Case Number

CA 5587/93

Date Decided

3-30-1995

Decision Type

Appellate

Document Type

Full Opinion

Abstract

Facts: Ruth and Daniel Nahmani, a married couple, were unable to have a child because of an operation that Ruth underwent. They therefore decided to try in-vitro fertilization of Ruth’s ova with Daniel’s sperm and implanting the fertilized ova in a surrogate mother. Under Israeli law, surrogacy was not permitted and in-vitro fertilization was only permitted for implantation in the mother. Because of the great expense of the in-vitro fertilization procedure in the United States, the couple petitioned the Supreme Court, sitting as the High Court of Justice, to allow the in-vitro fertilization procedure to be conducted in Israel, for the purpose of surrogacy in the United States. In that proceeding (HCJ 1237/91), a consent judgment was given allowing the in-vitro fertilization procedure to be done in Israel. The procedure was carried out at Assuta Hospital.

Subsequently, Daniel left Ruth and went to live with another woman, who bore him a child. Ruth applied to Assuta Hospital to release the fertilized ova into her possession for the purpose of the surrogacy procedure in the United States, but Daniel opposed this. Assuta Hospital therefore refused to release the fertilized ova. Ruth applied to the Haifa District Court for an order against the hospital to release the fertilized ova, and in its judgment the District Court gave such an order.

Daniel appealed the judgment of the District Court to the Supreme Court.

Held: (Majority opinion — Justice T. Strasberg-Cohen, Vice-President Barak, Justice D. Levin, Justice I. Zamir) Although a spouse’s right to be a parent is a basic right, this right does not impose a duty on the other spouse to help realize this right. If a spouse does not perform the customary marital duties, these cannot be enforced and the only remedy is divorce. It is not proper legal policy to force someone to be a parent against his will.

The consent of Daniel Nahmani to the in-vitro fertilization procedure created a ‘weak’ agreement that cannot be enforced under the strict laws of contract. In addition, the consent to the procedure did not imply consent to continue the procedure even after a separation.

(Minority opinion — Justice Ts. E. Tal) The husband was estopped from opposing the continuation of procedure by promissory estoppel, since he gave his consent, his wife reasonably relied on this consent, and she did so irreversibly, by fertilizing her ova with her husband’s sperm.

Keywords

Constitutional Law -- Parenthood, Contracts -- Agreement to have children, Contracts -- Estoppel, Contracts -- Frustration, Contracts -- Performance, Contracts -- Remedies, Contracts -- Terms, Family Law -- Parenthood, Family Law -- Paternity, Jewish Law -- Family Law

Download

Share

COinS