6
to commit is an act of love, an act of discovery. This option is called the avenue of hope; for
many people, it’s the only option there is; medically speaking, there was no other option […]
Is my idea of being part of the community and of society so wrong? Isn’t it the same feeling
that every person has? The only difference was that I was unable to get that by the means
that for everyone else is so natural. But there is another way, one that is accepted and
available everywhere. Whatever the regulations, the answer can’t be a simple “No”. That’s
not right, because that means I’m not entitled to start a family, to have my health problem
treated; because that means I don’t have a right to privacy, to fulfill my life’s plan with my
partner, the plan that I make for myself or that he makes with me; the plan that so many
others pursue […]
B.
The State’s position
28.
The State contends that the facts alleged do not establish a violation of the human
rights that the American Convention guarantees.
29.
The State maintains that in vitro fertilization is not a cure for the causes of infertility;
instead, it is a complex technical resource that attempts to overcome infertility by artificial means.
The State argues that while it understands and empathizes with the suffering that the inability to
conceive may cause, the petitioner is wrong when he says that the ban on the practice of in vitro
fertilization condemned those he represents to being childless, as the ban on in vitro fertilization is
not the cause of the inability to conceive any more than in vitro fertilization is a guarantee of having
children.
30.
The State contends that the problem lies in the fact that the regulation of the
practice violates the embryos’ right to life. According to the State, science and technology are not
the only considerations when addressing this issue; the legal system and the constitution, as a
“faithful reflection of a nation’s values”, also have to be considered, as does international law.
Hence, any treatment that may be administered to a person must always conform to the provisions
of the Constitution and the international law on the protection of human rights.
31.
The State asserts that the Constitutional Chamber held that the right to reproduce
must be subordinate to the absolute right to life, because it would be a contradiction to accept the
possibility of a life that comes at the cost of other human lives, which is what happens in the
practice of in vitro fertilization. Consequently, the right to reproduce is regulated by acknowledging
that some techniques, like artificial insemination, are accepted practice while other techniques like in
vitro fertilization are not because they affect other persons’ absolute rights.
32.
The State observes that Article 4(1) of the American Convention expressly provides
that the right to life shall be protected, in general, from the moment of conception and that the
Costa Rican State has opted to provide this degree of protection in its domestic laws. The State
alleges that irrespective of how one interprets the expression “in general” in Article 4(1) of the
Convention, what matters is that the article provides for the possibility of protecting life from the
moment of conception, and that the State has opted for that degree of protection. According to the
State, the right to life is the predicate for all other rights; hence, the Costa Rican State has acted in
accordance with the international obligations it has undertaken. The State argues that science and
technology have offered no clear answers in this area; hence it is up to the State to regulate the use
of assisted reproductive techniques within Costa Rica.
33.
The State observes that it has been careful to cultivate the conditions necessary to
respect the right to protection of the family. It argues, however, that under Article 17(2) of the
Convention, men and women have the right to marry and to raise a family if they meet the