In a precedent-setting case, the Supreme Court has ruled that the state cannot impose parenthood upon men or women.
The widely publicized case, Ruti Nahmani vs. Danny Nahmani, involves a couple who, before their divorce was filed, both had wanted a child via a surrogate mother. After their separation, only Ruti Nahmani wanted to go ahead with the process.
The cast set precedent on the ownership of eggs that have been fertilized in vitro.
Ruti and Danny Nahmani, now separated, were married in 1984. Ruti was unable to conceive due to an operation, and the couple decided in 1988 to undertake the process of drawing out Ruti Nahmani’s ova, fertilizing them with Danny’s sperm in vitro and finding a surrogate mother who would bear the child.
A 1987 ordinance forbids surrogate motherhood in israel. But the Nahmanis had petitioned the High Court of justice to overturn the ordinance. In 1991, a compromise was reached allowing in vitro fertilization. The couple then arranged for a surrogate mother in the United States.
The Nahmanis separated a year later. When divorce proceedings began, Ruti asked a local hospital in Haifa for her fertilized eggs in order to have them implanted in the surrogate mother.
The hospital refused because Danny objected. Ruti filed suit in the Haifa district court, which ruled in her favor.
The March 30 decision by the Supreme Court last week overturned the lower court ruling. The 4-1 decision said that the hospital cannot let Ruti make use of her eggs without the father’s consent.
Justice Tova Strasberg-Cohen, writing for the majority, anchored the ruling in basic human rights and equality between the sexes. The ruling said:
“The decision to become a parent is recognized, as is the 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,” the decision said.
“Just as it is wrong to impose a 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,” Strasberg-Cohen wrote.
Rabbi Dr. Levi Yitzhak Halperin, a gynecologist and fertility specialist, said even though his heart goes out to Ruti Nahmani, the Supreme Court ruling is in accordance with halachah, or Jewish law.
Jewish law considers the embryos to belong to both parents, and each of them has the right to object to having the embryo implanted, he said.
Halperin, who heads the Schlesinger Institute on Jewish Medical Ethics in Jerusalem, also pointed out that halachah views surrogate motherhood with great reservations.
Danny Nahmani said he would not demand the destruction of the eggs. He said that according to health regulations, the eggs will remain frozen for five years. If no one demands them, they will be destroyed by the hospital, he said.
Labor Knesset members Eli Dayan and Yosef Vanunu asked for a meeting with Danny Nahmani after the ruling. The Knesset members, who are related to Danny Nahmani, told Israel Radio that they intend to appeal to his compassion and understanding, and ask him to allow Ruti to have the eggs for implantation.
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