Second, each health plan designs its supplementary plan at its own discretion, and there are differences between the supplementary plans of the different health plans. The difference in the supplementary plans also creates competition between the health plans. The design of the supplementary plan by the health plan according to its considerations, including economic and marketing considerations, and the element of competition between the health plans in the supplementary plan, indicates that in this activity the health plan operates as a "dealer", and its activity within the framework of the supplementary plan has commercial characteristics. Indeed, in accordance with section 10 of the Health Insurance Law, the health plan's activity in Shaban is subject to various obligations and the supplementary plan is subject to the supervision of the Ministry of Health, but this does not negate the status of the health plan as a "dealer" in this activity. Thus, the activity of insurance companies in the health insurance industry is also subject to state regulation. Even the fact that the supplementary plan is managed as a closed financial economy ( Kfir Sapir, paragraph 77 of the judgment) does not negate the conclusion that in terms of the relationship between the health plan and the members of the health plan who joined the supplementary plan, the fund is a "dealer" and the health plan member is a "customer" of the fund.
Third, joining the Shaban program is voluntary, and is subject to the choice of a health plan member. The voluntary enrollment creates competition between the health plans and the insurance companies that market private medical insurance plans, and it also indicates that in its activity in the supplementary health plan, the health plan is a "dealer" (see in this regard the High Court of Justice Hayun, paragraph 41 of Justice Baron's opinion).
- As to the purpose of the law: The purposes of the Consumer Protection Law and the Class Actions Law also support the classification of the health plan as a "dealer" in its activity within the framework of the supplementary plan. This is because there are information gaps and built-in forces between the health plan and its members. Thus, and inter alia, the health plan has information about the costs of the various services included in the supplementary plan; The health plan has a built-in advantage in the ability to contract with the various service providers according to the supplementary plan, some of which are even provided by entities under its control. Therefore, a determination that the health plan is a "business" in providing services under the supplementary insurance plan is consistent with the purpose of the Consumer Protection Law. As for the purpose of the Class Actions Law, as stated in section 1 of the Law, its purpose is, inter alia, "to exercise the right of access to the court, including for segments of the population who find it difficult to approach the court as individuals", "to provide appropriate relief to victims of a violation of the law" and "efficient, fair and exhaustive management of claims". In this context, too, the power disparities between the health plan and the members of the health plan are significant, and it should also be taken into account that it is difficult for those coping with health problems to find financial and other resources to conduct litigation with the health plans.
- Indeed, as was ruled in the Sapir Kfir case, the supplementary plans have a significant public dimension, and this dimension exists with regard to the activity of the health plans in every field, in view of the significant public role assigned to them – the provision of health services to the residents of the state. We have also not lost sight of the fact that the activity of the health funds is based in large part on public funding. However, by analogy from the ruling in the case of the High Court of Vital Justice regarding the possibility of the health plans to file notices of cessation, these aspects will be considered in the hearing of the claim on its merits, when it will be possible to consider the application of the protections in section 8(b) of the Class Actions Law, or to take into account the damage that may be caused to the health funds and to the public at large, in accordance with section 20(d) of the Law (see in this regard the High Court of Justice Hayun, section 45 of the opinion of Justice Baron).
In this context, it should be noted that the Knesset is currently discussing a government bill to amend the Class Actions Law [Government Bills 1758 (July 22, 2024), p. 1272], in which it is proposed (section 9) to grant protections granted to the Authority under the Class Actions Law to the HMO as well, but this is within the framework of its activity according to the basket of services as defined in section 7 to the National Health Insurance Law. Beyond the fact that at this stage this is a bill that has not matured into legislation, in any event, the bill has no impact on this proceeding, in which we are dealing with a class action in connection with the activity of the health plans within the framework of the supplementary plans and not within the framework of the basic basket of services.
- With regard to the claim of the health plans that should be inferred for our matter from the judgment in the Shmul case, in this judgment it was determined following the ruling in the case of the High Court of Justice Hayoun that a health plan should not be classified as an authority in a sweeping manner, and the determination that a health plan is an "authority" was based on an analysis of the action that is the subject of the proceeding – conducting clinical trials, in the concrete circumstances discussed there, when it was not proven that the clinical trials had private characteristics. There is no similarity between the health plan's activity in the supplementary plan and its activity in conducting clinical trials in the concrete circumstances examined in the Shmul case, and therefore it should not be inferred that the health plan is an "authority" or is not a "practitioner" in the operation of the supplementary plan.
