International Journal of Gynecology and Obstetrics 123 (2013) 86–89

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International Journal of Gynecology and Obstetrics

journal homepage: www.elsevier.com/locate/ijgo

ETHICAL AND LEGAL ISSUES IN REPRODUCTIVE HEALTH

Human rights to in vitro fertilization

Fernando Zegers-Hochschild a, Bernard M. Dickens b,⁎, Sandra Dughman-Manzur c
a
Program of Ethics and Public Policies in Human Reproduction, University Diego Portales, Santiago, Chile
b
Faculty of Law, Faculty of Medicine, Joint Centre for Bioethics, University of Toronto, Toronto, Canada
c
International Reproductive and Sexual Health Law Program, University of Toronto, Toronto, Canada

a r t i c l e i n f o a b s t r a c t

Keywords: The Inter-American Court of Human Rights (the Court) has ruled that the Supreme Court of Costa Rica’s judg-
Conception ment in 2000 prohibiting in vitro fertilization (IVF) violated the human right to private and family life, the
Costa Rica human right to found and raise a family, and the human right to non-discrimination on grounds of disability,
Fertilization
financial means, or gender. The Court’s conclusions of violations contrary to the American Convention on
Human rights to in vitro fertilization
Human Rights followed from its ruling that, under the Convention, in vitro embryos are not “persons” and
Infertility
Inter-American Court of Human Rights do not possess a right to life. Accordingly, the prohibition of IVF to protect embryos constituted a dispropor-
In vitro fertilization tionate and unjustifiable denial of infertile individuals’ human rights. The Court distinguished fertilization
from conception, since conception—unlike fertilization—depends on an embryo’s implantation in a woman’s
body. Under human rights law, legal protection of an embryo “from conception” is inapplicable between its
creation by fertilization and completion of its implantation in utero.
© 2013 International Federation of Gynecology and Obstetrics. Published by Elsevier Ireland Ltd. All rights reserved.

1. Introduction The case came to the Court following protracted procedural, legisla-
tive, and related actions [1] (paras 1–3), but its key issues under the
The November 2012 judgment of the Inter-American Court of Convention’s legal regime concerned what constitutes a “person,” the
Human Rights (the Court) on Costa Rica’s constitutional prohibition of meaning of “conception,” and the significance of the words “in general.”
in vitro fertilization (IVF) [1] addressed alleged human rights violations The case attracted widespread international attention, including
resulting from the prohibitory ruling of the Constitutional Chamber over 46 amicus curiae (friend of the court) briefs. At the public hear-
of the Costa Rican Supreme Court of Justice in 2000 [2]. The Constitu- ing before the Court, 1 of the present authors (F.Z-H.) was admitted
tional Chamber’s ruling struck down the Ministry of Health Executive to present expert opinion on the scientific aspects of IVF, to which
Decree of 1995 that authorized IVF and regulated its practice [3]. The the Court made extensive reference.
claims that the 2000 ruling violated human rights of access to IVF
were based on provisions of the American Convention on Human Rights 2. Human rights claims
(the American Convention). Costa Rica became a party to the Conven-
tion in 1970 and accepted the binding jurisdiction of the Court in 1980. The case was initiated in July 2011 by the Inter-American Commis-
The Constitutional Chamber struck down the Executive Decree on the sion on Human Rights on behalf of 18 named Costa Rican residents—9
ground that, because IVF is liable to create human embryos some of couples—whose human rights under the Convention were claimed to
which are unavoidably destined to die, the practice affects the “right to be denied by the prohibition of IVF. The claim alleged violation of
life and dignity of the human being” [1] (para. 72), which the Executive Articles 11(2), 17(2), and 24 of the Convention.
Branch of government cannot constitutionally regulate. Further, the Con- Article 11(2), concerning the Right to Privacy, provides that “No
stitutional Chamber found a violation of Article 21 of the Costa Rica Con- one may be the object of arbitrary or abusive interference with his
stitution, which declares that human life is inviolable, and of Article 4 of private life, his family, his home…” Based on the narratives of family
the American Convention, on the Right to Life. Article 4(1) provides that: distress due to failures of natural conception and pregnancy, the
claim advanced was that prohibition of IVF denies infertile couples
Every person has the right to have his life respected. This right
alternative means of having the children they want, and amounts to
shall be protected by law and, in general, from the moment of
violation of their rights to private and family life.
conception. No one shall be arbitrarily deprived of his life.
Article 17(2), concerning Rights of the Family, provides that:
⁎ Corresponding author at: Faculty of Law, University of Toronto, 84 Queen’s Park,
Toronto, Ontario M5S 2C5, Canada. Tel.: + 1 416 978 4849; fax: + 1 416 978 7899. The right of men and women of marriageable age to marry and to
E-mail address: [email protected] (B.M. Dickens). raise a family shall be recognized, if they meet the conditions

