Against this background, it was determined that the respondent's conduct created a "promise estoppel" against him. The Family Court explained that if the respondent had acted in good faith and with full disclosure towards the applicant, he would have left her with the option of choosing to exercise her parenthood in other ways. However, it was held, his cooperation caused the Applicant to rely on his consent and to refrain from taking alternative courses of action. With regard to this, the Family Court clarified that this was a reasonable reliance in the circumstances of the case.
- The Family Court was of the opinion that the Respondent had given his consent to the Applicant becoming a mother through the embryos even if they did not have a marital relationship. In this context, it was held that the respondent clung to the "technical" issue of the manner in which embryos were used - through the applicant's uterus or through a surrogate - an issue that he did not perceive in real time as essential. The Family Court further ruled that even if the respondent's factual version of the sequence of events is accepted, he misled the applicant and acted in bad faith towards her. Under these circumstances, it was held, his promises bind him and he should not be allowed to renege on them.
- The Family Court rejected the respondent's version as to the nature of the relationship and the course of events, and accepted the applicant's testimony that when the need arose to remove her uterus, the respondent comforted her by saying that it would still be possible to make use of the frozen embryos. In addition, the Family Court emphasized that when the respondent gave his consent to the use of his sperm for the purpose of fertilizing the eggs, he had already made the decision to separate from the applicant. In this context, it was argued that at that stage nothing prevented him from stopping, refusing to continue the process, or clarifying his intentions and the boundaries of his consent. It was further emphasized that the respondent had carried out legal, physical and emotional actions - all of which were intended to create the embryos, when according to him in real time he no longer saw a joint future for the parties and therefore knew that the children would not be born within the framework of their relationship. It was also held that it is unreasonable that if the Applicant had known that the Respondent had veto power in relation to the return of the embryos and that he intended to separate from her within a few months, she would have chosen to fertilize the eggs specifically from his sperm. However, it was explained, it is more likely that if he had acted transparently with her and expressed the doubts that arose in him regarding their joint future, the Applicant would have acted to clarify the additional alternatives available to her (such as sperm donation).
- In conclusion, it was therefore determined that the Applicant should be allowed to make use of the frozen embryos in the surrogacy process. It was further determined that to the extent that the Applicant does so, she must act in accordance with the outline proposed by the Attorney General, i.e., to consider her as a single mother in accordance with the Surrogacy Law, so that the Respondent will be free from parenthood and the obligations involved in it, and any connection between him and the newborn will be severed.
- Shortly after the judgment was rendered, on March 11, 2024, the Family Court granted the respondent's request and stayed the judgment for thirty days.
District Court
- On April 10, 2024, the respondent filed an appeal with the Beer Sheva District Court, along with a request to stay the execution of the judgment (Family Appeal 24918-04-24) [Nevo]. In essence, the respondent reiterated his arguments on the merits of the matter and noted the errors that he believed had fallen in the Family Court's judgment. In addition, the respondent argued that contrary to the Family Court's ruling, when he agreed to fertilize the eggs with his sperm, the parties did not yet know that no more eggs would be extracted from the applicant's body in the future. In addition, the Respondent claimed that contrary to what was stated in the Family Court's judgment, it did not give any assurance to the Applicant regarding surrogacy procedures. The respondent further argued that in accordance with paragraph 4 of the affidavit, the consent of the parties is final and irrevocable only from the time the embryos are inserted into the applicant's uterus, and not before.
- On May 8, 2024, the District Court, with the Applicant's consent, granted the Respondent's request and ordered a stay of the execution of the Family Court's judgment until the appeal is decided or another decision is rendered.
- The reply on behalf of the Applicant was submitted on June 13, 2024. The Applicant relied on the Family Court's ruling, and supported all of its factual findings, which in her opinion are based on the totality of the evidence and reliable determinations. The Applicant clarified that at the time her eggs were fertilized in the Respondent's sperm, he anticipated, or at least should have anticipated, the possibility that it would not be possible to produce additional eggs or that it would not be possible to insert the embryos into her uterus. The Applicant further claimed that the agreement they signed was formal and that the parties did not consider its contents.
