RESIDENTIAL-COMMERCIAL
DESIGN I N R E.0 0 N BUILD

1-

1 4 41

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

his

r

Cr)

U_I

Cr)

LU

CC
F-
LU

LU

76

At

your service! •

Antwerp jewelers
Barry K Salon
Callanetics Studio
Cobo Cleaners
Copy Copy
Full Circle Graphics
D'Alleva's Salon
Disc Go Round
Esther's judaica
Golden Phoenix
Harvard Row Meats
Interiors by Colony
Nationwide Insurance
Objects of Art
Outback Steakhouse
Paparazzi
TCBY Treats
The Alteration Spot
Travelers WorTA

ORCHARD LAKE ROAD

■ NORTH OF MAPLE ■ WEST BLOOMFIELD

is the first time in the
history of mankind that a
court has created a child!"
cried attorney Dayana
Har-Even. The response came af-
ter an 11-judge panel of Israel's
Supreme Court ruled in favor of
Rutie Nachmani, the estranged
wife of her client, Dani Nach-
mani.
Rutie Nachmani herself hard-
ly 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 de-
sire it. Had hers been a "natur-
al" pregnancy, there would be no
question of Rutie's right to bear
her husband's — or anyone else's
— child against his express wish-
es.
But because of her unique cir-
cumstances, the court was forced
to address the thornier question
of whose right was stronger: Ru-
tie'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 cervical cancer, Rutie Nach-
mani underwent a hysterectomy.
After that, the Nachmanis ap-
pealed to the Supreme Court to
use the technique of in vitro fer-
tilization (IVF) and to find a sur-
rogate 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 ex-
tracted from her body, fertilized
by Dani's sperm, and frozen un-
til 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 refused to give Dani
a divorce before the surrogacy is-
sue was settled.) When Rutie an-
nounced her determination to
continue with a surrogate preg-
nancy, Dani went to court to have
the embryos destroyed.
Last Thursday's ruling was
the third in "Israel's family dra-
ma of the decade." In 1993, Judge
Hanoch Arieli of Haifa District
Court ruled that the embryos be
turned over to Rutie. He cited not
only her right to them, but her
husband's "jealousy and callous-
ness, accompanied by cynicism,
egotism, and no little [male]
chauvinism."

Dani promptly appealed to the
Supreme Court, which over-
turned the decision and ruled in
his favor in October 1994.
The Supreme Court also ad-
dressed a second key issue:
whether the "point of no return"
in a spouse's agreement to a sur-
rogate pregnancy is at the time
of in vitro fertilization or only af-
ter the embryos are implanted in
the surrogate's womb.
A couple's joint and ongoing
agreement until the stage of im-
plantation, wrote now-Supreme
Court President Aharon Barak
in the majority opinion, "is called
for from every possible legal
standpoint."
But Thursday's decision of the
11-member Supreme Court pan-
el overturned that judgment 7 to
four.
The fertilization of an ovum
constitutes a "fait accompli" in
which a "new entity" is created,
wrote Justice Ya'akov Kedmi.

"Even a woman
who has deceived
a man and 'stolen'
his sperm gets a
better break."
— Ziv Gruber

And, "once the IVF is accom-
plished, 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 con-
sideration the special circum-
stances 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 where-
as the minority rulings cited the
equality of both partners to the
IVF process — and thus the right
of either to halt it — the majori-
ty supported Rutie's equality
with a healthy woman, whose ex-
clusive right to decide the fate of
her pregnancy is beyond ques-
tion.
"Dani agreed to the IVF
process and then changed his
mind," said Rutie's lawyer, Ziv
Gruber "Even a woman who
has deceived a man and 'stolen'
his sperm — which Rutie obvi-
ously did not do — gets a better
break than that."