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NOTES
THE RIGHT TO HER EMBRYOS: AN ANALYSIS
OF NAHMANI v. NAHMANI AND ITS IMPACT
ON ISRAELI IN VITRO FERTILIZATION LAW
I. INTRODUCTION
On September 13, 1996, in a landmark decision on reproductive
rights, the Israeli Supreme Court ruled that a childless woman,
Ruti Nahmani, estranged from her husband, Danny Nahmani,
could have their frozen embryos1 implanted in a surrogate against
her husband's wishes.2 The Nahmani Court, consisting of an
eleven-member panel ofjudges, voted 7-4 that the right of the woman
to be a mother outweighed the estranged husband's objections
to fatherhood.3 The Supreme Court decision ended a four-year
legal battle for control of eleven embryos created when Mrs.
Nahmani's eggs were fertilized with her husband's sperm through a
process called in vitro fertilization ("IVF").4
This Note will examine the history and development of the
Nahmani case and study how the Israeli Supreme Court determined
the rights of each party in cases where disagreements (i.e.
divorce or disputes between couples) arose. Part II of this Note
will discuss IVF and the cryopreservation technique.5 Part III will
review the history leading to the 1996 Nahmanidecision. Part IV
will explore the Nahmani case and how it addresses the rights of
the parties involved in the IVF process in Israel. Finally, Part V
will provide an in-depth analysis of the 1996 Supreme Court case,
delving into the underlying social, cultural, and religious policies
that contributed to the outcome of the decision. This Note will
1 Frozen embryos are scientifically known as "cryopreserved pre-zygotes." York v.
Jones, 717 F. Supp. 421,422 (E.D. Va. 1989). The pre-zygote is frequently described in the
press and legal journals as a "frozen embryo." Davis v. Davis, 842 S.W. 2d 588, 589 (Tenn.
1992). Due to the general use of the term "frozen embryos," this Note will hereinafter
refer to pre-zygotes as "frozen embryos."
2 Joel Greenberg, Israeli Court Gives Wife the Right to Her Embryos, N.Y. TImrs,
Sept. 13, 1996, at A4 [hereinafter Greenberg].
3 Id.
4 Greenberg, supra note 2.
5 See infra text accompanying notes 6-18.
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326 CARDOZO J. OFINT'L & COMP.LAW
conclude that the majority, under a legal subterfuge, upholds its
society's long-standing veneration of life and procreation.
II. IVF DEFINED
In vitro Fertilization gives infertile couples the chance to produce
their own biological children.6 The first stage in the IVF process
is to induce ovulation by treating the woman with infertility
drugs.7 This method increases the woman's egg production, also
known as superovulation. The eggs are then surgically removed
and fertilized with the prospective father's sperm.9 Once fertilized,
the eggs are implanted into the woman's uterus through a process
known as egg transfer (hereinafter "ET").10 If there are no complications,
a normal, non-coital pregnancy will usually result."
Sometimes problems occur which make women unsuitable for
ET immediately following IVF, such as uterine bleeding, illness,
fever, or the inability to pass a catheter through the neck of the
womb at ET.12 There are also severe cases, like that of Mrs.
Nahmani, where, as a result of cervical cancer, she underwent a
hysterectomy and, as a consequence, was forced to have the ET
6 Infertility comes in many forms, including tubal complications, mucus abnormalities,
immunity to spermatozoa, or male dysfunctions. See generallyROBERT BLANK & JANNA
C. MERRICK, HUmAN REPRODUCTION, EMERGING TECHNOLOGIES, AND CONFLICTING
RIGHTS (1995) [hereinafter BLANK & MERRICK].
7 Bill E. Davidoff, FrozenEmbryos: A Needfor Thawing in the LegislativeProcess,47
SMU L. Rv. 131 (1993).
8 Id. at 134. Recovery of ten or more eggs during a single cycle is the common practice.
John A Robertson, PriorAgreementsfor DispositionofFrozenEmbryos, 51 OHIO ST.
LJ.407 (1990).
9 Davidoff, supranote 7. If all the eggs are inseminated, more embryos will result then
can securely be situated in the uterus. Robertson, supra note 8, at 407. Fertilization transpires
in over 90 percent of cases in which eggs are inseminated. Id. at 407.
10 Davidoff, supra note 7. To avert the chance of mutifetal pregnancy, three or five
embryos is the most that can safely be implanted in the uterus. Robertson, supra note 8.
Once the ET is performed, the IVF embryo is basically the same as an embryo conceived
in vivo. Tamara L. Davis, Protectingthe CryopreservedEmbryo, 57 TENN. L. Rlv. 507,510
(1990). The embryo must implant in the uterine wall or it will pass out of the woman's
body during menstruation. Id. If the embryo implants it will evolve into a fetus and will be
born approximately nine months later, excluding any spontaneous or induced abortions.
Id.
11 Davidoff, supra note 7.
12 John F. Leeton, et al., IVF and ET What it is and how it works, in TEST TUBE
BABIES, A GurDE TO MORAL QUEsTIONs, PRESENT TEcHNIQUE AND FtrrURE PossmiL.
TIES at 9 (Wflliam Waiters & Peter Singer eds. 1982).
[Vol. 7:325
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1999] ISRAELI IN VITRO FERTILIZATION 327
performed on a surrogate at a later time.13 A procedure for embryo
storage by freezing, also known as cryopreservation, would
allow time to correct these problems so that transfer could be carfled
out.14 The process of cryopreservation involves the packaging
of the embryo culture, resulting from the IVF process, with cryoprotectants.'
5 The culture is then placed in a container, and subsequently
frozen and stored in liquid nitrogen.16 When the IVF
patient or surrogate is ready for the embryo to be transferred into
the uterus, thawing is induced by means of reversing the process.'7
These frozen embryos are at the heart of the various legal disputes
that arise. Because the cryopreservation process allows the
embryo to survive outside of the womb, circumstances such as divorce,
death, or disputes between couples raise difficult questions
regarding the status of the frozen embryos.18 These questions define
the crux of the Nahmaniv. Nahmani dilemma.
III. SETTING THE STAGE FOR NAHMANi 1996
Ruti and Danny Nabmani made legal history for the first time
in 1988.19 They embarked on a battle in Israel's Supreme Court for
13 Ina Friedman, A Victory for Life, JEWISH WEEK, Sept. 20, 1996, at 1,39 [hereinafter
Friedman]. This technique could also assist the woman who has the embryo transferred
into her own womb and pregnancy does not occur during the first implantation attempt.
Robertson, supranote 8, at 408. It increases the chances of pregnancy during any one cycle
because at least three or four embryos are readily available for transfer. Id. It also alleviates
the physical burden and costs of undergoing ovarian stimulation and egg retrieval
during later attempts at IVF pregnancy. Id. Additionally, it heightens the chances ofpregnancy
in later cycles since thawed embryos will be placed in the woman during a natural
cycle, free of the stimulating drugs and surgical imposition. Id-
14 BLANK & MERRICK, supranote 6, at 133.
15 BLANK & MERRICK, supranote 6, at 134.
16 BLANK & MERmcCK, supranote 6, at 134. The recommended storage life of human
embryos may be five or ten years. Edward F. Fugger, ClinicalStatus of Human Embryo
Cryopreservationin the United States of America, 52 FERTEjTY & STERI~trY 986, 988
(1989).
17 BLANK & MERRICK, supranote 6, at 133.
18 B.ANK & MERRICK, supra note 6, at 132.
19 Evelyn Gordon, Ruti Nahmani GetsHerChanceForMotherhood,JERUSALEM Posr,
Sept. 21, 1996, at 1, 3 [hereinafter Gordon]. Prior to this victory, the Nahmanis were
barred by Israel's Ministry of Health from using the services of a surrogate mother to solve
their infertility problems. Lea Levavi, HealthMinistryMust Defend Its Ban On 'Surrogate
Mother,' JERUSALEM PosT, Apr. 1,1991, at 1,availablein LEXIS, News Library, JPost File
[hereinafter Levavi]. The Nahmanis wanted a full surrogacy procedure done - where Mrs.
Nahmani provides the ovum and the surrogate mother provides the womb - as opposed to
partial surrogacy - where the surrogate mother is artificially inseminated by the husband of
the childless couple. Id. The success rate for partial surrogacy is much higher then full
surrogacy (with a 10-12 percent success rate) since the surrogate mother is both the genetic
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328 CARDOZO J. OFINT'L & COMP.LAW
the right to have Mrs. Nahmani's eggs fertilized in vitro with Mr.
Nahmani's sperm and then implanted in a surrogate mother in the
United States.2 0
In 1992, however - after the eggs had been fertilized,21
but before the Nahmanis could deliver the embryos to a surrogate
- Mr. Nahmani left his wife and moved in with another
woman, with whom he has since had two children.2 Mr. Nahmani
subsequently made it known that he no longer wanted a child with
his estranged wife, and denied Assuta Hospital, where the embryos
were stored, permission to release the frozen embryos.23 The emand
biological mother. Id., (quoting Professor Yosef Schenker, Chief of Gynecology at
Hadassah University Hospital and Advisor on IVF to the Ministry of Health).
20 Gordon, supra note 20. Regulation 11 of the Public Health Regulations (In-Vitro
Fertilization) of 1987 forbids the implantation of an embryo in a woman who will not be
the child's mother. Felix Asher Landau, SurrogateMotherhood aKnessetMatter,JERUSALEM
PosT, July 24, 1995, at 7, availablein LEXIS, News Library, JPost File [hereinafter
Landau, SurrogateMotherhood];see also Rhona Schuz, The Right to Parenthood:Surrogacy
andFrozen Embryos,in ITrERNAflONAL SURvEY OF FAMILY LAW 237-56 (Andrew
Bainham ed. 1996). Rhona Schuz is a lecturer in law at Bar-Ilan University in Tel Aviv,
and in her Article, she comprehensively analyzes the Nahmani case and the issues involved.
A compromise was reached in 1991 whereby the Supreme Court, overriding the
Ministry of Health's surrogacy ban, held that the couple could solicit a surrogate mother
abroad with ova fertilized in Israel. Larry Derfner, Nachmanivs. Nachmani: The Right to
Become aMother Loses to the Right notto Become aFather,Baltimore Jewish Times, Apr.
7, 1995, at PG [hereinafter Derfner]. The Court gave the Health Ministry 45 days to show
cause as to why the Nahmanis should not be allowed to use a surrogate. Levavi, supranote
19. The Health Ministry failed to do so. Judy Siegel, Single Women GrantedRight to
Ovum Donations. Ova Ban to be Lifted When Surrogate Mother Bill is Passed,Feb. 14,
1996, at3, availablein LEXIS, News Library,JPost File [hereinafter Siegel, Single Women].
The Supreme Court later ruled that the issue of surrogacy should not be governed by regulations
issued by the Health Ministry but, rather, by Knesset legislation. Landau, Surrogate
Motherhood(citing Zabarov. Sneh, H.C.5087/94). The Knesset (the Israeli parliament) is
the highest legislative body in the legal system of the State of Israel. MENACHEM ELON,
JEWISH LAW: HIsToRY, SouRcas, PiNc',rEs, VOL. 478 (Bernard Auerbach & Melvin J.
Sykes trans., Jewish Publication Society ed. 1994). A law approved by the Knesset is therefore
supreme legislation. Id. See infra note 68 (for an overview of the resulting 1996 Surrogacy
legislation). The Nahmanis eventually arranged for a surrogate mother in the
United States. Uriel Masad, In vitro CaseLeads to Ruling: ParenthoodCannotBe Forced,
JEWISH TE-LEGRAPHJC AGENCY, Apr. 4, 1995, at PG [hereinafter Masad].
21 After the Nahmanis won the surrogacy case, Mrs. Nahmani underwent a year of
hormonal treatments that yielded 11 ova. Friedman, supra note 13. The ova were then
surgically extracted from her ovaries by insertion through an abdominal incision of a long
hollow needle where the ovaries were detected and aspirated in order to procure immature
eggs, which were drawn out through the needle. Davis, supranote 10, at 508-9. The eggs
were subsequently fertilized by Mr. Nahmani's sperm and frozen until a surrogate mother
could be found. Friedman, supranote 13.
22 Gordon, supra note 19. At the time of this writing, the Nahmanis were engaged in
divorce proceedings. Ian MacKenzie, Israeli Woman Wins Forced Parenthood Case,
Reuters, Sept. 12, 1996, at 1 [hereafter MacKenzie].