- On July 14, 2024, the Attorney General submitted her response, in which she argued that the appeal deals almost entirely with factual determinations about which she has no position. At the same time, the Attorney General reiterated the outline presented by her.
- On July 17, 2024, a hearing was held on the appeal, and at the end of it, the District Court ordered, in accordance with its authority by virtue of the Section 9 Law Family Court, 5755-1995, and with the consent of the parties, on the summoning of the doctor to testify. It should already be noted that this was done in an exceptional manner in relation to the practice at the appeal stage, and that the District Court clarified in its judgment that this was done for reasons of efficiency, in order to expedite the proceedings. On October 30, 2024, a follow-up hearing was held in the District Court, in which the doctor's testimony was heard and he was interrogated by the parties' attorneys. It should be noted that the starting point for the doctor's testimony was that he did not remember the specific matter of the parties. Accordingly, he testified in general about fertility preservation procedures and answered questions while reviewing the applicant's medical file.
- On November 26, 2024, the District Court accepted the appeal by a majority opinion (the justices G. Levin andP. Gilat Cohen, against the minority opinion of the judge Y. Danino). The majority opinion, written by the judge Levin, interfered with the factual findings relating to the "timeline" within which the parties operated. Thus, contrary to the trial court's determination, the majority opinion clarified that on the date the parties signed the affidavit (November 17, 2015), on the date on which the three eggs were extracted and the respondent's sperm was delivered for fertilization (November 23, 2015) and on the date of embryo freezing (November 25, 2015), it has not yet been known that these will be the last eggs to be extracted from the applicant's body. Therefore, it was determined that at the relevant time it was not clear to the Applicant and the Respondent that the only option available to her to exercise parenthood was through the frozen embryos that would be created from the genetic material of the two. Only afterwards, it was explained, did the treatments for the second round of pumping stop.
- The majority opinion further determined that along the way, both parties were of the opinion that the consent of each of them was required at every stage of the process until the embryos were returned to the uterus, and that this position was consistent with what was stated in the affidavit. In this context, it was emphasized that in a conversation on October 11, 2020, in which the Applicant sought the Respondent's consent for the use of the frozen embryos, she stated to him that they had signed a document and that the approval of both of them was required for the process. In view of the aforesaid, it was determined that the Respondent did not agree that the Applicant could use the frozen embryos without obtaining his consent.
- In addition, the majority opinion found that the respondent's conduct does not amount to "estoppel a promise" that may replace a positive consent on his part to make use of the frozen embryos. In this context, it was explained that the element of consent with regard to the use of embryos is a substantial and weighty element, which was arranged in the framework of an affidavit, explained to the parties at the consultation meeting, was clear to both of them, and also arises from the normative arrangements that apply in the matter. Against this background, the majority opinion held that in our case there is a clear and explicit regulation of the element of consent, as opposed to - so it was determined - from the situation discussed in the Nachmani. It was also noted that these were people who had been in a relationship for about two years, but had not formalized their relationship and had not planned until then to have children together. The majority opinion further explained that the two "found themselves" in an emergency and rapid fertility preservation process, during which they were required to make fateful personal decisions that they were not prepared for. In these circumstances, the majority opinion noted that even if the respondent should have acted more openly with the applicant and shared with her his hesitations, this does not justify the far-reaching result of waiving the requirement of consent and coercing parenthood. It was also argued that the fact that the parties did not know that the applicant would be forced to stop the treatments and undergo a hysterectomy, has an impact on the strength of the representation on the one hand and the strength of the reliance on the other. The majority opinion was of the opinion that the Applicant, who was required to make a difficult decision, knowingly took upon herself a legal arrangement that required the Respondent's future consent for the use of the embryos, out of a desire to increase the chances of survival of the genetic material extracted from her body, assuming that she would be able to carry out another round of pumping. At the same time, it was noted that the question of surrogacy is "secondary in importance" compared to the question of whether it is possible to use the frozen embryos without the respondent's consent.
