Finally, in order to justify its assertions, the Judgment resorts again to decisions, either
absolutely foreign to the Convention Member States, or pertaining to only three of
them. These grounds are not enough for reaching the attained conclusion.
C.- Unanswered questions.
The Judgment states that, due to the fact that an “‘absolute right to life of the embryo’
as grounds for the restriction of [other] rights […], is not supported by the American
Convention,” “it is not necessary to make a detailed analysis of each of these
requirements” required for restricting a right, this means, that “inferences are not
abusive or arbitrary,” which are “substantively and formally established by law,” that
pursue “a legitimate aim” and that meet “requirements of suitability, necessity and
proportionality.” 90
In spite of this, the Judgment keeps on with this analysis in order “to indicate the way
in which the sacrifice of the rights involved in this case was excessive in comparison to
the benefits referred to with the protection of the embryo.” 91 By doing this, the
Judgment contradicts itself, because it does not confront this sacrifice with a right
(which, according to the Judgment does not apply to this case), but with the
prohibition of the technique of in vitro fertilization. If the Judgment would have
confronted this sacrifice with a right, it would have harmonized the rights at stake.
Obviously, the result of the confrontation made by the Judgment cannot be different
than the one that was reached. 92 This is so because—we repeat—there was no
confrontation between rights, but between some rights and a technique.
However, even in this case, the background material can only be used for reaching
very partial conclusions regarding the technique of in vitro fertilization. As it has been
said, assisted reproduction—of which in vitro fertilization is only one method—is not
practiced in the majority of Member States to the Convention. It is practiced only in
eleven of the twenty-four Member States, many of which forbid some proceedings
related to this technique.
The natural conclusion to these facts is not that “the Convention allows IVF to be
performed,” 93 but that the majority of Member States have abstained from referring to
it, probably because they have understood that this technique is not, per se, regulated
by international law. This, together with the fact that the Judgment makes Article 4(1)
inapplicable to the embryo—at least until the moment of implantation in the woman’s
uterus—may make the majority of Member States understand that the regulation of
this technique is within their internal, domestic or exclusive jurisdiction. 94
90
Para. 273.
91
Para. 273.
92
Paras. 277 ff.
93
Para. 256.
94
This concept was developed by the Permanent Court of International Justice in its advisory opinion
Nationality Decrees Issued in Tunis and Morocco (February 7, 1923). In this opinion the Permanent Court
concluded that the term domestic jurisdiction referred to issues that are not, in principle, regulated by
international law, that is, matters where the State can take sovereign decisions. This may be the case, even
though they may be closely related to the interests of more than one State.