Case Number

HCJ 5771/12

Date Decided

9-18-2014

Decision Type

Original

Document Type

Full Opinion

Abstract

The Petitioners are a female couple who wish to bring into the world a child by fertilizing an egg extracted from the body of the First Petitioner and implanted in the uterus of the Second Petitioner, who would carry the pregnancy and give birth. The Ministry of Health rejected their requests for the approvals of performing this procedure in Israel. Hence this Petition, which challenges various provisions in the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law). It should be noted that during the deliberations the Ministry of Health issued a new protocol, which allows the Petitioners to take the eggs out from Israel, perform the implantation abroad and be recognized as genetic biological co parents in Israel, but the Petitioners seek legal recognition to perform the entire procedure in Israel.

The High Court of Justice, by extended panel of seven Justices, rejected the petitions by a majority (President Grunis, Deputy President M. Naor and Justices E. Rubinstein and S. Joubran, against the dissenting opinions of Justices E. Arbel, E. Hayut and H. Melcer) for the following reasons:

According to the majority’s position – in an opinion written by Justice Rubinstein – the current legal situation existing today does not permit what the Petitioners request, because the Surrogacy Law and the Eggs Donation Law do not apply to such a case.

In regard to the Surrogacy Law, and as discussed in Justice Hayut’s opinion, the obstacle the Petitioners face in terms of surrogacy is twofold. First, the Petitioners do not meet the definition of “intended parents” as established by the Surrogacy Law, whereby “intended parents” are “a man and a woman who are a couple” and thus they are not eligible to take this avenue in Israel. In this regard, the entire panel believes that the existence of current legislative processes to expand the circle of eligibility existing in the Surrogacy Law calls for judicial restraint and abstaining from judicial intervention in the provisions of the Surrogacy Law. Second, there is substantial doubt whether under the circumstances of this case the avenue of surrogacy – at the heart of which, currently, is severance of the relationship between the surrogate and the intended parents – fits their objectives. Here, Justice Rubinstein adds that referring the First Petitioner under the current state of the law to exercise her rights outside of Israel according to the new protocol, with all the inconvenience involved, does not automatically lead to unconstitutional violations of her right. To the extent concerning the Eggs Donation Law, the obstacle before the Petitioners is created by the demand that the recipient of the donation (the woman receiving the eggs) have a medical need for a donation, a requirement indicated by the legislative history, the purpose of the law and the primacy given by the Eggs Donation Law to physiological parenthood, whereas the recipient of the donation in our case, as far as known, is a healthy woman.

Justice Hayut and Arbel are united in the opinion about the inherent inconsistencies between the avenue regulated by the Surrogacy Law and the medical procedure requested by the Petitioners. However they believe the Petitioners’ wishes must be granted following other legal paths, as to which their opinions differ. Justice Hayut, who believes that the restrictions set in the Eggs Donation Law in this regard, do not meet the tests of the Limitation Clause in section 8 of Basic Law: Human Dignity and Liberty), proposed a constitutional remedy of reading into the Eggs Donation Law a general catch all section that authorizes, in addition to the exceptional cases detailed in the law, the exceptions committee to approve an egg donation when the committee has been satisfied that “under the circumstances there are exceptional and special reasons that justify doing so” and thus to permit what the Petitioners request. Justice Arbel, on the other hand, who believes that both the Eggs Donation Law and The Surrogacy Law do not apply to the case at hand, utilizes here the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter the IVF Regulations) in a similar manner as to the T.Z. case.

As for the constitutional position of Justice Hayut, the majority believes that the power Justice Hayut wishes to extend the exceptions committee, which makes it possible to approve an egg donation even to a recipient of a donation who has not demonstrated a medical need for the donation, and this inconsistently with section 11 of the Eggs Donation Law. This is an authority that the Legislature did not confer and the history of the Exceptions committee also makes it difficult to support this position and this even if to Justice Rubinstein’s approach the Legislature (as opposed to the Court) should revisit granting the exceptions committee broader authorities than it has done. As for Justice Arbel’s position, Justice Rubinstein distinguishes between this case and the T.Z. case in the fundamental element about the medical need of the recipient of the donation. In any event it was held that the IVF Regulations do not currently fit what is requested, following the legislation of the Eggs Donation Law.

Still, the majority opinion clarified that indeed removing the requirement for a medical need established in section 11 of the Eggs Donation Law should be considered in order to expand the circle of men and women eligible for an egg donation. However, such an expansion is first and foremost in the hands of the Legislature. The current state of the law, until amended legislation is passed cannot tolerate more than to which the State is willing to agree, that is – taking the eggs out from Israel without sanction.

Justice Melcer’s position, according to which approving the Petitioner’s request could have been resolved within the authority of the Exceptions committee under section 22(a)(2) of the Eggs Donation Law, did not receive detailed consideration by the majority. However, in light of his position being rejected, Justice Melcer joins the paths suggested by Justices Hayut and Arbel.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Equality Before the Law, Constitutional Law -- Parenthood, Family Law -- Egg donation, Family Law -- Same sex parenthood, Family Law -- Surrogacy

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