fertilization is only one among several techniques) is used in eleven out of twenty-four
Member States. It also shows that, among these countries, three prohibit this
technique “for purposes other than human procreation;” one of them “prohibits the
freezing of embryos for deferred transfer;” another “prohibits the use of procedures
‘aimed at embryonic reduction’;” that that the same State establishes that “the ideal
number of eggs and pre-embryos to be transferred may be no more than four, to avoid
increasing the risk of multiple births;” and where “the commercialization of biological
material is a crime;” and that the said State and another allows “the cryopreservation
of embryos, spermatozoids and eggs.” 85
Therefore, the Judgment’s conclusion that “[t]his means that, in the context of the
practice of most States Parties to the Convention, it has been interpreted that the
Convention allows IVF to be performed” 86 is inconsistent. This is so, not only because
there is no such majority, but also because no evidence has been presented that
demonstrates that the eleven States that allow assisted reproduction have done so
based on their application or consideration of Article 4(1) of the Convention.
4.- The principle of the most favorable interpretation and the object and purpose of the
treaty.
The Judgment resorts to the rule of the object and purpose of the treaty for proving
that the right to life from conception is not absolute. In this regard, it asserts that “the
object and purpose of Article 4(1) of the Convention is that the right to life should not
be understood as an absolute right, the alleged protection of which can justify the total
negation of other rights.” 87
It is impossible to be more in disagreement with this assertion. Interpreted in good
faith and in accordance with the terms of the treaty in their context, the object and
purpose of Article 4(1) cannot be other than to effectively protect by law the right of
“every person […] to have his life respected […] and, in general, from the moment of
conception.” This means, to effectively protect the right of every person, including the
conceived or the unborn.
In addition, the Judgment further contradicts itself in this regard. While the Judgment
first stated that Article 4(1) of the Convention was not applicable to this particular
case, it now refers to it in order to assert that there must be an “adequate balance”
between the clashing rights and interests. 88 It is puzzling how could this balance be
reached if the Judgment has been previously stated that “the embryo cannot be
understood to be a person for the purposes of Article 4(1) of the American
Convention.” 89 This means that it would have no right to “have his life protected,”
which is why there would be no rights to balance, harmonize or to make compatible.
85
Para. 255.
86
Para. 256.
87
Para. 258.
88
Para. 260.
89
Art. 264.