Alternatively, all those insured in the supplementary programs operated by Maccabi and Clalit who have undergone the process of entering into an agreement to carry embryos outside of Israel in the past seven years who are same-sex couples;
Group B - All those insured in the Shaban programs operated by Maccabi and Clalit who are gay or bisexual.
- To determine in accordance with Section 3 of the Class Actions Law that the class action is based on Item 9(1) of the Second Addendum to the Law - "Claim on Ground under Chapters D, E or E1 of the Equal Rights for Persons with Disabilities Law" and/or Item 7 of the Second Addendum to the Law - "Claim on Ground under the Prohibition of Discrimination in Products, Services and Entry to Places of Entertainment and Public Places, 5761 - 2000" and/or Item 1 of the Second Addendum to the Law - "A lawsuit against a dealer, as defined in the Consumer Protection Law, in connection with a matter between him and a customer, whether or not they entered into a transaction." and at the very least, to determine that the class action is based on item 11 of the second addendum to the law.
- To order in accordance with Section 14(a)(4) of the Class Actions Law:
- that Maccabi and Clalit are obligated to informate policyholders who enter into an agreement to carry both heterosexual and homosexual embryos abroad, and for this purpose require an egg donation for the payment they paid for the egg donation;
- to compensate each of the members of Group A for the real damage caused to them, which is estimated at the maximum amount of coverage according to the policy in the Shaban plan;
- To compensate each member of Group A for discrimination on the grounds of disability in the amount of ILS50,000 without proof of damage, and at least to compensate each member of the group in the amount of ILS20,000 for non-pecuniary damage on the grounds of discrimination on the basis of disability and/or discrimination on the basis of sexual orientation and personal status;
- To compensate each member of Group B in the amount of ILS100 for infringement of autonomy.
- In the framework of the legal argument, the appellants argued the following causes of action: the first – discrimination on the grounds of disability; The second is discrimination on the basis of sexual orientation; The third is a breach of a statutory duty – a violation of section 4(a) of the Patient's Rights Law, 5756-1996 (hereinafter – the Patient's Rights Law), which states that "a caregiver or medical institution shall not discriminate between a patient on the grounds of religion, race, sex, nationality, country of origin, sexual orientation, age, or any other reason of the like."
- As to the first ground, it was argued that according to the declared position of Maccabi and Clalit, reimbursement is given for egg donation abroad only in the event that the egg donation was made for the purpose of returning the embryo to the insured's uterus, and no refund is given where the egg donation was made for the purpose of returning it to the surrogate. Insofar as this is indeed the reason for the distinction between the appellants (as well as heterosexual couples who need to engage with a surrogate and use an egg donation for parenthood) and policyholders who use egg donation abroad without the need to engage with a surrogate – this is discrimination on the basis of disability. This is because a fertility problem that requires medical intervention is a disability within the meaning of the Equal Rights for Persons with Disabilities Law, 5758-1998 (hereinafter: the Equal Rights Law). Therefore, distinguishing between spouses who cannot carry a pregnancy and spouses who are able to carry a pregnancy is irrelevant. Where two couples need to use egg donation from abroad in order to become parents, the distinction whether the return will be to the womb of the intended mother or whether the return will be done to a surrogate for the intended parents does not establish a relevant difference that justifies denying the reimbursement to parents who needed a surrogacy procedure.
As for the second ground, it was argued that from a consequential point of view, the health plan policy has a particularly significant impact on same-sex couples. This is because the policy of the HMOs creates a situation in which same-sex couples will never be able to benefit from reimbursement for an egg donation abroad stipulated in the Supplementary Insurance Regulations.