0020-7292/$ – see front matter © 2013 International Federation of Gynecology and Obstetrics. Published by Elsevier Ireland Ltd. All rights reserved.
http://dx.doi.org/10.1016/j.ijgo.2013.07.001
 F. Zegers-Hochschild et al. / International Journal of Gynecology and Obstetrics 123 (2013) 86–89 87

required by domestic laws, insofar as such conditions do not affect expert claimed that “embryo mortality is around 30% in natural cir-
the principle of non-discrimination established in this Convention. cumstances and, for IVF…around 90%” [1] (para. 308) but conceded
that early natural embryonic mortality cannot be detected. The
Childless couples came before the Court to show how prohibition Court approached comparative rates of embryonic loss in natural
of IVF denied their only feasible means to pursue their right to seek and assisted reproduction less as a quantitative than a qualitative
conception of their genetic progeny. issue in considering whether the Constitutional Chamber’s conclusion
Article 24, on the Right to Equal Protection, provides that “All that IVF had to be prohibited on grounds of some rate of embryonic
persons are equal before the law. Consequently, they are entitled, loss of life was proportionate and sufficient to justify any violation
without discrimination, to equal protection of the law.” The evidence of infertile couples’ human rights.
presented by witnesses showed discrimination on grounds of finan- In defense of the Constitutional Chamber, the State of Costa Rica
cial inability to meet the costs of obtaining IVF services in other coun- argued that the Chamber’s decision favoring protection of embryos
tries such as Colombia, Mexico, or the USA, and/or on grounds of sex. by restriction of IVF, in preference to protection of born persons’ free-
The personal and expert witnesses reinforced each other’s evidence dom to enjoy their human rights, is proportionate because “when
that the burden of infertility falls more heavily on women than on weighing the harm that the restrictive measure causes to the holder
men. Men’s inability to father children has some negative implica- of the freedom, and the benefit that the collectivity obtains from it
tions for their virility but they can redeem reputations for manliness by protecting society’s most fundamental value, which is the right
in other ways. By contrast, in Latin America, as in many other regions to life, the State must necessarily incline the balance in favor of the
of the world, the culture, reinforced by religious stereotyping, makes latter” [1] (para. 270).
the duties of motherhood an indispensable function of adult women’s The Court accordingly had to decide whether protection of embry-
existence in society, and their main or sole source of esteem within os’ alleged right to life justified sacrifice of infertile Costa Rican citi-
their families and communities. Denial of the potential for parent- zens’ human rights to private and family life, to raise families, to
hood through prohibition of IVF has a disproportionate impact on equality and non-discrimination, and—inter alia—to autonomous
women. Accordingly, proscribing access to effective, safe methods of choice of reproductive treatments [1] (paras 150, 161). Observing
overcoming infertility constitutes discrimination against women. that “the protection of the right to life under this provision [of the
Convention] is not absolute” [1] (para. 264), the Court addressed
3. The scientific evidence prioritization of competing rights.

