## Facts

- Ruth (Ruti) Nahmani and Daniel (Danny) Nahmani were married and planned to have children.
- Ruth underwent a hysterectomy for medical reasons, leaving her unable to carry a pregnancy, but her ovaries were preserved.
- The couple decided to pursue IVF using Ruth’s ova and Daniel’s sperm, intending to implant the resulting embryos in a surrogate in the United States, where surrogacy was permitted.
- At the time, Israeli law did not allow surrogacy domestically, and IVF was generally allowed only for implantation into the woman from whom the ova were taken.
- Because of legal and cost barriers to performing the entire process abroad, the couple petitioned Israel’s Supreme Court sitting as the High Court of Justice and obtained a consent judgment allowing the IVF procedure to be performed in Israel for later surrogacy abroad.
- IVF was performed at Assuta Hospital; embryos (fertilized ova) were created and frozen for future transfer.
- After the embryos were created and stored, Daniel left Ruth, formed a relationship with another woman, and had a daughter with her.
- The parties remained legally married because Ruth would not provide the consent required for a divorce under Israeli law.
- Ruth sought release of the embryos from the hospital to proceed with surrogacy in the United States; Daniel objected, and the hospital refused to release them.
- Ruth sued, and the Haifa District Court ordered that the embryos be released to her.
- Daniel appealed. A Supreme Court panel reversed, accepting that Daniel could withdraw consent and that parenthood should not be imposed after the relationship had broken down.
- Ruth petitioned for an Additional Civil Hearing (further hearing). The Supreme Court convened an expanded bench of 11 justices to reconsider the dispute.

## Issues

1. When spouses create and freeze embryos for planned surrogacy, may one spouse later revoke consent and block the other spouse’s use of the embryos after the relationship has broken down?
2. Does a spouse’s prior consent to IVF, followed by the other spouse’s irreversible reliance (including undergoing procedures and creating embryos), bar later withdrawal of consent under promissory-estoppel principles?
3. How should the court balance the interest in becoming a genetic parent against the interest in avoiding genetic parenthood when the embryos already exist and alternatives for parenthood are unequal?

## Decision

- By a 7–4 vote in the further hearing, the Supreme Court reversed the earlier Supreme Court decision and ruled for Ruth.
- The Court effectively reinstated the Haifa District Court’s result, entitling Ruth to receive the frozen embryos from Assuta Hospital for use in a surrogacy process abroad.
- The majority concluded that Daniel was barred from withdrawing his earlier consent after Ruth had reasonably and irreversibly relied on it by creating embryos with his sperm.
- In balancing the competing claims, the majority gave decisive weight to Ruth’s interest in genetic parenthood because, given her medical condition, the frozen embryos represented her realistic opportunity to have a genetically related child, while Daniel had already established a new family.

## Legal Principles

- Disputes over the use of frozen embryos created by both partners may be resolved by weighing the parties’ competing claims, including the consequences to each party and the availability of alternative routes to parenthood.
- A party who consents to assisted reproduction may be barred from later revoking consent when the other party reasonably relied on that consent and took steps that cannot be undone; promissory estoppel can apply even in a reproductive setting when reliance is clear and irreversible.
- The stage of the reproductive process matters: once embryos have been created based on mutual agreement, the law may treat later objections differently than objections made before fertilization.
- In weighing procreation against non-procreation, the Court may consider the legal culture and values of the forum, including the strong social and legal value placed on having children in Israeli law and Jewish heritage.
- The Court did not treat the embryos as legal persons controlling the outcome; the dispute was framed as competing claims of the genetic contributors over whether the agreed-upon reproductive plan could proceed.

## Conclusion

The Supreme Court of Israel, sitting in an Additional Civil Hearing, held that Daniel could not withdraw his prior consent after Ruth irreversibly relied on it to create and freeze embryos, and it allowed Ruth to take and use the embryos for surrogacy abroad, finding her interest in achieving genetic parenthood outweighed Daniel’s interest in avoiding genetic parenthood in these circumstances.


Nahmani v. Nahmani, Add’l Civil Hearing 2401/95, 40(4) PD 661 (1996)