23 MacKenzie, supra note 22.
[Vol. 7:325
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ISRAELI IN VITRO FERTILIZATION
bryos represented Mrs. Nahmani's last chance to have a biological
child of her own since she was unable to produce more eggs.2 4
In 1993, Mrs. Nahmani filed suit to obtain custody of the embryos
in Haifa District Court, which ruled in her favor.25 In the
September 12 ruling, the District Court ordered that the embryos
be turned over to Mrs. Nahmani, citing not only her right to them,
but also criticizing her husband's "jealousy and callousness, accompanied
by cynicism, egotism and no little [male] chauvinism."26
The Court held that Mr. Nahmani's opposition constituted breach
of contract.27 It found this contract in Mr. Nahmani's initial agreement
to have a child with his wife, and, according to the Court, he
could not withdraw his agreement once the IVF had been performed.28
It was therefore ordered that the fertilized eggs be given
to Mrs. Nahmani so that she could proceed with the surrogate
ET.29
Mr. Nahmani immediately appealed to the Supreme Court
which, in a 4-1 decision, overturned the District Court's ruling in
1994.30 The majority anchored its ruling in basic human rights and
equality between the sexes.3 1
It dealt first with a person's rudimentary
right to freedom and privacy, together with "personal autonomy.''
32 The Court articulated that the right to parenthood
imposed no duty on an unwilling spouse to be a parent or assist the
other spouse to be one; there was an equal right not to be a parent.33
It held that parenthood imposed unique lifetime responsibilities.
4 Based on this rationale, the majority maintained that it
would not be proper for the Court to impose parentage on an un-
24 Id. See infra note 124.
25 Friedman, supranote 13.
26 Id; Schuz, supra note 20, at 238.
27 Itim, CourtDelays Ruling in ControversialEmbryo Case, JERUSALEM POST, Feb. 9,
1994, at 14 [hereinafter Itim].
28 Schuz, supra note 20, at 238; see also Evelyn Gordon, FatherhoodCannotBe Forced,
JERUSALEM PoSw, Mar. 31, 1995, at 20 [hereinafter Gordon, Fatherhood].
29 Itim, supra note 27; Schuz, supra note 20.
30 Id.
31 Masad, supra note 20. The Court expounded, "The decision to become a parent is
recognized, as isthe decision to decline to be a parent, both basic human rights. But once
these two rights are in conflict with each other, it must not be up to the legal system or the
state to decide between them." Id; Schuz, supra note 20, at 238.
32 Asher Felix Landau, A FrozenAttempt At Motherhood:A Father'sRight To Say 'No,'
JERUSALEM PosT, Apr. 17, 1995, at 7 [hereinafter Landau].
33 Id.
34 Landau, supra note 32.
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330 CARDOZO J. OFINT'L & COMP.LAW [Vol. 7:325
willing party, as it would ultimately infringe upon his right to "personal
autonomy.
35
The Court then deliberated over the maxim of equality in the
present context.36 It articulated that, under certain circumstances,
a woman is permitted to have an abortion.37 She does not require
her husband's permission and could reject his opposition to the
abortion.38 In that connection, the majority said, if motherhood
could not be forced on a woman, analogously, fatherhood could
not be forced on a man.39 "Just as it is wrong to impose pregnancy
upon a woman when she objects to it, or to forbid her to have an
abortion, it is also wrong to impose parenthood upon a man against
his will," argued the Court.40 It would, therefore, be inappropriate
for the Court to impede on Mr. Nahmani's basic right to choose
not to be a father.41 Thus the Court determined that it should not
thrust parenthood on Mr. Nahmani, regardless of his initial agreement
to be a father.42 The justices decided that if natural
35 Landau, supra note 32. The Court buttressed this conclusion by citing several U.S.
cases and legal writings:
Personal autonomy has been clearly recognized for some time in the [United
States] as strongly linked to privacy; in Doe v. Bolton (1973) Douglas J.said:
"The rightto privacy means freedom of choice in the basic decisions of one's
life respecting marriage, divorce, procreation, contraception, education, and
upbringing of children."
C.A. 5587/93, Nahmani v. Nahmani, 12 P.D. 499, 528 (emphasis in original) (quoting H.
FENwici, CrVm LIBERTIES 295 (1993)).
36 Landau, supra note 32; Schuz, supra note 20, at 247-48.
37 Landau, supranote 32; Schuz, supranote 20, at 238. In Israel, abortion is legal if: (i)
the woman is under 17 or over 40; (ii) the pregnancy resulted from rape, incest, or occurred
out-of-wedlock; (iii) the fetus is likely to be physically or mentally defective; or (iv) continuing
the pregnancy is likely to jeopardize the woman's life, or compromise her physically
or emotionally. Schuz, supra note 20, at 246.
38 Schuz, supra note 20, at 246.
39 Schuz, supra note 20, at 246. The Court further stated that forced fatherhood is
against the "public interest" (defined as "the values, interests, and central and vital principles
which a given society wishes to uphold, preserve and develop, at a given time") and
judicial policy. supra. It cited C. Shalev, A Man's... Right to be Equal. The Abortion
Issue, 18 IS. L. REv. 381 (1983) to support this view. Nahmani, C.A. 5587/93 at 501.
40 Masad, supranote 20; Schuz, supra note 20, at 245.
41 Landau, supra note 32; Schuz, supranote 20, at 245.
42 Landau, supranote 32. The Court cited § 10 of the Adoption of Children Law of
1981, which permitted a parent to withdraw his consent to the adoption of a child given
before the child is born, to reinforce this view. l Section 10 states:
On the application of a parent, a court may invalidate his consent given before
the birth of the adoptee or obtained by improper means, and it may, for special
reasons which shall be recorded, permit a parent to withdraw his consent so
long as the adoption order has not been made.
Adoption of Children Law, 1981, 35 L.S.I. 360 (1980-81).
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ISRAELI IN VITRO FERTILIZATION
parenthood could not be forced upon a woman, neither could
parenthood be imposed on a man by technological means.43
Legal approaches taken in Canada, Australia, England and the
United States guided the Court in its decision.44
It noted that the
majority of these countries require mutual consent by both parties
at every stage of the IVF process.45
The Court then examined sections 8 (b) (3) and 14 (b) of the
Public Health Regulations (IVF) of 1987.46 In Israel, the IVF issue
is dealt with only in health regulations by the Ministry of Health,
rather than in Knesset law.47 The Supreme Court held that the regulations
are only intended as a directive for the health authorities
and do not define personal rights and duties in the highly sensitive
and complicated context of artificial fertilization.48
Contract law was also contemplated by the Court in assessing
the Nahmani dispute.49 Consideration was given to the framework
of the "agreement" between the Nahmanis and Mr. Nahmani's
right to renege on their agreement under their estranged circumstances.50
The Court then addressed whether the Nahmanis' agree-
43 Landau, supra note 32; Schuz, supra note 20, at 245-60.
44 Landau, supranote 32; Schuz, supranote 20, at 245-60. See Human Fertilization and
Embryology Act, 1990 (Schedule 3, § 4); see also Stem, The Regulation of Assisted Conception
inEngland,1EuR. HuMAN REPROD. J. HELTH LAW (1994); Dickens, The Ontario
Law Reform Commission Projecton HumanArtificial Reproduction,in Law Reform
and Human Reprod. 47, 69 (1992).
45 Landau, supra note 32; Schuz, supra note 20, at 245-60.
46 Landau, supranote 32; Schuz, supra note 20, at 245-60.
47 Gordon, Fatherhood,supra note 28. The regulations state, "If a woman... is divorced,
and the egg was fertilized with her husband's sperm before the divorce - the egg
shall be implanted only with the consent of her former husband." Gordon, Fatherhood,
supra note 28. See Israel: The Public Health (invitro Fertilization) Regulations of 1987
[Israel IVF Regulation] reprintedin 38 INT'L DIGEST OF HEALTH LEGIS. 779 (1987). The
Court concluded that while the Nahmanis were never actually divorced, the principles
were entirely related. Gordon, Fatherhood,supra note 28. The Haifa District Court cited
the Public Health Regulations of 1987 in support of their ruling for Mrs. Nahmani, interpreting
these rules as merely regulations and not legislation. Landau, supra note 32.
48 Landau, supra note 32; Schuz, supra note 20, at 239. See also Landau, Surrogate
Motherhood,supra note 20.
49 Landau, supranote 32; Schuz, supra note 20, at 249-51.
50 Schuz, supra note 20, at 249-51. The Nahmani Court acknowledged that the parties
had an original intent for the birth process to be completed. Schuz, supranote 20, at 249-
51. However, the Court asserted that this was no ordinary contract, but a contract in the
area of "human relationships of love, friendship and social intercourse." Schuz, supra note
20, at 249-51. "The area of human... relations in the family, and the human relationships
of love, of friendship and ofsocial intercourse 'simply can not [sic] be the object of a legally
binding agreement" Nahmani, C.A. 5587/93 at 508-09. The majority considered the
Nahmani's agreement in the context of an agreement to marry and held that although
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332 CARD OZO J. OFINT'L & COMP.LAW [Vol. 7:325
ment was legally "frustrated"' by some outside influence beyond
the parties' control.52 Mrs. Nahmani argued that the agreement
"breach-of-promise" actions were denounced in Israel, their abolishment should be a matter
for the legislature. Schuz, supranote 20, at 249-51. By Israeli law, a contract cannot be
enforced ifit involves "forcing someone to do, or accept, personal work or service." Schuz,
supranote 20, at 249-51. § 3(2) of Contracts (Remedies for Breach of Contract) Law, 1970
states in part:
The injured party is entitled to the enforcement of the contract unless one of
the following obtains:...
(2) the enforcement of the contract consists in compelling the doing or acceptance
of personal work or a personal service.
25 L.S.I. I 11, (1970-71). Assuming that the Court interpreted the language of § 2 as
pertaining to Mr. Nahmani's potential obligation to pay child support, see § 3 of the Family
Amendment (Maintenance) Law, 1959, which states:
(a) A person is liable for the maintenance of his minor children and the minor
children ofhis spouse in accordance with the provisions of the personal law
applying to him, and the provisions of this Law shall not apply to that
maintenance.
(b) A person who is not liable for the maintenance of his minor children of his
spouse according to the provisions of the personal law applying to him, or
to whom a personal law does not apply, is liable for the maintenance of his
minor children and the minor children ofhis wife, and the provisions of the
Law shall apply to that maintenance.
13 L.S.I. 73, (1958-59). According to Section One, a minor is a person who has not yet
reached the age of eighteen years old. ld. But see infra note 79 (which provides an exemption
to this rule). See also infra note 115.
51 Landau, supranote 32; see Schuz, supranote 20, at 251. Section 18 of the Contracts
(Remedies for Breach of Contract) Law, 1970 considers "[e]xemption by reason of constraint
or frustration of contract." It states in part:
(a) Where the breach of contract is the result of circumstances which at the
time of making the contract the person in breach did not know or foresee and
need not have known of or foreseen, and which he could not have avoided, and
performance of the contract under these circumstances is impossible or fundamentally
different from what was agreed between the parties, the breach shall
not give cause for enforcement of the contract or for compensation ....
Contracts (Remedies for Breach of Contract) Law, 1970, 25 L.S.I. 11, (1970-71).
52 Landau, supra note 32; see Schuz, supra note 20, at 251. The Court concluded that
since the agreement was derived from intimate emotions, and the Nahmanis' relationship
had been fundamentally altered, the agreement was therefore impossible to realize. Landau,
supra note 32; see Schuz, supranote 20, at 251. In lieu of these circumstances, the
Court found that Mr.Nahmani could not be held to his original consent to the IVF process
being completed. Landau, supranote 32; see Schuz, supranote 20, at 251. Under § 3(1) of
Contracts (Remedies for Breach of Contract) Law, 1970, the Court held that Mrs.
Nahmani was not entitled to enforcement of the agreement since, under the circumstances
surrounding the case, it was "impossible of performance." Landau, supra note 32; see
Schuz, supranote 20, at 251. § 3(1) established enforcement as the principal remedy for
breach of contract. Nili Grabelsky-Cohen, The Natureofthe Undertakingto Effect a Transaction,in
4 TEL Avrv UmNv. Srrmms n' LAw 33, 50 (Yoram Schachar et al. eds., 1980). It
states in part: "The injured party is entitled to the enforcement of the contract unless one
of the following obtains: ... (1) the contract is impossible of performance." Contracts
(Remedies for Breach of Contract) Law, 1970, 25 L.S.I. 11, (1970-71). Once this is estabHeinOnline
-- 7 Cardozo J. Int'l & Comp. L. 332 1999
ISRAELI IN VITRO FERTILIZATION
fell under sections 25 and 26 of the Contracts (General Part) Law
of 197313 and that this legislation could be used to find in her husband's
consent an intent for culmination of the IVF process, which
the Court rejected. 4 Mrs. Nahmani also argued that her husband
was estopped from reneging on the agreement.55 It could not be
said, the Court maintained, that his consent encapsulated the possibility
of their breaking up, or that Mrs. Nahmani had agreed to the
process on the basis of Mr. Nahmani's promise to see it completed
even if they became estranged.
