"Limiting the right of access in Israel to the surrogacy arrangement in a manner that excludes it for women who have a medical problem of conceiving or carrying a pregnancy, while excluding an entire population of men who are able to maintain a genetic connection to the newborn – violates the right of these men to equality in the realization of their right to parenthood. In this context, increased harm is caused to the group of gay men, for whom surrogacy is in many ways the only way to realize genetic parenthood."
It was further ruled that:
"The sweeping exclusion of a group of gay men from the application of the surrogacy arrangement is seen as 'suspected discrimination,' which attributes an inferior status to this group, and thus entails an additional, severe and humiliating violation of human dignity on the basis of gender or sexual orientation..."
In light of the above, the conclusion is that "the provisions of the Agreements Law and the provisions of the Eggs Donation Law as far as it relates to the surrogacy arrangement violate the constitutional rights to parenthood and equality."
See: paragraphs 17-20 of Justice Hayut's opinion.
The determination that the arrangements in the Surrogacy Law and the Eggs Donation Law violate the constitutional rights to parenthood and equality, and that they entail an infringement of human dignity, was agreed upon by all the judges.
Subsequently, the Supreme Court examined whether the infringement of rights met the conditions of the limitation clause in section 8 of the Basic Law: Human Dignity and Liberty, and ruled that the infringement inherent in the Surrogacy Law did not meet the conditions of the limitation clause and was therefore unconstitutional. As for the remedy, as detailed above, it was ruled in a majority opinion (against the dissenting opinion of Justice Fogelman) 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 given with an appropriate remedy (and such relief is indeed granted as detailed above). in the framework of the supplementary judgment).
- The question to be decided in this proceeding is whether the provision of the Supplementary Insurance Plan, which stipulates that only women are entitled to reimbursement for egg donation abroad, is tainted by improper discrimination. We are of the opinion that this question should be examined with regard to the totality of case law regarding the constitutional status of the right to parenthood, the right to equality and the right not to be discriminated against on the basis of sexual orientation, as well as the case law and the arrangements regarding the recognition of a same-sex family unit as a family unit with equal rights to a heterosexual family unit.
- We accept the appellants' argument that the provision of the supplemental plan that is the subject of this proceeding is tainted by improper discrimination, both against single men and against men who are same-sex couples. The HMOs' argument that this is a permissible distinction in view of the physiological difference between women and men, so that women's need for egg donation stems from a medical problem, while men's need for egg donation stems from the fact that their bodies do not produce eggs just as it cannot carry a pregnancy was rejected, as stated in the judgment in the Arad-Pinkas High Court of Justice case. Therefore, it is puzzling that the health funds continue to adhere to this claim even after the explicit and unequivocal ruling in the case of the High Court of Justice in Arad-Pinkas. The perplexity intensifies in light of the fact that the Ministry of Health's Director General's Circular dated February 1, 2023 regarding the expansion of the health services basket for 2023 explicitly states that the entitlement in the health basket to funding IVF treatments given for the purpose of giving birth to a first and second child has been expanded for men who are spouses without children, as well as for a man without children who are interested in establishing a single-parent family (attached to the appellants' notice of April 16, 2024). In light of the ruling and the provisions of the Director-General's Circular, there is also a difficulty in the HMOs' claim of reliance on the position of the Ministry of Health, at least in relation to the period after 2020 in which the judgment was rendered in the case of the Arad Pinkas High Court of Justice, or in relation to the period from January 1, 2022, the date on which the provisions of the Surrogacy Law and the Eggs Donation Law came into effect, or at the latest for the period from January 1, 2023, from which, according to the Ministry of Health's Director General's Circular, the entitlement to the health basket for financing IVF treatments for men was expanded.
