In my opinion on the same matter, I also emphasized the following:
"In the past, this court was required to deal with the question of a balance between the right to parenthood and the right not to be a parent in the Nachmani case. After many disagreements, the majority opinion in the further hearing sided with the mother's right in that case to exercise her right to parenthood. In other words, in the balance between the right to parenthood and the right to non-parenthood, the right to parenthood prevailed in that case... In the Nachmani case, the court was required to rule on the question of the fate of fertilized eggs in the father's sperm in conditions in which the woman's chances of fertilizing her other eggs were very low, and perhaps even non-existent. In other words, the woman's preference was based on the protection of her right to some kind of biological parenthood - as opposed to the protection of the manner in which the right to biological parenthood is exercised, as in the case before us" (ibid., at p. 336).
- If so, the basic characteristic that underpinned the decision in the Nachmani - And which did not take place in the matter Sperm donation - There was the fact that for Ruthie, it was the "last chance" and even the only chance to become a mother (genetic). All this, when doubts arose as to the content of the parties' agreement regarding the possibility of using the frozen embryos in the event of separation. The basic characteristics of that parasha exist here as well. The parties disagree regarding the content of their consent, and here too as far as the woman, she is the applicant, this is the last and only opportunity for genetic parenthood.
- During the litigation in the Nachmani Something apparently fell apart - in 1996 the Surrogacy Law was enacted (although the judgment in the additional hearing was given after the legislation, and accordingly some of the justices referred to the law - its provisions did not apply directly to the Nachmanis' case). However, contrary to what one might expect, a review of the Surrogacy Law shows that it regulates the relationship between the intended parents and the surrogate mother only, under the supervision of the state. It does not directly address the question of consent and mutual rights between the intended parents. It is even possible to regret that the regulation of this important and sensitive area remains breached in the "horizontal" system between the intended parents. The sense of missing out is heightened given that the current case is in many ways a "replay" of the affair Nachmani and of the disputes that were discussed in the framework of it.
- It is also worth noting that in 2018 the The Embryo Carrying Agreements Law (Approval of the agreement and the status of the newborn) (Amendment No. 2), 5778-2018 (hereinafter: Amendment No. 2 to the Surrogacy Law). This legislative amendment expanded the definition of "intended parents" and for the first time outlined a surrogacy track for a "single mother", i.e., a woman without a spouse who wishes to enter into an agreement with a surrogate mother for the purpose of having a child. In a parenthetical article, even if it exceeds the need in the current context, it should be further noted that in the framework of the High Court of Justice 781/15 Arad-Pinkas v. Committee for the Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements Law (Approval of Agreement and Status of the Newborn), 5756-1996 [Nevo] (Partial judgment of February 27, 2020; supplementary judgment of July 11, 2021)), it was held that this definition of "intended parents" is unconstitutional, and that it applies to single men and same-sex couples.
- At the level of subsidiary legislation, the issue of IVF is regulated inPeople's Health Regulations (IVF-Tank top), 5747-xxxxx(Hereinafter: In Vitro Fertilization Regulations). With regard to the arrangement of agreements between the parties, Regulation 14 He teaches as follows:
")a) Any action involving IVF as stated in Regulation 2 shall be carried out only after the responsible physician has explained to each of the parties concerned its significance and the consequences that may derive from it, and has obtained the informed consent of each of them separately.