The form was prepared by an external lawyer. Each lawyer is presented with the criteria and he prepares the form... Following the court hearing, we asked that the form be the regulator's for all medical institutions. I checked with other legal advisors, and I realized that everyone added a clause or removed a clause, there is something similar in every institution but not uniform. In any case, they must sign an affidavit. Soroka gives the proposed version, which is the version of the Medical Association" (transcript of October 30, 2024, pp. 6-7).
This is how the doctor described it in his testimony:
"It's a document that we submit to anyone who wants a joint relationship and is not legally married. We have nothing to do with the wording here. We do ask that it be signed by a lawyer so that the explanation will come from a professional, a lawyer who will address all the clauses and give an explanation about them...
This form is only a condition for entering my room and talking to me" (ibid., at p. 7).
Later in his testimony, the doctor added:
"I don't relate to this form, it's part of the paperwork as far as I'm concerned, like the obligation to do blood tests of one kind or another, it's part of the process. If someone says they didn't understand this or that section, I'm willing to sit down and read with them.
To the court's question, it is very rare that I was asked to refer to the clause in the form" (ibid., at p. 11).
- Thus, the document was not drafted by the parties themselves, and they had no influence on its contents. Despite the fact that it was claimed before us that this was only a "suggested" wording, in practice the affidavit was dictated to the parties by the IVF Unit at Soroka Medical Center, as a uniform version that was used at the time by all unmarried patients in the various fertility units operated by the Clalit Health Fund. Accordingly, the appellant and the respondent were required to sign the affidavit in this form as a prerequisite for the beginning of the process of preserving fertility, as part of the necessary "paperwork".
- Against this background, it seems that more than anchoring all the agreements between the parties, the affidavit is intended to protect the interest of Soroka Medical Center - to reduce the risk it takes upon itself as the person who manages the process and to prevent claims against it in the future. Therefore, the main function of the affidavit, in my opinion, is in the context of the relationship between Soroka Medical Center and the two spouses. In this relationship, the affidavit even has the basic characteristics of a standard contract, according to the fixed definition In section 2 of the Uniform Contracts Law, 5743-1982 (despite the fact that Soroka Medical Center is not a formal party to the affidavit). Although this does not have a direct impact on the litigation between the parties here, it should be kept in mind when trying, in retrospect, to trace the intention of the parties. With regard to contracts of this type, it has already been stated in the case law of this court:
"The purpose of the standard contract is mainly an objective purpose. Although the standard contract also has a subjective purpose... This is often difficult to prove. Only in a few cases can the joint intention of the parties be revealed. At the center of the purpose of the standard contract is the objective purpose... The (objective) purpose of the uniform contract is the goals that reasonable, prudent and fair parties would have set before their eyes as laid down in the foundation of the uniform contract" (Civil Appeal Authority 1185/97 Heirs and Administrators of the Estate of the Late Milgrom Hinda v. Mishan Center, IsrSC 52(4) 145, 158-159 (1998)).
- It is not superfluous to add that in fact, the affidavit given to the parties in this case deviates in certain aspects from the regulatory requirements defined in section 31 of the Director General's Circular 20/07. Thus, while section 31 requires the parties to draw up an "agreement" between them, the document presented to the parties was defined as an "affidavit" and accordingly the signature on it was required to be done in the presence of a lawyer (as aforesaid) In section 15 of the Evidence Ordinance [New Version], 5731-1971). It should also be noted that Article 31 The aforementioned requires that the agreement between the parties include "addressing the question of the possibility of the parties retracting them and the use of the genetic material in this case." In other words, CEO Circular 20/07 leaves the parties room to formulate agreements between them in accordance with their free will (and subject to any law). In contrast, paragraph 4 of the affidavit ostensibly included a "decision" on this fateful issue instead of leaving it to the parties themselves. It is regrettable that this substantive decision - which would have been better if the appellant and the respondent had been given sufficient time and an opportunity to give their opinion - was ultimately made by the medical center itself.
- Moreover, as it turned out, the content of the affidavit remained "breached" in many aspects, contained indications contrary to the intention of the parties, and left a fairly wide opening for misunderstandings. It is not for nothing that all the parties do not disagree that the affidavit was drafted incorrectly, to say the least. It is therefore worth reiterating what was stated in the 2017 directive of the Legal Advisor to the Ministry of Health, according to which "It should be noted that the couple refers to the above points in the affidavit and not only 'copy and paste' the wording... This is important in order to prevent misunderstandings and future conflicts." This directive is later than the events that are the subject of this proceeding, but it is easy to see that if these principles - which should be taken for granted - had been implemented by Soroka Medical Center, the disappointment of the parties could have been prevented in advance.
- Thus, in the state of affairs described, from my point of view, there is a real doubt to what extent the affidavit authentically and faithfully reflects the intentions of the parties at the time of signing it. At the same time, I am of the opinion that his status as a contract between them cannot be denied. In other words, although, as stated, in my opinion there is considerable difficulty in relating to what is stated in the affidavit as an accurate expression of the parties' agreements at the time of its signature, I am correct to assume that this is indeed the case. However, and this is the main point: even when the starting point is to treat the affidavit as a binding contract, it is certainly not an exhaustive and complete contract that regulates the entirety of the parties' agreements in the framework of the process.
- More specifically, the main dispute between the parties revolved around paragraph 4 of the affidavit, which reads:
"We declare that we are aware that after the success of fertilization and the insertion of embryos into the woman's uterus, it will not be possible to cancel this agreement and/or withdraw from it unilaterally by one of us, with all the mutual and legal obligations deriving from it."