- We are of the opinion, contrary to the position of the HMOs and the state, that taking into account the constitutional status of the right to parenthood, which, as stated, extends to all medical technologies for childbirth, as well as the right to equality and the prohibition of discrimination on the basis of sexual orientation and the recognition of an individual family unit and a same-sex family unit, and the fact that they are entitled to the same rights as a heterosexual family unit, the supplementary program has been tainted by unacceptable discrimination in the past as well. In the period prior to the ruling in the Arad-Pinkas High Court case. Both the rulings in the case of the New Family High Court of Justice and the rulings in the case of the Arad-Pinkas High Court of Justice indicate that the arrangements set forth in the Surrogacy Law and the Eggs Donation Law were arrangements tainted by improper discrimination from the date of their enactment. Indeed, in view of the complexity of the court's intervention in legislation, the Supreme Court refrained for a long period of time from annulling the provisions of the law tainted by improper discrimination, preferring to turn to the legislature in order to consider amending the legislation, especially in light of the fact that there were legislative proceedings and that a public committee (the Mor Yosef Committee) was appointed to discuss the matter. This was until the Supreme Court reached the conclusion that there was no need to wait any further and that the discriminatory provisions of the law should be rescinded. However, the fact that for a long period of time the petitioners were not granted relief due to the aforementioned complexity and due to policy considerations of restraining the court's intervention in legislation, does not negate the existence of discrimination in the past. The fact that the arrangement in the Shaban program was the "customary arrangement" in the legislation at the time does not legitimize it and does not negate the discrimination that was embodied in it. The Supreme Court noted this in the case of the High Court of Justice for New Family, saying:
"When I am myself, I will find it difficult to accept that a 'socially accepted concept' – whatever it may be – has the power to uphold a claim of equality or to overcome a claim of discrimination. The concept of equality and its likeness, the prohibition of discrimination, are concepts drawn from the realm of values: good and bad, worthy and unworthy, just and unjust, fair and unfair. This is not a "socially accepted concept," which is essentially a description of an existing reality without expressing an opinion on that perception from a moral point of view. The placement of a 'socially accepted concept' alongside the values of equality and the prohibition of discrimination, such as what is always and unreservedly discussed – in terms that have a common denominator, in my opinion, constitutes a mixing of sex and non-sex."
- We would like to clarify that the determination that even in the past, prior to the ruling in the Arad-Pinkas High Court case, the supplementary plan was tainted by improper discrimination does not mean that the court is prevented from considering in the framework of the hearing in the main proceeding whether there is room to distinguish between different periods, including not to grant relief for the past period, or part of it, or to grant different remedies in relation to different periods. However, this should be discussed in the framework of the hearing in the main proceeding and not at the stage of accepting the motion to certify the claim as a class action, in which the question of whether there is a reasonable possibility that the questions in dispute will be decided in favor of the class is examined.
- We are unable to accept the HMOs' argument that in light of the fact that the judgment in the Arad-Pinkas High Court case referred only to the right of access to the surrogacy and egg donation process and did not determine that there is a right to funding for these proceedings for single men and same-sex couples, it does not imply that the provision of the supplemental plan is tainted by improper discrimination. Indeed, the judgment in the Arad-Pinkas High Court case did not relate to the financing of surrogacy procedures and egg donation. The judgment is also not the source of entitlement to funding these proceedings, since the entitlement to health services in the basic basket is anchored in the Health Insurance Law, and entitlement to additional health services is anchored in the supplementary insurance plans. However, in the provision of health services, whether they are included in the basic basket by virtue of the law or are included in the supplementary plans, the health plans must act equally and avoid discrimination on the grounds of impropriety, including sex and sexual orientation. This obligation is imposed on the health plans both by virtue of explicit legal provisions (section 4 of the Patient's Rights Law, sections 10 and 21 of the National Health Insurance Law, sections 3A and 3B of the Health Plan Law (Prohibitions of Restriction and Discrimination), 5753-1993) and by virtue of the administrative obligations imposed on them as a dual entity. Therefore, when it comes to a service or a right that is included in the basic basket of services under the National Health Insurance Law or the Shaban plan, such as the right to reimbursement for egg donation abroad, the HMOs are obligated to provide them while maintaining the principle of equality, and they are prohibited from discriminating between policyholders for irrelevant considerations, including sex and sexual orientation. As a result, in light of the ruling in the Arad-Pinkas High Court case that the biological difference between men and women does not constitute a relevant difference in all matters related to surrogacy and egg donation procedures, and does not justify the application of different arrangements to them, the health plan must provide all the services and rights related to these procedures to both women and men equally.
