8. Furthermore, to the extent that the State has based many of its arguments on a
certain interpretation of Article 4(1) of the American Convention on Human Rights,
in this Judgment, the Court has proceeded to interpret this article for the effects of
this case. And it has done so, as required by international law, in accordance with
the ordinary meaning given to the terms, as well as with a systematic and historical
interpretation and one that corresponds to the object and purpose of the treaty,
using as supplementary means of interpretation the preparatory work of this article
of the Convention.
9. The Court’s interpretation and the available scientific evidence led, among other
consequences, to the conclusion that it cannot be determined that Article 4(1)
seeks to confer the status of “person” on the embryo, emphasizing that “… the
tendencies of regulations under international law do not lead to the conclusion that
the embryo should be treated in the same way as a person …” (para. 253).
10. The reparations have been established not only directly with regard to the persons
declared victims. They also establish measures addressed at society as a whole,
such as those concerning non-repetition, and specific guidelines to create the
appropriate conditions to ensure compliance with the State’s duty to comply with
the obligations set out in the Judgment with regard to personal integrity, private
and family life, and the principle of non-discrimination.
11. The essence of the measures of reparation is, therefore, that the State must not
only cease creating discriminatory regulations and practices, but that it must also
annul the prohibition and gradually facilitate the use of this reproduction technique
to those who need and want it. In this regard, the Court basically establishes, inter
alia, three precise lines of action designed to constitute guarantees of nonrepetition and to ensure that the conduct of the State is in keeping with its
international obligations:
a) The first is that the State must “take the appropriate measures to annul as
rapidly as possible the prohibition to practice IVF and so that the persons who wish
to use this assisted reproduction technique can do so without any impediment”
(para. 336). Thus, the State must adopt promptly the necessary measures, within
its own institutional framework, to ensure that the prohibition is annulled;
b) The second is that the State must “regulate any aspects of the implementation
of IVF that it considers necessary” (para. 337), which refers to regulations to be
drafted and implemented by the State to ensure that this technique is used
correctly by qualified institutions and professionals;
c) The establishment, in the third measure, that social security must gradually
include “the availability of IVF within its health care infertility programs and
treatments, in accordance with the obligation of guarantee in relation to the
principle of non-discrimination” (para. 338) is designed to ensure that the said
technique is included gradually in the programs to treat infertility that are already
offered. This does not mean that a disproportionate percentage of social security’s
institutional and budgetary resources should be devoted to this purpose, to the
detriment of other programs and priorities, but is intended to ensure that this
service is made available progressively.
It should be emphasized that this order of the Court is clearly and directly related
to the principle of non-discrimination. Thus, it cannot be understood as an order
that leads to situations of inequality. Consequently, regarding the said gradualness,