In an unusual step: the court forbade a woman to have an abortion Israel today

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Is the court allowed to prohibit a woman from having an abortion, and should the fact that her partner is a traditionalist be given weight in making the decision?

This is one of the questions that was up for discussion in the process in which the district court in Haifa made an extraordinary decision: to prohibit a woman from performing an abortion and terminating the pregnancy. 

How did all this happen?

, who represented the father in the extraordinary procedure that took place years ago, recalled: "One morning he came to the office where I worked at the beginning of my career as a male lawyer who said that he was in divorce proceedings."

According to Attorney Raz, the conflict between the man and his wife broke out when she was in the first months of her pregnancy, and against the background of her intention to divorce her husband, she informed him that she intended to abort the fetus.

"The husband, perhaps out of a desire to make his wife change her mind, wanted to prevent the abortion," recalls Attorney Raz. "I remember the owner of the firm where I worked came into my office and asked my opinion on the case.

I replied that it is not possible to prevent the termination of the pregnancy, but he repeated and said that the client is determined and ready to pay a lot of money."

The father claimed that he was deprived of the mitzvot pro verbo

Attorney Raz, who took on the task of representing the father (in a dilemma given his liberal personal views), was required to formulate a strategy for the case, and decide how to go to court to overturn the decision of the termination of pregnancy committee that had already approved the mother to perform the abortion.

"I realized that I had to think about which framework to use and these reasons to put forward so that the court would even begin to consider canceling the decision," he recalled.

"First of all, there were the usual reasons - he is a father, and he also has the right to express his position regarding the abortion, but I understood that this would not be enough."

According to Attorney Raz, a creative thought led him to come up with two unusual reasons: "First, I argued that the couple are traditionalists and believe in the Torah of Israel, and they only have one daughter.

The mitzva of 'Pro and Rebu' can only be performed with a male child.

Maybe the child that will be born will be male and the wife will prevent her husband from fulfilling the mitzvah?"

The second creative argument put forward by Attorney Raz concerned the representation of the fetus. "It turns out that according to the definitions in the Legal Training and Guardianship Law, a fetus, even though it is without rights until its birth, is included in the definition of a custodian and the court by virtue of the ruling is the father of the custodians."

According to Attorney Raz, he decided to throw the ball in the door of the district court. "I argued before the judge that he is the one who should take care of the fetus whose life is likely to end, and I added an example of a situation where the woman is not fit to represent the fetus.

"I described a situation of a woman who became pregnant by a husband who died after falling in battle or being injured in an accident," he continues.

"The law states that if the fetus is born up to 300 days after the father's death, he will inherit it, thereby reducing the woman's share in the estate. But if the woman has an abortion, she will win the entire estate. That is, she is in a conflict of interest with the fetus, and he must have separate representation ".

The district determined that the husband would be appointed guardian

Quite unusually, the district court accepted the father's request and revoked the permission to perform the abortion given by the abortion committee.

"The court ruled that a guardian will be appointed for the fetus to represent his affairs before the committee and that the husband will be appointed as the guardian," recalls Attorney Raz.

According to him, in an unusual way, "the judge praised the summary of the claims that I submitted in the case on behalf of the client and suggested that the woman's lawyer learn from me how to submit summaries. Such unusual conduct by a judge has never happened to me before, nor after in all my years as a lawyer."

And what happened after that?

According to Attorney Raz, the termination of pregnancy committee did not ask to hold another hearing on the decision ("maybe she was afraid"), but the woman filed an appeal to the Supreme Court, which scheduled a hearing on the matter.

"Meanwhile, I was called to reserve service and asked to postpone the hearing, so it eventually took place when the woman was already in the seventh month of her pregnancy," recalls Attorney Raz. And they allowed the woman to have an abortion."

According to Attorney Raz, the father's representation in the case made him resentful. "Half of my family members 'hated' me as a result of the representation, but I represented a client professionally and without emotion, as I always do," he explains.

Attorney Raz points out that he himself "does not have an opinion in the field of morality from which time onward the fetus should be looked upon as being harmed by the exercise of the mother's freedom to have an abortion.

To this day, I am not sure if this date should be determined when the zygote is created (the penetration of the cell into the egg) or at a later date."

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