In a case touching on the right to life of an embryo, the Inter-American Court of Human Rights ruled in November 20012 that an absolute ban of in-vitro fertilization (IVF) violates the right to privacy, the right to family and the right to personal integrity. In 2000, Costa Rica became the first country to pass a total ban on IVF, citing a concern for the right to life contained in the Costa Rican Constitution and the American Convention on Human Rights, In response, nine infertile couples brought a petition against Costa Rica to the Inter-American Commission on Human Rights (IACHR). The case, Murillo et al. v. Costa Rica, was transferred to the Inter-American Court of Human Rights (IACtHR), which agreed with the petitioners and the Commission that the absolute ban on the use of IVF procedures violates the rights to privacy, to family, and to personal integrity. In addition, the IACtHR interpreted the meaning of the right to life provision contained in the American Convention by clarifying that the right to life does not stand alone and independent of other rights.
In 1995, Costa Rica’s Ministry of Health authorized the use of IVF and between 1995 and 2000 fifteen babies were born through the procedure. In response to IVF’s authorization, a petitioner filed a claim alleging that the use of IVF was unconstitutional. In 2000, Costa Rica’s Supreme Court held that IVF violated the right to life and human dignity provisions of the country’s constitution, and also of Article 4 (right to life) of the American Convention. The country’s highest court held that life begins at conception and thus any intentional or accidental discarding or mishandling of embryos violated the right to life.
Article 4 of the American Convention states: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.” However, until now, the “moment of conception” language has been undefined. In deciding on the Costa Rican case, the IACtHR noted its status as the ultimate interpretative authority on the American Convention and ruled that personal integrity, personal liberty, privacy, and right to a family outweighed some of the nuanced interpretations offered by Costa Rica on the reach of the right to life provision. In particular, the Court focused on the right of couples to start a family (Article 17), and the right to privacy (Article 11). The Court noted that both provisions touch on reproductive health and access to necessary technologies in order to have children.
The Court did not shy away from Article 4 and the right to life but made a careful analysis as to the interpretation of the words “in general” and “conception.” In describing the IVF procedure, the IACtHR noted that scientific literature talks about two distinct moments, implantation and fertilization, and reasoned that only upon completing the cycle of fertilization can conception exist. The Court interpreted this to mean that if fertilization is required for formation of the zygote (the fertilized egg created from the union of ovum and sperm), then non-implanted embryos could never realize their full development and thus the Court determined that the rights of those embryos are null. Therefore, the Court held, conception cannot occur before implantation and the right to life protections cannot apply to non-implanted embryos. The Court reasoned that the “in general” wording allowed for this interpretation. Accordingly, the IACtHR held that Costa Rica ‘s Supreme Court failed to consider other rights affected by an absolute ban on IVF, which resulted in an arbitrary and excessive intrusion into private and family life, with disproportionate impacts on certain groups; as a result, the interference had a discriminatory impact.
The Court also agreed with the petitioners that the absolute ban unfairly discriminated against poorer families due to the prohibitive cost of travel for couples without financial means. The Court added that the ban had a particular discriminatory effect on women who were already undergoing IVF treatment when the ban was instituted.
The decision could have important impacts throughout the Americas region because the Court’s decisions are binding on all countries that have ratified the Court’s contentious jurisdiction. Since announcing that the Court’s decision was forthcoming, both sides have presented arguments as to whether Article 4’s right to life provision begins at conception and includes embryos. Some argued that if the Court ruled in favor of the petitioners, then the decision would open the door for changes to laws concerning contraception, abortion laws, and research on humans.
Among the reparations ordered by the Court are that Costa Rica re-institute access to IVF, offer counseling to plaintiffs, and that Costa Rica slowly incorporate access to IVF into its health system through its social security programs. Costa Rica has said it will comply with the Court’s decision and allow in-vitro fertilization again.