the rights protected by the American Convention. Consequently, this constitutes a continuing violation of the Convention. B. The State 40. The State maintains that it has endeavored to establish the necessary conditions to comply with the right to protection of the family, but that consideration must be given to the fact that, under Article 17.2, the exercise of the right of men and women to marry and raise a family requires that they meet the conditions stipulated under the domestic laws of the states. In this sense, it indicates that while “parents should have the right to have children, it would not seem lawful that, in order to do so, they should deprive other human beings of life.”5 41. The State argues that, regardless of how the modifier “in general” in Article 4.1 of the American Convention is interpreted, what is important is that the article establishes that life should be protected from the moment of conception and that the State has chosen the latter option. 42. The State affirms that the Constitutional Chamber of the Supreme Court of Justice of Costa Rica, in its judgment 2000-0236 of March 15, 2000, did not declare in vitro fertilization unconstitutional as a means of assisted reproduction per se; actually, what the constitutional court had previously determined in interpreting national and international law “is that the procedure carried out in the year 2000 […], beyond any possible doubt, placed the embryos at a disproportionate risk of death.”6 In other words, under the conditions under which the procedure was performed at the time of the Constitutional Chamber’s ruling, which allowed the insemination of up to six eggs, the procedure was found to violate the right to life. Consequently, the procedure was not in keeping with the Constitution or with Article 4 of the American Convention. According to the State, the Constitutional Chamber found that “… advances in science and biotechnology are so swift that the procedure could come to be improved to such an extent that the objections noted here would no longer apply.” 7 43. Consequently, the State argues that the allegations do not describe a violation of rights guaranteed by the American Convention. 44. As for the admissibility requirements, the State maintains that the alleged victims did not exhaust domestic remedies. It states that this was confirmed by the judgment of October 15, 2008, by the Superior Tribunal of Contentious Civil Treasury Matters concerning the suit brought by Ileana Henchoz Bolaños (victim in case 12.361 before the IACHR), against the Costa Rican Social Security Fund (case file no. 089-000178-1027-CA). In this case, Ms. Henchoz requested the Costa Rican Social Security Fund to provide her with in vitro fertilization. In the first instance, the State argues that the Superior Tribunal of Contentious Civil Treasury Matters recognized the soundness of the Constitutional Chamber’s judgment because it established that in vitro fertilization was not prohibited in Costa Rica as long as the objections described by the Constitutional Chamber did not apply. The Tribunal stated that this medical procedure, as now developed, makes it possible, in a female reproductive cycle, to fertilize a single egg for subsequent placement in the mother’s uterus. Subsequently, the Costa Rican Social Security Fund appealed the Superior Tribunal’s judgment and, on August 19, 2009, the magistrates of the First Chamber of the Supreme Court of Justice reversed that ruling and declared the suit groundless. 45. On the other hand, at a public hearing held on October 28, 2008, during the 133 rd regular period of sessions8, on case 12.361 and petitions 16-05, 678-06, 1191-06, and 545-07, which were later joined to petition 1368-04, the State affirmed to the IACHR that the probability of success with the fertilization of a single embryo, as described by the Superior Tribunal of Contentious Civil Treasury Matters in its first-instance judgment, dated October 15, 2008, was Communication from the State, dated November 16, 2006. Communication from the State, dated January 29, 2009. 7 Communication from the State, dated November 24, 2008, citing part of judgment No. 2000-2306, issued by the Constitutional Chamber on March 15, 2000. 8 IACHR, public hearing before the IACHR on the petitions and on case 12.361, held on October 28, 2008, during the 133rd regular period of sessions. See at: http://www.IACHR.oas.org/prensa/publichearings/advanced.aspx?Lang=ES 5 6 6