.  In the affidavit, they declared, inter alia, that they were aware that after the insertion of the fertilized eggs into the woman's uterus, it would not be possible to unilaterally withdraw from the agreement (paragraph 4 of the affidavit) - and the following is not at all: until this date, each of them may withdraw its initial consent to the use of the fertilized eggs; And then - this option no longer exists (this arrangement, according to which the couple's continued consent is required for the use of the fertilized eggs, will be referred to hereinafter: an arrangement of continued consent).
13. The affidavit is a binding legal document in the relationship between the spouses. Its title does not dictate its essence, and its legal significance is derived from its compliance with the requirements of the Contracts Law for the creation of a contract, and the parties' orientation as reflected in the document.  The central question is "whether the parties have decided to create legal obligations that grant rights and impose duties in the field of law" (Civil Appeal 3833/93 Levin v.  Levin, IsrSC 88(2) 862, 869 (1994)).  While my colleague, Justice Barak-Erez, does not in fact dispute the status of the affidavit as a binding legal contract between the parties (paragraph 81 of her opinion), according to her, "the question regarding the legal status of this document is not at all simple" (paragraph 75 of her opinion).  In my view, there is no difficulty in determining that this is a binding contract.  An examination of the affidavit - with all seven sections - shows that its entire interest is in regulating the legal aspects of the fertilization process.  Its clear purpose was to arrange in advance the relationship between the parties as a condition set by the hospital for the initiation of the proceeding; Hence, his work is also on the level of the relationship between the couple themselves, and not only on the level of the relationship between them and the hospital.  Moreover, it was the couple's signature on the affidavit that made it possible to initiate the proceeding, and it was on the other hand that created the rights and obligations of the couple.
14. Indeed, it must be admitted that the affidavit is not optimally drafted. It is possible that in view of the weight of the decisions involved in IVF, it would have been appropriate to formulate it, and in particular section 4, which deals with withdrawal from consent, in more positive and clear language.  However, there is no claim that any of the parties did not understand its contents, and the manner in which they conducted themselves on the factual level shows that they understood it well.
15. In this context, it should be emphasized that this is not a routine medical "consent form" that is signed after hand in the hospital corridors. In accordance with their demand, the couple took the affidavit with them, signed it in front of a lawyer, and only afterwards returned it to the hospital.  Not only that.  From the testimony of the respondent and the testimony of the doctor about the manner in which he conducted himself in such meetings, it is learned that the content of the agreement was explained to the couple, and in particular it was explained to them that the consent of both of them is required at every stage of the proceeding until the return stage (see the respondent's interrogation, at pp.  13-14 of the transcript of the family court hearing of January 31, 2022 (hereinafter: the respondent's interrogation); and the doctor's interrogation at pp.  13-14).  Contrary to my colleague's position, I do not believe that the fact that the text of the affidavit was provided to the couple by the hospital, or that it bears the emblems of the hospital or the health fund, detracts from its status as a binding contract in the relationship between the spouses themselves (see and compare: Binyamin Shmueli and Yehezkel Margalit, "The Right to Parenthood in the Perspective of Private Law: Between the Patient's Rights Law and the Law of Negligence and Contracts - Compensation for Withdrawal from Consent to Fertility and Fertility Treatments" Law and Proverbs 27:1, 61 (2023)).
16. And finally, the joint intentions of the parties are well studied on the subjective level as well, while it is clear from the course of events that have been described that both the respondent and the appellant entered into the fertilization proceeding knowing that the legal arrangement that applies to the fertilized eggs is an arrangement of ongoing consent. None of them raised a real claim that their consent to this arrangement was given unknowingly, or that there was a defect in the will or some other defect that affects its validity.  Moreover, the Appellant herself insisted on the Respondent that the arrangement they signed was an arrangement of ongoing consent, while in a conversation between the two she said to the Respondent , "You know very well, we also signed a document, this is something that requires the approval of both of us" (conversation of October 11, 2020).  Indeed, shortly after the separation of the couple, and once again before the filing of her claim, the appellant approached the respondent and asked for his consent to use the fertilized eggs - with the understanding that it was necessary for her to use them.
17. I will comment more than necessary, that even if I assume that the affidavit is intended first and foremost to regulate the relationship between the couple and the medical institution, and even if there are those who say that it should not be given the full issues as a binding legal contract, it should still be remembered that the affidavit embodies the legitimate expectations of the couple, and they were entitled to rely on it. If it had not been signed, who would have argued that the respondent would have been willing to engage in the fertilization process as he did?
18. I will note that the contractual arrangement that underlies the fertilization proceeding in our case is not 'detached' from the general law, but rather integrates into a broader normative approach, which is anchored in both Israeli law and comparative law. Thus, the affidavit signed by the couple largely reflects the legal arrangement chosen in the People's Health Regulations (IVF), 5747-1987, in terms of the relationship between the couple and the medical institution - which enshrines the need for the informed consent of each of the spouses to each of the stages of the process (see Regulation 14 and Regulation 8(3) of these Regulations; and what was stated in the Nachmani case, at pp.  777-778).  In view of the importance of the decisions involved in IVF, as well as the possibility of using the fertilized eggs many years after the fertilization procedure, an arrangement that requires ongoing consent rather than a one-time and irrevocable consent is a necessary and appropriate arrangement, at least by default.  This is an ongoing marital process, the purpose of which is to bring a child into a world in which both partners are the parents, hence the need for renewed and informed consent at every stage of the fertilization process.

