In addition, the HMOs operate as non-profit corporations, and the Shaban programs are operated as a closed fund, in which a balance is required between the income from membership fees and the expenses on medical services provided to members of the Shaban program. Among other things, the introduction of services into the Shaban is also affected by the estimated number of users of the service, and a service intended for a small group is not the same as a service intended for a broad group. It is not inconceivable that if the HMOs had thought from the outset that within the framework of the supplementary plan they would have to fund egg donation abroad not only for a limited number of infertile women but also for other large groups, the service would not have been included in the supplementary plan as it is. On the other hand, it is possible that the inclusion of the service of egg donation abroad for men would have caused the detraction of other medical services from the supplementary plan or an increase in the amount of membership dues. In addition, the appellants were not obligated to request approval to fund the service in advance and not retroactively.
- The Regional Court emphasized that it would never rule that it would never be correct to approve a claim for compensation for discrimination in the allocation of services in the Shaban program in a forward-looking situation, or that the only way to examine a claim of discrimination in the Shaban program is by directly attacking the decision of the approving body, i.e., taking administrative action against the Ministry of Health. However, in the circumstances of the case, taking into account the nature of the service in dispute and the novelty of the very possibility of allocating it to men, as well as the innovation in the claim that the health plans are required to fund a medical service that is not rooted in the physiological limitation of the insured, there is no reason to allow an indirect assault retroactively.
- In summary: The Regional Court ruled that the medical technologies that are the subject of this proceeding and the question of how they will be allocated to the public have been at the heart of public controversy for many years, and have been addressed by public committees, courts, and academics from various fields. On the one hand, the existence of changes in social perceptions may justify increasing the use of medical technologies and opening them up to additional groups of those eligible, and on the other hand, it seems that the Supreme Court also believed that an additional public discussion was required on the matter, and that the final word has not yet been said on the issue of the allocation of resources, as opposed to the abolition of the prohibition on entering into a surrogacy agreement. In this context, the Regional Court noted that the state's position indicates that the Ministry of Health has not yet formulated a clear position and has not instructed the health plans on how to operate, and it has not even clarified whether funding for such treatments should be imposed on the health funds. In these circumstances, there is no reason to apply current normative determinations regarding discrimination and equality retroactively while harming the reliance of the health plans.
- In view of all of the above, the appellants' motion to certify a class action was denied, without an order for costs.
Summary of the arguments of the parties in the appeal
- Before we detail the arguments of the parties, we note that the parties, and especially the health plans, raised arguments that should be clarified in the course of the hearing of the claim on its merits (to the extent that the motion for approval is approved) and not at this stage of the approval of the motion to file a class action. Therefore, we will not discuss and discuss all the arguments of the parties that were raised before us, and the discussion will focus on the arguments that require a decision at this stage of the proceeding.
- In summary, the appellants argued that in accordance with the ruling in the case of the High Court of Vital Justice, the HMOs are "engaged" in the provision of services according to the Shaban plan, and therefore the claim that was filed is in accordance with Item 1 and Item 7 of the Second Addendum to the Class Actions Law; The policy of the HMOs, in their refusal to give male policyholders, and especially to same-sex couples, for egg donation abroad, is tainted by improper discrimination and does not constitute a permissible distinction, and the ruling of the Regional Court is contrary to the judgment in the case of the Arad-Pinkas High Court of Justice; all the conditions for approving a class action in accordance with section 8 of the Class Actions Law are met; the appellants have a personal cause of action against the health funds, and alternatively, the representative plaintiff may be ordered to be replaced.
- Naturally, the health plans raised identical or similar claims, and therefore their claims are presented together. Later, to the extent that this or that claim is relevant to the circumstances of the proceeding against this or that fund only, we will address these claims separately.
- In summary, the HMOs argued that in operating the supplementary insurance program they fulfill a role according to the law, and therefore they are not a "dealer", and as a result, it is not possible to file a class action against them on grounds of action according to Item 1 and Item 7 of the Second Addendum to the Law; There is nothing wrong with the arrangement set out in the Supplementary Insurance Regulations, according to which reimbursement for egg donation from abroad is given only to women. This is not improper discrimination, but rather a permissible distinction, based on the biological difference between women and men, and the medical need of women who are entitled to reimbursement under the supplementary insurance plan that does not exist for men; There is no contradiction between the Regional Court's ruling and the ruling in the Arad-Pinkas High Court case, since the judgment in the Arad-Pinkas High Court case concerned the right of single men and same-sex couples to access surrogacy and egg donation procedures in Israel, as opposed to the right to finance these proceedings; The conditions for approving a class action set forth in section 8 are not met to the Class Actions Law; The appellants have no personal cause of action, and 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.
Discussion and Decision
- A hearing on a motion to certify a class action requires first examining whether the causes of action, or some of them, are included in the details listed in the Second Appendix to the Class Actions Law, since in accordance with Section 3 of the Class Actions Law, it is not possible to file a class action if the cause of action is not included in the Second Addendum to the Law. To the extent that the application passes the cause test, it is necessary to examine whether the additional cumulative conditions for the approval of a class action are met, as detailed below:
- The action raises substantive questions of fact or law that are common to all the members of the class (section 8)(a)(1) of the law);
- There is a reasonable possibility that these questions will be decided in favor of the group (section 8(a)(1) of the law);
- A class action is the most efficient and fair way to resolve a dispute (section 8(a)(2) of the law);
- There is 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 (section 8(a)(3) and 8(a)(4) of the Law).
The conditions set forth in section 8 of the law are cumulative conditions, but according to the provisions of section 8(c)(1), a court may approve a class action even if one of the conditions in sections 8(a)(3) or 8(a)(4) of the law is not met , if it finds that their existence can be ensured by the addition or replacement of a representative plaintiff or representative representative, or in any other way [Civil Appeal Authority 7110/17 Nahariya Sausage Kosher Zoglowek in Tax Appeal v. Adv. Yaron Segev (October 3, 2017)].