Later, the doctor was asked: "Both sides knew that if it is not carried out here and now, is there a chance that it cannot be carried out?" (Name, at p. 16, line 16). To this the doctor replied: "That's right. Everyone knew it was an urgent situation" (Name, line 27).
Finally, at the end of his interrogation, the doctor was asked: "In other words, at the time when it was decided to fertilize the three eggs, with the consent of the parties, both parties knew that there was a chance that in view of the woman's unique medical condition, there was a chance that it would be completed? Or as my lord says, take it or leave it" (Name, at p. 17, lines 4-6). To this the doctor replied: "That's right. It was clear from the outset that we were on borrowed time" (Name, line 7).
Against the background of the aforesaid, the judge ruled Y. Danino In his opinion that: "From the testimony of [The Doctor] It clearly appears that the parties were aware of the respondent's medical condition, and that in view of the oncological disease, 'there is a chance that this is over and complete'" (Name, at paragraph 65 of his opinion). These words are fully acceptable to me.
- Thus, from the evidentiary basis laid out above, it emerges that the two factual claims on which the appellant's version rests were proven to the required extent: prior to fertilization of the eggs, the respondent was aware that there was a real risk that the three eggs extracted from the appellant were her last chance for genetic parenting; And by that time, he already had real doubts (and perhaps even more) about his willingness to agree to the use of eggs after they were fertilized by his sperm.
As I mentioned above, the duty of good faith in the performance of a contract, which is fixed In section 39 The Contracts Law imposes on a party to a contract an active duty of disclosure regarding a material change in circumstances that puts the reliance of the other party at risk, and in particular where the non-disclosure creates a false representation as to the possibility of the performance of the contract. On the basis of this obligation, prior to the fertilization of the eggs with his sperm, the respondent should have disclosed to the appellant that her reliance on him and his consent, in the future, to the use of the eggs entails a risk, which is highly likely, that his consent to the use of the fertilized eggs will not be given. This was before a decision was made, the result of which was the dependence of the appellant's genetic parenthood on the respondent's wishes.