This position was also supported by the report of the Aloni Committee, a public committee appointed in 1991 to examine the issue of IVF.  The committee unanimously recommended that "In the absence of [the couple's] joint and ongoing consent, no use will be made of frozen fertilized eggs", while noting that this is true even when one of the spouses has no other way to realize genetic parenthood, since "A man or woman may not be forced to paternity or motherhood against their will, even if they have given their initial consent to the matter" (Ministry of Justice Report of the Public-Professional Committee for Examining the Issue of IVF 36 (1994)).

19. In this context, it should be noted that the position requiring continued consent to the IVF procedure was adopted in English law in primary legislation: the Human Fertilisation and Embryology Act, 1990, c. 37, §3, 4 & 8, sch.  3 (U.K.)), and was even implemented by the courts in the Evans case - a matter that bears clear similarities to the case before us.  In the judgments handed down in the case, including by the European Court of Human Rights, it was emphasized that an arrangement of continuing consent was intended to protect the fundamental rights of the parties to dignity, autonomy and freedom of choice; ensure that the birth process is based on free and ongoing will; and to prevent the imposition of a parental relationship on a person contrary to the dictates of his current conscience and will (Evans v.  Amicus Healthcare Ltd [2003] EWHC 2161 (Fam), 962; Evans v.  Amicus Healthcare Ltd [2004] EWCA Civ 727, in particular at paragraph 110; Evans v.  United Kingdom, 6339/05, Eur.  Ct.  R., 27 (2007); for a review of the arrangements in practice in different countries, see ibid., p.  14).  The continuing consent arrangement, which is therefore a proper norm, does not remain in our case as a mere abstract principle; It was explicitly anchored in an affidavit signed by the couple, and thus became a valid contractual obligation.
20. The view that the explicit consent of the spouses should be given binding force - insofar as they do not contradict public policy - finds support in American law. Thus, in a series of rulings handed down in similar circumstances, state courts in the United States have adopted an approach called the "Contractual Approach." According to this approach, where the couple entered into agreements regulating the fate of the fertilized eggs they created, and to the extent that the content of these agreements does not contradict public policy, they should be validated and enforced (see, for example, Kass v.  Kass, 696 N.E.2d 174, 180 (N.Y.  1998) (hereinafter: the Kassas case); In re Marriage of Dahl, 194 P.3d 834, 840 (Or.    App.  2008); Roman v.  Roman, 193 S.W.3d 40, 50 (Tex.  App.  2006)).  At the basis of this approach is the concept that couples should be encouraged to arrange in advance, with informed consent, possible scenarios before entering into a joint IVF procedure - in a way that maximizes their autonomy and minimizes future disputes; and that decisive weight should be given to the explicit desire of the parties in such deep and life-changing elections of the kind on the agenda (Kass, at p.  180.  For a different approach, see In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003).  For more on the various approaches alongside support for the contractual approach, see, for example, Benjamin C.  Carpenter, Sperm is Still Cheap: Reconsidering the Law’s Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence, 34 Yale J.L.  & Feminism 1, 13-29 (2023)).

In a parenthetical article, I will note that there are those who believe that a position that allows for the granting of irrevocable consent to all stages of the fertilization process is a position that is contrary to public policy.  Thus, for example, in the case of Nachmani The President noted Lightning Because in his view "If one of the parties had waived in advance the need for his own consent at all stages of the process, this waiver would have been a violation of public policy.  Public policy requires that the fertilization process - which is a unique and intimate process, and the final fruit of which is the joint child of the parties - will be born only by mutual agreement 'all the way.'" (p.  790 of the judgment).  So too In the matter Evans Emphasis Judge of the Court of Appeals, Judge Arden Because "In my judgment, it would be contrary to public policy for courts to enforce agreements to allow use of genetic material" (See also a judgment given by the Supreme Court of Massachusetts, in which it was held that An agreement that forces one of the parties to be a parent against his will is contrary to public policy and is null and void:A.Z.  v.  B.Z., 725 N.E.2d 1051 (Mass.  (2000)).