In all cases where an equity created by estoppel is raised, the
party raising the equity has acted or abstained from acting on an
assumption or expectation as to the legal relationship between
lished the question of who is responsible for inducing the situation is irrelevant, the Court
contended. Landau, supra note 32; see Schuz, supra note 20, at 251.
53 Section 25 states:
(a) A contract shall be interpreted in accordance with the intention of the parties
as appearing therefrom or, in so far as it does not so appear, as appearing
from the circumstances.
(b) Where a contract is capable of different interpretations, an interpretation
preserving its validity is preferable to an interpretation according to which
it is void.
(c) Expressions and stipulations in a contract which are customarily used in
contracts of that kind shall be interpreted in accordance with the meanings
assigned to them in such contracts ....
Contracts (General Part) Law, 1973, 27 L.S.I. 117, (1972-73). § 26 states:
Particulars not determined by or under the contract shall be in accordance with
the practice obtaining between the parties or, in the absence of such a practice,
in accordance with the practice customary in contracts of that kind, and such
particulars shall also be regarded as having been agreed.
27 L.S.I. 117, (1972-73).
54 Landau, supranote 32; see Schuz, supra note 20, at 251.
55 Landau, supranote 32; see Schuz, supra note 20, at 251. The Contracts (Remedies
for Breach of Contract) Law, 1970 is silent on the remedy of estoppel. See generally 25
L.S.I. 11, (1970-71).
56 Landau, supra note 32; see Schuz, supra note 20, at 251. The Court examined the
following sources: "Equitable estoppel is a rule of fairness by which the courts protect the
reliance and expectations of innocent parties from defeat by those who have induced those
reliance and expectations." Nahmani, C.A. 5587/93 at 277 (quoting M.P. Thompson, From
Representationto Expectation: Estoppel as a Causeof Action 42 CAMflmGn L.J. 257, 277
(1983)).
All these can now be seen to merge into one general principle shorn of limitations. When
the parties to a transaction proceed on the basis of an underlying assumption of either of
fact or of law - whether due to misrepresentation or mistake, makes no difference neither
of them will be allowed to go back on that assumption when it would be unfair or
unjust to allow him to do so. If one of them does seek to go back on it, the courts will give
the other such remedy as the equity of the case demands." Id. at 527 (quoting Amalgamated
Property v.Texas Bank, Q.B. 84, 122 (C.A.) (1982)). It ultimately rejected these
authorities and concurred with the legal analysis. See text accompanying note 57 infra.
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334 CARDOZO J. OFINT'L & COMP.LAW
himself and the party who induced him to adopt the assumption
or expectation... Though the party raising the estoppel may be
under no mistake to the facts, he assumes that a particular legal
relationship exists or expects that a particular legal relationship
will exist between himself and the party who induced the assumption
or expectation. The assumption or expectation may
involve an error of law. Thus, a promissory or a proprietary estoppel
may arise when a party, not mistaking any facts, erroneously
attributes a binding legal effect to a promise made without
consideration. 7
Lastly, the Court examined the issue of whether the "point of
no return" in a spouse's agreement to a surrogate pregnancy is at
the time of in vitro fertilization or only after the embryos are implanted
in the surrogate's womb. The majority concluded that,
until and including the stage of implementation, a couple's joint
and ongoing agreement "is called for from every possible legal
standpoint. '59 Based on the preceding analysis, the Court concluded
that, despite Mrs. Nahmani's plight, granting her the relief
she sought would ultimately be unlawful and an offense against Mr.
Nahmani's basic rights as an individual.60
The Court said:
57 Nahmani, C.A. 5587/93, at 527 (alteration in original) (quoting Gardner, Equitable
Estoppe, Unconscionabilityandthe Enforcement of Promises,104 L.Q. RIv. 362, 420-21
(1988).)
58 Itim, supra note 27; see Schuz, supra note 20, at 255.
59 Itim, supra note 27; see Schuz, supra note 20, at 255.
60 Landau, supranote 32; see Schuz, supranote 20, at 238. Justices Aharon Barak, Dov
Levin and Yitzhak Zamir concurred with Justice Strassberg-Cohen's holding. Landau,
supra note 32; see Schuz, supranote 20, at 238. Justice Zeva Tal, the lone minority and
only observant Jew on the panel, dissented, quoting the Torah and Talmud on the sanctity
of motherhood. Derfner, supra note 20; see Schuz, supranote 20, at 246-47. The Justice
noted that a man's basic right must submit to the freedom, dignity, privacy autonomy of
others. Landau, supra note 32. He further stated:
A man, like Lot, who unknowingly makes a woman pregnant, or a man
deceived that his partner was using preventive measures, has good reason not
to be saddled with paternity. And yet, her honor, autonomy and privacy are
preferred to his. All the more so should this be the case where a man willingly
agreed to fatherhood, but later changed his mind. In this case too there was
active intervention in Ruti's body which brought her to her present pass. Her
same basic rights, as those enjoyed by Dani, had been infringed. Why should
his rights be preferred to hers? Who has weighed fatherhood and motherhood
in scales? It was he who changed his mind and caused this serious infringement
of her rights. There is no legal norm to guide the court in this dilemma. The
real question was whether to impose fatherhood on the man or childlessness on
the woman. Forced childlessness involved depriving a woman of her basic and
most fundamental right. Fatherhood forced on the man was dwarfed against his
deprivation. Landau, supra note 32; see Schuz, supra note 20, at 238.
[Vol. 7:325
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1999] ISRAELI IN VITRO FERTILIZATION 335
We are conscious of and sensitive to Ruti Nachmani's part in
this, her involvement in the IVF procedure which was greater physically
and emotionally - then Dani's, and her understandable
expectations that the procedure would end with her achieving
her long sought-after goal. But the procedure is only the
beginning of a road which the couple would have to travel together,
making joint decisions. [Ruling against Dani Nachmani]
would mean forcing someone who no longer wants to travel that
road to do so for the rest of his life."61
On March 30, 1995, the Supreme Court granted judgment for
Mr. Nahmani.62
IV. NA HMA NI V. NAHMANI 1996: BREAKING NEW GROUND
Immediately after the 1994 Supreme Court case was decided,
the Court granted Mrs. Nahmani a second hearing before an expanded
panel ofjustices.63 Never before had a subsequent hearing
been granted in the Supreme Court on a case originally heard by
more than three judges.64 On September 12, 1996, a board of
eleven justices overturned the 1993 adjudication in a 7-4 ruling.65
The seven justices unanimously agreed that the right to be a parent
prevails over the right not to be a parent.66
On the issue of expectations, the Justice wrote:
The wife underwent a difficult, invasive and painful procedure on her body to
produce ova, based on her husband's agreement to fertilize them. Upon this
fertilization, the wife was denied any alternative way of fertilizing her ova, such
as with the sperm of a 'donor' .... By the husband's opposition to his wife's
wish, he seeks to extinguish her last ember of hope to become a mother, while
he has built a new home for himself and become a father. If there is a solution
that also grants the wife her wish - this would seem to me more just.
Derfner, supranote 20; see Schuz, supra note 20, at 252-53.
61 Derfner, supranote 20 (alteration in original); see Schuz, supranote 20, at 249-251.
62 Landau, supranote 32; see Schuz, supra note 20, at 238.
63 Gordon, supranote 19; see Schuz, supra note 20, at 239. The now-retired Supreme
Court President, Meir Shamgar, approved the expansion after Mrs. Nahmani appealed for
a broader judicial review of the Nahmani case. Friedman, supra note 13, at 39. In the
Supreme Court, sitting as a Court of Civil Appeals, President Justice Aharon Barak and
Justices Gavriel Bach, Eliezer Goldberg, Theodore Orr, Eliyahu Mazza, Ya'acov Kedmi,
Yitzhak Zamir, Tova Strassberg-Cohen, Dalia Dorner, Zevi Tal, and Ya'acov Trkel. Landau,
Nahmani Case: FinalSay Is With The Mother,JERUSALEM PosT, Oct.14, 1996, at 7,
availablein LEXIS, News Library, JPost File [hereinafter Landau, Nahmani].
64 Gordon, supranote 19.
65 Greenberg, supra note 2. The majority consisted of Justices Tal, Dorner, Goldberg,
Kedmi, Tirkel, Bach and Mazza. Landau, Nahmani, supra note 63. Justices StrassbergCohen,
Orr, Zamir and Barak dissented. Id.
66 Gordon, supranote 19.
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A. The Nahmani Majority
The majority began its vast opinion by noting that the dispute
before them was a case of first impression since it did not recognize
any statutory provisions that would govern the issue presented.67
The Court came to this conclusion after it considered the applicability
of existing laws and statutes, including the Surrogacy Agreements
Law of 1996,68 the Contracts (General Part) Law of 1973,69
67 Asher Felix Landau, A FatherMay Not Say 'No.' Jerusalem Post, International Edition,
Oct. 7, 1996, at 7, availablein LEXIS, News Library, JPost File [hereinafter Landau,
Father];see Schuz, supra note 20, at 239.
68 Landau, Nahmani,supra note 63; see Schuz, supranote 20, at 242. In March 1996,
the Israeli parliament ratified a benchmark bill that legalized surrogacy arrangements,
making Israel the first country to have national legislation on controlling the practice of
surrogacy. Todd M. Krim, ComparativeHealth Law: Beyond Baby M: InternationalPerspectives
on GestationalSurrogacy and the Demise of the Unitary Biological Mother, 5
ANN. HEALrH L. 193, 219 (1996) (citing Judy Siegel, HealthMinistry Tackles TB, JERUSALEM
PosT, Apr. 7, 1996, at 5). The legislation necessitates that the surrogate and the
couple "ordering" the child to sign a contractual agreement. Krim, supra note 68; see
Schuz, supra note 20, at 240-42. Health Minister Ephraim Sneh appointed a seven-member
cabinet (composed of two gynecologists/obstetricians, a clinical psychologist, a public
representative, a social worker, an internal medicine specialist, and a clergyman) that is
authorized to approve these contracts. Krim, supra note 68; see Schuz, supra note 20, at
241. The cabinet will be responsible for approving surrogacy agreements between a commissioning
couple and a surrogate if they are "certain the deal was reached freely by both
sides, and there is no danger to the health of the mother or to the health and the rights of
the baby." Krim, supranote 68 (quoting Judy Siegel, HealthMinistry Tackles TB, JERUSALEM
PosT, Apr. 7, 1996, at 5); see Schuz, supra note 20, at 241. The statute directs that the
commissioning father provide the sperm, and that the baby be conceived by IVF. Krim,
supra note 68 (citing Judy Siegel, Surrogate Mother Bill Must Soon be Law, JERUSALEM
POsT, Dec. 19, 1995, at 3); see Schuz, supra note 20, at 241. As for the surrogate, the
legislation generally orders that she be an unmarried Israeli resident. Krim, supranote 68;
see Schuz, supra note 20, at 241 The surrogate is entitled to monetary compensation for
her suffering and loss of time and income, as well as legal costs and insurance. Krim, supra
note 68; see Schuz, supranote 20, at 242-43. However, any payment beyond that point is
strictly prohibited. Krim, supranote 68; see Schuz, supranote 20, at 242-43 The Surrogate
is also entitled to change her mind and keep the baby - subject to court approval -, or to
abort the fetus is she so decides - in accordance with existing abortion laws). Krim, supra
note 68; see Schuz, supranote 20, at 243-44. "[T]he Court will not allow this unless, in light
of the Welfare Officer's report, it finds that there has been a change in the circumstances
justifying her change ofmind and that this would not harm the welfare of the child." Schuz,
supra note 20, at 249. Consequently, the majority found that the Surrogacy Agreements
Law of 1996 was not applicable to the immediate case because it primarily covered the
relationship between the IVF parents and the surrogate mother, and was not meant to be
applied toward the relationship of the parents themselves. Landau, Nahmani,supra note
63; see Schuz, supra note 20, at 242. But see Friedman, supra note 13 ("Israel's surrogacy
law... requires both parents to appear before a special panel chosen by the Health Ministry
and express their agreement to the embryos being implanted in a surrogate womb");
see Schuz, supra note 20, at 240-42.
