the State has argued that it was a “relative prohibition,” inasmuch as the practice of IVF
could be regulated when the technique was able to comply with the requirements established
by the Constitutional Chamber in its judgment; in other words when, in the words of the
State, IVF does not endanger “the right to life from the moment of conception.”
158. In this regard, the Court observes that the Constitutional Chamber’s judgment
included a concept of absolute protection of the life of the embryo, because it stated that
“since the right is declared in favor of everyone, without exception – any exception or
limitation destroys the very content of the right – it must be protected for those who are
born and also for the unborn.” 254 Despite the foregoing, the Constitutional Chamber
indicated that “advances in science and biotechnology are so rapid that the technique could
be improved in such a way that the concerns that have been indicated disappear”; 255 thus
the Chamber stated that “it [should be expressly recorded that, not even by norm of legal
rank, is it possible to authorize legally [the] application of [IVF], at least, […] while its
scientific development remains at its current stage and entails the conscious damage to
human life.” 256
159. The Court notes that the Constitutional Chamber considered that, if the IVF technique
could be applied respecting the concept of absolute protection of the life of the embryo, it
could be practiced in the country. However, the Court considers that, although the
Constitutional Chamber’s judgment accepted the practice of IVF in the country under certain
conditions, the fact is that 12 years after the judgment was delivered, this technique is not
practiced in Costa Rica (supra para. 67). Therefore, the Court considers that the “suspended
status” established in the judgment has not produced any real practical effects to date.
Consequently, without proceeding to define it as an “absolute” or “relative” prohibition, it is
possible to conclude that the Constitutional Chamber’s decision resulted in the undisputed
fact that IVF is not practiced in Costa Rican territory and that, therefore, couples wishing to
use this technique cannot do so in this country. In addition, since the Constitutional Chamber
conditioned the possibility of applying the technique to ensuring that there was no embryonic
loss whatsoever, in practice, this entails a prohibition of IVF, because the evidence in the
case file indicates that, to date, there is no option for practicing IVF without some possibility
of embryonic loss. 257 In other words, it would be impossible to comply with the condition
imposed by the Chamber.
160. Although the practical effect has been mentioned above, the Court considers that the
restriction or interference caused to the presumed victims by the Constitutional Chamber’s
decision could not be foreseen adequately. In this regard, the Court recalls that a norm or
mandate is foreseeable, if it is worded with sufficient precision to allow a person to regulate
his conduct based on it. 258 In this regard, the Court observes that the judgment was not
254
Judgment No. 2000-02306 of March 15, 2000, delivered by the Constitutional Chamber of the Supreme
Court of Justice, Case file No. 95-001734-007-CO (file of annexes to the merits report, volume I, folio 90).
255
Judgment No. 2000-02306 of March 15, 2000, delivered by the Constitutional Chamber of the Supreme
Court of Justice, Case file No. 95-001734-007-CO (file of annexes to the merits report, volume I, folio 95).
256
Judgment No. 2000-02306 of March 15, 2000, delivered by the Constitutional Chamber of the Supreme
Court of Justice, Case file No. 95-001734-007-CO (file of annexes to the merits report, volume I, folio 95).
257
Cf. Opinion of expert witness Zegers-Hochschild (merits report, volume VI, folio 2848) and of expert
witness Garza (merits report, volume VI, folio 2576).
258
Cf. Case of López Mendoza v. Venezuela. Merits, reparations and costs. Judgment of September 1, 2011.
Series C No. 233, para. 199; See also ECHR, Case of Landvreugd v. The Netherlands, (No. 37331/97), Judgment of
4 June 2002. Final, 4 September 2002, para. 59 (“[T]he Court reiterates that a rule is ‘foreseeable’ if it is
formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his
conduct”).