In this context, it is not superfluous to note that in American case law, some of which is also mentioned in the opinion of my colleague Justice G. Knafi-SteinitzIn many cases, the court strikes a balance between the rights of the parties in order to decide the question of whose right will prevail - the right of the spouse who wishes to refrain from using the fertilized eggs, or the right of the spouse who wishes to use them (See: Helene S. Shapo, Frozen Pre-Embryos and the Right to Change One’s Mind, 12 Duke J. Comp. & Int’l L. 75, 89-94 (2002) (Hereinafter: Inhale); 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, 24-27 (2023)). As part of this balance, weight is given, among other things, to the question of whether each of the parties has their own genetic children, or whether they have a real possibility of having genetic children even without the use of the fertilized eggs. Thus, in some cases in which the right of the spouse seeking to make use of the fertilized eggs was preferred, the court explicitly noted that its conclusion was based, inter alia, on the fact that the other spouse had genetic children of his own, or that he could bring genetic children into the world in other ways as well (see: Shapo, at pp. 89-94).
- Thus, taking into account that in our case the set of rights and obligations between the parties was settled from the outset by a binding agreement; that the alleged duty of disclosure derives from the use of the parties' rights under that agreement and does not seek to apply external legal norms to the relationship retroactively; And to the fact that the refusal to disclose the information at the alleged date led to the denial of the possibility of one of the parties to exercise genetic parenthood in a complete manner - I am of the opinion that the difficulties due to which the case law refused, in many cases, to recognize the duty of disclosure in intimate and emotional contexts, exist to a lesser extent in our case.
- As it emerges from the description of the above, the appellant's version is based on two main factual arguments: The first, that prior to the fertilization of the eggs, the respondent had already had significant doubts as to whether it would be correct, in the future, to give his consent to the use of the eggs after their fertilization with his sperm; The second, that prior to fertilizing the eggs, the parties understood that there was a real risk that the three eggs extracted from the appellant were the only eggs that could be extracted from her. It should be emphasized: It appears that in order to determine that the respondent has a duty of disclosure in the circumstances of our case, it is necessary to determine that both of the aforementioned factual claims are correct.
- 15. To the first question, a clear answer was given above, which clearly establishes the appellant's argument. As for the second question - what did the parties know about the feasibility of the success of additional cycles of pumping for egg fertilization - in the District Court's ruling, the majority justices ruled that: "...At the stage when the three eggs were fertilized, it was not known to the couple and the doctors that the process would be interrupted and it would not be possible to extract more eggs(paragraph 39 of the judge's judgment Levin), and that: "...At the same time [This refers to the date on which the first round of pumping ended - 10:20] It was not clear, neither to the appellant nor to the respondent, that the only option available to the respondent to exercise parenthood was through the embryos created from the appellant's sperm(Paragraph 40 of the judge's judgment G. Levin).
It should be noted that this determination was not based on the testimony of the respondent (although, as my colleague, the judge, emphasized, G. Kanfi-Steinitz, in the course of his interrogation at the Family Court, explaining why he agreed to fertilize the eggs with his sperm, the respondent noted: "...I knew that after that she would have eggs, there was no such thing, I didn't know that she would depend only on me(p. 39, lines 12-14, of the transcript of the hearing in the Family Court of January 31, 2022)), but rather on the fact that at that time the appellant intended to perform another round of pumping.