Later, after the respondent married and had children, the appellant approached the respondent and asked for his consent that she would use the fertilized eggs. The respondent refused, and as a result, the appellant filed the lawsuit, which is the focus of the present proceeding.
- The appellant's claim to be silent is based on the fact that in the period of time between the removal of the respondent's sperm and the fertilization of the three eggs extracted from her, the respondent already had "substantial doubts" in his heart (this is how the appellant defined the respondent's state of mind at that time, and therefore I will also use this term in relation to her claims) as to his willingness to consent to the use of the eggs after fertilization. According to the appellant, at this stage both spouses were aware that there was a real risk that the three eggs extracted in the first round of extraction were the only eggs that could be extracted from her body. In these circumstances, it was argued, the respondent should have disclosed to the appellant his aforesaid doubts, since had the matter been brought to her attention in time, the appellant would have refrained from fertilizing the eggs with the respondent's sperm, and would have chosen to refrain from fertilizing them at this stage or fertilizing them with sperm from a donor. According to the appellant, the respondent's refusal to disclose his doubts about the fertilization of the eggs in his sperm at this stage, granted him a kind of "veto right" over her ability to exercise genetic parenthood. In doing so, it was argued, the respondent merely ignored the appellant's chances of being the mother of children who carry her genetic baggage in another way, and who, according to her, fulfill the foundations of the doctrine of silence due to silence.
- Indeed, as noted in the opinion of my colleagues, our legal system recognizes the doctrine of estoppel by virtue of representation, according to which a person who creates a factual representation towards another will not be allowed to retract the representation and deny its correctness where the representation was made with the intention that the other would act according to it, and the other person did indeed act in reliance on him and changed his situation for the worse (Civil Appeal 314/07 Ron v. Bank Leumi Le-Israel Ltd., paragraph 20 of the judge's judgment A. Procaccia (April 8, 2010) (hereinafter: The Ron Matter); Civil Appeal Authority 7831/99 Tzuriano v. Tzuriano, IsrSC 57(1) 673, 685 (2002) (hereinafter: The Tzuriano Matter); Civil Appeal Authority 4928/92 Ezra v. Tel-Mond Local Council, IsrSC 47(5) 94, 100 (1993) (hereinafter: The Ezra Matter)).
A specific instance of estoppel by virtue of a presentation is estoppel due to silence. This is a situation in which one party acts on the basis of a mistaken assumption, while in the circumstances of the case the other party should have clarified the facts as they are. When the latter refrains from doing so, and the first party relies on the erroneous assumption and changes its situation for the worse, the other side will be silenced from arguing against those facts (see: Civil Appeal 2483/14 Shlomovitz v. Beit Hananya Moshav Ovdim for Settlement, paragraph 32 of the judge's judgment D. Barak-Erez [Nevo] (July 14, 2016) (hereinafter: The Shlomovitz Matter); Civil Appeal 9542/04 Rotem Insurance Company in the Appeal Taxes (Managed by Morasha) v. Nahum, paragraph 8 of the judge's judgment A. Rivlin [Nevo] (2.1.2006); Interest Tzuriano, at pp. 685-687; See also: Daniel Friedman and Nili Cohen Contracts Volume 1 92 (2nd Edition 2018) (hereinafter: Friedman & Cohen Contracts A)).