- The Judge Gilat Cohen joined this position, and sought to understand the substantial differences that exist in her opinion between the present case and the Nachmani. On the normative level, the enactment of the Surrogacy Law was noted, as well as the signing of the affidavit in accordance with the relevant regulatory requirements. On the factual level, it was noted that in the present case, the parties found themselves in an urgent fertility preservation proceeding that was carried out under emergency conditions, as opposed to the Nachmani In which the matter of a married couple who worked together for a long time to have a child was discussed. In light of the above, it was held that the analogy explains the Nachmani For our purposes, with regard to the Applicant's reliance on the Respondent's representations and on the applicability of the doctrine of estoppel and promise, it raises a difficulty.
- On the other hand, the judge Danino The minority opinion held that the conclusion reached by the Family Court should not be interfered with, even though it did not support all of its reasons. The minority opinion focused on the balance between the Applicant's right to parenthood and the Respondent's right not to be a parent against his will. The balance between them, it was determined, shows that these are not equal rights. The minority opinion anchored the aforementioned conclusion in the opinion of the majority justices on the matter Another discussion Nachmani. In this context, it was explained that the right to refrain from parenthood derives mainly from the fact that parenthood involves a built-in restriction of a person's future freedom of choice, which is expressed not only in an economic burden but also in all aspects of life. At the same time, given the outline proposed by the Attorney General, the minority opinion was of the opinion that the aforementioned restriction could be blunted to a large extent. The minority opinion clarified that without taking lightly the Respondent's point of view that "his loins will go around the length and breadth of the country" (paragraph 16 of the opinion), once the legal outline for severing his connection from the newborn has been found, his subjective feeling - which weighs heavily - does not tip the scales, when on the other hand, the Applicant has the only option to exercise her right to parenthood. The respondent's liberty in these circumstances, it was explained, is limited and secondary to the applicant's right. In this context, it was argued that the respondent has in the meantime become a father of two, so that his position does not express an objection in principle to having children in general, but rather focuses on the embryos that he and the applicant share.
- The minority opinion went on to determine that at the time of signing the affidavit, no one knew that the applicant's uterus would eventually be amputated. Therefore, it was explained, paragraph 3 of the affidavit reflected the fact that the parties believed that the frozen embryos were expected to be returned to her, and it should not be inferred from it that any of the parties would have objected in principle to surrogacy if they had known that the applicant's uterus would be cut off. In addition, in view of the Respondent's testimony that in any case he would have objected to any use of the frozen embryos even by way of insertion into the Applicant's womb, and in view of the Applicant's testimony that the Respondent consoled her by saying that it would be possible to use the frozen embryos by means of surrogacy, it was held that the Respondent was equal with regard to the question of whether the frozen embryos would be inserted into the Applicant's womb or into a surrogate mother.
- In addition, the minority opinion mentioned the doctor's statement in his testimony that the preservation of fertility stemmed from the fear that in view of the applicant's medical condition, it would not be possible to do so in the future. It was also noted that the doctor testified that the parties knew of the need to carry out the treatment urgently. In view of the above, the minority opinion held that the respondent's argument that it was clear to the parties in real time that additional eggs would be extracted from the applicant should not be accepted, so that she would not depend solely on him. On the contrary, the minority opinion reached the conclusion that taking into account the Applicant's condition, it could not be assumed that in the end additional eggs would be extracted.
