Court of Human Rights overturns Costa Rica's ban on IVF

Antony Blackburn-Starza

Progress Educational Trust

07 January 2013

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[BioNews, London]

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.

Nature 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 rights'.
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 said.

The case will be closed once compliance is observed by the IACHR.

Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.