Moreover, in fact, in the circumstances of the case at hand, There is no neutral position of refraining from "judging" the relationship between the partiesFrom the moment the respondent himself seeks to rely on a contractual right by virtue of the agreement, the very decision - whether in recognition of the duty of disclosure or in rejection of it - constitutes a normative determination as to the scope of the contractual rights and obligations between the parties in light of the factual set of circumstances. In this situation, a decision not to recognize the duty of disclosure does not imply an abstention from legal intervention, but rather chooses the party for whom the legal intervention will be made.
I will mention that in the case law of this court it was determined that by virtue of the duty of good faith in the performance of a contract, which is established In section 39 According to the Contracts Law, a party to a contract has an active duty of disclosure regarding a material change in circumstances that puts the other party's reliance at risk, and in particular where the non-disclosure creates a false representation as to the possibility of the performance of the contract (see: Civil Appeal 8422/17 State of Israel - Ministry of Transport v. National Council for the Prevention of Road Accidents, paragraph 28 of the President's judgment A. Hayut [Nevo] (8.2.2021); Civil Appeal 144/87 State of Israel v. Eng. Faber, Construction CompanyIsrSC 44(3) 769, 777-778 (1990); Peaceful and Plant, at pp. 81-82). Against the background of the aforesaid, in the circumstances of the present case, the respondent's attempt to hold on to the contractual right to withdraw his consent, while rejecting the appellant's ability to exercise its rights in light of all the circumstances of the case, reflects the selective application of contract law - a desire to enjoy the essence of these laws, without bearing their sting.
More than necessary, I will note that this would have been the case even if the need for the respondent's continued consent for the use of the fertilized eggs had been derived from another source of law (as my colleague, the judge, argues G. Kanfi-Steinitz), and a formal agreement would not have been signed between the parties anchoring their set of rights and obligations in the aforementioned context. Even in circumstances of this type, the possibility of avoiding "trial" does not exist at all: the court is required to decide whether to allow or prevent the use of the fertilized eggs, and in the process determine whether the respondent is entitled to refuse the said use. In my view, when this is the required decision, it is not possible to ignore the relevant facts, and in particular the main fact that they were stated by the respondent himself, in his affidavit.
- With regard to the consideration of the violation of the individual rights of the spouse to whom the duty of disclosure will be imposed, indeed, the imposition of a legal obligation concerning the obligation to disclose doubts (and perhaps even more) regarding the desire to parenthood entails a real violation of the right to privacy and autonomy of the spouse to whom the said duty will be imposed. However, the fear of interrogation and probing into the depths of a spouse's soul is considerably dulled in the circumstances of our case. This is because, as I noted above, the determination regarding the respondent's state of mind as to his willingness to approve in the future the use of eggs after their fertilization in his sperm, even before the eggs were fertilized in his sperm, is not based on his interrogation on the witness stand, or on determinations on the level of reliability, but on the version he voluntarily gave in the affidavit of the main witness that he submitted.
Moreover, and even more importantly, I am of the opinion that in the circumstances of the case at hand, alongside taking into account the respondent's rights, the harm caused to the appellant as a result of the respondent's silence should not be ignored, and even the harm that may be caused to her if it is determined that the respondent was not subjected to a duty of disclosure in the said context. The respondent's refusal to disclose to the appellant his state of mind regarding the relationship between them, and in particular his unwillingness to participate in the proceeding and his attachment, in advance, to his right not to allow the use of the fertilized eggs as a solution to his "hasty" decision to donate his sperm deprived her of the ability to choose to take a different path with regard to the use of her eggs. Refraining from recognizing the duty of disclosure that was imposed on the respondent in this context - and which was breached by him - means, in practice, the denial of the appellant's last chance to realize genetic parenthood. This is a particularly tangible, concrete and severe injury.