Appealing a Class Action (National) 5797-10-24 Itay Pinkas Arad – Maccabi Health Services

Given on March 12, 2026

Counsel for the appellants – Adv. Dr. Hagai Kalai

Counsel for Respondent 1 – Adv. Dr. Assaf Rentzler, Adv. Sophie Tabachi

Counsel for Respondent No. 2 – Adv. Shai Tamar, Adv. Adi Arman

Counsel for Respondent 3 – Adv. Paz Moser, Adv. Amin Kasum

State Attorney – Adv. Ayelet Shor, Adv. Daniel Pessi

Judgment

Judge (Ret.) Leah Gliksman:

1. We have before us an appeal against the judgment of the Tel Aviv Regional Court (Judge Ofira Dagan Tuchmacher and the public representative, Mr. Elihai Eligon; Class Action 54626-09-17; Class Action 11201-04-17), in which the appellants' motion to certify a class action regarding the entitlement of men insured in additional health services programs (hereinafter – Shaban) operated by the Respondents (hereinafter collectively – the HMOs or HMOs) for the financing of egg donation abroad, for the purpose of IVF as part of a surrogacy proceeding, was denied.
2. This will be the order in which the proceeding will be discussed: first we will briefly review the normative basis relevant to the proceeding – the legislation and case law regulating egg donation and surrogacy procedures, and the changes that have occurred in them over the years; then we will review the proceedings in the Regional Court and the ruling of the Regional Court, and we will briefly detail the arguments of the parties in the appeal; then we will discuss the questions in dispute that require a decision at this stage of the proceeding. Motion to certify a class action: Is it possible to file a class action against the health plans on the grounds that are the subject of the motion, and in this context – are the health plans in operation a "dealer" so that a class action can be filed against them by virtue  of Item 1 of the Second Appendix to the Class  Actions Law, 5766-2006 (hereinafter –  the Class Actions Law or the Law)? Are the conditions for approval of a class action set forth in section 8 met? The Class Actions Law? Do the applicants have a personal cause of action, or is there room to order their replacement or the addition of a representative plaintiff in accordance with  section 10(c) of the Law?

As will be detailed below, the proceeding began with an application submitted to the District Court, and in the District Court's decision of November 11, 2020, the proceeding was transferred to the Regional Labor Court.  Thus, the Labor Court acquired the authority to hear all the grounds in the application, including torts.  This is in accordance with Section 79(b) of the Courts Law [Consolidated Version], 5744-1984.  In light of the above, we will not address in this proceeding the question of the delimitation of the Labor Court's substantive jurisdiction to hear class actions against the health plans [see Discussion on this matter: Labor Appeal (National) 20139-09-15 Maccabi Health Services - Eyal Kuchinsky (June 26, 2018); High Court of Justice 6451/18 Guy Hayoun v. National Labor Court  (July 19, 2021), paragraph 24 of the opinion of Justice Baron (hereinafter:  the High Court of Justice Hayun)].

3. The Ottoman Settlement [Old Version] 1916To complete the picture, it should be noted that during the discussion before the panel it was agreed that a meeting would be held in which the state and the health funds (including a national health fund that is not a party to the proceeding) would participate in order to examine the possibility of amending the bylaws of the supplementary insurance in a way that would regulate the matters that are the subject of this proceeding and the like.  Notices submitted by the state and the HMOs indicate that the move did not go well and did not yield consent.  Arguments raised by the parties and the state in the framework of the notices in this matter that are relevant to the decision in the appeal will be detailed in the details of the parties' arguments.

12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2)The Normative Basis Relevant to the Proceeding