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ISRAELI IN VITRO FERTILIZATION
and the Foundations of Law Act of 1980.70 The Court ultimately
found that since there was "no normative framework to cover the
present dispute, which fell entirely in the emotional, moral, social
and philosophical areas... [t]he issue, nevertheless, was justifiable,
and the court was obliged to decide it. Each judge, therefore,
would have to rule on the basis of his own principles and
feelings.
' '71
When a case comes before a court for decision, it may be that
nothing can be drawn from the sources heretofore mentioned;
there may be no statute, no judicial precedent, no professional
opinion, no custom bearing on the question involved, and yet
69 Landau, Father,supranote 67; see Schuz, supranote 20, at 249. Section One of the
Contracts (General Part) Law, 1793 states generally: "A contract is made by way of offer
and acceptance in accordance with the provisions of this chapter." 27 L.S.I. 117 (1972-73).
Section Two further states: "[a] person's proposal to another person constitutes an offer if
it attests to the offeror's resolve to enter into a contract with the offeree and is sufficiently
definite to enable the contract to be concluded by acceptance of the offer. .. ." Landau,
Father,supra note 67; see Schuz, supra note 20, at 249. On the form and contents of the
contract, Section TWenty-three of the statute states: "A contract may be made orally, in
writing or in some other form unless a particular form is a condition ofits validity by virtue
of Law or agreement between the parties." Landau, Father,supranote 67; see Schuz, supra
note 20, at 249. The Court maintained that there was no formal agreement between the
Nahmanis and therefore, the general law of contracts did not cover an agreement dealing
with procreation. Landau, Father,supra note 67; see Schuz, supranote 20, at 249.
70 Landau, Father,supra note 67; see Schuz, supranote 20, at 249. The Foundations of
Law Act states in part: "[w]here a court finds a legal issue requiring decision cannot be
resolved by reference to legislation or judicial precedent, or by means of analogy, it shall
reach its decision in the light of the principles of freedom, justice, equity, and peace of the
Jewish heritage (moreshet Yisr'el). MENACHEM ELON, 4 JEWISH LAW: HIsTORY, SouRCs,
PpiNcurt.ns 1828 (Bernard Auerbach & Melvin J. Sykes trans., The Jewish Publication Society
ed. 1994). The principles of Jewish Heritage represents a basic directive for the Israeli
legal system. Id at 1832. A court is required to adjudicate a case in light of the
standards of the Jewish heritage when it is faced with "a legal issue requiring decision," as
the Foundation of Law Act provides. Id. at 1835. The Supreme Court has construed the
language - "a legal issue requiring decision" - to be a reference only to situations where
the failure of the existing legal sources to provide the "solution to a particular legal issue"
produces a lacuna; the court ruled that the legislation is not applicable "where there is no
lacuna but rather an issue involving interpretation of a subsisting legal provision, a part of
established law that is susceptible of differing interpretations, and the court is called upon
to determine which interpretation is correct." Id. at 1835-36 (quoting Hendeles v. Bank
Kupat Am, 35 (ii) P.D. 785, 799 (1981). The Nahmani Court found that there was no
recourse under the "Jewish Heritage" section of the Foundations of Law statute since that
particular law related to a lacuna in the law, while in the present case, there was no lacuna.
Landau, Father,supranote 67; see Schuz, supranote 20, at 246-7. Rather, the Court said
this was a dispute that arose from modern scientific and genetic developments that
presented a new predicament. Landau, Father,supranote 67; see Schuz, supra note 20, at
246-7.
71 Landau, Nahman4 supra note 63; see Schuz, supra note 20, at 251-2.
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the court must decide the case somehow; the decision of cases is
what courts are for... And I do not know of any system of law
where a judge is held to be justified in refusing to pass upon a
controversy because there is no person or book or custom to tell
him how to decide it. He must find himself; he must determine
what the law ought to be; he must have recourse to the principles
of morality.
72
Believing that the law is subjective depending on the manner
in which it is applied, the Court asserted that the concept ofjustice
should be exercised in this case because it is "one of the fundamental
values that dominate our legal system."" It stressed that the
justice applied by the Court should be "human justice, based not
only on reason but also on human considerations coming from the
heart."74
72 F.H. (c) 2401/95, C.A. 5587/93, Nahmani v. Nahmani, 1, 34-35 (Sept. 12, 1996) (unpublished
case, on file with author) (quoting J.C. GRAY, SouRCEs OF THE NATURE AND
THE LAW 302 (1921)). "General propositions do not decide concrete cases. The decision
will depend on a judgment or intuition more subtle than any articulate major premise." Id.
at 64.
73 Evelyn Gordon, Supreme CourtReversesItself,RulesRight to Be aParentOutweighs
Right not to be One, JERUSALEM POST, Sept. 13, 1996, at 3, available in LEXIS, News
Library, JPost File [hereinafter Gordon, Supreme Court];see Schuz, supra note 20, at 251-
2. "Justice is not some 'thing' which can be captured in a formula once and for all. It is a
process, a complex and shifting balance between many factors, including equality."
Gordon, Supreme Court,supra. As Friedrich observed, "[j]ustice is never given, it is always
a task to be achieved." Nahmani,F.H. (c) 2401/95 at 29 (quoting DIAS, JUIuSPRUDENCE
66 (1985)).
Lawyers... draw a clear and absolute line between law and morals, or what is
nearly the same thing, between law and justice. Judges and advocates are, to
their minds, not concerned with the morality or justice of the law but only with
the interpretation of it and its enforcement... This is a great mistake. It overlooks
the reason why people obey the law.
lI at 104-5 (citation omitted).
74 Landau, Father,supra note 67; see Schuz, supra note 20, at 251-2.
Ever since men have begun to reflect upon their relations with each other and
upon the vicissitudes of the human lot, they have been preoccupied with the
meaning ofjustice... I choose at random a miscellany of the adjectives which,
in my reading I have found attached to different kinds ofjustice - distributive,
synallgamatic, natural positive, universal, particular, written, unwritten, political,
social, economic, commutative, recognitive, jurisdictional, sub-jurisdictional,
constitutional, administrative, tributary, providential, educative,
cooperative, national, international, parental. A very little ingenuity would extend
the vocabulary indefinitely. There seems to be no end to this classification
and subclassification and its instructiveness is not always proportionate to its
subtlety. There is a danger ofthe cadaver being so minutely dissected that little
of its anatomy is left visible to normal.
Nahman F.H. (c) 2401/95 at 27 (quoting C.K. ALLEN, AsPEcrs OF JusncE 3 (1958)).
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ISRAELI IN VITRO FERTILIZATION
In the end, however, political theory can make no contribution
to how we govern ourselves except by strugglingagainst all the
impulses that drag us back into our own culture, towardgenerality
and some reflective basis for deciding which of our traditional
distinctions and discriminations are genuine and which
spurious, which contribute to the flourishing of the ideals we
want, after reflection, to embrace, and which serve only to protect
us from the personal costs of that demanding process. We
cannot leave justice to convention and anecdote.7"
The Court relied on section I of the Basic Law of 1992: The
Dignity and Freedom of Man76 and section 15 of the Basic Law of
1984: Judicature77 which defines the powers of the Supreme Court
sitting as a High Court of Justice to support its conclusion.78 The
NahmaniCourt also cited section 9 of the Family Law Amendment
(Maintenance) Law of 1959,79
which empowers the Court to relieve
the obligation of child support based on certain grounds, to justify
the Court's use of justice as a measuring stick.8 ° It further cited
section 30 of the Contracts (General Part) Law of 1973, which, according
to the majority, introduced the concept of justice."
75 Nahmani F.H. (c) 2401195 at 27 (alteration in original) (quoting RONALD DWORKiN,
MATMR OF PRiNcrLEL 219 (1986)).
76 Section One stipulates, "The purpose of this Basic Law is to protect human dignity
and freedom, in order to anchor in a Basic Law the values of the State of Israel as a Jewish
and democratic state." BAsic LAW: HUMAN DIGNT AND FREEDOM (1992), IsRAEL's
WnrrN CONSTrrtrON 12 (A.G. Publications Ltd. trans., 1993).
77 Section 15 states in part:
(a) The seat of the Supreme Court is Jerusalem.
(b) The Supreme Court shall hear appeals against judgments and other decisions of the
District Courts.
(c) The Supreme Court shall sit also as a High Court of justice. When so sitting, it shall
hear matters in which it deems necessary to grant relief for the sake of justice and
which are not within the jurisdiction of another court (beit mishpat or beit din)
(e) Other powers of the Supreme Court shall be prescribed by Law.
Basic Law: Judicature, 1984, 38 L.S.I. 101, (1983-84).
78 Landau, Father,supra note 67; see Schuz, supra note 20, at 239.
79 Section Nine of the Family Law Amendment (Maintenance) Law of 1959 states,
"The Court may, if it thinks it just and equitable so to do, exempt a person from the whole
or part of the duty of maintenance by reason of shameful behavior of the person entitled to
maintenance toward that person." 13 L.S.I. 73, (1958-59).
80 Landau, Father,supra note 67; see Schuz, supranote 20, at 243-4.
81 Landau, Father,supra note 67; see Schuz, supra note 20, at 249. The doctrine of
public policy in Israeli law isrooted in Section Thirty of the Contracts (General Part) Law-
1973, which sets forth, interalia,that a contract contrary to public policy is void. Gabriela
Shalev, StandardContractsUnder IsraeliLaw, in 10 TEL AvIv STrms IN LAw 229, 231
(Daniel Friedman et al. eds., 1991). Section 30 states specifically, "A contract the making,
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340 CARDOZO J. OFINT'L & COMP.LAW
With no legal criteria but the notion of justice to guide the
Court in resolving the IVF issue at hand, the Majority fashioned a
three-prong test to scrutinize (i) the conflicting interests of the parties;
(ii) the parties' legitimate expectations; and (iii) the appropriate
public policy to be applied.82
In assessing the first prong, the Nahmani Court found that
conflicting interests were based on the right to be a parent versus
the right not to be a parent.83 Forced to rule between these two
rights, the Court had to decide which prevailed over the other.84
The Majority therefore advanced three different courses of action
it could take to resolve this conflict.85 The first action required a
uniform rejection of parenthood under the existing circumstances;8
6 the second involved an assiduous partiality for
parenthood;8 7 and the third option, which the Court eventually relied
on, struck a balance between the parties' conflicting rights and
the fundamental circumstances surrounding these rights.88
The Nahmani Court contended that parenthood is a person's
most basic goal.8 9 It postulated that as a general rule, the positive
right of parentage prevailed over the negative right of refusal.90
The Court held that "[i]n balancing [the Nahmanis'] conflicting incontents
or object of which is or are illegal, immoral or contrary to public policy is void.
ContractLaw, (General Part) 1973, 27 L.S.I. 117 (1972-73).
82 Landau, Father,supra note 67; see Schuz, supranote 20, at 244.
83 Landau, Father,supra note 67; see Schuz, supranote 20, at 244.
84 Landau, Father,supra note 67; see Schuz, supra note 20, at 244.
85 Landau, Father,supra note 67; see Schuz, supra note 20, at 244. This applies at the
stage prior to implantation. Landau, Father,supra note 67; see Schuz, supra note 20, at
244.
86 Landau, Father,supra note 67; see Schuz, supra note 20, at 244. This view was
adopted by the majority in the 1994 Nahmani case. Landau, Father,supra note 67; see
Schuz, supra note 20, at 244.
87 Landau, Father,supra note 67; see Schuz, supra note 20, at 244.
88 Landau, Father,supranote 67; see Schuz, supranote 20, at 244. The Court said, "In
this difficult judgment, [we]. . .choose life." Nathan Lewin, A Jewish Bias Toward Life,
JERUSALEM PosT, International Edition, Sept. 28, 1996 [hereinafter Lewin].
89 Landau, Father,supra note 67; see Schuz, supranote 20, at 245. "The United States
Supreme Court inSkinnerv. Oklahomarecognized [that] the right to procreate is one of a
citizen's "basic civil rights." Nahmani, F.H. (c) 2401/95 at 6 (quoting Davis, 842 S.W.2d at
1535)(citation omitted).