21. Contrary to what emerges from the appellant's arguments, the considerable weight of the right to parenthood does not override the parties' agreements. Accepting this position means a planned emptying of the couple's consents, and closing the door on the couple's ability to regulate in advance their preferences regarding the use of fertilized eggs in the event of separation or other change of circumstances.  Judicial intervention of this kind will severely harm the autonomy of the parties to shape their lives, and in particular in sensitive and intimate areas of procreation and parenthood (see also: Margalit, at pp.  113-114).  Beyond respecting the autonomy of the couple, interfering with their contractual agreements will also severely harm the certainty and legal stability, the ability to rely on the parties' consents, and may even serve as a deterrent to resorting to IVF procedures.  This will happen, for example, if a couple knows that in light of the possible loss of reproductive capacity of one of them, their explicit consent in advance to an arrangement of continuing consent will not be honored - so that parenthood can be forced on them even years after the date of separation.
22. And before concluding this chapter, I will add that in my opinion, even in the absence of the "affidavit", and in view of the circumstances of the appellant's fertility preservation procedure, the respondent cannot be regarded as having consented in advance to all stages of the fertilization process until the birth of a child. As described, even though it was the appellant's fertility that was behind the matter, the couple never agreed to perform an IVF procedure in order to bring a child into the world.  Prior to the fertilization process, the couple did not consider starting a family, bringing a child into the world, or planning the family unit.  In any case, they did not pay attention to the fate of the fertilized eggs in control of various events that life might call for them, such as the dissolution of the relationship.  The respondent also never expressed consent or desire to be a parent, and according to him, "I have never spoken to her about children" (the respondent's interrogation, at p.  21).  All he agreed to was to fertilize the eggs with his sperm "in order to have the option, if and when our relationship continues to exist" (ibid., at p.  33).  The doctor also testified: "There was no talk of pregnancy at all [...] At the meeting, we talked about how to try to save her fertility.  That's all we talked about.  We need to talk about pregnancy or childbirth.  This is a situation in which we try to take what is still possible, so that perhaps in the future it will benefit from it" (The doctor's interrogation, at p.  13).  The couple, who focused on the appellant's recovery, did not know what the day would give birth and did not bring it up for discussion.  The respondent cooperated with the fertility preservation proceeding, leaving these questions to the future, relying on the agreement that granted him the right to withdraw from the proceeding at any stage (the respondent's interrogation, at pp.  13-14).  In this state of affairs, it is difficult to shock that the respondent was forced to complete the fertilization process to the end.  He did not give his consent to this.
23. Thus, the starting point for the legal discussion is that the parties turned to the fertilization proceeding knowing that the legal arrangement that applied with respect to the fertilized eggs is an arrangement of ongoing consent, and that at any stage until the fertilized eggs are returned to the uterus, they will be able to withdraw their consent. This contractual arrangement is therefore the basis for our discussion, and weighty reasons are required in order to deviate from it.

