The words are as if they were written for the case at hand. Their power is even more powerful in the context discussed in the present proceeding, given the extensive legal history of the Nachmani. It should be noted that statements in this vein have been mentioned more than once in other judgments handed down by this court (see, for example: High Court of Justice 566/11 Mamet-Megged v. Ministry of the InteriorIsrSC 66(3) 493, 563 (2014); Interest The Known Donor, paragraphs 8 and 12 of the judge's judgment Handel, paragraph 2 of the judge's judgment M. Mazuz, as well as the judge's ruling A. Baron; Additional Civil Hearing 1297/20 Anonymous v. Attorney General, paragraph 88 of the President's judgment A. Hayut [Nevo] (July 25, 2022)). However, as of now, the matter remains a "call in the wilderness." Despite the steps taken, such as the publication of the recommendations of the "Public Committee for Examining the Legislative Regulation of the Issue of Fertility and Childbearing in Israel" (which is known by its name) The Mor Yosef Committee) in 2012 and attempts to formulate bills on the subject - these did not mature into a real legislative arrangement. It is to be hoped that the legal advisors to the government on the one hand and the Knesset on the other will buckle down and give their opinion on what is happening in this arena, which requires a clear and detailed legal arrangement, and it would be better to do so one hour earlier. This is a matter of real life.
- Thus, at this time, the issue is regulated only by secondary legislation, within the framework of the IVF Regulations, in a limited and partial manner. Regulation 14(A) These regulations state that "any operation involving in vitro fertilization... It will be done 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 received the informed consent of each of them separately." However, this regulation regulates the relationship between the medical institution and the spouses, and not the relationship between them. Indeed, in the matter Nachmani I It was explained that "this is secondary legislation by the Minister of Health that does not purport to regulate interpersonal areas between spouses. The arrangement in the regulations is intended for bodies that handle IVF and the way in which they must deal with this sensitive issue... It does not appear that the subordinate legislature is a source of ideological inspiration for resolving these issues in the event of a dispute between the spouses" (as the judge put it). Strasberg-Cohen, Name, at p. 505). This will be the starting point for the discussion here as well.
- As may be recalled, beyond the regulations, the issue is also partially regulated at the level of procedures and guidelines. The most important provision for our purposes is anchored in section 31 of the Director General's Circular 20/07, which gave rise to the affidavit in the form signed by the parties. I will now address the significance of this affidavit.
The Essence of the Affidavit
- In the case before us, the parties sign a joint document entitled "Affidavit". The question of the legal status of this document is not at all simple. It is not for nothing that the parties fundamentally disagreed about the validity of the provisions contained therein. The appellant views the affidavit as a formal form whose provisions can be overcome, inter alia, taking into account the balance of rights between the parties and the respondent's conduct late in signing it. On the other hand, the respondent sees the affidavit as a contract that binds the parties even now.
- In order to answer this question, it is necessary to first understand the characteristics of the document. Its title, as stated, is "affidavit", as opposed to "contract" or "agreement". At the top of the page are the symbols of Soroka Medical Center and Clalit Health Fund. In practice, the document was presented to the parties by a third party - the doctor - as a "form" that they are required to return and sign. This is what Soroka Medical Center's counsel explained in her testimony in the District Court:
"The form is not a form unique to the Soroka Medical Center, but rather a form written by the Israel Medical Association and recommended, and published in all hospitals. Some hospitals have made adjustments and some have left the guidelines as they are...