90 Landau, Nahmani, supra note 63; see Schuz, supra note 20, at 246-47. The Court
held that the right to parenthood warranted an incomparably higher value than the right of
refusing parentage and therefore the emotional, moral and economic obligations which
parenthood imposed were escapable. Landau, Father,supranote 67; see Schuz, supra note
20, at 246-47. The Court viewed the fertilization of an ovum as a "fait accompli" during
which a "new entity" is created. Friedman, supra note 13, at 39; see Schuz, supra note 20,
at249. The Court articulated that "[O]nce the IVF is accomplished, the positive right to be
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ISRAELI IN VITRO FERTILIZATION
terests, we must remember that despite the symmetrical language 'to
be a parent' and 'not to be a parent' - these interests are not
equal... The interest in parenthood is a basic and existential value,
both for the individual and for society as a whole. In contrast,
there is no intrinsic value to the absence of parenthood." 91 The
Majority then resorted to the Torah and the writings of religious
sages which regard deprivation of parenthood as loss of a person's
soul.92
"It was true an unwilling parent would have responsibilities
but, onerous as they could be, they could not be compared with the
loss of his soul," the Justices articulated.93 Antithetically, the
Nahmani Court regarded the interests of not being a parent a right
of unequal weight.94 It distinguished this right as a claim grounded
on privacy and freedom to make intimate decisions, which is invalidated
by the axiomatic right to be a parent.95
The justices further explored the different categories of rights
recognized, including basic versus fundamental, general versus specific,
absolute versus relative, and narrow derivative rights.96 In
this case, the Court characterized the rights of Mrs. Nahmani in the
context of specific versus general.97 Mr. Nahmani sought to impose
on what appeared to be a specific limitation of Mrs. Nahmani's
right to be a parent by restricting her to the use of embryos fertilized
from his semen.98 However, the majority contended, the limitation
was in fact general since she had no practical alternative to
a parent generally overpowers the negative right not to be [one]." Friedman, supranote 13,
at 39; see Schuz, supranote 20, at 247.
91 Gordon, Supreme Court,supra note 73; see Schuz, supra note 20, at 246-47.
92 Landau, Father,supra note 67; see Schuz, supra note 20, at 246-47.
93 Landau, Father,supra note 67; see Schuz, supra note 20, at 246-47.
94 Landau, Father,supra note 67; see Schuz, supra note 20, at 246-47. "Allowing women
the exclusive right to decide whether the child should be born may discriminate
against men, but at some point[,] the law must recognize that there are differences between
men and women ... and must reflect those differences." Nahman4 F.H. (C) 2401/95 at 47
(quoting R.A. Gilbert, Abortion: The Father'sRights, 24 CIN. L.R. 443 (1973)).
95 Landau, Father,supra note 67; see Schuz, supra note 20, at 245. This notion overturned
the previous Supreme Court ruling which sanctioned the right to refuse parentage
based on an individual's personal autonomy. See supra text accompanying notes 32-43.
96 Landau, Father,supra note 67; see Schuz, supranote 20, at 246-47.
Claims, Liberties, Powers and Immunities are subsumed under the term 'rights' in ordinary
speech, but for the sake of clarity and precision it is essential to appreciate that this word
has undergone four shifts in meaning. They connote four different ideas concerning the
activity, or potential activity, of one person with reference to another. Nahmani,F.H. (c)
2401/95 at 6-7 (quoting DiAs, JUR1SPRUDENcF 23 (1985)).
97 Landau, Father,supra note 67; see Schuz, supra note 20, at 246-47.
98 Landau, Father,supra note 67; see Schuz, supra note 20, at 247.
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342 CARDOZO . OFINT'L & COMP.LAW
create another child99 and adoption was also not a viable alternative
since it was not available to her.100 On the contrary, since Mr.
Nahmani could still retain his right to be or not to be a parent, the
Justices concluded that the limitation being imposed on his right
was specific, relating only to parentage in the particular framework
of this case.101
Ordinarily, the party wishing to avoid procreation should prevail,
assuming that the other party has a reasonable possibility of
achieving parenthood by means other than use of the preembryos
in question. If no other reasonable alternatives exist, then
the argument in favor of using the preembryos to achieve pregnancy
should be considered... the rule does not contemplate
the creation of an automatic veto..."
Hence, the Nahmani Court felt that the "scales of justice"
leaned in Mrs. Nahmani's favor. 0 3
On the rights of the IVF parent as discerned in the context of
abortion rights, the Court disagreed with the prior Nahmani ruling.'0
4 The Justices asserted, "[a]s a man may not demand the termination
of... pregnancy even if based on fraud ... so is he
precluded from demanding the cessation of the fertilization and
implantation process. Both cases involve intervention in a wo-
99 See supra p. 9-10.
100 Landau, Father,supranote 67; see Schuz, supra note 20, at 247. The alternative of
adoption is not an option for Mrs. Nahmani since the Israeli Health regulations prohibit
single parents to adopt. Section Three of the Adoption of Children Law stipulates:
An adoption shall only be made by a man and his wife jointly: Provided that a
court may grant an adoption order to a single mother (1)
if his spouse is a parent of the adoptee or has previously adopted him;
(2) if the parents ofthe adoptee are dead and the adopter is related to the
adoptee and unmarried.
35 L.S.I. 360, (1980-81).
101 Landau, Father,supranote 67; see Schuz, supra note 20, at 247.
102 Nahman F.H. (C) 2401/95 at 63 (citation omitted). "If the right to reproduce and
the right to avoid reproduction are in conflict, favoring reproduction is not unreasonable
when there is no alternative way for one party to reproduce." Id. at 69 (quoting J.A.
Robertson, PriorAgreementsfor Dispositionof Frozen Embryos, 51 Orno ST.L. J. 407,
420 (1990)).
103 Landau, Father,supranote 67; see Schuz, supra note 20, at 247.
104 Landau, Nahmani,supranote 63; see Schuz, supranote 20, at 246. See suprapp.13-
15. The Court expressed no opinion on the question of when the embryo became a legal
person or what its rights were but, based on its sense of values, the Court was of the
opinion that the very existence of potential life tilted the balance in Mrs. Nahmani's favor.
Landau, Father,supra note 67; see Schuz, supra note 20, at 249.
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ISRAELI IN VITRO FERTILIZATION
man's body, desecrating her dignity and modesty, which the law
will not recognize."'' 05
[T]here is no legal, ethical or logical reason why an in vitro fertilization
should give rise to additional rights on the part of the
husband. From a propositional standpoint[,] it matters little
whether the ovum/sperm union takes place in the private darkness
of a fallopian tube or the public glare of a petri dish. Fertilization
is fertilization and fertilization of the ovum is the
inception of the reproductive process. Biological life exists from
that moment forward... To deny a husband rights while an
embryo develops in the womb and grant a right to destroy [it]
while it is in a hospital freezer is to favor situs over substance.10 6
The Court relied on additional U.S. sources to bolster its abortion
analogy:
There are several forms which a disagreement between progenitors
could take. The woman may want the embryo to be
brought to term, and the man may want the embryo terminated.
In that case, it would seem appropriate for the woman to be
allowed to gestate the embryo. The Supreme Court's abortion
and contraception decisions have indicated that the right of procreation
is the right of an individual which does not require the
agreement of the individual's partner. In particular, the woman
has been held to have a right to abort without the husband's
consent and the right not to abort over the wish of the husband
that she abort.'0 7
The Court continued:
But what if the positions were reversed and the woman wished
to terminate the embryo and her male partner wished to have it
brought to term? When an embryo conceived naturally is developing
within a woman during the first two trimesters, it is clear
105 Landau, Nahman4 supra note 63; see Schuz, supra note 20, at 247-48. The Court
cited a U.S. Supreme Court case to support its view:
We recognize... that when a woman, with the approval of her physician, but
without the approval of her husband, decides to terminate her pregnancy, it
could be said that she is acting unilaterally. The obvious fact is that when the
wife and the husband disagree on this decision, the view of only one of the two
marriage partners can prevail. Inasmuch as it is the woman who physically
bears the child and who is the more directly and immediately affected by the
pregnancy, as between the two, the balance weighs in her favor.
Nahmani, F.H. (C) 2401/95 at 47-48 (alteration in original)(quoting Planned Parenthood v.
Danforth, 428 U.S. 52 (1976)).
106 Id. at 64.
107 Id at 50 (quoting L.B. Andrew, The Legal Statusof The Embryo, 32 Loy. L. Rnv.
357 (1986)).
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344 CARD OZO J. OFINT'L & COMP. LAW
that the woman's decision whether or not to terminate it takes
precedence over the desires of the man who provided the sperm
...it is at least arguable that the man's wishes should be
honored when the embryo's continued existence need not be
balanced against the physical and psychological needs of the woman
carrying it. The man clearly would not have the right to
force the female progenitor to gestate the embryo, but there
seems to be no reason not to give him custody of the embryo for
gestation in a surrogate mother.'08
Furthermore, the Court did not deem the rights of a man and
a woman equal in this situation because a woman had complete
rights over her own body and she alone could decide whether to
continue or terminate pregnancy.10 9
Propagating the inquiry on opposing rights, the Court opined
that while imposing a duty of parenthood on an unwilling individual
was a substantive breach of his freedom, it concluded there was
no such duty being forced on Mr. Nahmani in this case." 0 The
majority reached this conclusion by making a "substantive and basic
distinction" between forcing Mr. Nahmani to surrender his
sperm to the IVF process in pursuit of parenthood (substantive)
and denying him the right to impose a barrier on Mrs. Nahmani's
desire to have a child (basic)."' In the majority's view, the only
right Mr. Nahmani lost was his opportunity to restrain Mrs.
Nahmani from using the contested embryos after he already consented
to the IVF process." 2 By leaving his marriage, he abandoned
his right to prevent the inception of his child and the Court
added that "[a]t this stage [of the IVF process], nothing more was
required of him.""13
108 ML
109 Landau, Nahmani,supra note 63; see Schuz, supra note 20, at 245-46. "Allowing
women the exclusive right to decide whether the child should be born may discriminate
against men, but at some point[,] the lawmust recognize that there are differences between
men and women, and must reflect those differences." Nahmani, F.H. (C) 2401/95 at 47
(quoting R.A. Gilbert, Abortion:The Father'sRights, 24 U. CN.L. REv. 443 (1973)). The
Court's assertion does not correlate with the State of Israel's abortion law which permits
legalized abortions under certain limited circumstances. See supra note 37.
110 Landau, Father,supra note 67; see Schuz, supranote 20, at 246.
111 Landau, Father,supra note 67; see Schuz, supra note 20, at 246.
112 Landau, Father,supra note 67; see Schuz, supra note 20, at 246, The Court said,
"[Nobody is trying to force [Mr. Nahmani] to do anything... [h]e is being deprived only
of his right to prevent [Mrs. Nahmani] from using her eggs, fertilized by his seed with his
full consent." Gordon, Supreme Court,supra note 73; see Schuz, supranote 20, at 249-51.
113 Landau, Father,supra note 67; see Schuz, supra note 20, at 246.
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The Court recognized that Mr. Nahmani could not be fully indemnified
if he were required to support a child he did not want
and since his family situation had changed, his emotional opposition
to the continuation of the IVF process was understandable.1
In response, it proposed that Mrs. Nahmani be granted the embryos
subject to the condition that she agree not to claim money
from Mr. Nahmani to aid any child or children born from their
embryos.1 5 After weighing the relevant factors, the Nahmani
Court determined that Mrs. Nahmani's right to be a parent prevailed
in the struggle between the opposing interests." 6 "A woman's
right to be a parent is stronger than a man's right not to be a
father," proclaimed the Court.117
The Nahmani Court next deliberated over the expectations of
the parties."" Since the Court posited that this matter was not covered
by ordinary contracts law," 9 it elected to find a "just" solution
by analyzing the circumstances surrounding the Nahmani dispute.
20
The Majority focused primarily on Mrs. Nahmani's reliance
on Mr. Nahmani. 2'
[T]he doctrine of reliance should be applied to resolve a dispute
between the gamete providers. The consistent application of a
114 Landau, Father,supranote 67; see Schuz, supra note 20, at 246.
115 Landau, Father,supra note 67; see Schuz, supra note 20, at 246. Section 12 of the
Family Law Amendment (Maintenance) Law, 1959 allows agreements as to the waiver of
child support, subject to the court's discretion. It designates in part:
(a) An agreement as to, or a waiver of, the maintenance of a minor does not
bind the minor so long as it has not been confirmed by the Court...
