Second, the health plans pointed to possible scenarios, such as an attempt to receive double funding when both spouses are not members of the same health plan, or the inability to receive the information necessary to examine eligibility. These difficulties, which may arise only in some cases, which are unclear from the total number of cases in which men will request the return of an egg donation, do not negate the fact that the class action is an effective and fair way to resolve the dispute. These difficulties can also be clarified as part of the main procedure, and the ways to deal with them can be determined. [Compare: High Court of Justice 5148/18 Or Shaham v. National Labor Court (July 11, 2022)].
- In summary: In view of the above, we determine that the condition that the class action is the efficient and fair way to resolve the dispute is met.
Is there a reasonable basis to assume that the matter of all the members of the class will be represented and managed in an appropriate manner and in good faith?
- We will preface by saying that the HMOs did not raise any argument in this matter, except for Maccabi, which claimed that the appellants Arad-Pinkas are not suitable to be class plaintiffs because they are not members of Maccabi. With regard to this argument, we determine that subject to the following with regard to the possibility of replacing a class plaintiff against Maccabi, this claim will be clarified by the Regional Court. It should be noted that appellants 1 and 2 conducted many legal proceedings regarding the rights of same-sex couples, including the Arad-Pinkas High Court of Justice, in which at the end of the day the petition was accepted and the discriminatory provisions in the Surrogacy Law and the Eggs Donation Law were canceled. Counsel for the appellants in this proceeding represented the petitioners in the case of the Arad-Pinkas High Court of Justice, and he also has extensive experience in managing class actions, including claims concerning the rights of members of the LGBT community. In these circumstances, with the exception of the issue of whether the class plaintiffs against Maccabi should be non-Maccabi members, as aforesaid, to be decided by the Regional Court, there is a reasonable basis to assume that the matter of all the members of the class will be managed in an appropriate manner and in good faith.
Do the appellants have a personal cause of action:
- The appellants claimed that they suffered pecuniary damage equal to the amount of reimbursement for egg donation paid to women, and that they also suffered non-pecuniary damage due to their exposure to improper discrimination; The claim that the appellants should have applied to the health plans in advance as a condition for receiving entitlement is contrary to the law, since according to the law, if an insured violates a stipulation set out in an insurance policy, at least he is entitled to reduced insurance benefits; in a case where the health plans pre-establish a policy of sweeping refusal, There is no relevance to the question of whether or not they were approached in advance; To the extent that the appellants or any of them do not have a personal cause of action, the class plaintiff may be replaced or a class plaintiff may be added.
- Maccabi argued that the appellants' claim of non-pecuniary damage due to exposure to discrimination is a change of front; the personal cause of action against it has become obsolete, since the egg donation was made more than seven years before the class action was filed; the appellants Arad-Pinkas have no personal cause of action even after 2020, since the reimbursement for egg donation abroad was given for two children, and for a couple of three children; there is no reason to order the replacement of a representative plaintiff in circumstances in which it was clear from the outset that the appellants had no personal cause of action.
- In view of the rejection of the motion to certify the class action, the Regional Court did not hear these arguments, and therefore the case of the appellants Arad-Pinkas should be returned to the Regional Court in order for it to hear and rule on the claim of limitation of the claim against Maccabi. With regard to the right to reimbursement of an egg donation abroad for a third child, we believe that this matter should be clarified in the framework of the main proceeding, in which the question of whether the entitlement to reimbursement of egg donation financing abroad is examined on a personal basis or on the basis of a family unit will be discussed. The question of what are the consequences of not applying for preliminary approval must also be clarified in the main proceeding. Therefore, subject to the aforesaid below regarding the possibility of replacing a class plaintiff, with respect to the motion to certify a class action against Maccabi, the proceeding will be returned to the Regional Court in order to examine the suitability of the appellants Arad Pinkas to be class plaintiffs against Maccabi and the existence of a personal cause of action in accordance with the tests and burdens on this issue as detailed in the case law. The supplementary decision will be made on the basis of the existing evidence and the arguments heard before it, unless the Regional Court decides, at its discretion, to allow the completion of arguments or the completion of evidence. If the Regional Court decides that Arad-Pinkas are not suitable class plaintiffs or that they lack personal causes, it will allow their replacement in accordance with Section 8(c)(1) of the Law. In this context, we will add that counsel for the appellants argued in the hearing before the panel that there is no difficulty in finding an alternative representative plaintiff. We do not believe that there are circumstances in the present case in which it is not possible to replace the class plaintiff. Therefore, we order that if the Regional Court is requested, within 60 days from the date of our judgment, to approve the replacement of the appellants or any of them with a suitable representative plaintiff with a personal cause, the Regional Court will allow the replacement in lieu of a hearing on the suiting of the appellants to Arad-Pinkas and the existence of a personal cause of action in the claim against Maccabi.
- Clalit argued that Itai Arad Pinkas, who is the appellant who is a member of Clalit, has no personal cause of action, since the coverage is given for the first two children, and the claim is for the refund of an egg donation for the third child; at the time an egg donation was made, the qualification period had not yet ended; Itai applied retroactively and not in advance; there is no entitlement under the supplementary insurance plan, according to which the egg is returned to the body of the donor. And women are also not paid reimbursement for egg donation in the surrogacy process.
- The argument that there is no entitlement due to the failure to return the egg to the body of the recipient was rejected by us as explained above. The question of the consequences of not applying early, as well as the question of whether eligibility is determined on a personal basis or on the basis of the family unit, should be clarified in the main proceeding. Therefore, the argument that remains to be examined is whether Itay Arad Pinkas completed the qualification period. In this regard, Itay claimed that since he was insured at the highest level of the Maccabi Supplementary Insurance Program, he transferred to the Supplementary Insurance Program at Clalit with a continuum of rights. Clalit did not respond to this argument. Insofar as Clalit insists on its claim regarding the qualification period, this matter will be clarified by the regional court. The supplementary decision will be made on the basis of the existing evidence and the arguments heard before it, unless the Regional Court decides, at its discretion, to allow the completion of arguments or the completion of evidence. If the Regional Court decides that Itai is not a suitable class plaintiff or that he lacks personal causes, the Regional Court will allow his replacement in accordance with Section 8(c)(1) of the Law.
- Meuhedet argued that a certain person has no personal cause of action against her, because he is not entitled to treatment according to the supplementary insurance plan, according to which the egg must be returned to the body of the donated woman; a certain person did not ask for prior approval to perform the operation, but applied two years after his children were born; a certain person asked for indemnification for a proceeding that does not meet the basic requirements of the supplementary insurance regulations, since the recipient is not his spouse. She is not a resident of Israel and is not insured by Meuhedet.
We believe that Meuhedet's arguments should be rejected. As stated, the question of the consequences of not applying for preliminary approval will be clarified in the framework of the main proceeding. Meuhedet's other claims were rejected in the discussion we held above regarding the class members' cause of action. Therefore, we determine that a certain person has a personal cause of action against Meuhedet.
- Conclusion: On the basis of all of the above, we determine that the appeal is accepted and the motion to approve the action filed by the appellants as a class action should be granted, subject to the aforesaid regarding the suitability examination and the need to replace the class plaintiffs against Maccabi and Clalit. The definition of the group is as stated in section 89 above. The Regional Court shall carry out all necessary for the purpose of implementing this judgment and beginning the investigation of the class action in accordance with the Class Actions Law and the regulations thereunder.
Each fund will pay the appellant whose claim is relevant in the sum of ILS30,000.