The key scientific evidence submitted by the Court-appointed 4. The status of embryos
experts related to human reproductive biology and techniques for treat-
ment of infertility, but it also addressed medical and social science evi- The Constitutional Chamber found IVF unconstitutional because
dence of the incidence of infertility and its emotional impact on health Article 21 of the Constitution of Costa Rica provides that “Human
and family relationships. In opening by observing that WHO character- life is inviolable” and, under the law [1] (para. 73):
izes infertility as a disease [4], the evidence showed how the WHO con-
cept of health as a state of “physical, mental and social well-being” [5] When the spermatozoid fertilizes the egg that entity becomes a
confirms the harmful effect of infertility on the health of couples seek- zygote and therefore an embryo…as soon as conception occurs, a
ing to be parents, associated with the loss of mental and social person is a person and we are in the presence of a living being,
wellbeing due to unfulfilled hopes of parenthood. Inequities in access with the right to be protected by the legal system.
to IVF, of which those with means can avail themselves by travel to
other countries, aggravate infertile couples’ sense of grievance. Further, without drawing any distinction between fertilization
The main thrust of the scientific evidence was to inform the judges and conception, the Constitutional Chamber added that, under the
about techniques of assisted reproduction, especially by varieties of IVF. American Convention, a human embryo [1] (para. 76):
The description “IVF” has become a generic term for a variety of repro-
ductive techniques. The focus of the evidence addressed the principal …is a person from the time of conception; hence it cannot be
objection on the grounds of which the Constitutional Chamber of the treated as an object…the application of the technique of in vitro
Costa Rican Supreme Court found IVF unconstitutional: namely, that it fertilization and embryo transfer, as it is currently performed,
may involve wastage of surplus embryos. The scientific evidence did jeopardizes human life…consequently the [Executive] regulation
not deny this, but showed such wastage also to be inherent in spontaneous under consideration is unconstitutional as it violates article 21 of
reproduction. Techniques of IVF, being medically controlled and moni- the Constitution and Article 4 of the American Convention on
tored, can calculate with some precision how many embryos are created Human Rights. Since the technique violates the right to life…its
in vitro; how many are unsuitable for transfer to a woman’s body; how application cannot be authorized.
many transferred embryos achieve implantation in utero; how many
that implant are subsequently lost; and how many result in pregnancy, The Court did not consider rights under Costa Rica’s domestic law
gestation, and live birth of children. In nature, these processes occur within but, since Article 7(1) of the national Constitution provides that
women’s bodies and are not amenable to precise calculation or quantifica- “Public treaties, international agreements and concordats duly ap-
tion until after embryo implantation has occurred. However, the expert proved by the Legislative Assembly have a higher authority than the
opinion presented to the Court was that [1] (para. 310): laws upon their enactment,” its rulings interpreting the American
Constitution prevail within Costa Rica.
The process that generates human life includes embryonic death Noting undefined references to fertilization and conception, the
as part of a natural and necessary process. Of every 10 embryos Court addressed how they are to be understood under the American
spontaneously generated in the human species, no more than 2 Convention. Drawing upon testimony of its expert witnesses, the
or 3 are able to survive natural selection and be born as a person. Court considered that “the scientific evidence agrees in making a
The remaining 7 or 8 embryos die in the female genital tract, gen- difference between two complementary and essential moments of
erally without the parents’ knowledge. embryonic development: fertilization and implantation. The Court
observes that it is only after completion of the second moment…that
Whether the rate of loss of embryos in IVF is comparable to or con- conception can be understood to have occurred” [1] (para. 186).
siderably greater than in natural reproduction was contested. One This accords with the fact that, before implantation, there are no
88 F. Zegers-Hochschild et al. / International Journal of Gynecology and Obstetrics 123 (2013) 86–89

