I/A Court H.R., Case of Artavia Murillo et al. (In Vitro Fertilization) v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 28, 2012. Series C No. 257.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2014-1-e.pdf

 

Headnotes:


The right to private life encompasses more than just the right to privacy. It also covers a series of factors associated with the dignity of the individual, including the ability to develop his or her own personality and aspirations, to determine his or her own identity and to define his or her own personal relationships. The concept of private life involves aspects of physical and social identity, including the right to personal autonomy, personal development and the right to establish and develop relationships with other human beings and with the outside world. The effective exercise of the right to private life is decisive for the possibility to exercise personal autonomy over the future course of events that are important for a person’s quality of life.


Private life includes the way an individual views himself and how he projects it towards others. Private life is an essential condition for the free development of the personality. Furthermore, motherhood is an essential part of the free development of a woman’s personality. The decision of whether to become a parent is part of the right to private life and includes, in this case, the decision whether to become a mother or father in the genetic or biological sense.


The right to privacy enshrined in Article 11.2 of the American Convention (hereinafter, «ACHR») is closely related to the rights of the family recognised in Article 17 ACHR. Article 17 ACHR recognises the central role of the family and family life in a person’s existence and in society in general.


The right to the protection of family life entails, among other State obligations, facilitating, in the broadest possible terms, the development and strength of the family unit. This is such a basic right of the American Convention that it may not be waived even in extreme circumstances. Article 17.2 ACHR protects the right to found a family.


The right to private life is related to:

 

  1. reproductive autonomy, and
  2. access to reproductive health services, which includes the right to have access to the medical technology necessary to exercise this right.


This right is violated when restrictions are imposed on the means by which a woman can exercise the right to control her fertility. Thus, the protection of private life includes respect for the decisions both to become a mother or a father, and a couple’s decision to become genetic parents.


The rights to private life and to personal integrity are also directly and immediately linked to health care. The lack of legal safeguards to take reproductive health into consideration can seriously impair the rights to reproductive autonomy and freedom. Therefore, there is a connection between personal autonomy, reproductive freedom, and physical and mental integrity.


The right to private life and reproductive freedom is related to the right to access medical technology necessary to exercise that right. Therefore, in keeping with Article 29.b ACHR, the scope of the rights to private life, reproductive autonomy and to found a family, as derived from Articles 11.2 and 17.2 ACHR, extends to the right of everyone to benefit from scientific progress and its application. The right to access scientific progress in order to exercise reproductive autonomy and the possibility to found a family give rise to the right to have access to the best health care services in assisted reproduction techniques. At the same time, it gives rise to the prohibition of disproportionate and unnecessary restrictions, be they de jure or de facto, to the exercise of reproductive decisions that correspond to each individual.


Under different methods of interpretation, the Court has reached the conclusion that an embryo cannot be understood to be a person for the purposes of Article 4.1 ACHR. In addition, after analysing the available scientific data, the Court has concluded that «conception» in the sense of Article 4.1 occurs at the moment when the embryo becomes implanted in the uterus. Further, it can be concluded from the Article’s inclusion of the words «in general» that the protection of the right to life under this provision, is not absolute, but rather gradual and incremental, according to its development.


In weighing the importance of protecting an embryo against the limitations on the rights to personal integrity, personal liberty, private life, intimacy, reproductive autonomy, access to reproductive health services, and the right to found a family, considered in the context of a prohibition on the use of in vitro fertilisation treatment (hereinafter, «IVF»), the limitation on these rights is severe and entails a violation. The reason is that, in practice, they are annulled for those persons whose only possible treatment for infertility is IVF. Further, the interference with these rights has a differentiated impact on the victim, depending on his/her situation of disability, gender stereotypes and, in some cases, financial situation. In contrast, the limitation on the protection of the embryo is very slight, given that the risk of embryonic loss is present both in IVF and in natural pregnancy. The embryo, prior to implantation, is not covered by the terms of Article 4 ACHR.


