(2) The question should be addressed as to whether the man is given the opportunity to retract it, and if so, at what stage (provided that this is not the later stage of the return of the embryos).
(3) The question of what will be done with the common genetic material should be addressed, in the event that one of the parties withdraws from the agreement, or one of the parties dies in the agreement. The validity of any arrangement that is determined will be subject to any law.
(4) The mother must declare that she is not a 'carrier mother' within the meaning of the Embryo Carrying Agreements Law (Approval of Agreement and Status of the Newborn), 5757-1996.
(5) Both parties must declare that the agreement is not made in exchange for monetary or other consideration, for a man or a woman, and that they enter into it of their own free will.
(6) Both parties declare that they are not married to other spouses."
The letter did not include a specific wording proposal, but only required aspects that needed to be regulated within the framework of the agreement between the parties. These are also the aspects that were mentioned mainly in the wording of the affidavit signed by the parties before us.
- It should also be noted that in 2007, the Ministry of Health's Director General Circular No. 20/07 "Rules Regarding the Management of a Sperm Bank and Guidelines for Performing Artificial Insemination" (November 8, 2007) (hereinafter: CEO Circular 20/07). Section 31 of this circular, entitled "Treatment of couples who are not in a marital relationship for the purpose of bringing a joint offspring", deals with joint parenting and states as follows:
"Carrying out fertility operations in a woman from the sperm of a man, who is not her partner, who wishes to have a child by joint parenthood, without a marital relationship, is contingent on the existence of an agreement between the parties."
Subsequently, the clause lists details that the agreement should include, which are essentially similar to those mentioned in the letter from 2001. This includes "addressing the question of the possibility of the parties to the agreement retracting them and the use of the genetic material in this case."
- According to the claim, Section 31 The aforementioned led to the Soroka Medical Center presenting the affidavit to the parties before us for signature, a demand that was addressed to them since they were not married. The affidavit itself, we have learned, was drafted by Soroka Medical Center in accordance with the instructions of the Section 31, and does not necessarily reflect a uniform wording that was practiced or practiced in various medical centers. It should be noted that according to Soroka Medical Center's counsel, in the meantime the wording of the affidavit has been changed and the signature of it (or another version thereof) is now required even from married couples.
- It should be noted that the directive from 2001, as well as section 31 of the Director General's Circular 20/07 - regulate the issue of Joint Parenting for Non-Spouses. Indeed, the model of co-parenting is generally intended for those who do not have a relationship but are interested in having a child together. This is a different situation than the situation of couples who turn to IVF procedures due to difficulties in producing offspring in the "natural way". Against this background, it is easy to understand that the format known as "joint parenting" is not fully adapted to unmarried couples dealing with fertility problems, as the Applicant and the Respondent were during the relevant period. In practice, however, it seems that the Ministry of Health, and accordingly also medical centers that operated under its supervision, such as Soroka, did not distinguish between the two situations.
- It should be noted that even after the events that gave rise to the current proceeding, there were certain developments in the procedures governing the issue. These do not apply directly to our case, but it is advisable to present them briefly in order to better understand the issue as a whole. On December 14, 2017, an additional directive was published by the Legal Advisor to the Ministry of Health on the subject of "Insemination or fertilization of eggs from the sperm of a known man who is not the patient's partner." In this directive, it was emphasized that Israeli law recognizes only two options for insemination or fertilization of eggs: the use of the sperm of a well-known person who will be the father of a newborn, and the use of an anonymous sperm donation from a sperm bank. This directive reiterated the main points of the letter from 2001, noting that the man and the woman were required to present the IVF units with an affidavit with reference to the points mentioned above. It should be noted that the wording in the later directive was slightly different. While in 2001 it referred to the signing of an "agreement", in 2017 it referred to the signing of an "affidavit". In any event, the later directive further clarified that "it should be noted that the couple refers to the aforementioned points in the affidavit and not only 'copy and paste' the wording... This is important in order to prevent misunderstandings and future conflicts regarding the fate of the genetic material and the status of the child that will be born."