Changing the set of agreements

24. According to my colleague, the set of agreements between the spouses was not exhausted when they signed the affidavit. According to her, "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".  This change, according to the claim, is reflected both in their decision to accept the current medical recommendation for fertilization of the appellant's three eggs, while deviating from the original one for fertilizing only half of the eggs; The respondent encouraged the appellant, after she was informed of the need for a hysterectomy, when he mentioned to her that they still had the option of making use of the fertilized eggs by a surrogate mother.  From this my colleague concludes that the respondent can no longer retract the consent he gave to use the fertilized eggs.
25. I will emphasize at the outset that the appellant herself does not make any explicit claim for a later change in the parties' agreements. Her main argument is different: according to her, the conduct of the respondent - who knew already at the time of fertilization that he did not intend to give his consent to the use of the fertilized eggs, but concealed it from her - silenced him from refusing to use them.  This argument is in fact based on the understanding that at the basis of the fertilization process was an arrangement of ongoing consent and not an arrangement of prior consent for all stages of the proceeding; And that a real reason is required for deviating from this order.  I will discuss this argument below.
26. Indeed, the law recognizes the possibility of changing an agreement by way of conduct delaying its conclusion, but this is only where the alleged change is supported by sufficient evidence that shows that the parties consciously and jointly accepted the said change (Civil Appeal 4059/21 Gedalya v. Israel Land Authority, para.  26 [Nevo] (August 29, 2023)).  A deep-rooted case law in contract law states that "it is not easy to deduce from the conduct of the parties the desire to change the contract between them", and that "when it comes to a change in a written contract in the manner of the conduct of the parties late to its conclusion, it is lawful that the conduct of the parties to the contract will reflect the intention to deviate from the provisions of the contract",e., "a cohesive desire, a serious intention to enter into the contract and decisiveness".  This is in a manner that makes it possible to establish a conclusion that the parties intended not to perform the contract as it was agreed from the outset (Civil Appeal 4956/90 Pazgas Marketing Company in Tax Appeal v.  Gazit HaDarom Ltd., IsrSC 46(4) 35, 41 (1992); Gabriela Shalev Contract Law - General Part 221 (2005) (hereinafter: Shalev, Contract Law)).  Among the tests used to identify a change in behavior conducted by the parties in a contract entered into include the parties' awareness of that change; the duration of the behavior and whether it is an ongoing pattern of behavior; the nature of the change and the level of its deviation from the written contract; the degree of investment in drafting the original contract, and more (see Shahar Lifshitz and Elad Finkelstein, "Contract and Relationships - The Case of a Change in Contract Behavior," Gabriela Shalev's book Iyunim Be-Contract Theory 567, 574-589 (Yehuda Adar, Aharon Barak, and Effi Zemach eds., 2021)).
27. I did not find any real evidentiary basis for the claim that the respondent's conduct at the stage after the signing of the affidavit indicates his agreement that the appellant would be entitled to use the fertilized eggs even without his consent; nor that he had the intention to deviate from the provisions of the affidavit. This consent, which is attributed to him retroactively on the basis of his conduct, constitutes a material change from his original consent, and in fact, drops the ground from under the affidavit itself.  It is plain that the burden of proving such a fundamental change rests on the shoulders of the person who claims it; The burden that the appellant did not meet even approximately.  Explicit and informed consent - there is certainly no consent in our case; not even implicit consent, in the absence of any direct or indirect evidence that the respondent waived the explicit stipulation requiring continued consent to the use of the fertilized eggs.
28. I did not see the fertilization of the three eggs in the respondent's sperm as a deviation from the prior consent between the couple, and all the more so from the written consent (which was not required at all for the manner in which the fertilization was carried out). To begin with, the parties acted in accordance with the medical recommendations regarding fertilization.  This is how they acted when it was recommended to fertilize half of the eggs; This is how they acted when it was recommended to fertilize all the eggs.  It should also be remembered that at the egg fertilization stage, the parties knew that another round of extraction was expected, in which unfertilized eggs would be frozen.  The respondent testified: "As far as I'm concerned, I knew there would also be eggs.  At the stage after the fertilization of these embryos she had already started another treatment and the goal was to have eggs of her own, I was surprised to hear [...] that she was stopped from these treatments and that she had to go into surgery urgently" (the respondent's interrogation, at p.  19).  His testimony was supported by the testimony of the attending physician, who noted that another pumping was planned for December 2015, but after 10 days of injection treatment, the treatment was stopped on the orders of her doctors (the doctor's interrogation, at p.  11).  Hence, the choice to fertilize the eggs in the first round not only did not change the contractual agreement between the parties (and it should be noted that the appellant herself noted that the initial recommendation was subject to the number of follicles to be received, and see paragraph 9 of the statement of claim), but also did not change the way the parties viewed the fertilization process as a whole.  In any event, this choice did not express any agreement on the part of the respondent to waive his right to withdraw from the agreement until the stage of return.
29. As to the respondent's encouragement to the appellant, after she was informed of the need for a hysterectomy, when he mentioned to her that they still had the option of making use of the fertilized eggs through a surrogate mother - at most this may affect the parties' consent with regard to the question of the ability to use the fertilized eggs, but I have not seen how the aforesaid things can change the parties' consent regarding the need for the continued consent of both spouses to use the fertilized eggs.
30. We find that the respondent's late conduct that attests to a change in his written consent and his waiver of the ongoing consent arrangement is not relevant in our case. I will therefore turn to address the appellant's main argument, which is the claim of estoppel.  This argument was the basis of the minority opinion in the District Court, and even my colleague relies on it in its decision.  As I will elaborate, I cannot accept this argument either.