(c) An agreement, as to maintenance confirmed by the Court shall have the
effect of a judgment of the Court in a matter of maintenance.
13 L.S.I. 73, (1958-59). Section 13 ofthe Law allows the court to "vary the provisions of an
agreement, a waiver or a judgment if it thinks fit so to do in view of circumstances which
have come to the knowledge of the applicant, or of a change in circumstances which has
occurred, after the agreement, waiver or judgment." 13 L.S.I. 73, (1958-59).
116 Landau, Nahmani,supra note 63; see Schuz, supranote 20, at 251.
117 MacKenzie, supranote 22
118 Landau, Nahman4 supra note 63; see Schuz, supra note 20, at 252-53. The Court
viewed this analysis as an important way to weigh "judicial legislation" when the court, in
the absence of any precedence or legislation dealing with a case of first impression, had to
find its own solution. Landau, Nahman4 supranote 63; see Schuz, supranote 20, at 252-53.
119 Landau, Nahmani, supranote 63; see Schuz, supranote 20, at 252-53; see supra text
accompanying notes 49-57 and note 69.
120 Landau, Nahmani,supranote 63. Butsee Section 25 of the Contract (General Part)
Law, 1973, supra note 53. ("A contract shall be interpreted in accordance with the intention
of the parties as appearing therefrom or, in so far as it does not so appear, as appearingfrom
the circumstances") (emphasis added).
121 Landau, Nahman4 supra note 63; see Schuz, supra note 20, at 253-54.
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346 CARDOZO . OFINT'L & COMP.LAW
reliance based theory of contract law to enforce promises to
reproduce through IVF will enable IVF participants to assert
control over their reproductive choices by enabling them to anticipate
their rights and duties, and to know with reasonable certainty
that their expectations will be enforced by the courts.12
The Justices held that Mrs. Nahmani detrimentally relied on
her husband's initial consent to the IVF process when she underwent
a pre-fertilization procedure which the Court felt "caused
[her] continuous severe physical suffering and even threatened her
life."123 The Court also pointed out that the embryos most likely
signified Mrs. Nahmani's final chance to become a biological
mother since they represented her last remaining ova,124 which she
fertilized with her husband's sperm in reliance of his consent to
father her child.'2 5
One fact is of vital importance in making this judgment; the
spouse who opposes implantation wanted a child at one time
and submitted to the IVF process with that end in mind. The
two spouses once agreed on this issue and initiated the IVF procedure
in reliance on that mutual wish. Given this background,
the greater injustice would be to deny implantation to the
spouse who detrimentally relied on the other's words and
conduct.
126
Tapping into their "own principles and feelings," the Court expressed
animosity toward Mr. Nahmani for leaving his wife to be
with another woman only two months after signing the contract
with the surrogate institute in the United States.1 27 The Court had
no doubt that Mr. Nahmani's change of mind reflected a capriciousness
that "destroyed] [Mrs. Nahmani's] last spark of hope.1 28
It asserted that to allow Mr. Nahmani to whimsically withdraw his
122 Nahman=4 F.H. (c) 2401/95 at 67-68 (quoting Disputes Over Frozen Embryos: Who
Wins, Who Loses, andHow Do We Decide, 24 CREIGHTON L. REv. 1302, 1303 (1991)).
123 Landau, Father,supra note 67; see Schuz, supranote 20, at 253; see supra note 9.
124 Landau, Father,supra note 67; see Schuz, supra note 20, at 253-54. The Court came
to this conclusion by considering Mrs. Nahmani's mature age, forty-four, and her poor
state of health, which it felt contributed to her inability to produce more ova. Friedman,
supra note 13.
125 Landau, Father,supranote 67; see Schuz, supranote 20, at 253-54; see Derfner, supra
note 60.
126 Nahmani,F.H. (c) 2401/95 at 112 (quoting A.R. Pnitch, Note, Davis Dilemna:How
To PreventBattles Over FrozenPreembryos,41 CASE W. Rns. L. Rnv. 543, 547 (1991)).
127 Landau, Nahman4 supra note 63; see Schuz, supra note 20, at 253-54; see Masad,
supra note 21. The name of the United States surrogate institute is undisclosed.
128 Landau, Nahman=4 supra note 63; see Schuz, supranote 20, at 253-54.
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ISRAELI IN VITRO FERTILIZATION
consent at any time was to give a power of veto over the continuing
IVF process which, to the Court, was "clearly unacceptable" in
conjunction with equality before the law.129
One approach would be a to require mutual spousal consent as a
prerequisite to implantation of all preembryos created through
IVF. This approach would require obtaining consent twice from
each spouse - once when the IVF procedure is initiated and
again before each implantation .... This rule would... have
disadvantages, however. Most significantly, it would grant tremendous
power to one spouse over the other. It would mean
that even though both spouses initially consented to having a
child through IVF, neither could proceed with certainty that the
other would not truncate the process. Such an outcome would
surely frustrate the spouse seeking implantation, who will have
invested large financial expense, time, energy, and in the wife's
case[,] physical pain. The required second consent for implantation
could become a tool for manipulation and abuse between
spouses, especially under circumstances of a pending divorce.
Any spouse ultimately denied the chance to have a child
through IVF would probably suffer considerable emotional
stress."'13 0
To remedy Mrs. Nahmani's unjust detriment, the Court turned
to the doctrine of estoppel.'3'
Protection against this sort of injustice is recognized by the well
established doctrine of estoppel ... The elements of estoppel
are satisfied in a dispute such as Davis. The knowing action of
the objecting spouse is the undertaking of IVF for the purpose
of producing a child. The prejudice to the other spouse consists
of the time, money, and psychological commitment necessarily
expended in pursuing the full procedure. The injury would inlude
not only the time and money spent, but also the last opportunity
to have a child.'32
129 Landau, Nahman4 supra note 63; see Schuz, supra note 20, at 253-54. The Court
noted that exceptional circumstances such as genetic or medical changes that endangered
the embryo's existence would justify Mr. Nahmani's objection to the IVF process continuing.
Landau, Father,supranote 67; see Schuz, supranote 20, at 254. The Court also commented
that had the situation been reversed, it would have ruled in Mr. Nahmani's favor.
Landau, Father,supranote 67; see Schuz, supra note 20, at 254.
130 Nahmani, F.H. (c) 2401/95 at 43 (alteration in original) (quoting A.R. Pnitch, The
Davis Dilemna:How To Prevent Battles Over Frozen Preembryos,41 CAsE W. RES. L.
Rnv. 543 (1991)). But see p. 22.
131 Landau, Father,supra note 67; see Schuz, supra note 20, at 253-54.
132 Nahmani, F.H. (c) 2401195 at 43-44 (alteration in original) (quoting B.L. Henderson,
Achieving ConsistentDispositionofFrozen Embryos in MaritalDissolution UnderFlorida
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348 CARDOZO J. OFINT'L & COMP.LAW
Finally, addressing the last prong of their analysis, the Court
held that public policy demanded the parties' consent be secured in
as short a time as possible in order to maintain legal stability and
certainty.133 The Majority noted that not only were the IVF couple
involved, but also the medical institutions and the surrogate
mother.134 It maintained that the prospect of a one-sided veto was
likely to lead to various difficulties affecting the whole procedure.
35 Following this logic, the Court examined when the "the
point of no return" was after both parties agreed to the IVF procedure.136
Contrary to the belief that "point" is reached when the
embryo is implanted in the womb, the Court asserted that once the
ovum has been fertilized by the sperm, a party cannot back out of
that agreement.137 The Court felt strongly that the possibility of a
new "being" created during the point of fertilization warranted
continuation of the IVF process in the face of a one-sided objection.
38 Moreover, the Court wanted to encourage couples unable
to procreate children naturally to utilize the IVF process by eliminating
any obstacles that they may encounter. 39
Ergo, by majority decision, the 1994 Nahmanijudgment was
set aside and the Haifa District court's decision for Mrs. Nahmani
was restored.
B. The Nahmani Dissent
While the Nahmanimajority relied heavily on the concept of
justice to make their ruling, the Nahmaniminority, in sharp contrast,
focused on already existing laws. 40 The dissenting justices
did not concur with the majority view that the case presented a
Law, 17 NOVA L. REv. 549 (1992)). The Nahmani Court also considered the Nahmanis'
legal struggle to obtain a surrogate mother and the money they expended to pursue the
expensive IVF process. Landau, Nahman supra note 63.
133 Landau, Nahman=4 supranote 63; see Schuz, supra note 20, at 255.
134 Landau, Nahman supranote 63; see Schuz, supra note 20, at 255.
135 Landau, Nahman supra note 63; see supra text accompanying notes 58-60.
136 Landau, Nahman4 supra note 63; see Schuz, supra note 20, at 253.
137 Landau, Nahman supra note 63; see Schuz, supra note 20, at 255. However, the
Court acknowledged that a couple's joint decision to interrupt the IVF process was acceptable
since "the parts played by both the man and the woman in the creative process were
not inseparable." Landau, Nahman supranote 63; see Schuz, supra note 20, at 249-50.
138 Landau, Nahman4 supra note 63; see Schuz, supra note 20, at 249-50.
139 Landau, Nahman=4 supranote 63; see Schuz, supra note 20, at 250.
140 Asher Felix Landau, To Be OrNot To Be a Parent,Jerusalem Post, Oct. 21, 1996, at
7, availablein LEXIS, News Library, Post File [hereinafter Landau, Parent];see Schuz,
supra note 20, at 244, 251-52.
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ISRAELI IN VITRO FERTILIZATION
normative vacuum.141 Rather, they believed that the case fell
under the jurisdiction of present legislation, and that the Supreme
Court was compelled to apply that law.142 To them, what was legal
was just.143
Rejecting the majority's contention that the Nahmani case
presented a normative vacuum, the minority analyzed current regulations
to ascertain a proper determination.'" The dissenting justices
held the position that the relevant issue was whether Mrs.
Nahmani had a legal right to demand Mr. Nahmani's consent to
the progression of the 1VF process.145 It enunciated that since the
whole foundation of the IVF agreement no longer exists, the law
rendered Mrs. Nahmani no right to force such an imposition.146
141 Landau, Parent,supra note 140; see Schuz, supra note 20, at 251-52.
142 Landau, Parent,supra note 140; see Schuz, supra note 20, at 251-52.
143 Landau, Parent,supranote 140; see Schuz, supra note 20, at 251-52. Elaborating on
the conception ofjustice, the minority split it into two categories; general and particular.
Landau, Parent,supranote 140; see Schuz, supra note 20, at 251-52. The dissenters cited
the 1994 findings of a government commission - which recommended that both of the
parties' consent be realized at every stage of the IVF process - as an example of general
justice. Landau, Parent,supranote 140; see Schuz, supranote 20, at 251-52. The committee
was appointed in 1991 to examine various aspects of IVF and surrogacy in an effort to
reevaluate its fertility laws. Krim, supranote 68, at 218 (citing Judy Siegel, ExpertsRecommend
Legalizationof Surrogate Motherhood,JERUSALEM PoST, July 27, 1994, at 12); see
Schuz, supranote 20, at 241. The group was comprised of a retired district court judge, a
gynecologist, a sociologist, a philosopher, a social worker, a gynecologist/medical ethicist
rabbi, and a psychologist. Krim, supra note 68, at 218 ; see Schuz, supra note 20, at 241.
Recommendations made by the board included the appointment of an interdisciplinary
board of experts to exclusively supervise all IVE and surrogacy procedures. Krim, supra
note 68, at 218 ; see Schuz, supranote 20, at 241. Particular justice was defined as protecting
Mr. Nahmani's right not to have a child over Mrs. Nahmani's pain and suffering
throughout the VF process, which the minority found to be the more just alternative.
Landau, Paren, supra note 140; see Schuz, supra note 20, at 246-47. Additionally, the
dissenting judges pointed out that justice demanded Mr. Nahmani oppose the WE process
in good faith. Landau, Parent,supra note 140; see Schuz, supra note 20, at 246-47. The
Court examined the circumstances - that the loss of love and trust between married
couples was a part oflife which occurred without any intention to hurt the other partner and
found that Mr. Nahmani had acted in accordance with the standard of good faith.
Landau, Paren4 supra note 140; see Schuz, supra note 20, at 252-53.
