Conclusion
- The couple signed an agreement, in writing and in front of a lawyer, on which the entire fertilization process is based. In the meantime, they regulated the requirement for continued consent, and determined that until the stage of inserting the fertilized eggs, each of the parties may unilaterally withdraw its consent. This is what emerges from the language of the agreement, this is how it was explained to them by the attending physician, and this is how the couple understood the matter. This consent was not changed by them at a later stage - not orally, not in behavior, and certainly not in writing. At the same time, the respondent's decision - not to share his concerns with the appellant in real time - does not amount to a misrepresentation; The appellant did not rely on his representations; And for reasons of proper legal policy, it is not appropriate to establish such a duty of disclosure. Therefore, in my view, the parties' agreements are intact, and the respondent is entitled to refuse the use of the fertilized eggs.
- Once I have reached the conclusion that the explicit contractual agreements anchored by the parties are in place, there is no need to address the additional questions that arose in the proceeding. In this regard, I am not required to decide whether it is possible to allow the return of the fertilized eggs to the uterus of a surrogate mother under the circumstances of the case. I am also not required to follow the outline proposed by the Attorney General, which, in my opinion, raises legal issues that are not simple and have not yet been clarified. At the same time, to the extent that it is decided that the appellant is entitled to make use of the fertilized eggs, it is clear that the respondent should be given an opportunity to clarify whether he wishes to sever the parental relationship as proposed in the said outline, or whether he prefers to be a father - with all that this entails.
- Before signing, I will add: The appellant's parenting wish is understandable, enters the heart and arouses sympathy. This is especially the case in light of the evils that have been her lot lately: the malignant tumor found in her body and the difficult medical battle she has waged. The feeling of missing out, in light of the existence of three fertilized eggs that are a "last chance" for genetic parenting and which cannot be used, is difficult. However, it must be concluded as we have begun, the appellant is not seeking parenthood for herself alone. This question entails, in the circumstances of the case, the Respondent becoming a parent against his will. Even if an outline is found for releasing the respondent from his legal obligations towards the child to be born - the severe harm to the respondent as someone who does not want, and according to him, cannot raise his child - is also difficult (see and compare: The Sperm Donor Case, at pp. 314-316). Thus, the respondent describes in his affidavit that "this child, for whom I will not be able to be a loving father, will grow up in the womb of a woman I do not know who she is, will be raised by foreign hands to me. He will ask, he will surely ask, when the day comes, who his father is and why I refused to be his father. I am not willing to allow the birth of a child [like this...]". This refusal of the respondent can also be understood.
- In this last context, I will note that I find difficulty in the asymmetrical relationship that the appellant wishes to attribute to the genetic component of the right to parenthood. At the basis of the entire process is the assumption that genetic parenthood is of real importance; and that it is the appellant's genetic connection to the fertilized eggs that gives her claim decisive weight. However, where the respondent claims that he does not wish to be the father of his genetic child that he will not be able to raise, it is argued against him that it is possible to sever his legal ties to the child that will be born, in a way that will neutralize the harm to him. This approach contains an internal contradiction: if the genetic connection is a weighty element, it is not possible to elevate the weight of the appellant's genetic parentage for the purpose of recognizing her right to parenthood; and at the same time, to reduce the significance of the respondent's genetic parenthood when it comes to his right not to be a parent. If genetics is a cornerstone of parental identity, then it is for both parties.
- I will reiterate that my decision does not ignore the human distress to which the appellant finds herself, and the heavy grief involved in missing out on the possibility of genetic parenting. At the end of the day, however, my decision is based on the arrangements that the parties voluntarily undertook. Since no reason has been found that justifies deviating from them, there is no reason to force the parties to make a different decision retroactively by virtue of an intuitive sense of justice that is not rooted in the law.
Gila Kanfi-Steinitz Judge
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| Judge Yechiel Kasher: |
- As my colleagues noted, the main issue at hand - the appellant's right to use the fertilized eggs, which are her last opportunity for genetic parenting - raises sensitive and weighty questions.
Among my friends, the judge D. Barak-Erez and the judge G. Kanfi-Steinitz, there was a dispute as to the solution of this issue, and hence as to the fate of the appeal at hand. I will preface by saying that for a large part of the way, I found myself agreeing with the position of my colleague, the judge G. Kanfi-Steinitz.