In 2000, Costa Rica’s Constitutional Chamber of the Supreme Court (“Constitutional Chamber”) issued a ruling prohibiting in-vitro fertilization (“IVF”), holding that human life begins at fertilization and thus all fertilized embryos are entitled to fundamental rights, including the right to life and to human dignity. The Court also held that fertilized embryos cannot be treated like objects, used for research, be subjected to a selection process, frozen, or exposed to a disproportionately high risk of death.
On January 19, 2001, nine couples filed a lawsuit before the Inter-American Commission on Human Rights (“Commission”) challenging Costa Rica’s total prohibition of IVF. They argued that the prohibition was a violation of a number of human rights protected in the American Convention on Human Rights (“Convention”). In August 2010, the Commission decided that the IVF ban was a violation of the rights to life, personal identity, and individual autonomy of the people who want to use this technology in order to have biological children. The Commission further found that Costa Rica violated the rights to be free from arbitrary interference with one’s private life, to create a family, and to equality.
Due to Costa Rica’s failure to comply with its decision, the Commission submitted the case to the jurisdiction of the Inter-American Court of Human Rights (“Court”) on July 29, 2011.
At issue in this case was whether the definition of “conception” in the Inter-American Convention on Human Rights (“Convention”) includes fertilization of an embryo, and whether embryos are included in the term “person” for the purposes of the Convention.
The Court determined that reproductive rights should be protected to ensure the protection of the rights to integrity, liberty, and private and family life. The Court established that the right to liberty includes the right of every person to control their individual and social life as well as to form personal opinions and beliefs. The Court also established that the right to private life includes the right to determine whether to become a genetic or biological parent. The Court reiterated that the right to personal integrity is directly connected to access to health services. The Court firmly stated that the failure of legal protections to account for reproductive health can result in grave violations of the rights to autonomy and reproductive freedom.
Costa Rica argued that the Constitutional Chamber interpreted Article 4.1 of the Convention, which provides that “everyone has the right to life, in general, from the moment of conception,” to mean that States were obligated to provide absolute protection for the right to life of embryos. Costa Rica also stated that it legally defines an embryo as a “human being” and a “person.”
The Court examined the American Declaration of the Rights and Duties of Man (“Declaration”) and the Convention from both historic and systematic perspectives to determine that an embryo cannot be defined as a person.
The Court then considered the definition of the term “conception” to determine the extent to which the right to life for embryos should be protected. The Court reasoned that the Convention’s protection of the right to life “from the moment of conception” refers to implantation, because an embryo will not survive if it does not successfully implant in the uterus. It further clarified that “right to life should not be understood as an absolute right, the alleged protection of which can justify the total negation of other rights” and that disproportionate restrictions on the exercise of other human rights due to absolute protection of the right to life “would be contrary to the protection of human rights.” The Court determined that the term “in general” in article 4’s protection of the right to life was intended “to allow, as appropriate, an adequate balance between competing rights and interests.” The Court indicated that finding that where there are prenatal protections, they must be “gradual and incremental, according to [life’s] development.”
The Court rejected the proposition that other international human rights conventions and declarations protect the right to life prior to birth, finding that such documents, including the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the Convention on the Rights of the Child did not provide any evidence to substantiate the notion that that the embryo could be considered “a person.” Finally, in addressing the issue of when life begins, the Court reasoned that since there is not an agreed definition of when life begins, adopting one such definition “would imply imposing specific types of beliefs on others who do not share them.
The Court also recognized that the decision to have a child is part of the right to private life, and that personal autonomy, reproductive freedom, and physical and psychological integrity are all connected. In addition, the Court applied a proportionality test to determine that the effect of the ban on the right to personal integrity, personal freedom, private life intimacy, reproductive autonomy, access to reproductive health services, and the right to create a family outweighs the importance of protecting an embryo.
The Court also noted that the ban indirectly discriminated against several groups based on gender, disability, and socioeconomic status. The prohibition of IVF discriminated on the basis of gender because it effectively stated that the embryo’s rights are more important than the woman’s rights, indicating that the woman is simply an instrument of reproduction. The Court explained that the prohibition of IVF discriminated based on disability, recognizing its disproportionate impact on people who are infertile. The Court recognized infertility to be a “functional limitation recognized as a disease” and that people with infertility “are protected by the rights of persons with disabilities, which include the right to have access to the necessary techniques to resolve reproductive health problems.” The Court further reasoned that the ban on IVF discriminated based on socioeconomic status, due to its impact on those who do not have the resources to travel to another country to access fertility treatments.
The Court therefore held that the Constitutional Chamber’s decision to uphold the prohibition on IVF is based on an absolute protection of the embryo that failed to account for the other competing rights and therefore constituted an “arbitrary and excessive” violation of the right to private and family life. The Court declared that Costa Rica had violated several provisions of in the Convention, including Articles 5.1 (personal integrity), 7.1 (personal liberty), 11.2 (private life), 17.2 (family), and 1.1 (equality).
The Court ordered Costa Rica to: (1) publish the Court’s decision in nationally circulated newspapers and online, (2) repeal the prohibition on IVF and ensure the implementation of the repeal, (3) offer fertility treatments through its social security program, and (4) implement educational programs for its judiciary on reproductive rights, human rights, and non-discrimination. The Court also ordered Costa Rica to provide free and immediate psychologic treatment to the couples for four years, as well as cover all related expenses, medical or otherwise. Costa Rica also had to pay $5000 to each victim that had to travel outside of the country to access IVF treatments, as well as $20,000 for each victim for pain and suffering.
The Court’s ground-breaking holding in this case demonstrates a turning point in the acknowledgment and protection of reproductive rights in the Latin America. This was the first case where the Court recognized reproductive rights as human rights incorporated within the rights to privacy, of the family, liberty, and integrity. The Court’s determination that the ban on IVF indirectly discriminates against several groups marked a pivotal moment in reproductive rights jurisprudence because it effectively connects the provision of reproductive health services with the fundamental human rights of equality and non-discrimination.
This decision also marked the first time the Court ruled on the scope of the Convention’s controversial Article 4.1 right to life provision. This decision effectively ended arguments that the American Convention afforded an absolute right to life prior to birth. In addition to recognizing that “conception” referred to implantation, not fertilization, the Court made clear that this protection gradually increases as the embryo develops. Importantly, the Court also made clear that prenatal protections must also be proportionate in how they affect individuals’ exercise of their human rights, and take into account any disproportionate impacts on specific populations, including on women.
The Court also stated firmly that under the Convention an embryo is not a person. This decision is a landmark step towards the realization of reproductive rights, as Article 4.1 has commonly been invoked in order to justify limitations on and violations of these rights, including in relation to access to certain forms of contraception and safe and legal abortion.