Estoppel due to silence - normative background

31. The appellant's main argument, which stands at the heart of the appeal, is that the respondent's conduct moves to fertilize the three eggs in his sperm - when he did not disclose to the appellant his doubts as to the future of the marital relationship - establishes an estoppel against him that prevents him from refusing to use them. In more detail: it was argued that from the respondent's testimony it emerges that from the date on which he removed sperm from his body for the purpose of the fertilization procedure, doubts began to arise within him regarding the future of the marital relationship; doubts that he concealed from the appellant while creating a 'false representation' about his emotional state.  However, in the circumstances of the case, according to the claim, the respondent had a legal obligation to disclose them to the appellant before three of her eggs were fertilized with his sperm.  It was also argued that to the extent that he had discovered her ear in his hesitations, the appellant would have chosen other alternatives to preserve her fertility, including freezing her eggs without fertilizing them with his sperm - and in this way she preserves for herself the possibility of genetic parenthood independent of his consent.  According to the appellant, the duty of disclosure imposed on the respondent in this context derives from the importance of the decision at hand, and in particular in view of the possibility that the three fertilized eggs will be her "last chance" for genetic parenting.
32. In my opinion, similar to the opinion of the majority justices in the District Court, the claim of estoppel should be rejected.  This is the way things are, as will be detailed below, both on the legal level and on the factual level.
33. The estoppel that pertains to our case is "estoppel in pais", according to which "a person who makes a factual representation to another will be silenced (or will be prevented) from denying the correctness of the representation he made, if the representation was made with the intention that the person against whom it was made would act in accordance with it, and this person did act on the basis of the representation and changed his situation for the worse" (Gabriela Shalev, "Promise, Estoppel and Good Faith" Mishpatim 16 295 (1986-1987) (hereinafter: his, promise, silence and good faith)). This estoppel is based on two main foundations: the first element is the existence of a 'representation' (Shalev, Promise, Estoppel and Good Faith, at p.  296; Daniel Friedman and Nili Cohen Contracts, Vol.  1,   92 (2nd ed., 2018) (hereinafter: Friedman and Cohen, Contracts)).  The second element is the existence of reliance on the part of the person to whom the representation was directed.  Like all other estoppels, this estoppel is rooted in the "laws of reliance" - which are intended to protect the interest of reliance for reasons of justice, honesty and fairness (see: Friedman and Cohen, Contracts, at p.  90; Shalev, Promise, Estoppel and Good Faith, at p.  296).

As a rule, the element of presentation is formed through positive behavior or expression.  However, alongside the common performance, there is also another performance - and it seems to be the one claimed in our case - of "Mute due to silence" (or mute by default), in which he joins Third Element: the existence of Duty of Disclosure.  This type of estoppel may arise when one party acts on the basis of a mistaken assumption, while the other party has a duty of disclosure that is intended to clarify the facts in their entirety, but he, by his silence, violates this duty.  If these conditions are met, and given that the first party relied on the erroneous assumption and changed its situation for the worse, there may be impediments that silence the "silent" person from denying it (Friedman and Cohen, Contracts, at p.  92; Daniel Friedman and Elran Shapira Bar-Or Laws of Unjust Enrichment Volume 1 245 (Third Edition, 2015)).

34. I will note that the claim of 'estoppel due to representation' is a 'shield' claim, which is intended to block the claims of the opposing party, and as a rule, it does not serve as a 'sword' that formulates an independent cause of action (Shalev, Promise, Estoppel and Good Faith at p. 296; Shalev, Contract Law, at p.  120; Civil Appeal 314/07 Ron v.  Bank Leumi Le-Israel Ltd., para.  20 [Nevo] (April 8, 2010); and compare with the comments of Justices Tal, at pp.  705-706; Strasberg-Cohen, at pp.  687-689; and Zamir, at p.  784 in the Nachmani case in connection with the use of this estoppel as a cause of action).  It is interesting to note that even in the judgments in the Evans case, in which the woman's claim to silence a promise in a similar context was rejected, it was noted that this estoppel acts as a shield and not a sword, and therefore does not establish an independent cause of action that would obligate the clinic or the spouse to continue the treatment (for more information, see: Mollie Cornell & Teresa Baron, The law and ethics of a property rights approach to frozen embryo disputes, Legal Studies 44, 343-344 (2024)).
35. Thus, estoppel rests on three elements - the representation and the reliance and the duty to disclose. I will now turn to clarify why, in my view, none of these three elements are fulfilled in our case.