measurable chemical or other markers in the woman’s fluids signaling of the relatively high rate of embryonic loss in natural reproduction and
the presence of an embryo. Only after implantation can an embryo be other reproductive techniques permitted in Costa Rica, “the protection
identified through the woman’s circulation. The Court concluded [1] of the embryo sought by banning IVF has a very limited and moderate
(para. 187): scope” [1] (para. 313). The Court accordingly found a violation of Article
11(2) of the American Convention, since [1] (para. 316):
Thus, the Court considers that the term “conception” cannot be
understood as a moment or process exclusive of a woman’s body, …the Court concludes that the Constitutional Chamber based itself
given that an embryo has no chance of survival if implantation on an absolute protection of the embryo that, by failing to weigh
does not occur…In addition…when Article 4 of the American Con- up or take into account the other competing rights, involved an
vention was drafted the dictionary of the Real Academia differenti- arbitrary and excessive interference in private and family life that
ated between the moment of fertilization and the moment of makes this interference disproportionate.
conception, understanding conception as implantation…When
drafting the relevant provisions in the American Convention, the Similarly, a violation of Article 17(2), concerning Rights of the
moment of fertilization was not mentioned. Family, was found because the prohibition of IVF denied couples
dependent on that technique the possibility to raise a family. The
On extensive review of the history and legal context of the Court’s conclusion was that [1] (para. 314):
drafting of the American Convention, the Court found an unimplanted
embryo to be only human cells or tissues, and concluded that [1] A weighing up of the severity of the limitation of the right to private
(para. 223): life and to found a family compared to the importance of the treaty-
based protection of prenatal life allows it to be affirmed that the ef-
…the historic and systematic interpretation of precedents that fects on the right to private life, intimacy, reproductive autonomy,
exist in the inter-American system confirms that it is not admissi- access to reproductive health services, and to found a family is se-
ble to grant the status of person to the embryo. vere because, in the practice, these rights are annulled for those per-
sons whose only possible treatment for infertility is IVF.
This conclusion related to the Court’s interpretation of the words
“in general” in Article 4(1) of the American Convention, which pro- The Court added that, “[i]n addition, the interference has a differ-
vides that “Every person has the right to have his life respected. entiated impact on the victims owing to their situation of disability,
This right shall be protected by law and, in general, from the moment gender stereotypes and, for some of the victims, their financial situa-
of conception.” Taking account of scientific data and the jurispru- tion.” The Court did not address direct discrimination in violation of
dence of the European Court of Human Rights, on reproductive health the Right to Equal Protection under Article 24, but addressed the dif-
including lawful abortion, the Court concluded that [1] (para. 264): ferent forms of indirect discrimination disclosed in the evidence of
the effects of the prohibition of IVF. It explained that “the Court will
…“conception” in the sense of Article 4(1) occurs at the moment not analyze the presumed violation of the right to equality and
when the embryo becomes implanted in the uterus, which non-discrimination under Article 24, but rather in light of Article
explains why, before this event, Article 4 of the Convention [the 1(1) of the Convention in relation to Articles 11(2) and 17 thereof”
Right to Life] would not be applicable. Moreover, it can be con- [1] (para. 285). Article 1(1) is the general duty to respect the rights
cluded from the words “in general” that the protection of the right and freedoms recognized in the Convention without discrimination.
to life under this provision is not absolute, but rather gradual and Any discrimination in the respect or guarantee of a Convention-
incremental according to its development. based right violates not only the right itself but also Article 1(1).
The Court found that the violations of the human rights to private
The Court’s ruling that an in vitro embryo is not a person and has and family life and to raise a family, resulting from the prohibition of
no human rights, including to life, is consistent with evolving juris- IVF, constituted indirect discrimination in violation of Article 1(1).
prudence in Europe and the USA that is coming to address such The Court accepted the WHO characterization of infertility as a dis-
embryos as a form of property [6], disposable by their genetic origi- ease [4] and found that legal prohibition of means to overcome its
nators who do not want to use them to become parents [7]. effects discriminates against those the disease disables. Beyond offen-
sive discrimination on grounds of disability, the Court also found dis-
5. Violation of human rights crimination on grounds of financial means, since Costa Ricans were
not prohibited from access to IVF services—of which the evidence
In light of the Court’s conclusion on the legal status of in vitro showed that some had taken advantage—if they could afford the
embryos, the Court had to decide whether its protection could pro- costs of travel to other countries.
portionately justify any violation of human rights that might follow Expert evidence the Court accepted was particularly concerned
from the Constitutional Chamber’s absolute prohibition of embryo with the harmful and discriminatory effect of infertility on women,
creation by IVF. Rejecting the Constitutional Chamber’s perception while the Court agreed with WHO that “the role and status of
that “the application of the technique of in vitro fertilization and em- women in society should not be defined solely by their reproductive
bryo transfer…jeopardizes human life” [1] (para. 76), the Court capacity” [1] (para. 296). It noted evidence of the personal suffering
reviewed the personal case histories of the 9 named couples that of women due to infertility in their marriages—which may be exacer-
demonstrated that IVF offered the only means by which their infertil- bated by instability in family relationships, domestic violence, stigma-
ity might be overcome to create their children’s lives. The Court tization, and ostracism—and observed that [1] (para. 297):
accepted that “one of the purposes of IVF is to contribute to the
creation of life” [1] (para. 311). The Court considers that the instant case reveals a…situation of the
The Court observed that “the decision to have [one’s own] biological influence of stereotypes, in which the Constitutional Chamber gave
children using assisted reproduction techniques forms part of the absolute prevalence to the protection of the fertilized eggs without
sphere of the right to personal integrity and to private and family life” considering the situation of disability of some of the women…
[1] (para. 272), protected by Article 11(2) of the American Convention.
The Court noted how the prohibition of IVF had caused distress, marital The Court concluded that, while the prohibition of IVF is not express-
breakdown, and comparable personal and social ill effects while, in view ly addressed at women and appears neutral, it has a disproportionately
 F. Zegers-Hochschild et al. / International Journal of Gynecology and Obstetrics 123 (2013) 86–89 89