- Although this exceeds the relevant time frame for the events before us, it is worth noting that in 2024, two additional circulars were published by the Ministry of Health that regulated the issue of IVF from different directions. Ministry of Health Medical Division Circular No. 11/2024 "Criteria for IVF Units (HG, IVF)" instructs in section 7.1.1. "It should be recommended that patients who are not a man and a woman who are registered as married to each other prepare a joint parenting agreement, which will address, among other things, the question of what will be done with the genetic material in the event that one of the parties withdraws from the agreement." The circular also includes in its Appendix 5 the wording of the "Joint Intention to Parenthood Affidavit". However, the wording does not include any explicit reference to issues of consent or situations of separation. In addition, the Ministry of Health's Medical Division Circular No. 12/2024 "Guidelines for IVF Units (IVF) about the treatment of fertilized eggs" deals with the treatment of fertilized eggs at the end of their freezing period, and requires the consent of the parties to be given in advance in this regard. In this regard, there is no direct impact on the dispute in this case.
- The result is that in accordance with the current legal situation, couples who begin the IVF process together do not receive any instruction from institutional bodies to reach a formal agreement between them regarding situations such as the one in which the parties before us find themselves. Considering the accumulated experience from the last few decades, it is worth considering. In any event, in the case before us, we must decide according to what is, and not according to nothingness. In summary, as we have seen, the law that applies to an IVF procedure for couples is based on an agreement between the parties, which is also supposed to include reference to the possibility that one of them will wish to withdraw it later on. However, there is no unequivocal regulation in the law regarding a case in which they did not do so.
The litigation so far
- As will be detailed below, the litigation between the parties has been going on for about five years, after it began with a lawsuit filed with the Family Court. The positions of the parties are sharp and opposite: the Applicant is of the opinion that she should be allowed to use the fertilized eggs, while the Respondent strongly opposes this. At this stage, I will turn to the presentation of the litigation in the previous courts in detail.
Family Court
- The source of the litigation is a claim filed by the Applicant on November 22, 2020 in the Family Court in Be'er Sheva (Family Bag 52163-11-20) [Nevo]. The remedy sought in the lawsuit was to instruct Soroka Medical Center to allow it to use the frozen embryos for the purpose of pregnancy that would be achieved through a surrogacy procedure. Alongside the lawsuit, a request for a temporary injunction was filed instructing the Soroka Medical Center not to destroy the frozen embryos, given that the freeze period was expected to end on November 25, 2020. In her lawsuit, the Applicant claimed that due to her medical condition, the frozen embryos shared by her and the Respondent are the only chance left for her to realize her aspiration for genetic parenthood. The Applicant further emphasized the high status of the right to order in referring to the rulings of this Court, and in particular to the Nachmani And to the point Sperm donation. On the factual level, the Applicant claimed that she and the Respondent led a married life in order to establish a family, that he accompanied her in coping with her medical condition, and that he even took part in the fertility treatments. The Applicant further claimed that when she informed the Respondent that she would have to undergo a hysterectomy procedure, he told her that they would be able to make use of their frozen embryos through a surrogacy procedure. The Applicant argued that she relied on the Respondent's consent and support for their joint plan, including the possibility of making use of the surrogacy process for this purpose, as discussed between them in that conversation. Finally, the Applicant noted the great suffering involved in the fertility preservation procedure that was taken and the fact that she endangered her life for him.
- On the same day, the Family Court issued a temporary injunction stating that the embryos would not be destroyed until another decision was made, and ordered the respondents to respond to this request (the judge The Senior Rabbi Etdegi-Priante). On November 25, 2020, Soroka Medical Center announced that as long as no other decision is made, it will continue to hold the frozen embryos. The next day, the state announced that it did not object to an order prohibiting Soroka Medical Center from destroying the applicant's fertilized eggs held by it.