- The HMOs' argument that they are not obligated to pay for the reimbursement of an egg donation to men because their role is to provide health services for medical problems and not to provide a solution to other needs, such as the desire to be a parent, and that section 4 of the Patient's Rights Law does not apply in our case because the appellants are not a "patient" who seeks "medical treatment". First, this argument contradicts the Ministry of Health's circular regarding the expansion of eligibility for IVF treatments to men as well; Second, as stated, in the case of the Arad-Pinkas High Court of Justice, it was ruled that the difference in origin for the need for surrogacy and egg donation procedures is irrelevant, and in the words of Justice (as he was then called) Fogelman, "the relevant equality group is anyone who suffers from a fertility limitation which, according to its type and nature, can only be solved by resorting to a surrogacy process and not in any other way. In this aspect, in my opinion, there is complete equality between a woman who suffers from a medical problem due to which she cannot conceive and carry her child in her womb, and a man. Both are in a situation where they cannot conceive and carry a pregnancy on their own, and they need the assistance of a surrogate mother. In order to have a child who has a genetic connection to them (directly or by virtue of a connection to the spouse) (emphasis in the addition line – L.G.)." These words of Justice (as he was then called) Fogelman were adopted in the supplementary judgment in the case of the High Court of Justice Arad-Pinkas. The very recognition of full equality between men and women in this matter implies that even in relation to men, the medical procedures required to carry out the surrogacy process, including egg donation, are considered "medical treatment" for a man's fertility limitation, even if they are not performed on his body. It should also be noted in the context of egg donation that even in the case of women, it is not a matter of providing medical treatment in the sense of curing the medical problem, since even after the egg donation procedure, the medical problem remains intact. Third, the ruling that the scope of the right to parenthood "extends to all the various medical techniques that assist in childbirth" and the recognition of the rights of a family unit of same-sex couples require that in the context of surrogacy and egg donation procedures, "medical treatment" should be defined not in its literal sense, treatment of a medical problem in the man's body, but more broadly, so that it includes "various medical techniques that assist in childbirth", Even if they are not performed on the man's body. In this regard, we can draw an inference from the Reuveni case, in which it was ruled that an insured man who brought a child into the world in a surrogacy process abroad is entitled to a hospitalization grant, in view of its essence as participation in the expenses of the family unit in connection with the birth, and not necessarily for the woman giving birth. In our case, we are dealing with medical treatment given to the man or to the man's family unit so that they can exercise their constitutional right to parenthood. As a result, all legislative provisions that apply to the provision of medical treatment apply, including sections 4 of the Patient's Rights Law, which prohibits discrimination in the provision of medical treatment, and section 28A of the Patient's Rights Law, which states that a violation of section 4 of the Patient's Rights Law will be considered a tort under the Prohibition of Discrimination Law.
- Finally, we are unable to accept Clalit and Meuhedet's argument that in view of the fact that entitlement to reimbursement of an egg donation abroad is contingent on the egg being returned to the uterus of the donated woman, men are not entitled to reimbursement. We believe that the obligation to act with equality and avoid discrimination also derives the obligation to make the necessary changes and adjustments required for the realization of the right in the supplementary insurance program for men. Accepting the claim of the HMOs in fact empties their obligation to act with equality, since it is clear that the procedure of donating an egg to a man can only be carried out by transplanting the donated egg into the surrogate's body. Accepting this claim means in fact accepting "through the back door" the claim that the biological difference between women and men constitutes a relevant variation in everything related to surrogacy procedures and egg donation. In view of the conclusion we have reached, we are not required to refer to the appellants' factual claim that prior to the submission of the application for approval of the HMOs, they did not check and did not ensure that the egg donation would be returned to the uterus of the donated woman, and to the appellants' legal argument that this is a condition that is not relevant and is tainted by improper discrimination against both men and women who cannot carry a pregnancy.
- In summary: On the basis of all of the above, with respect to the members of the health plans who were defined in the motion to certify a class action as 'Group A', we determine that the condition in section 8(a)(1) of the Class Actions Law has been met, i.e., there is a reasonable possibility that the question is whether single men and same-sex couples who entered into an agreement to carry embryos outside of Israel or single men or same-sex couples who wish to enter into an agreement to carry embryos outside of Israel are entitled to reimbursement for egg donation abroad by virtue of the Return Plan." will be decided in favor of the group members.