4. With the enactment of the Embryo Carrying Agreements Law (Approval of the Agreement and Status of the Newborn) 5756-1996 (hereinafter – the Surrogacy Law), the issue of surrogacy was regulated in Israel by primary legislation.  The Surrogacy Law was enacted in 1996 following a report and by a public-professional committee headed by District Court Judge (retired) Shaul Aloni [for the background to the enactment of the law and the arrangements that preceded it, see High Court of Justice 2458/01 New Family v. Committee for the Approval of Agreements for Carrying Embryos, IsrSC 57(1) 419, pp. 432-435 (hereinafter: the High Court of Justice for New Family); High Court of Justice 5771/12 Liat Moshe - The Committee for the Approval of Embryo Carrying Agreements under  the Embryo Carrying Agreements Law (Approval of the Agreement and Status of the Newborn), 5756 - 1996, paragraph 4 of the opinion of Judge (as she was described at the time) Hayut (September 18, 2014) (hereinafter –  the High Court of Justice Moshe); High Court of Justice 781/15 Itay Arad-Pinkas v. Committee for the Approval of Agreements for the Carrying of Embryos under the Agreements for the Carrying of Embryos Law (Approval of Agreement and Status of the Newborn), 5756 – 1996 (August 3, 2017), paragraph 16 of the opinion of the Deputy President, Justice Jubran (hereinafter – the partial judgment in the case of the High Court of Justice Arad-Pinkas)].
5. Another piece of legislation related to the surrogacy process, which is relevant to this process, is the Eggs Donation Law, Paid Work under the Authority of the Registrar – 2010 (hereinafter –  the Eggs Donation Law), which regulates the various aspects involved in egg retrieval and donation in Israel and the use of these eggs.  In addition, over the years, a number of IVF units in Israel have been given permission to use eggs donated and fertilized abroad and implant them in Israel in the bodies of donors or surrogates to the extent that there is a genetic connection to the intended father [see: High Court of Justice 781/15 of February 27, 2020, paragraph 9 of President Hayut's opinion (hereinafter – the judgment in the Arad-Pinkas High Court case)].
6. Copied in Section 1 of the Surrogacy Law, it was determined that "intended parents" according to the law are "a man and a woman who are spouses". In the case of the New Family High Court of Justice  , a petition to apply the provisions of the law to single women was rejected, while the court called on the legislature "to consider the plight of single women as petitioners; that he should seriously consider, one against the other, reasons that are binding and reasons that negate the application of the law to single women, and that he will decide the question on its merits in one way or another" [The New Family Case, paragraph 52 of the judgment of Justice (as he was then called) Cheshin].  Over the years, additional petitions were filed with the Supreme Court in which the petitioners petitioned to expand the circle of those entitled to enter into a surrogacy agreement under the law [High Court of Justice Moshe; High Court of Justice 1078/10 Arad-Pinkas v. Committee for the Approval of Embryo Carrying Agreements (June 28, 2010)].  In addition, a public committee headed by Prof. Shlomo Mor-Yosef was established on the subject of the legislative regulation of fertility and procreation.  Following the recommendations of the Mor-Yosef Committee, the government submitted a bill in 2014 that would allow access to a commercial surrogacy procedure for a single man or woman, but this did not mature into law.
7. In 2015, Arad-Pinkas' petition was filed [HCJ 781/15].  In the partial judgment in  the Arad-Pinkas High Court case  , the argument that even those who do not have a genetic connection to the newborn should be allowed to apply for approval of an agreement to carry embryos to the approval committee established by virtue of the Surrogacy Law.  The remainder of the petition, which relates to expanding the arrangement to apply to single women, single men or same-sex couples, remains pending due to another legislative process that took place in the Knesset at the same stage.
8. On July 18, 2018, about a year after the partial judgment in the Arad-Pinkas High Court case, the Surrogacy Law was amended, and according to the amendment, the circle of those entitled to a surrogacy arrangement according to the law was expanded, so that the definition of "intended parents" also included single women who, due to a medical problem, are unable to conceive and carry a pregnancy or whose health may be significantly endangered.  The definition of "intended parents" has not been expanded in a way that allows same-sex couples and single men to request to make use of the surrogacy procedure.  In light of the above, the Supreme Court was required to rule on the petition regarding the expansion of eligibility to single men and same-sex couples as well.
9. In the judgment in the Arad-Pinkas High Court case, which was handed down on February 27, 2020, it was ruled that the provisions of the legislation that allow surrogacy procedures and egg donation for women only violate the constitutional rights to parenthood and equality.  The Supreme Court further ruled (in a majority opinion) that in view of the complexity of the law, which requires a detailed, meticulous and holistic regulation that corresponds with all the laws dealing with reproduction and fertility, it is preferable that the legislature will make an amendment to the Surrogacy Law, and that if the provisions of the law are not amended within 12 months, a supplementary judgment will be issued with appropriate remedy.

After the Knesset refrained from amending the law, on July 11, 2021, a supplementary judgment was given in the case of the High Court of Justice Arad-Pinkas (hereinafter – the supplementary judgment in the case of the High Court of Justice Arad-Pinkas).  In the supplementary judgment, it was determined that the definitions that sweepingly exclude single men and same-sex couples from the surrogacy arrangement – i.e., the definition of "intended parents", "intended parents who are spouses" and "single intended mother" in section 1 of the Surrogacy Law, will be abolished, while avoiding further harm to the fabric of the legislation; After these definitions are abolished, the rest of the provisions of the Surrogacy Law and  the Egg Donation Law can be interpreted  in accordance with the criteria outlined in the judgment in the High Court of Justice case in Arad-Pinkas and the presumption that any piece of legislation seeks to promote human rights and not to infringe on them; The two main criteria by which the provisions of the surrogacy arrangement should be interpreted are: an interpretation that contradicts the right to equality and the right to parenthood should be avoided, which would block the access of single men and same-sex couples to the arrangement; The provisions of the arrangement should be applied, to the extent possible and with the necessary changes, in an equal manner.  The supplementary judgment also determined that a stay of six months would be granted before the relief came into effect, in order to allow for appropriate administrative organization.

10. On December 6, 2022, the Public Committee convened to expand the health services basket for 2023. In accordance with its recommendation, the health basket under  the National Health Insurance Law, 5754-1994 (hereinafter:  the Health Insurance Law), added the service of "financing IVF treatments for men (couples or individuals) for the purpose of having a child during the surrogacy process".
11. Thus, during the period in which the motion to certify a class action that is the subject of this proceeding was pending, there was a significant change in the legal situation, and according to the Supreme Court's ruling, the arrangements in the Surrogacy Law and the Egg Donation Law also apply to single men and same-sex couples, with the necessary changes, and in an equal manner.
12. To complete the picture, it should be noted that appellants 1 and 2 and 76 others filed a monetary claim with the Central District Court (33813-07-20), in which they claimed compensation for alleged damages due to the violation of their constitutional rights to equality and order in light of the provisions of the Surrogacy Law and the Eggs Donation Law prior to their amendment by the Supreme Court in the case of the Arad-Pinkas High Court. In a judgment dated May 16, 2023, their claim was dismissed.  In the hearing that took place in the appeal submitted to the Supreme Court (Civil Appeal 5791/23), the appellants announced – taking into account the court's comments and after consultation – that they would not stand by the appeal.