Duty to Reveal and Violate it in Silence

36. At the basis of the claim of estoppel is the view that the respondent has a legal obligation to disclose to the appellant, prior to the date of fertilization of the eggs, his doubts regarding the future of the marital relationship. As my colleague also mentioned, in consistent case law, this court has refrained from imposing legal obligations - and in particular duties of disclosure - within the framework of the intimate and emotional relationship between spouses, and this is detached from the possible existence of such obligations on the moral or social level.  Thus, it was held, inter alia, that there should be no legal obligation to disclose information relating to sexual orientation or the degree of religious commitment (in Tax Appeal 5827/19 Anonymous v.  Anonymous [Nevo] (August 16, 2021) (hereinafter: in Tax Appeal 5827/19)); that a legal obligation that obligates a woman to disclose to her spouse that the child born to her is not his biological child (paternity fraud case) should not be recognized; and that couples should not be obligated to disclose to each other about marital relationships they had in the past (in Tax Appeal 7939/17 Anonymous v.  Anonymous [Nevo] (November 9, 2017); and see also: Civil Appeal 1581/92 Valentin v.  Valentin, IsrSC 49(3) 441, 455 (1995) (hereinafter: The Valentine Matter)).
    • At the core of these rulings were reasons for legal policy, most of which are relevant to our case as well. Thus, for example, and without exhausting it, it was clarified that the imposition of such a duty of disclosure - which involves the trial entering the most personal and intimate world of the couple - is liable to severely violate their privacy and their right to autonomy (In a Tax Appeal 5827/19, at paragraphs 53-54 of the judge's opinion   Willner; See also Civil Appeal 8489/12 Anonymous vs.  Anonymous, paragraph 8 of the judge's opinion Y.  Amit [Nevo] (29.10.2013)); that there is an inherent difficulty in locating the point in time at which a tractate of concealment and non-disclosure begins, and in determining the "culprit" in it; A difficulty that usually requires a meticulous and artificial "dismantling of the marital relationship", while penetrating into the depths of the couple's soul ( Paternity Scam, in paragraph 24 of the judge's opinion Willner; Interest Valentine, at p.  457); and that the legal tools are not adapted to deal with matters that are deeply rooted in the family and emotional space ( Paternity Scam, in paragraph 12 of my opinion; Civil Appeal 5258/98 Anonymous vs.  Anonymous, IsrSC 58(6) 209, 228-229 (minority opinion of the judge Rivlin) (2004)).
37. For similar reasons, I am of the opinion that as a rule, a person should not be subjected to a legal obligation to disclose to his spouse that he is being debated as to the future of the marital relationship, even at the time of performing an IVF procedure. A major difficulty in imposing such an obligation lies in the very possibility of proving the existence of internal doubts - something that requires tracing a person's hidden feelings, which by nature cannot be examined and measured.  Even if it is proven that doubts and doubts arose at a certain time, these are emotions that are inherently changing and dynamic; And it is not impossible that there will be a reversal of hearts shortly afterwards.  In any case, questions arise: What is the level of deliberation required for the imposition of a duty of disclosure - is it required that the defendant feel "on the verge of" actual separation, or is it sufficient that the thought of separation has crossed his mind? And who can guarantee that this reflection in his heart is not the result of the other partner's behavior or doubts? It is clear, then, that these are things that "have no measure." Added to this is another consideration: a person's refusal to share his doubts with his partner may stem from a fear that the disclosure of the matter will turn into a fulfilling prophecy itself - and will actually lead to the collapse of the relationship, not to the will of the couple or to the couple's benefit.  The imposition of a duty of disclosure in these circumstances may exact a price from the family unit even before the doubt has become certain (compare: the matter of paternity fraud, in paragraph 10 of my opinion).
38. Above all of this is the concern that recognition of the legal duty of disclosure in situations in which the other spouse is attributed a "change of situation for the worse" may lead to problematic broad consequences. If it is determined that the failure to disclose emotional doubts or unformed reservations may give rise to legal liability, it is not impossible that similar claims will be raised in relation to a long list of major life decisions - marriage, having a child, purchasing a significant property, or changing the course of life - in all of which one of the spouses may claim in retrospect that he or she has changed his situation for the worse on the basis of a misconception regarding the depth of commitment and stability of the marital relationship.  This result will expand the boundaries of the law to an area in which it is difficult to act with precise normative tools, and most importantly, may introduce extraneous considerations into the emotional-marital relationship, in order to avoid legal obligations.  In this way, the law will penetrate the holy of holies of marital relationships, and will fall into the retrospective supervision of the giver of these relationships, in all their emotional and human complexity.
39. My Fellow Judge Barak-Erez is aware of this fear of "judgment" of emotional and interpersonal relationships, but according to her "When we are faced with marital consent, there are also formal aspects", "The legal aspect is already present, and it is inevitable" (paragraph 92 of her opinion). As for myself, I find it difficult to see how this reasoning dispels the aforementioned concern.  Moreover, other cases discussed in case law - including those that carried clear legal consequences - did not lead the court to recognize disclosure obligations of this type (see, for example, the Paternity Scam).  In my opinion, recognition of the duty of disclosure that deals with internal doubts and doubts at the heart of a marital relationship means the penetration of the law into areas that are clearly non-existent; And it is not desirable.
40. Beyond these reasons in the policy, I am of the opinion that even the circumstances of the concrete case do not justify the imposition of a duty of disclosure. It is impossible to ignore the exceptional circumstances that the couple found themselves in.  At the relevant time, the appellant was in a difficult medical struggle for her health and the respondent, as her spouse, was expected to stay by her side and support her.  Under these circumstances, it is doubtful whether a reasonable spouse would have seen those moments of distress and difficulty as an appropriate time to share his thoughts with his sick spouse, without fear that her participation at such a time might burden her and exacerbate her condition.  These special circumstances illustrate the difficulty inherent in imposing a legal duty of disclosure: should this duty overcome the obvious - the need to support and encourage the spouse who is struggling for her well-being and health?
41. In the same context, it is not superfluous to emphasize the pressing time frame in which the events took place. From the moment the couple met with the attending physician until the sperm was removed and the eggs were fertilized, only 11 days passed; And from the moment the affidavit is signed until the eggs are fertilized - only six days.  And most importantly, 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 only one day or even a few hours passed.  The couple was asked to come with fresh sperm on the day of the extraction, and the eggs were fertilized immediately afterwards.  In these circumstances, even without taking into account the sensitive medical context, which clearly made it difficult to bring matters to light at the time, it is not at all clear whether the respondent had a practical possibility of sharing with the appellant what he believed to be the date of fertilization, let alone sufficient time to process his thoughts and consider the matters in depth.  In any case, in order to attribute his obligation to remain silent, a determination in principle regarding the duty of disclosure is not sufficient; It is further required to determine that he has a duty of disclosure immediately upon the awakening of doubts - a determination that is difficult in itself.
