Thus, like my colleague, I too am of the opinion that there is nothing in the ruling in the judgment in the additional hearing on the matter Nachmani (Additional Civil Hearing 2401/95 Nachmani v. Nachmani, IsrSC 50(4) 661 (1996) (above and hereinafter: The Further Hearing in the Nachmani Case), in order to decide the fate of the appeal in this case. This is because the opinion of the majority justices in that case was based on the assumption that there was no explicit agreement between the couple as to the fate of the fertilized eggs in the event of separation.
Like my friend, the judge G. Kanfi-Steinitz, I believe that the affidavit signed by the couple should be regarded as a binding agreement, which anchors the set of rights and obligations between them in relation to the process of egg retrieval, fertilization and their use. Therefore, even in my opinion, the starting point for the hearing of the appeal in this case is the arrangement set out in paragraph 4 of the affidavit, according to which both the appellant and the respondent have the right to withdraw their consent to make use of the eggs, up to the point at which the eggs will be inserted into the appellant's uterus.
I also share the position of my colleague, the judge G. Kanfi-Steinitz, that the conduct of the parties after the signing of the affidavit does not indicate a change in the agreement of the set of rights and obligations between them, as determined in the affidavit.
At the same time, unlike my friend, the judge G. Kanfi-Steinitz, I believe that under the circumstances Uniqueness and Exceptionalities of the present case, the conditions of estoppel are met by virtue of a representation, which prevents the respondent from exercising his contractual right to object to the use that the appellant seeks to make of the fertilized eggs. Therefore, "the bottom line", my opinion is that of my colleague, the judge D. Barak-Erez, that the appeal should be accepted. I will detail my reasons below.
- Although my colleagues laid out in their opinion the main factual background required for the appeal at hand, I am of the opinion that for the purpose of presenting the appellant's argument that in the circumstances of the present case the respondent is silenced from opposing her desire to make use of the fertilized eggs, in its proper context, it is justified that I discuss the relevant facts in this matter, in more detail:
The appellant and the respondent maintained a marital relationship. In April 2015, about two years after the beginning of the marital relationship between the parties, the appellant began to suffer from pain in her abdomen. A medical examination she conducted raised concerns about a malignant tumor in the ovary, and as a result, on November 4, 2015, the appellant underwent surgery to remove the left ovary. After the operation, the appellant was recommended to undergo aggressive chemotherapy treatments. In view of the fact that the chemotherapy treatments could, in high probability, harm the appellant's fertility, it was recommended that she undergo a fertility preservation procedure, by means of egg retrieval.