In my opinion, it is doubtful whether on the basis of this fact alone, it is possible to determine that it was not "known" or "clear" to the parties that there was a real risk that the only option available to the appellant for genetic parenthood was the use of the eggs extracted in the first round of extraction.
I will clarify my words: even if I assume that after the three eggs were extracted from the appellant's body, it was not "known" or "clear" to the couple that it would not be possible to extract additional eggs from the appellant, so that the fertilization of the three eggs extracted from her at this stage, in the respondent's sperm, would put an end to her ability to be a genetic mother without the use of the aforementioned eggs, I do not believe that this would substantially change the relevant factual basis. This, since, in my view, for the purpose of establishing the respondent's duty to disclose to the appellant his state of mind, it is sufficient to prove that he knew that there was a real risk that these were the last eggs that could be extracted from the appellant, and it is not necessary that it be proven that he had knowledge that this was the case for sure.
And indeed, as the judge ruled Y. Danino In the minority opinion, I am also of the opinion that it emerges from the doctor's testimony that the respondent knew, at the very least, that there was a real risk that it would not be possible to perform another round of pumping, so that the aforementioned three eggs in fact embody the appellant's only and last chance for genetic parenthood.
Thus, as part of his interrogation in the District Court, the doctor was asked: "Would it be correct to say that at the time fertility preservation was decided, the urgency of the matter stemmed from the fact that if it is not done now, it may very well be that fertility can no longer be preserved in the future?" (p. 15, lines 9-11, for the minutes of the hearing in the District Court of October 30, 2024). To this question, the doctor answered: "That's right, and that's what happened in the end." (Name, line 12).