144 Landau, Parent,supra note 140; see Schuz, supra note 20, at 251-52.
145 Landau, Parent,supra note 140; see Schuz, supra note 20, at 249-50.
146 Landau, Parent,supra note 140; see Schuz, supra note 20, at 251. In the minority's
judgment, parenthood was a basic freedom and privilege, not an obligation. Landau,
Nahman4 supra note 63; see Schuz, supranote 20, at 251. As the judiciary could not force
marriage on an individual, it could not force parenthood on them either. Landau,
Nahman4 supra note 63; see Schuz, supra note 20, at 245-47. Moreover, parenthood did
not only involve a monetary obligation, but also a commitment to promote the child's
welfare in all respects, enforceable by both the civil and criminal law. Landau, Nahmani,
supra note 63. Consequently, the Court could not impose such an extreme burden on
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Finding that the former couple's agreement to embark on the IVF
process was strictly verbal, and therefore not an ordinary contract,
the minority consulted sections 25(a)147 and 61148 of the Contracts
(General Part) Law of 1973, which required that such a contract be
construed on the basis of the surrounding circumstances, as well as
the parties' conduct, in order to unearth their intrinsic inten-
tions.149
"In family or quasi-family situations[,] there is always the
question whether the parties intended to create a legally binding
contract between them. The more general and less precise the language
of the so-called contract, the more difficult it will be a infer
that intention.' '150 The minority perceived Mr. Nahmani's original
covenant to the IVF process as based on the consent of a husband
who loved his wife and fully intended to have a family with her.'-'
However, the dissenting judges said Mr. Nahmani's intention evaporated
when he left his wife for another woman; there was no indication
that his initial consent was meant to survive an
estrangement.5 2 As a result, the dissent made emphatic that Mr.
Nahmani's consent was necessary at every stage of the IVF
proceeding. 53
either party whereby denying them the freedom to choose whether to have children or not.
Landau, Nahman supra note 63; see Schuz, supra note 20, at 245-47. As a result, mutual
consent is needed to achieve both justice and equality. Landau, Nahmani,supranote 63;
see Schuz, supranote 20, at 245-47. The dissenting justices distinguished the present case
from the abortion case, based on out of body status of the embryo. Landau, Nahmani,
supranote 63; see Schuz, supranote 20, at 245-47; comparesupratext accompanying notes
104-109.
147 See supranote 53.
"48 Section 61 posits:
(a) The provisions of this Law shall apply where no other Law contains special
provisions regarding the matter in question.
(b) The provisions of this Law shall, as far as appropriate and mutatis mutandis,
apply also to legal acts other than contracts and to obligations not arising
out of a contract.
Contracts (General Part) Law, 1973, 27 L.S.I. 117 (1972-73).
149 Landau, Parent,supranote 140; see Schuz, supra note 20, at 249-51.
150 Nahmani, F.H. (c) 2401/95 at 139 (quoting Scorr M. PARRY, Tim LAW RELATINO
TO COHAEITATION 234 (London ed., 1993).
151 Landau, Nahman, supra note 63; see Schuz, supranote 20, at 249-50.
152 Landau, Nahman, supranote 63; see Schuz, supra note 20, at 249-50. The minority
said human experience and common sense dictated that if asked whether his consent
would apply under any circumstances, Mr. Nahmani would have said "no." Landau, Parent,supra
note 140.
153 Landau, Paren, supranote 140; see Schuz, supranote 20, at 249-50. By way of analogy,
the minority cited the adoption laws which sanctions a parent, who initially subscribed
to the adoption, to withdraw his/her consent, if later circumstances justified that course.
Landau, Nahman4 supra note 63. See supranote 42. It also related Sections Two, Five and
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ISRAELI IN VITRO FERTILIZATION
Additionally, the court professed that Mrs. Nahmani knew the
IVF process was full of pitfalls, that it would be a long and expensive
endeavor which prescribed her husband's joint effort and consent
at every juncture.15 4 They based this dogma on the Nahmanis'
application for IVF under section 14 of the Public Health Regulations
(IVF) of 1987155 and their agreements with third parties, inclusive
of the IVF hospital,156 the surrogacy institution in the
United States,157 and the pre-arranged surrogate mother. 58 The
court concluded that the mere fact that Mr. Nahmani was enjoined
in the initiation of the IVF proceeding and the selection of the surrogacy
institution, in addition to the surrogate mother, was a manifest
substantiation of his mandatory consent to the consummation
of the process. 5 9 This requirement transcended the Nahmanis'
separation and to find otherwise would offend the concept of having
children within a marital partnership and would be unjust to
Seven of the Surrogacy Agreements Law of 1996 (delineated by the dissent to mean that
the legislature favored the prerequisite of mutual consent) to the IVF scenario. Landau,
Parent,supra note 140. See supra note 68 (for more information on the Surrogacy Agreements
Law). But see Landau, supra note 68 (for the majority's opinion).
154 Landau, Parent,supra note 140; see Schuz, supranote 20, at 250-53.
155 Landau, Parent,supra note 140; see Schuz, supra note 20, at 250-53. The Nahmanis
submitted their application to the IVF hospital under the Public Health Regulations (in
vitro fertilization) of 1987, which the minority interpreted as requiring their joint consent
to every phase of the transaction. Landau, Paren supranote 140; see Schuz, supranote 20,
at 250-53. The minority also examined Sections 2(a), 8(b)(1)(2), (3), 8(c)(3), 9(a)(b), and
14(c) of the IVF regulations in assessing this conclusion. Landau, Parent,supra note 140;
see Schuz, supra note 20, at 250-53; see Gordon, supranote 47.
156 Landau, Parent,supra note 140. The minority pointed out that the Assuta Hospital
had agreed to the fertilization on the basis of a joint application by both Nahmanis. Landau,
Parent,supra note 140.
157 Landau, Parent,supra note 140. The dissent appraised the provisions in the U.S.
surrogate institution contract, which the Nahmanis signed. Landau, Parent,supranote 140.
The provisions state in part, "In the event that, in the opinion of the Center's physician, the
contemplated pregnancy has not occurred within a reasonable time, this agreement shall
terminate by any party or the center's physician giving notice to all parties." Nahman4
F.H. (c) 2401/95 at 142. It further states, "... [T]he center is engaged in the practice of
arranging surrogate agreements and administration of agreements for couples who are unable
to bear their own children . . ." Id. at 145 (alteration in original). The surrogacy
contract also goes on to say, "Prospective parents shall meet with and have the final decision
as to the selection of any potential surrogate.. ." Id Furthermore, married couples,
who are "living together" are desired for "entering into the following agreement.. ." ML at
146 (alteration in original). Finally, the agreement stipulates that "[t]he Center has advised
prospective parents that surrogate parenting is a very expensive procedure and has many
unknown implications." Id. at 147.
158 Landau, Parent,supranote 140.
159 Landau, Parent,supranote 140.
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352 CARDOZO J. OFINT'L & COMP.LAW
Mr. Nahmani.160 Accordingly, the minority's dissension converged
into the opposition of the majority's holding that Mr. Nahmani was
estopped from denying the frozen embryos based on Mrs.
Nahmani's reliance on his initial consent to the IVF process.161
The minority would therefore have upheld Mr. Nahmani's appeal
and denied Mrs. Nahmani the frozen embryos.
V. "BE FRUITFUL AND MULTIPLY": BEHIND THE MIND OF A
PRONATALIST 162
COURT
With the 1996 Nahmani decision, the Israeli Supreme Court
ushered in a vision of reproductive rights so paramount as to override
the intrinsic right of personal autonomy.1 63 Only before a Jewish
court embodying judges "with a uniquely Jewish reverence for
life" could Mrs. Nahmani have succeeded in her pursuit to have a
child, using the frozen embryos fertilized by her estranged husband
against his will.164 To understand the majority's "unique" perspective,
one must canvass the rich social, cultural, and religious history
of a society that has a "deeply rooted, unequivocal, imprinted commitment
to children."'165
It is a fundamental canon in Judaism166 that life is of unfathomable
worth and that each moment of life is equal to seventy
years thereof. 67 "In Jewish law, all biblical and rabbinic commandments
are set aside for the predominant conception of saving
a life."'1 68 Concomitantly, Judaism overwhelmingly values children,
considering them the prospect for the future and the foundation
160 Landau, Parent,supra note 140.
161 Landau, Parent,supra note 140; see supra text accompanying notes 118-132.
162 A phrase coined by Rabbi David M. Feldman to define the benefits of procreation.
David M. Feldman, The Case of Baby M, in JEWIsH VALUES IN HEALTH AND MEDICINE
165 (Levi Meier ed., Univ. Press of America, Inc. 1991).
163 See supra text accompanying notes 88-95.
164 Lewin, supra note 88.
165 Shoshana Matzer-Bekerman, The Jewish Child, in HALAKHnc PERSPECTIVES 7
(1984).
166 See infra note 176. Judaism, as a legal system, is rigidly grounded on a religious
world view. Edward H. Rabin, Symposium: The Evolution &ImpactofJewishLaw, 1 U.C.
DAvis J. INT'L L. & POL'y 49, 51 (1995). The law pertaining to the indebtedness that men
and women owe to God (ritual and religious) and the law that dictates the duties people
owe to each other (civil and criminal) were conventionally examined together. Id. The
corresponding methods of legal reasoning and hermeneutics were extracted from identical
origins and bestowed with the same sanctity. Id.
167 FRED ROSNER, MODERN MEDICINE AND JEWISH ETmICS 108 (2d ed. 1991).
168 Id.
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ISRAELI IN VITRO FERTILIZATION
for the perpetuation of the Torah.16 9 This enthusiastic spirit stems
from the incessant perils (both from internal and external forces)
the Jewish community faced throughout its extended career, and its
consistent emphasis on the duty to procreate in order to survive
developed as a result.170
"If self-preservation is the first law of nature,
the injunction "Be fruitful and multiply" is properly the first
Commandment, but not merely because it occurs in the opening
chapter of Genesis but because it is the cornerstone of Jewish life,
upon which all else depends."'1 71 This commandment (mitzvah) of
procreation has undergone many changes, shifting with the four
main stages of Jewish history172
which shall briefly be addressed.
All through the biblical period, 73 when Jewish life was sound,
laid open only to the common risks that are part ofthe human state
of being, the sensibility toward reproduction was insouciant; children
were regarded as blessings. 174 During the Return after the
169 Matzner-Bekerman, supranote 165, at 9. "Torah" is defined as "directive," "instruction,"
"teaching," "guidance," and "law." ROBERT GoRDIs, THE DYNAMIcs OiF JUDAISM:
A STUrDY I JEWISH LAW x (1990). It is the most essential and comprehensive term in
Judaism which was formerly applied to condensed instruction manuals for priests; it was
then broadened to include the first five books of the Bible, the Oraland the Written Torah,
the entire corpus of law and lore ofthe Rabbis (culminating in the Mishnah),the Gemara,
all treatises and commentaries assembled after the finalization of the Talmud, and the complete
Aggadah. Id.See id.at ix-x (for a glossary and guide to of the rabbinic sources). The
Torah permeates itself into every aspect of the Jewish individual's personal and interpersonal
life. FRED ROSNER & J. DAVID BLnicH, JEWISH Bionrmcs 102 (1979). See also
Tim JPS TORAH ComME.NARY (Sarna & Potok, eds., Jewish Publication Society, 1994).
See generallyTHm TANAKH (Jewish Publication Society, 1985) (contains a translation of the
entire Hebrew Bible).
170 Gordis, supra note 169, at 186.
17' Id.
172 Id at 186.
173 The biblical account of creation (Genesis 1:18) reads: "God blessed them, and God
said to them, 'Be fruitful and multiply, and fill the earth and subdue it; and have dominion
over the fish of the sea and over the birds of the air and over every living thing that moves
upon the earth."' Id. The same prescription was also given to the sons of Noah after the
Flood when God blessed Noah and his sons, and said to them, "Be fruitful and multiply,
and fill the earth." (Genesis 9:1). Id. Again, the blessing is extolled on Jacob and his
descendants: "God said to him, 'I am God Almighty: be fruitful and multiply: a nation and
a company of nations shall come from you, and kings shall spring from you."' (Genesis
35:11). Id.
174 Id.at 186-187. Many factors contributed to form the disposition toward children as a
blessing, including the economic benefit they produce and the continuance of the family
name. Id. at 187. During this period, the conception of two children were enough to satisfy
the mitzvah. Id. Adam and Eve, the ideal ofthe human family had two sons, with Seth
being born after the fatal altercation between Cain and Abel. Id. Sarah and Abraham
bore only one son; Isaac and Rebecca had two; Amram and Jochebed sired two sons and a
daughter; Aaron fathered four sons; and Moses had two... Id.