- On December 6, 2020, the Respondent filed a motion to dismiss the claim in limine and to cancel the temporary injunction. In essence, the respondent insisted on his objection to the use of frozen embryos by means of surrogacy. He claimed that in the affidavit it was explicitly stated that the frozen embryos were intended for insertion into the applicant's uterus and not for another surrogate mother. He added that the Surrogacy Law requires informed consent at all stages of the process and the engagement with the surrogate mother, and that even the Director General's Circular 20/07 requires the consent of those involved, stating that such consent does not exist. The respondent further emphasized that the consent, insofar as it was given, was limited only to the insertion of the fetuses into the applicant's womb and not to their insertion into a carrier mother. The respondent further argued that the parties' interest here is different from the circumstances discussed in the Nachmani, inter alia, in view of the fact that they were not married, as well as the fact that the Surrogacy Law was not in force at all on the relevant dates of the Nachmani. It was also argued that Amendment No. 2 to the Surrogacy Law, which allows a woman to be a single mother through a surrogate mother, was enacted after the affidavit was signed, and therefore it should not be applied retroactively. In any case, the respondent argues that section 31 of the Director General's Circular 20/07 allows fertility treatments for those who do not maintain a marital relationship subject to a joint parenting agreement between them, mutual obligations to the children, and a promise that none of them is married to another - which is not the case in this case.
- Both the Applicant (in the response of December 30, 2020) and the State (in the response of February 7, 2021) objected to the dismissal of the claim in limine. In its response, the state clarified that the factual disputes between the parties are substantial and require a thorough and in-depth investigation before formulating the state's position. Subsequently, on February 14, 2021, the Family Court held a hearing on the proceeding, at the end of which it ordered that the case be set for an evidentiary hearing.
- Between me and me, the statement of defense on behalf of the respondent was filed on February 1, 2021, in which he reiterated the main points of his arguments. The respondent insisted that his consent was given only in relation to the fertilization of the eggs, and emphasized that in view of the wording of the affidavit, the possibility of inserting the frozen embryos into the surrogate was expressly denied. In addition, the applicant claimed that the affidavit allows each of the parties to withdraw the fertility procedures until the stage of returning the embryos to the uterus. The Respondent even denied some of the Applicant's factual claims, including the claim that he had never given consent to the surrogacy process and had not promised anything in this regard. The respondent further emphasized that his consent to fertilize the eggs was given under conditions of pressure, embarrassment and confusion, without deep thought on his part. The respondent added that in practice, throughout the period of the medical treatments, he distanced himself from the applicant and searched for the appropriate timing to separate from her.
- On May 9, 2021, an affidavit of main witness was filed on behalf of the Applicant, and on July 5, 2021, an affidavit of main witness was filed on behalf of the Respondent. In January 2022, hearings were held during which the Applicant and the Respondent testified, and subsequently summaries were submitted on their behalf. Prior to the submission of summaries on behalf of the state, on July 6, 2023, a proposal was submitted on its behalf to hold a mediation meeting with the vice president (retired) Rubinstein, and it was answered in the affirmative. However, on August 24, 2023, the state updated that the mediation had not succeeded.