42. It is possible that due to the difficulty inherent in the said time frame, counsel for the appellant tried to argue that even a later discovery - after the fertilization was performed and before the surgery to remove the uterus and ovary - might have helped the appellant, since at that time she could have insisted on performing another round of egg retrieval despite the medical recommendations given according to which this would endanger her health. However, this claim has not been proven from a factual point of view, and there is nothing to rely on.  In fact, the opposite is true: when the attending physician in his interrogation was asked whether the appellant could be allowed to continue with the treatment of egg retrieval despite such a contrary medical recommendation, he replied with Rachel: "We can't, the motto is not to endanger the woman's life.  This is first and foremost.  Even when she asks for something that really endangers her and a specialist tells us that it's dangerous for her and not to do it, that's it.  It was not done" (the doctor's interrogation, at p.  11).
43. The appellant's argument that a duty of disclosure arose that was breached by the respondent's silence was anchored in the importance of the decision to fertilize her three eggs with the respondent's sperm, in view of the possibility that this would be her "last chance" for genetic parenthood. It was argued that knowing the importance of the decision, the respondent should have put the appellant on his questions, in a way that would enable her to examine additional alternatives in lieu of fertilization of the eggs.  As will be clarified below, an examination of the evidence shows that at the time the eggs were fertilized, the respondent, not even the appellant, had knowledge of the dramatic importance that would be attributed to the process retroactively, and in particular it was not known that this was the "last chance" for genetic parenting.
44. As already noted, the initial recommendation given to the couple during their meeting with the doctor was to fertilize half of the eggs, and to freeze half of them without fertilizing them. When the results of the first round of extraction became clear - only three healthy eggs - it was decided, on the recommendation of the medical staff, to fertilize all of them.  However, as of that time, the appellant was destined to undergo another round of egg retrieval; and in accordance with the initial recommendation, the assumption was that in the framework of this course additional eggs would be frozen without fertilizing them.  Thus, the respondent reiterated in his testimony that "it was clear that after the fertilization of these embryos the next stage was to make eggs, this is what I knew and this is what [the appellant] knew" (the respondent's interrogation, at p.  34; and see also there, at p.  39).
    • Indeed, the appellant began another round of suctioning, and even reached an advanced stage in the hormonal treatment required for this purpose. However, close to the date of the pumping, there was a deterioration in her medical condition, which prevented the completion of the procedure.  This development - although it was possible in accordance with the appellant's medical condition - was not foreseeable either by the medical staff or by the parties.  Contrary to my social determination according to which "The hope of the parties that additional eggs will be extracted from the appellant's body - It was quite weak at the time."; The fertility doctor testified that the second round progressed well and even added "We were really close and it's recorded and documented" (The doctor's interrogation, at p.  11).  The couple themselves also did not express themselves in their interrogations in a manner that indicates that they anticipated the possibility of thwarting the second round of pumping or the medical deterioration that occurred (and see the respondent's surprise at this, at p.  19 of his interrogation).  However, the attending physician testified that due to the medical circumstances, there was a chance that they would not be able to retrieve more eggs after the first round of extraction.  However, it was not proven that the statements were communicated to the couple or that the respondent could have predicted the medical development that would eventually occur.  An attempt to claim otherwise is to a large extent "wisdom in retrospect."
45. In fact, neither the parties - neither the respondent nor the appellant - saw in real time the decision to fertilize the three eggs as a fateful decision. as the respondent did not see fit to discuss his considerations at that time; Similarly, the appellant did not stop to discuss with him, moving on to the decision, the fate of the marital relationship.  Life experience shows that even a strong and beneficial marital relationship can be unraveled.  Imposing full "responsibility" for not holding a discussion of the future of the marital relationship at that stage - to the extent that it was so fateful - is a sin to the respondent, as well as to the course of events as emerged from the testimonies.
46. It should also be emphasized in this context that, contrary to what is implied by the appellant's arguments, the respondent did not have certain knowledge at the relevant time that he would not continue to cooperate with the fertilization process. The respondent did note in his affidavit and in his interrogations that from the date of the sperm extraction he felt that the marital relationship between him and the appellant was "undermined", and that he also felt feelings of confusion and embarrassment, as well as doubts about the wisdom of his decision to participate in the fertilization process (see the respondent's interrogation, p.  40).  However, he did not say - and it does not even emerge from the evidence - that already at that time he knew, certainly did not know for sure, that he intended to separate from the appellant; All the more so there is no indication that at this stage she has already made a decision in her heart to refuse to allow her to use the fertilized eggs.  On the contrary: the respondent, who was repeatedly asked about this in his interrogations, emphasized that "at that time I did not know that I did not want to continue living with her, we were still a couple and we tried to understand" (the respondent's interrogation, at p.  33).  He also noted that he participated in the fertilization process "with the aim of having the option [of having children], if and when our relationship continues and exists" (ibid.; see also p.  13); and rejected the claim that even then he intended to refuse the use of the fertilized eggs, noting that he saw the possibility that he would agree to this "if our relationship continued and everything was good and beautiful, and we would like to live together" (ibid.), at p.  39).  These statements clearly reflect that at that time the respondent saw a possible horizon for the marital relationship, and believed that it was possible that the two would persist in the relationship and have children through the fertilized eggs.
47. The decision to dissolve the marital relationship matured for the respondent only at a later stage - more than eight months after the date of the sperm extraction. Even after the separation, when the appellant asked the respondent to sign a "document of consent for the use of the fertilized eggs", he did not reject her request on the site, but replied that he would have to consult on the matter, in due course, with his future partner.  Indeed, this is what he did: a few years later, when the appellant approached him with a repeated request, he consulted with his wife - and only afterwards did he reply in the negative.  In other words, not only did the respondent not know with certainty at the time of the sperm extraction that he was about to separate; However, he did not even know - and this is the main thing - that he intended to refuse to allow the appellant to use the fertilized eggs in the future.
48. An attempt to conclude differently - as if the respondent already knew about the importance of the decision at the time of the fertilization of the eggs, and also knew that he wished to end the marital relationship and refuse to use the eggs - is inconsistent with the chronological sequence of events and their pressing nature, and purports to decipher in retrospect secrets of heart that it is doubtful that were fully clear even to the respondent himself (compare: in Tax Appeal 5827/19, at paragraph 54). In these circumstances, his conduct should not be regarded as creating a false 'representation'.