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354 CARDOZO J. OFINT'L & COMP.LAW [Vol. 7:325
Babylonian Exile until the end of the Tannaitic period, the third
century C.E., the Jewish population was concentrated in Palestine
where there were no significant threats to Jewish survival.175 This
period marked the emergence of the Jewish belief and practice in
the Halakhah 76 as the rudimentary composition of Jewish life.177
The blessing of procreation was subsequently metamorphosed into
amitzvah, an obligation binding upon the Jew.178 There was yet no
demand for extensively abundant families since Jewish life still remained
normal. 79
As time progressed to the Middle Ages, during the protracted
period of the Galut, Jewish life no longer centered around Palestine.8
The Jews were scattered throughout Europe, North Africa,
and western Asia, where they were looked upon as aliens, living at
the expense of their host country.181
They became perpetual "victims
of persecution, expropriation, expulsion, and massacre at the
hands of their neighbors."'81 2 As a consequence, Jewish preservation
was always uncertain - for the mass numbers of east European
Jewry, this plight continued into the twentieth century. 8 3
175 Id at 188. Politically Jews were independent or autonomous during this period. Id.
176 Jewish law is a subgroup of the halakha, which literally means "the way" or the
correct path. Rabin, supra note 166, at 50. Halakhic literature bears upon "law" only in a
specialized sense; it embodies the laws of religion and ritual, as well as the laws overseeing
civil and criminal affairs. Id Conventional halakhic scholars ordinarily do not find it essential
to demarcate law, morality and religion since all derived from God's word, and
therefore had to be obeyed. I&. While the separation between the religious/ritual laws and
civil/criminal laws was sometimes critical, this differentiation was not pivotal to the analysis
ofhalakha. Id. Both types of inquiries were explained by citing to the same sources and
would be approached by analogous types oflegal rationalization. Id. See generallyJosEPH
B. SOLOvmrrcHIK, HALAXHmC MAN (1983). See, e.g., MENAcHEM ELON, 1 JEISH LAW:
HISTORY, SouRcEs, PRNCIPLES (Bernard Auerbach & Melvin Sykes, trans., 1st Eng. ed.,
1994). See, e.g., ABRAHAM COHEN, EVERYMAN'S TALvuD (Schocken Books, 1975). See,
e.g., SAMUEL N. HOENIG, TIE EssENcE OF TALmUDIc LAW AND THOUGHT (Jason Aronson
ed., 1993).
177 Gordis, supranote 169, at 192.
178 Id.
179 Id.
180 Id.
181 Id. at 191.
182 Id.
183 Id. Both natural and manmade conditions rendered elevated levels of infant and
child mortality among Jews during this period. Id. "There was no house without its dead"
(Exod. 12:30). Id According to rough statistics by New Testament scholar Adolf Harnack,
there were four million Jews in the Roman Empire at the commencement of the Christian
Era - approximately ten percent of the population. Id. In 1070, the world Jewish population
had been diminished to one million and not until the eighteenth century did it once
more arrive at four million. Id.
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1999] ISRAELI IN VITRO FERTILIZATION 355
Fearing extinction of the Jewish population, Medieval Jewish leaders,
determining that more children were needed to replenish the
diminishing populace, introduced the rule that the commandment
"be fruitful and multiply" had to take priority "over other considerations
of health, convenience, or personal desire. '184 This attitude
eventually became the norm in traditional Judaism."' The
remaining era, which lasted only 150 years, witnessed the French
Revolution and the birth of Nazism.186 During this modem age,
the mitzvah of procreation went into total eclipse on account of
highly urbanized and mobile Jews - mostly situated in central and
western Europe and North America - who curtailed their birthrate
at a more excessive rate than did the rest of the population in
that area. 8 7 However, a majority of the world Jewry, living in
Eastern Europe, still retained the Jewish lifestyle of the middle
ages and were faithfully employed in replenishing the diminishing
184 I. The rabbinic leaders were convinced that the survival of Jews predominated over
a person's health and personal desires and needs. Id. at 194. Compare the Nahmani
Court's similar adherence to this view supra pp. 37-39 and notes 89-95. These leaders
presented two standards derived from biblical verses cited in the Talmud. Id. at x. The
Talmud isa massive collection of law and lore produced by rabbanic Judaism and it is the
central document in Jewish law. Rabin, supranote 166, at 58. For a more detailed description,
See i. at 53. See generally HEBREw-ENGLISH EDMON OF TI BABYLONIAN TAmuD(Isaac
Epstein, ed., Maurice Simon et al., trans., London: Soncino Press, 1990). See
also Tan TALMuD (Adin Steinsaltz, ed., New York: Random House, 1989). See Tan TALMUD
OF THE LAND OF ISRAEL (Jacob Neusner, trans., Missoula, Chico, then Atlanta:
Scholars Press for Brown Judaica Studies, 1982). The two verses were cited as follows:
"He created the earth not for chaos, but for habitation [lashevet]" (Isa. 45:18) (this passage
conveyed the maxim of lashevet, the obligation to have beget as many offspring as possible);
and "In the morning sow your seed, and in the evening.., do not be idle, for you
cannot tell which will prosper, or whether both shall have equal success" (Eccles. 11:6)
(this stipulated that procreation should be practiced throughout one's entire lifetime).
Gordis, supra note 169, at 191-192. These two principles nullified the previous idea that
two children were enough to satisfy the mitzvah of procreation. Id. at 191.
185 Id. at 192.
"Even though a man has fulfilled the mitzvah of procreation, he is commanded
by the Sages not to desist from procreating so long as he has the strength, for
whoever adds a single soul in Israel it is as though he has built a world
[Mishneh Roah, Hilkhot 'Ishut, 15,4]."
Id.
186 Id. at 194.
187 Id. The most optimistic figures show that American Jewish couples have an average
of 1.7 children, not adequate to replenish themselves much less manifest a pattern of expansion.
Id. The is a trend toward intermarriage is also viewed as a contributing factor to
the population shortage. l at 195. The difficulty of intermarriage is as antiquated as the
Jewish people itself, as evidenced in the Book of Deuteronomy, "Not because you are the
most numerous of people has the Lord set His heart on you, indeed you are the smallest of
peoples" (7:7). Id. at 204.
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356 CARDOZO J. OFINT'L & COMP.LAW
denomination of Jews in Germany, Austria, Holland, Belgium,
France, Great Britain, and Italy, in addition to the United States."'8
The advent of the Holocaust wiped out this fountain of replenishment
and decreased the world Jewish population from sixteen million
to eleven million.189
In the aftermath of century-old discrimination, persecution,
and mass extermination, "[o]ne of the hallmarks of modem Jews is
their preoccupation - or obsession - with Jewish survival and the
preservation of Jewish identity.' 190
A number of contemporary Jewish thinkers have urged an increase
in the Jewish birthrate on grounds which are essentially
extra-theological. The calamitous losses of the Holocaust, coupled
with defection as a result of assimilation and intermarriage,
have decimated the Jewish population. If demographic trends
are not reversed, it is argued, the prospects for Jewish survival
are precarious. Thus, higher birthrates within the Jewish community
must be encouraged if Jews are to remain a viable ethnic
group capable of continuing the uniquely Jewish contribution to
human civilization.1
91
It should follow from the Jewish community's aggressive promotion
of conception that infertility is declared an "illness.' '1 92
This posture has, consequently, led to a "less conservative and
188 Id.
189 Id. The latter estimate includes the Jews killed in Soviet Russia, numbering two
million or more. Id. Six of the seven million Jews existing in Europe in 1933 were executed
by 1945. Id. at 204. The Holocaust effectively lowered the number of Jews worldwide
by more than a third. Id at 197. Since the initiation of the Bolshevik Revolution in
1917, the Soviet Union has been persecuting Jews, engaging in "the campaign of spiritual
genocide against Jewish survival." Id. at 204.
190 Id. at 201.
191 J. DAVID BLEICH, JUDAISM AND HEALING: HALAKHIc PERSPECrIVES 52 (1981).
Since the time of our ancestors Abraham and Sarah, a common bond has
united all Jewish parents in all four comers of the earth in every generation.
This bond, the force that binds the major elements of Judaism together, has
contributed to Jewish survival despite a history of exile, trauma, and
oppression.
Matzner-Bekerman, supranote 165, at 7.
192 David M. Feldman, The Ethical Implications of New Reproductive Techniques, in
JEWISH VALUES IN BionTrmcs 180 (Levi Meier ed., 1986). Infertility is considered a curse,
for a "man without children is considered like the blind, the pauper, and the leper - as a
dead man." Matzner-Bekerman, supra note 165. Women, from the beginning of Jewish
history, who did not become pregnant "suffered great mental anguish as a result of their
infertility. Our ancestors Sarah, Rebecca and Rachel exemplify the desperation of women
who were infertile and were redeemed when God blessed them with a child. Failure to
bear children involves more than just personal frustration; indeed, a person who chooses
not to have children diminishes the image of God. Id.
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ISRAELI IN VITRO FERTILIZATION
noninterventionalist stance on IVF and surrogacy" in Israel.193 The
IVF procedure is reckoned to be "a meritorious deed" which helps
couples fulfill its procreative mitzvah.194
"[W]here the natural alternative
is not available, these resourceful ways of bringing about
the desideratum become acceptable. Enabling a woman to fulfill
the maternal yearning, or a couple to fulfill the mitzvah, is itself a
mitzvah."'195 IVF has met with great disapproval by some Catholic
theologians on the assertion that it is immoral and violative of natural
laws. 96 However, this argument is foreign to Judaism since it
does not postulate a doctrine of natural law but rather, examines
IVF "solely in light of possible infraction of biblical proscriptions.
In the absence of a specific prohibition, man is free to utilize scientific
knowledge in order to overcome impediments of nature."'197
It is quite evident that the Nahmani Court concurs with the
Jewish community's social, cultural, and religious practice of placing
a preeminent value on potential life and, accordingly, structured
their opinion around this conviction. This illustrates why the
Court's opinion is flawed in many respects.198 Unlike the dissent,
which objectively examined the case under existing legislation, the
majority conducted their deliberation on a subjective level, which
seemingly undermines their decision. A bifurcated approach to
193 Krim, supranote 68.
[W]e are "partners with God in completing the Creation," in continuing the
work ofcreation. Nature is not sovereign, it is in the service of man. We are to
control nature, not be controlled by it. This is what mandates our use of lightning
rods, our damming rivers, even our use ofheaters and air conditioners...
If blocked Fallopian tubes impede the natural process of fertilization, or if
sperm must be strengthened by combining ejaculates, there should be no objection
to making use of the laboratory or the Petri dish under these circumstances.
This, too, is a matter of controlling nature, especially in view of the
desirability of the goal, namely making conception possible.
Feldman, supra note 192, at 175-176.
194 Feldman, supra note 192, at 177.
195 Id. at 180.
196 Bleich, supranote 191, at 86.
197 Id. "One of the outstanding characteristics of Jewish law is its pragmatic attitude
towards advances in medicine ...Rabbinical rulings are in line with the Jewish moral
framework and offer a flexible and pragmatic solution to a powerful dilemma." MatznerBekerman,
supranote 165, at 22.
198 (i) The Court's analogy of abortion cannot be properly drawn because the preference
shown a woman in that circumstance is derived from the fact that the embryo is part
of her body, whereas in IVF,it is not. (ii) As the dissent asserted, Mr. Nahmani's initial
agreement to the VF process could not reasonably be construed to continue through a
separation, and therefore the majority's contention that Mr. Nahmani's consent need not
be obtained through all stages of the IVF process is far-reaching.
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358 CARDOZO J. OFINT'L & COMP.LAW
law-making, however, is apparently not realistic in the State of
Israel, with its intertwining system of law and religion. 99 It is
therefore imperative to view the decision in light of Jewish conventions
surrounding procreation in order to get a proper perspective
of what the Court was trying to achieve. In addition, this ruling is
predicated on the specific circumstances surrounding the case. The
Court harbored great sympathy for Mrs. Nahmani's barren circumstances
mitigated by the fact that she was being deprived ofher last
chance to have a child. She was left with no other alternative. It is
clear that the Supreme Court, branding the shield of justice, sought
to alleviate Mrs. Nahmani's infertile suffering by elevating her to
mitzvah status.
Janie Chen-*
199 Israeli family law is largely dominated by halakha. Rabin, supra note 16.
* I wish to thank Marcia Greenman Lebeau, Director of Public Affairs, The Supreme
Court of Israel, who was of great assistance to me in writing this Note.
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