The Inter-American Court of Human Rights (IACHR) has
overturned a prohibition on IVF in Costa Rica saying that it infringed provisions
under the American Convention on Human Rights.
The ban was originally implemented by the Costa Rican
Government in an effort to protect human life. Costa Rica's Supreme Court ruled
in 2000 that the practice of discarding 'spare' embryos in IVF was
unconstitutional as it infringed the
right to life under article 4 of the American Convention of Human Rights, which
states: 'Every person has the right to have his life respected... from the
moment of conception'. It said IVF also violated the Costa Rican constitution.
News Blog comments that although some other countries have not legislated to
regulate IVF or to ensure access, Costa Rica is the only country known to
implement a total ban.
Nine infertile couples petitioned the Inter-American
Commission on Human Rights in 2001 against the ban, which issued a statement
indicating that Costa Rica's prohibition infringed a number of rights. The IACHR heard the case in September last year and published its decision, dated 28
November, at the end of the year.
It ruled that Costa Rica's prohibition on IVF violated the rights
to privacy and family, and also infringed the principle of non-discrimination. It
said infertility was a disease recognised by the World Health Organisation and
that infertile people should be granted access to fertility treatment. It was
disproportionate to require infertility couples to seek treatment abroad. Crucially,
the IACHR said an embryo could not be a 'person' and considered that the
'moment of conception' occurs after implantation, and not fertilisation.
The IACHR ordered that Costa Rica must take steps to remove
the prohibition on IVF and make it available to people who need it. The Government must also
introduce the regulation of fertility treatment and also make IVF available under
its social health system. The IACHR also ordered that the state must pay compensation
for 'material and moral' damages and the reimbursement of costs or expenses. The
claimants received US$5,000 each in compensation for being required to travel
abroad for IVF and US$20,000 for 'distress, anxiety, uncertainty and
frustration' as a result of having been prevented from exercising 'autonomous
Piero Tozzi, legal counsel with the Alliance Defending
Freedom, an organisation of Christian leaders, said: 'A preliminary reading of
the ruling indicates that the Court elevated secondary rights-such as the right
to privacy, a right to personal autonomy, and a right to sexual and
reproductive health-above the right to life, which by necessity takes precedence
over all the other rights'.
The prohibition was overturned by five of the six judges
of the IACHR. Judge Eduardo Vio Grossi, dissenting, said the interpretation of
'conception' went too far and the matter should be left to individual states,
reports website PNCI.
A statement from the Government said it will comply with the
decision. The Minister of Communication, Francisco Chacon, said: 'The decision
of the Court shall be complied with in its entirety, as it is respectful of
international law, one of the fundamental sources of our rule of law'. The
Attorney General's office said that it has not yet fully analysed the decision but
the Government will consider what actions are necessary to comply with
measures laid down by the IACHR.
Dr David Adamson of the International Federation of
Fertility Societies (IFFS), said: 'This decision of the Human Rights Court
brings Costa Rica, and most of the Americas, into line with the views of the
main international medical organisations working in the field of reproduction'. IFFS President, Professor Joe Leigh Simpson, called the
ruling a 'landmark decision' that will have an impact across the world. 'It
means that denying access to fertility treatment is denying a human right.
Infertility is a disease, and this decision means that people have a right to
be able to be treated for this disease, including having access to IVF', he
The case will be closed once compliance is observed by the IACHR.