- With regard to the members of the health plans who were defined in the motions for approval of a class action as "Group B", i.e., "all those insured in the supplementary plans who are homosexual or bisexual" (Group B in the application against Maccabi and Clalit) or "all those insured in supplementary plans operated by Meuhedet who are same-sex couples and single men" (Group B in the application against Meuhedet), it was argued in the motion to certify the class action that the discriminatory policy of the health plans also harmed LGBT policyholders or others who are unable to perform a surrogacy procedure in Israel and who have refrained from performing a surrogacy procedure The procedure is abroad due to the lack of insurance coverage. It was also claimed that this is 5% of the health plan's policyholders, and that the violation is a violation of their autonomy, since their ability to exercise their rights by virtue of their insurance policy has been violated. It was further argued that where damage of the type of infringement of autonomy was caused, the injured party was not required to prove a causal connection and damage, and it is the very denial of free will that establishes the damage and the causal connection. In the appeal, it was also claimed in relation to this group that damage by virtue of exposure to discriminatory policies, even if the members of the class were not directly discriminated against. In our opinion, there is no reasonable possibility that the question in dispute with respect to this group will be decided in favor of the class members, since the starting point for the claim is that the members of this group refrained from performing a surrogacy procedure abroad due to the lack of insurance coverage. We are of the opinion that this point of departure cannot be adopted, since, as argued by the appellants themselves, only a small proportion of single men and same-sex couples wish to carry out a surrogacy procedure abroad. Therefore, in our opinion, there is no reasonable possibility that the question in dispute will be decided in favor of the class members in relation to the members of 'Group B' in motions to certify a class action.
Does the action raise substantive questions of fact or law that are common to all the members of the class?
- As stated in paragraphs 17 and 20 above, the group's definition of a motion to certify a class action against Meuhedet is slightly different from the group's definition of a motion to certify a class action against Maccabi and Clalit. In addition, although some of the clauses in the definition of the class are ambiguous in the wording and can be interpreted in such a way that the group includes both women and men, and in the summaries of the arguments in the Regional Court there was reference to women as well, the arguments of the parties at the appeal stage referred to men – men who are single fathers (or wish to be fathers), or men who are same-sex couples, and the main argument is their discrimination in relation to women. Therefore, and in light of our decision regarding the causes of action as detailed above, we determine that a group whose members are men, and includes sub-groups as detailed, should be treated as follows:
- Men who are insured in the supplementary insurance plans operated by the health plans who are single fathers who have entered into agreements to carry embryos outside of Israel, or men who wish to be single fathers by way of entering into agreements to carry embryos outside of Israel.
- Men insured in the supplementary insurance plans who are same-sex couples who have entered into agreements to carry embryos outside of Israel or who wish to enter into agreements for carrying embryos outside of Israel in the future.
In our opinion, in any case, as far as women are concerned (between women who are mothers or wish to be single mothers, women in heterosexual relationships, or women in a relationship with a woman in need of egg donation abroad), the factual and legal questions in their case are different from the factual and legal questions in the case of single men or men who are same-sex couples, and therefore they do not belong to the groups detailed above.
- With regard to the members of the class as defined in section 89 above, the claim raises substantive questions of fact or law that are common to all the members of the class, both in terms of the need for egg donation abroad and in terms of the entitlement to egg donation abroad.
Is a class action the most effective and fair way to resolve a dispute?
- The appellants argued that the approach of the Regional Court, according to which a class action proceeding should not be conducted against the health plans due to the fact that they are not for-profit entities, is contrary to the law and case law; the class action is the fair and efficient way to resolve the dispute, especially in view of the fact that in the field of prohibition of discrimination there is extreme under-enforcement; there is no reason to determine that a class action proceeding should not be conducted due to the health plans' reliance on the existing legal situation or the approval of the Ministry of Health for the Shaban plan. The health plans did not prove the alleged reliance, nor did the Ministry of Health's position be proven; In addition, reliance on the position of the Ministry of Health does not justify a policy tainted by improper discrimination; In any event, as part of the main proceeding, the court has better and more accurate tools to ensure the public interest, including the provision of forward-looking remedies or a reduction in compensation.