- Finally, the state's summaries were submitted on November 19, 2023, in which the Attorney General presented a legal outline regarding the case at hand. The Attorney General made it clear in her position that she would not express an opinion regarding the facts of the case. At the same time, she added that if a judgment is given in favor of the applicant, it is possible to propose an outline that will allow her to undertake a surrogacy process as a single mother, while severing the respondent's parental tie. According to the proposed outline, the applicant will sign a surrogacy agreement as a "single intended mother", and after the birth, a parenting order will be issued, following which the relationship between the surrogate mother and the respondent will be severed from the baby that will be born. Subsequently, the Applicant's sole parenthood will be determined. Due to the complexity of the facts of the case, the Attorney General proposed dividing the surrogacy process into three stages, each of which would separately examine the fulfillment of the conditions of the Surrogacy Law. The Fertilization Stage - At this stage, the Applicant and the Respondent were spouses who provided their genetic material with the aim of becoming joint parents. In this context, it was noted that the Family Court must determine whether at the time of fertilization of the eggs, the respondent agreed to give his sperm with the intention of serving as a parent to the child to be born (otherwise it is a matter of sperm donation from a known donor while severing the paternity relationship, a procedure that is not recognized in Israel). In addition, it should be determined that at this stage the respondent did not object, or at least was indifferent to the possibility that the procedure could also be carried out through surrogacy. The stage of signing a surrogacy agreement - At this stage, the Applicant and the Respondent are no longer spouses and the Respondent is not interested in serving as a parent of the child to be born. Therefore, it is proposed to view the Applicant at this stage as a "single intended mother" who is interested in using her fertilized eggs through a carrier mother, so that the Respondent will not be required to sign the surrogacy agreement. However, the source of the sperm will be brought to the attention of the committee for the approval of embryo carrying agreements and of the surrogate mother. The Postpartum Stage - Since the Respondent will not be a signatory to the surrogacy agreement as an "intended parent", it is proposed that the parenting order be given only to the Applicant and will determine her parenthood exclusivity. In this way, the parental relationship will be severed both in relation to the surrogate mother and in relation to the respondent.
- On March 6, 2024, the Family Court accepted the claim and allowed the Applicant to use the frozen embryos through a surrogacy procedure (Vice President Rabbi Kulder Ayash). The Family Court noted the clash between the Applicant's right to be a parent of a genetic child and the Respondent's right not to be a parent of children born of the embryos he created with the Applicant, and ruled that this was a clash between rights that are not of equal weight. More specifically, it was held that in our case, on the one hand, the core of the Applicant's right - the very ability to exercise genetic parenthood - and on the other hand, the periphery of the Respondent's right, who does not object in principle to parenthood. The Family Court further ruled that the Respondent gave his consent to the Applicant becoming a mother through the joint embryos, so that the dispute focuses only on the manner in which they will be used, i.e., the question of surrogacy.
- Against this background, the Family Court turned to examine the parties' agreements, as expressed in the affidavit (referred to in the judgment as the "special agreement"). In the meantime, it was determined that there is a gap between clause 3 of the affidavit, which indicates that the embryos that will be created are intended for insertion into the applicant's uterus and not for a surrogate, and clause 6, in which the respondent agreed that the applicant would use the embryos on her own. The Family Court also found a discrepancy between the aforementioned section 3 and section 7, which mutually grants each of the parties the authority to choose the method of treatment of the genetic material in the event of the disappearance or death of the other. The Family Court explained that in the event of the applicant's disappearance or death, the respondent's only option to make use of the embryos is through a surrogate. Since, according to the Respondent, the Applicant herself cannot use the embryos in the surrogacy process, it was held that in practice his position leads to an interpretation according to which he has a superfluous right, and that this interpretation is unreasonable. It was also clarified that what is stated in section 3 is no longer relevant at all in view of the fact that the applicant no longer has a uterus in her body.
- The Family Court further ruled that on the basis of the respondent's consent to fertilize the applicant's eggs with his sperm, "her fate was bound up with his, and she changed her situation radically for the worse" (paragraph 35). In this context, it was noted - and it should already be noted that the District Court set the record in the framework of the judgment in the appeal - that at the time the consent to fertilization was given, and even at the time it was performed, it was clear to the Respondent that the Applicant's only option to exercise her right to parenthood would be through the frozen embryos. This determination, as will be explained below, is not entirely accurate. However, the following things that were determined by the Family Court are important and have not been refuted:
"I found that [the Respondent] did not act transparently during the fertilization process carried out by the parties, and I accept [the Applicant's] version that [the Respondent] acted in his actions and words to [the Applicant] at the time, in order to create the appearance of a full partner who supports the fertility preservation process she underwent and is part of... The matter cannot be viewed except as an action that [the Applicant] performed in reliance on a representation that could be the mother of these fetuses, that [the Respondent] creates together with her" (ibid.).