- In summary: On the basis of all of the above, we determine that the health plan's activity in the supplementary plan is a "dealer", and accordingly the appellants' claim is included at least in item 1 of the second addendum to the Class Actions Law. As explained in section 43 above, the existence of a single cause of action is sufficient for section 3 of the Class Actions Law to apply for the purpose of approving the motion for a class action. Later, when we examine whether the conditions set out in section 8 of the Class Actions Law are met, we will address all the grounds detailed in the motions to certify class actions.
- Once we have reached the conclusion that section 3 of the Class Actions Law applies , it is necessary to examine whether the conditions for filing a class action, which are listed in section 8 of the Law, have been met. The first question, which consists of two sub-questions, which we must examine, is whether "the claim raises substantive questions of fact or law that are common to all the members of the class" and whether "there is a reasonable possibility that these questions will be decided in favor of the class." We will first examine the causes of action and later the issue of the class.
Is there a reasonable possibility that the joint questions will be decided in favor of the group?
- The appellants argued that the policy of the HMOs – refusal to provide reimbursement for the financing of egg donation abroad to male policyholders, and in particular to men who are same-sex couples, while such a reimbursement is given to women in need of egg donation is tainted by improper discrimination; As ruled in the case of the Arad-Pinkas High Court of Justice, the fact that women need egg donation due to a medical disability while men need egg donation due to the lack of the ability to produce eggs is not a relevant difference that justifies a distinction between women and men with regard to the right to be assisted in the surrogacy and egg donation process in order to realize their right to genetic parenthood; In contrast to the Arad-Pinkas High Court of Justice, and earlier in the New Family High Court case, in which the court had to deal with the complexity involved in invalidating a provision of a law of the Knesset, and for a long period of time the Supreme Court exercised judicial restraint and called on the legislature to address the issue, in our case the conduct of the health plans is contrary to explicit provisions in primary legislation, which prohibit them from engaging in discriminatory policies, including in the supplementary plan; the legislation prohibiting discrimination was in effect throughout the period relevant to the request for approval, From 2010 until the Regional Court's ruling. In this context, they argued that the hearing should not be limited to the legal situation that preceded 2017, the date of filing the motion for approval, and that at least since 2020 (the date of the judgment in the Arad-Pinkas High Court case), the class members have a cause of action; Therefore, even if the argument is accepted that by 2020 the funds are available to the defense funds (and this argument should not be accepted), this does not lead to the rejection of the application; At most, to the extent that the appellants or any of them do not have a personal cause of action, it is possible to order the replacement or addition of a class plaintiff.
With regard to the HMOs' claim that the Supplementary Insurance Regulations were adapted to the arrangements in the legislation and only expanded the entitlement to fund an egg donation in Israel to finance an egg donation abroad, the appellants argued that even during the period when single women did not have access to a surrogacy procedure in Israel and could only perform a surrogacy procedure abroad, they received a refund for egg donation; Both according to the Supplementary Insurance Regulations and in practice, the reimbursement was not contingent on eligibility to fund the treatment according to the provisions of the Health Insurance Law or on the fact that the surrogacy process was carried out in Israel. In this context, the appellants emphasized that the surrogacy procedures they carried out were in accordance with the law both in the country in which they were carried out and in Israel, and that the State recognized the appellants' parenting of children born in the surrogacy process abroad. With regard to Clalit and Meuhedet's argument that the funding for egg donation abroad is given only in a case where the egg is returned to the uterus of the donated woman, the appellants argued that prior to submitting the application for approval of the reimbursement, it was given without the HMOs checking whether the donated egg was returned to the uterus of the donated woman, and in any event, this is a condition that is not relevant to the matter and therefore also falls within the scope of improper discrimination.
- The health plans argued that the entitlement in the supplementary insurance regulations is granted on the basis of the existence of a medical problem for women that requires egg donation (similar to the provision of other services in situations unique to women, such as pregnancy) and not on the basis of sex or sexual orientation; in view of the fact that the difference in eligibility under the supplementary plan lies in the physiological difference between women and men, and in the different medical needs, this is not unacceptable discrimination; it should not be determined that this is unacceptable discrimination on the basis of consequence; the role of the health plans is to provide health services for medical problems, and not providing a solution for other needs, such as the desire to be a parent; Section 4 of the Patient's Rights Law does not apply in our case because the appellants are not considered a "patient" who seeks "medical treatment"; the judgment in the case of the Arad-Pinkas High Court of Justice ruled only on the issue of the right of access to a surrogacy procedure in Israel, and did not discuss or decide the question of funding IVF treatments for men. These are two different questions, which may be decided differently; There is nothing wrong with basing the entitlement in the Supplementary Regulations on the entitlement that exists in the Health Insurance Law. Even if there is discrimination in the Supplementary Regulations originating from primary legislation and not from the Supplementary Regulations, and accepting the request means granting permission to attack the provisions of the Health Insurance Law that were in force during the relevant period; The health plans should not be obligated retroactively to fund a service that did not reach the appellants under the Health Insurance Law, when the health plan operated according to the accepted perception at the time, which the Supreme Court did not even find to intervene in, and on the basis of the state's approval of the supplementary plan; In this regard, we should draw an inference from the judgment of the Central District Court, which rejected the appellants' claim for compensation Arad and Pinkas, and whose ruling created a defensive estoppel; Changing the bylaws does not require expanding the existing eligibility for men, and there is no place for the court to place its discretion in place of the health plan's, and determine the bylaws of the supplementary plan, and even more retroactively.
