The Regional Court's Judgment:
- The Regional Court rejected the motion to certify the action on the grounds that the appellants do not have a prima facie personal cause of action, and on the grounds that there is no reason to approve the conduct of a class action, since the conditions for approval set out in section 8 of the Class Actions Law are not met. In view of the aforesaid, the Regional Court did not find room to address the dispute regarding the status of the health plan as a "dealer" in the operation of the supplemental plan.
- First, the Regional Court examined whether the appellants had a personal cause of action due to discrimination. The court explained that the controversial medical procedure between the parties, "egg donation", is a procedure in which an egg is extracted from the body of a donor, in a procedure that involves hormonal treatments and various risks, in order for the egg to be sewn outside the donor's body and implanted in another woman's uterus. When it comes to egg donation for a man who wishes to raise his offspring in a family that does not have a woman, the egg donation process is the first stage, which requires completion in the surrogacy process. The Regional Court held that egg donation and surrogacy are medical technologies that raise complex ethical questions, due to the medical, legal, psychological and sociological aspects involved in these processes in which a healthy woman makes her body and fertility available for the use of others, usually for a fee. The use of these technologies involves conflicting interests, and much has been written about the price paid by women who risk their health, often against the background of financial distress, in order to enable others to realize their aspiration for biological parenthood, and the caution required when it comes to outlining legal rules that will regulate the use of these medical technologies, while maintaining a balance between the desire to allow parenthood for infertile women or for men who do not have a family unit with a woman. and the desire not to turn day-to-day women into "reproductive machines."
- According to the Regional Court's approach, there is "no dispute" that finding the proper balance point requires a policy that will limit the right to enter into surrogacy agreements and egg donation only in cases that justify it from a medical or other point of view. This is based on the understanding that as the circle of those entitled to engage with a surrogate expands and includes additional groups, the expansion always looks forward to further expansion. Thus, granting access to gay men who do not suffer from any medical problem is not impossible to open the door to women who do not suffer from an acute medical problem that prevents them from carrying a pregnancy, and who may find surrogacy as a desirable and preferable solution, in a way that may harm the access to surrogacy of the original group to which the legislature sought to provide relief.
- The Regional Court emphasized that for years, the Eggs Donation Law and the Surrogacy Law have taken a very restrictive approach, and have been interpreted as allowing egg donation and surrogacy in Israel for the purpose of procreation, while giving clear preference to the recipient who is a woman, a resident of Israel, who is unable to conceive from an egg in her body due to a medical problem. The law, and as a result, the health services basket entitles a woman to donate an egg even where she is required to use a surrogate, but only in extreme cases, in which the woman has a medical problem that prevents fertility, when the donated egg was fertilized from her partner's sperm, in accordance with the conditions and quotas set out in the health services basket. At a later stage, the circle of those eligible was slightly increased and the possibility of using surrogacy procedures was opened for single women (who were not required to donate an egg). However, until 2021, i.e., on all the dates on which the egg donation procedures were carried out, men without a spouse were prohibited from entering into a surrogacy agreement in Israel, and only a woman who was not fit to carry a pregnancy for medical reasons was allowed to enter into a surrogacy agreement with another woman. A similar distinction existed in the Eggs Donation Law, and in accordance with the provisions of the law in the Healthcare Services Basket, it was determined that funding for egg donation procedures would be given only to women suffering from a medical problem. At the same time, the supplementary insurance plans of the HMOs also granted eligibility for egg donation abroad to insured women, based on the perception that was accepted at the time that this was not prohibited discrimination, but rather a permissible preference, in recognition of the special interests of that limited group of women suffering from infertility.
