It's - a something!
The potential child has lived in a test tube for years, but Israel's family drama of the decade crawls onward.
INA FRIEDMAN ISRAEL CORRESPONDENT
Jerusalem
fit ■■■his is the first time in
I the history of mankind I that a court has created ■ a child!" cried attorney Dayana Har-Even. The response came after an 11-judge panel of Israel's Supreme Court ruled in favor of Rutie Nachmani, the estranged wife of her client, Dani Nachmani.
Rutie Nachmani herself hardly believed the judgment. "God woke up," she told reporters.
Nachmani vs. Nachmani — probably the most famous and well-covered civil suit in Israel's history — was essentially whether parenthood, as a basic human right, can be imposed by court on someone who doesn't desire it. Had hers been a "natural" pregnancy, there would be no question of Rutie's right to bear her husband's — or anyone else's — child against his express wishes.
But because of her unique circumstances, the court was forced to address the thornier question of who's right was stronger: Rutie's to force parenthood on Dani, or Dani's to impose barrenness on her.
The history of the case is as complex as it is sad. As a result of cei-vical cancer, Rutie Nachmani underwent a hysterectomy. After that, the Nachmanis appealed to the Supreme Court to use the technique of in-vitro fertilization (IVF) to find a surrogate abroad (Israel had no surrogacy law at the time). They won and Rutie underwent a year of hormonal treatments that yielded 11 ova, which were extracted from her body, fertilized by Dani's sperm, and frozen until a surrogate mother could be found.
Directly after the IVF ended, however, Dani left his wife and moved in with another woman, who has since borne him two girls. (Rutie has refiised to give Dani a divorce before the surrogacy issue was settled). When Rutie announced her determination to continue with a surro-
gate pregnancy, Dani went to court to have the embryos destroyed.
Last Thursday's ruling was the third in "Israel's family drama of the decade." In 1993, Judge Hanoch Arieli of Haifa District Court ruled that the embryos be turned over to Rutie. He cited not
Can parenthood, as a basic human right, be imposed by court on someone who doesn't desire it?
only her right to them, but her husband's "jealousy and callousness, accompanied by cynicism, egotism, and no little [male] chauvinism."
Dani promptly appealed to the Supreme Court, which overturned the decision and ruled in his favor in October 1994.
The Supreme Court also addressed a second key issue: 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.
A couple's joint and ongoing agreement until the stage of implantation, wrote now-Supreme Court President Aharon Barak in the majority opinion, "is called
for from every possible legal standpoint."
But the decision of the 11-member Supreme Court panel overturned that judgment 7 to 4.
The fertilization of an ovum constitutes a "fait accompli" in which a "new entity" is created, wrote Justice Ya'akov Kedmi. And, "once the IVF is accomplished, the positive right to be a parent generally overpowers the negative right not to be [one]," wrote Justice Ya'akov Terkel.
The justices also took into consideration the special circumstances of Rutie's age (44) and state of health (which mitigate against her producing new ova). Many of the opinions invoked the principle of equality. But whereas the minority rulings cited the equality of both partners to the IVF process — and thus the right of either to halt it — the majority supported Rutie's equality with a healthy woman, whose exclusive right to decide the fate of her pregnancy is beyond question.
"Dani agreed to the IVF process and then changed his mind," said Rutie's lawyer, Ziv Gruber.
Uncharacteristically, Israel's two chief rabbis were divided in their response with Ashkenazi Chief Rabbi Meir Lau supporting it and Sephardi Chief Rabbi Eliyahu Bakshi-Doron saying that it should not be followed.
The final irony is that Rutie Nachmani may have to go to court a fifth time to become a mother. Israel's surrogacy law (passed this year) 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. Dani clearly will not appear before that board (just as he was absent fix)m court last Thursday).
In short, it's entirely possible that Israel, and the world, has not yet heard the last of "Nachmani vs. Nachmani." □
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