- The minority opinion further held that if the Applicant had been aware of the Respondent's true state of mind at that time, it is self-evident that she would have had the power to consider whether to fertilize her eggs, in whole or in part, with his sperm. However, it was explained, since the respondent concealed this from her, he impaired her ability to make an informed decision based on a full factual basis, and in particular with regard to the relationship between them, which according to the respondent changed abruptly with the removal of sperm from his body. It was also noted that it is reasonable to assume that the Applicant would not have chosen to fertilize her eggs with the Respondent's sperm, and certainly not all of them, if she had known that at the very moment of the removal of the sperm from his body, he felt that their relationship had been undermined. In these circumstances, it was held, the external disclosure of consent, as expressed in the respondent's conduct, should be preferred over his hidden subjective intention. In this state of affairs, the minority opinion was of the opinion that the scales were clearly tilted in favor of the Applicant's right, on the grounds that the insistence on obtaining his consent conflicted with the fact that he himself harmed the other party's ability to obtain informed consent. Therefore, in this case, the principle of "estoppel a promise" applies, where the basis for the charge is not limited to the representations made by the respondent and the affidavit signed by the parties - but rather to the applicant's reasonable reliance on his conduct. The minority opinion emphasized that in this our case is also distinct from the Nachmani, in which no claim was raised that Danny had at any point concealed from Ruti his feelings about the nature of the relationship between them. Finally, the minority opinion noted that even if the Applicant took the risk in relation to the possible scenario of separation from the Respondent and his future refusal to use the frozen embryos - she did not take a similar risk with respect to the Respondent's feelings even before the act of fertilization, according to which the marital relationship had been undermined. According to the minority opinion, it is presumed that if she had known the truth, she would have considered making a different decision - a possibility that she was deprived of.
The proceeding before us
- The application for leave to appeal that the Applicant filed with this Court on December 22, 2024 is directed at the judgment of the District Court. In essence, the Applicant reiterated her claims regarding her reliance on the false representation presented to her by the Respondent when he gave his consent to fertilize her eggs, in a manner that prevented her from guaranteeing herself the possibility of exercising genetic parenthood in any other way. The Applicant further points out the errors that in her opinion occurred in the majority opinion of the District Court, inter alia, in her unusual intervention in the factual findings determined by the Family Court - as claimed, without justification. The Applicant is further of the opinion that the majority opinion erred in ignoring the doctor's testimony and other important facts, as well as in determining that in the circumstances of the case, the foundations of estoppel of a promise are not met. On the practical level, the Applicant emphasizes that according to her position, the outline proposed by the Attorney General should be adopted and recognized as a single intended mother, while severing the Respondent's connection to the newborn. The Applicant argues that this outline creates a proper balance between her right to exercise biological parenthood and the Respondent's right not to become a father against his will. It also argues that in the circumstances of the case, there is justification for granting leave to appeal.
- On January 29, 2025, the respondent's response was submitted, which also reiterates the main points of his arguments. The respondent relies on the majority opinion of the District Court, and according to him, its intervention in the Family Court's judgment did not relate to the credibility of the witnesses, but rather to the conclusions reached by the Family Court. The respondent further notes that the language of the affidavit is clear and that there is no reason to reflect on its provisions regarding the consent of the parties and the denial of the surrogacy option. He further argues that the circumstances of the case at hand are different from those of the Nachmani, among other things, considering that the couple was married there and wanted to have a child through surrogacy in the first place. In addition, with regard to the outline proposed by the Attorney General, the Respondent argues that the Surrogacy Law does not allow for coercion of parenthood, and that in any case the outline was subject to factual decisions, some of which were reversed in the District Court. It was also argued that, contrary to what was stated in the outline, the law does not allow for the severance of the respondent's parental connection from the newborn.
- On March 4, 2025, the state also submitted its position, as it was presented to the previous courts. This position emphasizes that the parties' case is unique and that to the extent that this court accepts the factual determinations of the Family Court (which were also accepted by the minority opinion of the District Court), the Attorney General will reiterate her position that, in the exceptional case of the Applicant and the Respondent, the legal outline proposed by her should be accepted.
- On April 20, 2025, a decision was issued ordering that the application be transferred to the Vehicle for a hearing, and this took place before us on October 27, 2025.