Reliance

49. The evidence as described above also negates the existence of the element of reliance. As has already been described, it is clear from the appellant's conduct that in real time she did not believe that the decision to fertilize the eggs was a reality-changing decision, especially against the background of the expected additional round of extraction.  Her choice to fertilize the eggs was therefore not based on her reliance on any misrepresentation presented by the respondent, but rather on the set of chances and risks underlying the fertility preservation procedure.  Thus, freezing fertilized eggs entails a risk that the partner will not give his consent to use them in the future - whether due to separation or for some other reason.  On the other hand, freezing unfertilized eggs is not without risk, due to the eggs' lower chances of survival (according to the doctor's investigation, the chances of survival of fertilized eggs are between 30% and 40%, while the chances of survival of unfertilized eggs are even lower); The doctor's interrogation, at p.  13).

According to the testimony of all those involved in our case, the attending physician places great emphasis on this dilemma.  The appellant was therefore required to manage her chances and risks, and her choice to fertilize the eggs did not stem from the assumption that "she is forever immune" and that the respondent's consent is guaranteed to her forever, but rather out of a desire to increase her chances of parenthood.  The logic of this choice is understandable.  The problem is that once the risk has materialized, and the respondent refuses after their separation to permit the use of the fertilized eggs in his sperm, this does not, with all the sorrow involved, establish a legal cause for the appellant to force him to have parenthood against his will.