Right to life vs right to found a family: The case of Costa Rica

Costa Rica is being taken to the Inter-American Court of Human Rights (IACHR) for failing to lift a national ban on IVF (1), which is sometimes the only medical intervention that can resolve a case of infertility or sub-fertility. The Costa Rican law making IVF illegal came into force in 2000. Costa Rica's Constitutional Court ruled IVF violated Article Four of the American Convention on Human Rights - 'the right to life' - by defining life from the moment of fertilisation (2). The IACHR ordered this ban on IVF to be lifted but, by the end of July 2011, the Costa Rican Government had not met extended deadlines to comply.

A right to 'found[ing] a family' is clearly stated in Article 17 of the American Convention and in Article 14 of the Universal Declaration of Human Rights (3). Several other countries in the Americas, such as Argentina, Brazil, Chile, Colombia and Mexico that have laws reflecting 'right to life' beliefs allow IVF and therefore their citizens are able to make their own decisions on use of IVF and related technologies (4).

During debates in Costa Rica, some opponents have actively advertised on radio and targeted couples who may be seeking IVF across borders. One advertisement used a young girl's voice: 'Hi. I'm Sofie, the third of three brothers and sisters. Though my parents love me with all of their hearts, I know that for me to enter the world, seven of my siblings died in a laboratory' (quoted (5)).

Giving existence to the unborn by redefining embryos as family members could be argued as a form of scaremongering that uses fear and guilt to strengthen the position of those opposing IVF. These tactics target a highly stigmatised, vulnerable and disabled group (infertility is internationally recognised as a disability (6)). It was heartening to see that the Costa Rican Government had these advertisements removed.

Worldwide, national debate on IVF needs to be explained to the electorate through reasoned, balanced, and ethically- and evidence-based medically-sound discussions.

WHO has defined access to care and interventions to assist infertile patients as a key component of its Reproductive Health Strategy (7). This Strategy, adopted by the World Health Assembly, provides the basis for reaching Millennium Development Goal (MDG) 5b: Achieving universal access to reproductive health (8).

Infertility has been defined by the WHO, clinically, as a disease of the reproductive system (9). Further, infertility is a major global public health issue; a burden most strongly felt in lower resource settings which suffer from high levels of secondary infertility. Denying people IVF technologies denies access to care to the vulnerable, disabled and those in need.

Finally, the case of Costa Rica raises pertinent issues for those living in countries where IVF is legal. What restrictions on access to IVF are appropriate if it is not just compatible with, but rather part of, the right to 'found a family' and addresses an unmet need?

Currently in the UK, regulatory guidelines place an age limit on access to IVF for women - a limit applied according to age-adjusted average IVF success rates, rather than a woman's reproductive ability and overall health condition. Should legal restrictions on IVF interfere with the medical judgment of trained and qualified caregivers who, in all other areas of health, determine best clinical practice by assessing patient health and needs?

However, access to infertility services like IVF where legally allowed, can be limited, in many countries worldwide, mainly due to economic constraints (10). Despite a frequent dismissal as 'a disease of the wealthy', infertility does not respect national or economic boundaries.

Will a positive outcome in Costa Rica strengthen the arguments that infertility is a serious disability and impeding access to treatment for infertile people a violation of rights? (11) Will this outcome also finally prioritise research (operations, implementation and health systems) into affordable solutions to infertility care that helps policy makers develop evidence-based global guidance and best practice? (12)

The arguments advanced at the IACHR and its outcomes will delight Costa Rican couples who have been battling since 2000 to access reproductive technologies. The IACHR case will also interest the wider global community as the strength and implications of 'the right to found a family' become defined. The rulings will help prioritise research and programmes that ensure infertility issues are recognised as a key component of MDG5b and global public health.