Inter-American Court Challenges Costa Rica’s Highest Court of Law on Assisted Reproduction

By Marianna Orlandi, Ph.D. | March 15, 2016

“Costa Rica cannot prohibit in vitro fertilization (IVF)” according to the Inter-American Court of Human Rights. The Court held that banning this artificial reproduction technique constitutes a violation of the fundamental human right to marry and found a family.

A recently adopted resolution of the Inter-American Court flies in the face of a ruling from Costa Rica’s own Constitutional Court which recently expressed the opposite opinion, based on the right to life.

The controversial resolution is a follow-up to the 2012 judgement Artavia Murillo, known by the name of the first parties to the suit. On that occasion, Inter-American Court ruled that the protection of the “right to life” could not limit adults’ rights to be parents and therefore Costa Rica had to allow IVF.

That decision attracted the attention and the criticism of many scholars. The Inter-American Court’s ruling was challenged on legal grounds at the national and at the international level, and was found to be based on flawed and politicized science.

The Constitution of Costa Rica protects life from the moment of conception; article 4 of the Inter-American Convention on Human Rights provides for the same full protection of the unborn.

The 2012 Inter-American Court decision, however, offered its own “evolutionary” interpretation of this fundamental right, one “supposedly” more in tune with “international standards”.

It argued that, since no clear line can be drawn to establish when a child in the womb becomes a person, “parental rights” can supersede the right to life. Additionally, the Costa Rican ban on IVF, the Inter-American Court said, violated the rights to “private and family life” and to “personal integrity”.

Worth noting is how the Inter-American Convention says nothing at all implicitly or explicitly about “privacy rights.

The sovereign states that signed the Inter-American Convention and that submitted themselves to the jurisdiction of the Inter-American Court never agreed to a new interpretation of the right to life; nor did they consent to an “extended meaning” of privacy and family life guarantees. The recent resolution undermines the court’s authority and the sovereign prerogatives of OAS member states.

For these reasons, the Costa Rican legislature did not comply with the 2012 judgement.

Eventually, a 2015 Presidential decree introduced IVF in the country. An even more recent decision of the country’s constitutional court, however, found that same decree to be unconstitutional. This issue—the Constitutional Court said—may only be regulated by a law, not by executive decree.

The 2016 IACtHR’s resolution nullifies the judgement of the Constitutional Court. Because of this, it is likely to attract an even greater criticism than the one occasioned by its previous pronouncement.

With this last resolution, the judges went as far as to hold, based on their previous ruling alone, that IVF access is now legal in Costa Rica. They argued that the Court’s decisions are of direct application in the state party, thus creating new and immediately applicable law.

In brief, not only did the Court reiterate its “evolutionary” interpretation of fundamental rights—it even adopted an “evolutionary” interpretation of its own powers.

In its dissenting opinion, Judge Eduardo Vio Grossi exposed the error of the Inter-American Court.

As he justly recalls, the Inter-American Convention, from which the Court derives all its competence and powers, provides that Inter-American Court’s judgements may only lead to state responsibility; never to a change in national laws.

It is not the first time the Inter-American Court attempts to expand its powers. It has recently begun to claim that its judgments have erga omnes effect and are binding precedents that must be followed by all courts that are party to the Inter-American Convention of Human Rights. Hopefully, the American states will not give up their sovereignties so easily—nor their national safeguards of fundamental rights.

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