- The HMOs argued that the class action is not the most effective and fair way to resolve the dispute for the following reasons: Expanding the eligibility in the supplementary plan for egg donation abroad to male spouses may create many difficulties, including since same-sex couples pay membership fees twice for the supplementary program, they will receive dual entitlement (funding for four children) to participate in egg donation, while heterosexual couples will pay membership fees twice and receive one entitlement (funding for two children); There are also additional risks, such as a claim for double reimbursement for the same receipt from two health plans insofar as the couple is not a member of the same health plan; Since the state is unwilling to assist in resolving these and other problems that arise in expanding the entitlement to men, this has implications for the question of whether the class action is the most efficient and fair way to resolve the dispute; Acceptance of the claim may cause a deficit in the Supplementary Plan Fund, which will require a reduction in the services provided to other members of the Supplementary Plan, or the cancellation of the funding of egg donation for women in need, or an increase in the membership dues, thus causing harm to the women and other Supplemental Insurance Fellows.
- In response to the HMOs' arguments, the appellants argued that the argument that the expansion of eligibility would harm the members of the Shaban program or women should be rejected. The meaning of equality is that each and every person will receive the same coverage in accordance with the same need for the medical procedure, and the expansion of the entitlement to a particular group should not be ruled out on the grounds that it would harm another group that enjoys the same entitlement; In any case, the consequences claimed by the HMOs are exaggerated and unrealistic, in view of the limited number of surrogacy procedures performed by single men and same-sex couples in practice; As for the argument that the appellants are claiming double entitlement, the financing of egg donation for four children, while the women are given funding for two children, in view of the fact that each of the spouses pays membership fees for the supplementary program, each of them is entitled to rights by virtue of the supplementary bylaws, and each of them is entitled to be the biological father of two children. Just as every woman, including women in a family unit with a woman, is entitled to two children, so too each of the two men who are a same-sex couple is entitled to funding for two children. In any event, this is a question that must be decided in the framework of the main proceeding, including determining whether the entitlement is personal to a member of the supplementary plan or to the family unit; Even if there is a complexity in the application of the principle of equality, it must be dealt with, and this is not a reason for rejecting the application for approval, as was ruled in the Hendel case.
- We are unable to accept the claims of the health funds, for reasons that will be detailed below.
- The main purpose of a class action is to enforce rights, and in our case, the right of equality of single men and men living in a family unit of same-sex couples. In our case, the application also looks to the future and not only to the past, since as of the date of the ruling, the health plans have announced that they do not intend, according to them, due to lack of capacity, to amend the supplementary insurance plans so that even single men and men who are same-sex couples will receive reimbursement for egg donation abroad. In these circumstances, we are of the opinion that the class action is an efficient and fair proceeding that can bring about the correction of the discrimination.
- As for the claim of harm to women or other members of the Supplemental Plan, to the extent that the class members were discriminated against, and as a result of the funds saved by not paying reimbursement to the group members, the other members of the Supplemental Plan enjoyed additional rights, and it will be necessary to rebalance the set of rights of the members in the Supplemental Plan, this does not justify the continuation of the discrimination. The resources of the Shaban program should be distributed equally among all the members of the program. At this stage of the proceeding, the broad implications of the expansion of eligibility have also not been proven, and it is not clear what their scope will be and whether they will indeed lead to the deprivation of rights from the other Shaban fellows. If it becomes clear after an examination that the expansion of eligibility to men also creates a change in circumstances that justifies changing and adjusting the supplementary plan, the health plans will be entitled to change the provisions of the supplementary plan in accordance with the provisions of the law, including obtaining approval from the Ministry of Health.
- As for the health plans' claims of reliance on the approval of the Ministry of Health and the damage that may be caused to them or to colleagues in the supplementary plans, these claims must be clarified in the framework of the main proceeding, and it is possible that they will affect the relief that will be provided in the framework of the class action. In this context, it should be noted, as ruled in the High Court of Justice Hayoun case, that according to the Class Actions Law, these considerations can be taken into account, in accordance with sections 8(b) and 20(d) of the Class Actions Law (section 45 of Justice Baron's opinion).
- As for the HMOs' claims regarding the difficulties that may arise due to the expansion of eligibility for men:
First, with regard to the question of whether the entitlement will arise on an individual basis, so that each spouse will be entitled to funding for up to two children, or on the basis of the family unit, so that funding will be provided for two children for the family unit, this question can and should be clarified in the framework of the main proceeding. However, the need to decide this question does not negate the fact that the class action is an efficient and fair way to resolve the dispute.