negative impact on women. The Court was explicit that discriminatory tance of infertility as a disease may be invoked to support IVF and
gender stereotypes are incompatible with international human rights comparable funding of reproductive health care through public and pri-
law [8], and recognized and defined them “in order to describe the vate health insurance plans in Latin America, and widely beyond.
disproportionate impact of the interference caused by the Constitu- Perhaps the least convincing argument by Costa Rica was that the
tional Chamber’s judgment” [1] (para. 302). Constitutional Chamber’s judgment was not an absolute prohibition
of IVF, but only of all present techniques because they may involve
non-implantation of embryos created in vitro. The state referred to
6. Implications of the judgment a law unsuccessfully proposed to the Legislative Assembly in 2010
that would have limited fertilization of eggs in a treatment cycle,
The jurisdiction of the Inter-American Court of Human Rights is and required them all to be transferred at the same time to the
very widely, if not universally, accepted in Latin America, and legal woman who produced them, without allowing cryopreservation.
systems of member states of the American Convention are inclined The Court cited the criticism of this proposal by the Pan-American
to defer to its rulings. Accordingly, the Court’s judgment concerning Health Organization, based on the “risks of multiple pregnancies…
IVF in Costa Rica may be expected, in time, to reverberate throughout which also increase the risk of spontaneous abortions, obstetric com-
the region. Constitutional laws and legal systems in the region share plications, premature births and neonatal morbidity” [1] (para. 84).
several common features, owing to a history of colonization and the This points to the risks to women’s and newborns’ health when
unifying influence of the Roman Catholic Church. Since the decree laws on human reproduction are modeled on the values of theolo-
of Pope Pius IX of 1869 [9], that church has considered deliberate gians, rather than on evidence-based science and respect for and pro-
taking of human life to be punishable from conception, and this is tection of the human rights of women.
reflected in the constitutions and laws of several countries and subor- The Court recognizes the diversity by which individuals’ beliefs
dinate jurisdictions, particularly to reinforce prohibition of abortion. affect their lives, but establishes the entitlement of all to the human
For instance, since the Supreme Court of Mexico upheld the liberal rights of privacy to found families, ability to raise families according
abortion law of Mexico City in 2008 [10], most Mexican states have to family preferences, and non-discrimination on grounds of disabili-
amended their constitutions to ban abortion by requiring protection ty. The Inter-American Court’s landmark human rights decision,
of embryos “from conception.” structured upon robust scientific evidence, directs states and govern-
The Inter-American Court’s separation of fertilization from con- ments on the reproductive rights they must provide and protect, and
ception supports the legal accommodation of IVF in Costa Rica and may open new pathways in the defense of women’s rights in the
other countries of the region where it is practiced. In defense of the Americas, and potentially beyond.
Constitutional Chamber’s prohibition of IVF, Costa Rica argued that
“scientific evidence…reveals that human life begins with conception, Conflict of interest
or what is the same, with fertilization” [1] (para. 167) and that “the
terms ‘conception’ and ‘fertilization’ should be treated as synonyms” The authors have no conflicts of interest.
[1] (para. 168). Failure of the legal argument that conception, which
is dependent on an embryo’s implantation in utero, includes fertiliza- References
tion, which is not, requires re-examination, for instance of conflating
emergency contraception by use of levonorgestrel, which is effective [1] Artavia Murillo et al. (“In Vitro Fertilization”) v Costa Rica, Judgment of November
28, 2012 (Inter-American Court of Human Rights).
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Court’s denial that in vitro embryos have a human right to life also Supreme Court of Justice, File No. 95-001734-007-C0).
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[4] Zegers-Hochschild F, Adamson GD, de Mouzon J, Ishihara O, Mansour R, Nygren K,
Costa Rica claimed that “there is no consensus that infertility is, per et al. The International Committee for Monitoring Assisted Reproductive Technology
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[8] Cook RJ, Cusack S. Gender Stereotyping: Transnational Legal Perspectives. Philadelphia:
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childlessness, and so promote health, meaning “physical, mental and Press; 1984, p. 59.
[10] Acción de Inconstitucionalidad 146/2007 y su acumulada 147/2007 (Supreme
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merous effects on the physical and psychological health of the individ- based law. Int J Gynecol Obstet 2006;93(2):191–7.
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