- In his arguments, counsel for the Applicant emphasized the irreversible nature of the decision to fertilize the single eggs produced from the Applicant's body with the Respondent's sperm. It was further argued that this decision of the Applicant was made on the basis of her reasonable reliance on the Respondent's representations, which left his true feelings in the secret of his heart.
- On the other hand, the respondent's counsel insisted on his right not to become a parent against his will, while focusing on the wording of the affidavit signed by the parties. She added that even if on the personal or moral level the respondent could have been expected to act differently, on the legal level there is no reason to bind him, at the stage after the separation, to his initial consent to the process of fertility preservation. In addition, the respondent's counsel explained that in her opinion, the outline on behalf of the Attorney General raises considerable difficulties, and that in any case the respondent's objection to the use of embryos is sweeping.
- Counsel for the Attorney General presented the main points of the proposed outline, and discussed the changes that have taken place in the relevant procedures following the current affair. For her part, Soroka Medical Center's counsel added several clarifications regarding the procedure relating to the affidavit.
- At the end of the hearing, we raised the possibility of a compromise in this complex case, but it did not succeed. A judicial decision is therefore required, and we will turn to this now.
Discussion and Decision
- At the outset, I will note that in view of the combination of the fundamental aspects involved in the hearing and aspects of specific justice, we were of the opinion that there was justification for granting leave to appeal in this case, and to hear the appeal on its merits. Accordingly, the applicant will now feature The Appellant. Following this, I will precede the beginning and note that I have reached the conclusion that the appeal should be accepted, in the sense that the appellant will be entitled to make use of the frozen embryos for the purpose of bringing a child into the world through surrogacy, as detailed below.
- Before I get to the substance of the matter, I will clarify that in fact we are faced with two separate questions. The first question - and in my opinion is the main one - revolved around the possibility that the appellant would use the frozen embryos despite the respondent's objection. The second question deals with the manner in which these embryos are used, i.e., whether the appellant is entitled to use surrogacy. From my point of view, this is the most important secondary question. From the perspective of the parties, too, the main dispute of "be or cease" concerned the very act of parenting through frozen embryos, as opposed to the issue of surrogacy.
- The starting point for deciding situations of joint IVF is the consent of the parties. The difficulty is that in this case, as in many others, the parties seeking to begin the process did not prepare for a formal settlement of the issue in the first place. Sometimes the agreements are the result of behavior or an accumulation of partial agreements, and in retrospect it is difficult to trace things. Thus, the boundaries of the Nachmani couple's consent remained disputed between them and were discussed in the courts over the years, and this was the case in practice in our case as well. I will therefore turn to examine the relevant data in this context.
The Missing Legislative Infrastructure
- The arrangements governing the issue - in legislation, regulations and procedure - were detailed above, but when we come to implement them in the circumstances of the case, we are facing a broken trough. The truth can be told: the legislative provisions dealing with IVF are quite partial, and in this procedure - as in the past - significant deficiencies were discovered in them. As surprising as it may seem, the field of IVF in Israel is not regulated at all by primary legislation of the Knesset. In the matter Sperm donation I had the opportunity to write in relation to this -
"The situation that we have seen with regard to the regulation of sperm donations is far from satisfactory. Such a fundamental matter, which has implications for the realization of the right to parenthood, as well as on family law in general, lacks proper legislative regulation. The operation of a sperm bank is regulated only loosely by legislation, and even that only in the form of secondary legislation... A more detailed regulation exists only in the form of a Ministry of Health's Director General's Circular, as detailed above, and this too does not address substantive issues, such as the one before us. The current situation therefore suffers from two problems: first, the existing arrangement does not require important and substantive questions; Second, and in any event, the regulation is not a matter of primary legislation that includes preliminary arrangements, as required by the court's ruling... This state of affairs is improper in principle, and it even indirectly contributes to situations in which expectations are created in the hearts of those concerned due to the absence of a clear arrangement. This is said with great force, since the issue of sperm donations is not regulated in primary legislation at all, as opposed to situations in which there is regulation in primary legislation, but this is not sufficiently detailed" (ibid., at p. 351).