- The state argued that in the judgment in the Arad-Pinkas High Court case, the relief of nullifying sections of the Surrogacy Law and the Eggs Donation Law was granted. As a rule, the accepted perception is that the granting of an exceptional constitutional remedy of annulment of legislation does not automatically lead to the annulment of decisions and actions taken by virtue of the arrangement that was in force prior to its repeal. In our case, the Supreme Court even made use of the mechanism of suspension of nullity, and this emphasizes that this is a forward-looking step. In view of the aforesaid, there is substance in the conclusion of the Regional Court that the class plaintiffs and others like them have no personal cause of action, taking into account the fact that their claim deals with decisions that were made on the date when the previous legal arrangement was in effect. From the applicability of this arrangement it can be concluded that the choice of the HMOs at the time to give reimbursement for egg donation abroad only to women was not prohibited discrimination under the law that applied at the relevant time. In addition, the reliance of the HMOs on the surrogacy arrangement in Israel during the relevant period raises a difficulty in approving the claim as a class action.
- In response to the arguments of the state and the health plans, the appellants argued that there is no basis for the thesis of the health plans that the right to equal access to a medical procedure is different from the right to equal insurance coverage of the same medical procedure; in the judgment in the case of the Arad-Pinkas High Court of Justice, it was explicitly determined that full equality should be applied between a woman suffering from a medical problem and a man, and that the provisions of the law should be interpreted in accordance with this criterion; indeed, By virtue of the right to parenthood, the right to insurance coverage did not arise, but where there is insurance coverage for the procedure of egg donation from abroad, the coverage must be equal; The medical need of a woman who cannot carry a pregnancy is identical to that of men, since in both cases the medical procedure does not correct the inability to carry a pregnancy but rather allows the realization of the aspiration of parenthood, and in this aspiration there is no relevant difference between women and men; The question of when the provisions of the Surrogacy Law and the Eggs Donation Law will come into force is relevant where relief is sought by virtue of those laws, such as compensation for a constitutional wrong. In our case, relief is not sought by virtue of the Surrogacy Law, but by virtue of the principle of equality enshrined in the Health Insurance Law and the Patient's Rights Law, which applied on the dates relevant to the claim.
- As stated, in accordance with the case law, at this stage of the proceeding, the court must examine the fulfillment of the conditions set out in the law "to the extent of proper reasonableness" and "prima facie only". It is not required that the claim be proven, but it is sufficient for the court to be convinced that there is a reasonable possibility that the questions in dispute will be decided in favor of the class members. We believe that this condition is met, and we will detail the reasoning for this below.
- The right to parenthood and the right to a family have long been recognized in case law as a constitutional right. Justice Cheshin noted this, referring to the state's argument that an individual woman has no right to surrogacy, saying: "The right to parenthood is at the foundation of all the foundations, in the foundation of all infrastructures, it is the existence of the human race, it is the aspiration of man – certainly the aspiration of a woman, and this right is so powerful that it will not have difficulty overcoming a claim as claimed by the state" [High Court of Justice New Family, paragraph 32 of the judgment]. Justice Cheshin further ruled that "the surrogacy process – unlike adoption – is very close to natural parenting, and it is directly descended from natural parenthood, which expresses the autonomy of the individual. For our purposes, we will suffice to say that a woman can conceive and give birth only of her own will and without a partner – thus, for example, in vitro fertilization – and we will know the difference between adoption and surrogacy" (ibid., paragraph 33 of the judgment).
- In the partial judgment in the case of the High Court of Justice Arad Pinkas, it was held that:
"The scope of the right to become a parent extends to all the various medical techniques that assist childbirth; At the same time, this right also includes the possibility of becoming a parent by way of surrogacy. This position arises both from the rulings of this Court... They are from the comparative sentence ... both from academic research on the subject; ... and the approach of public committees that examined the issues of medical techniques for childbirth."