- The Regional Court noted that the Supreme Court had previously rejected petitions centered on the argument that the legislation regulating surrogacy and egg donation procedures was tainted by discrimination, and referred it to the High Court for New Family The judgment in the Arad-Pinkas High Court of Justice case changed the legal situation, ruling that the provisions of the Eggs Donation Law and the Surrogacy Law, which exclude single men and same-sex couples, violate their right to parenthood and their right to equality between single men and same-sex couples. The Regional Court emphasized that in determining the relief granted in the Arad-Pinkas High Court case, the Supreme Court did not lose sight of the fact that it was a matter of a material change in the existing legal situation, the cancellation of sections of the law for constitutional reasons against the background of the "passage of time" and taking into account the "social changes that have occurred", and that the judgment changes the precedent established in the case of the High Court for New Family Justice. The Regional Court also noted that although there are statements in the judgment in the Arad-Pinkas High Court case that men's access to surrogacy procedures should be compared, in practice the scope of the comparison is not clarified. In addition, in the judgment in the Arad-Pinkas High Court case , the Supreme Court clarified that with regard to the violation of the right to instruct, the proceeding was concerned with the freedom to enter into a surrogacy agreement, as opposed to the question of financing the service, i.e., the principle of freedom of engagement, which depends on the parties' desire for an agreement, and does not lie in any mandatory case law of the public or of a third party.
- In any event, in this proceeding, the court is not required to address the question of whether the precedent ruled in the Arad-Pinkas High Court case means that the public resources invested in solving the problem of infertile women should be compared to those allocated to solving the problem of men who are not in a relationship with a woman and who are not interested in joint parenthood, or whether the funding for equality should be applied to the health funds or to another entity. This is because on the relevant dates of the proceeding, the customary rule was that which was determined in the judgment in the case of a new family, which found that giving preference to infertile women against the background of the mental and social distress from which they suffer is not condemnable. At the relevant times of the lawsuit, in light of the ruling in the case of the New Family High Court, according to which in connection with the surrogacy process, the legislature deliberately established a specific and limited arrangement in order to study the implications of the surrogacy process, in a manner that gave priority to access surrogacy to a small group of infertile women, according to the perceptions that were accepted at the time, and when the health basket provided egg donation treatments only to women, There was no impediment to the health plans adopting the distinction and equality groups established in the legislation and in the health services basket, and applying the same distinctions to the allocation of medical resources within the framework of the supplementary health care programs. Admittedly, as part of the supplementary insurance program, it was possible to expand the basket of services and fund egg donation treatments abroad for men as well, in accordance with the health plans' discretion and calculations. However, the HMOs were not obligated to do so, and were entitled to use their resources to fund other medical treatments for the benefit of all their members.
- In light of the above, there is also no substance to the claim for compensation for non-pecuniary damage, and in this context, mention should be made of the judgment of the Central District Court [Civil Case 33813-07-20 Itay Pinkas Arad et al. v. State of Israel (May 16, 2023)], which dealt with similar arguments and did not find room to award compensation to those who claimed that they had suffered non-pecuniary damage due to the discriminatory legislation until it was revoked in the case of the Arad-Pinkas High Court of Justice.
- On the basis of all of the above, the Regional Court ruled that the appellants have no cause of action in connection with the egg donation treatments performed by them abroad prior to the filing of the application and before the ruling in the case of the Arad-Pinkas High Court of Justice.
- Beyond the aforesaid, the Regional Court ruled that even if the appellants had a personal cause of action, in the circumstances of the case there is no reason to approve the hearing of the proceeding in the framework of a class action, taking into account the nature of the matter in dispute and the public status of the funds as a non-profit institution, for reasons that will be detailed below.
- The public purpose of the possibility of conducting a class action is mainly as a deterrent tool, and as such it should be used mainly against defendants who acted in bad faith in order to deceive the public, negligently or unreasonably. Therefore, it was ruled that when certifying a class action, care is required, which is required by the defense of the case of a defendant who acted in good faith, so as not to be excessively harmed. The criteria for exercising the court's discretion in approving a class action are set out in section 8 of the Class Actions Law, including the fact that a class action is the most efficient and fair way to resolve a dispute in the circumstances of the case.
In our case, the totality of the circumstances indicates that the HMOs acted in good faith and reasonably in formulating the supplementary plans according to which the allocation of funding for egg donation abroad would be reserved only for women suffering from fertility problems, based on the legal situation as it existed at the time, on the distinctions that existed in the provision of services in the health basket in accordance with the Health Insurance Law, as well as on the real-time approval given by the Ministry of Health for the supplementary plans.