Summary:


I.  This case concerns the issuance of Executive Decree no. 24029-S by the Ministry of Health of Costa Rica on 3 February 1995, which authorised and regulated the practice of In Vitro Fertilisation (hereinafter, «IVF») in the country. Although the IVF technique was practiced for about five years, on 15 March 2000, the Constitutional Chamber of the Supreme Court of Costa Rica declared the decree unconstitutional, arguing, inter alia, that the treatment violated the right to life of the embryos created for implantation. This judgment, which effectively banned IVF in Costa Rica, consequently interrupted the medical treatment that several persons had already begun, while others, having no other option, resorted to traveling abroad to be able to have access to IVF.


On 29 July 2011, the Inter-American Commission (hereinafter, the «Commission») submitted a brief to the jurisdiction of the Inter-American Court (hereinafter, the «Court») against the state of Costa Rica (hereinafter, the «State»). The Commission requested the Court to declare the State’s international responsibility for violations of Articles 11.2, 17.2 and 24 ACHR, in relation to Articles 1.1 and 2 of the treaty, to the detriment of the alleged victims.


Representatives of the alleged victims submitted their respective briefs and pleadings to the Court on 9 December 2011. The representatives generally agreed with the allegations of the Commission. A representative of a segment of victims also alleged the violation of Articles 4.1, 5.1, 7, 11.2, 17.2, and 24 of the Convention, in relation to Articles 1.1 and 2 thereof, to the detriment of the victims he represented.


The State submitted three preliminary objections, arguing: failure to exhaust domestic remedies, the petition presented by two of the alleged victims was time-barred, and the Inter-American Court’s lack of jurisdiction to hear supervening facts after the submission of the petition. The Court rejected all three of these preliminary objections.

 

II. On the merits, the Court found the State responsible for violating Articles 5.1, 7, 11.2 and 17.2 in relation to Article 1.1 ACHR, to the detriment of the alleged victims. The Inter-American Court held that the judgment of the Constitutional Chamber of the Supreme Court of Costa Rica effectively interrupted the medical treatment already initiated by some of the alleged victims, and forced others to travel to other countries to access IVF. This constituted a restriction in the private and family lives of the victims, as they were forced to modify their decisions regarding the methods they wished to seek out for the purpose of conceiving a biological child. The Court then analysed whether this restriction violated the American Convention. Using a proportionality test, the Court considered whether the restriction had to be established in the law, sought a legitimate aim, was adequate and necessary in order to achieve that aim, and had disproportionately impacted the rights of the alleged victims with respect to the benefits to be achieved by the implementation of the measure.


The Court weighed the extent to which the rights were limited in this case against the importance of protecting the embryo. The Court concluded that the effects on the rights to personal integrity, personal liberty, private life, intimacy, reproductive autonomy, access to reproductive health services, and to found a family were severe and had consequently violated these rights. The reason is that, in practice, they were completely annulled for those persons whose only possible treatment for infertility was IVF. In addition, the restriction had a disparate impact on the victims owing to their situation of disability (inability to conceive), their gender (the women felt the interruption of the treatment in their own bodies, and some of the men were impacted by gender stereotypes) and, for some of the victims, their financial situation (those who could not afford to seek treatment in other countries faced greater impacts).


In contrast, the impact on the protection of prenatal life was slight, because the risk of embryonic loss is present both in IVF and in natural pregnancy. The Court underlined that the embryo, prior to implantation, is not covered by the terms of Article 4 of the Convention, and recalled the principle of the gradual and incremental protection of prenatal life.


Therefore, the Court concluded that the Constitutional Chamber based its decision on an absolute protection of the embryo. By failing to weigh in or take into account the other competing rights, the decision constituted an arbitrary and excessive interference in private and family life. As such, the interference was disproportionate. Moreover, the restriction had discriminatory effects.


Accordingly, the Court ordered the State to promptly adopt appropriate measures to annul the prohibition to practice IVF; regulate the aspects that it considered necessary for the implementation of IVF, and establish systems of inspection and quality control of the institutions and professional qualified that perform this type of assisted reproduction technique; include the availability of IVF within the infertility treatments and programs offered by its health care services; provide the victims with psychological treatment, free of charge and immediately, for up to four years; publish the Inter-American Court’s judgment; implement permanent education and training programs and courses on human rights, reproductive rights and non-discrimination for judicial officials; and pay pecuniary and non-pecuniary damages as well as costs and expenses.