277.
As previously indicated (supra para. 144), the scope of the right to private and
family life bears a close relationship to personal autonomy and reproductive rights. The
Constitutional Chamber’s judgment had the effect of interfering in the exercise of these
rights of the presumed victims, because the couples had to change their course of action in
relation to a decision to try and have children using IVF. Indeed, the Court considers that
one of the direct interferences in private life is related to the fact that the Constitutional
Chamber’s decision prevented the couples from deciding whether or not they wished to
submit to this treatment to have children in Costa Rica. The interference was even more
evident when it is considered that IVF, in most cases, is the technique that individuals or
couples resort to after having tried other treatments to overcome infertility (for example,
Mr. Vega and Ms. Arroyo underwent 21 artificial inseminations) or, in other circumstances, it
is the only option the person has in order to be able to have biological children, as in the
case of Mr. Mejías Carballo and Ms. Calderón Porras (supra paras. 85 and 117).
278. The Court has indicated that the interference in this case is not related to the fact of
not being able to have children (supra para. 161). It will now analyze the degree of severity
of the harm to the right to private life and to found a family, and to the right to personal
integrity, taking into account the impact of the prohibition of IVF on the intimacy,
autonomy, mental health and reproductive rights of those concerned.
279. First, the prohibition of IVF had an impact on the intimacy of the individuals, because,
in some cases, one of the indirect effects of the prohibition was that, since it was not
possible to practice this technique in Costa Rica, the procedures undergone in order to obtain
medical treatment abroad required revealing aspects that were part of private life. In this
regard, Ms. Bianchi indicated that:
For the couple, for us – as husband and wife – taking out this amount of money as quickly as possible
signified great financial stress; because here time is also very important, since one already has a
diagnosis […] and one does not know how much time it will take to collect this amount; especially if it
will have to be collected several times; this kind of stress that a couple has to endure – many couples
separate owing to normal financial stress. The lack of privacy is tremendous because, in the workplace,
all my employers had to realize that I was submitting to this treatment because I was constantly asking
for leave; at the same time I told myself that I had to resign just before I had to travel because no one
was going to give me leave to travel at 24 hours’ notice. The monitoring continued until 24 hours before
I travelled. Afterwards I had to travel with 24 hours’ notice to Colombia and then I continued the
procedure for five days and then I had to return to Costa Rica and 10 days later do a pregnancy test
and then monitor the pregnancy. This meant that everyone knew […]. One’s intimacy is totally violated;
everyone not only knows that, even if it is the woman who is infertile, everyone assumes that the
couple is also infertile or that they have not been capable of procreating. He found that very difficult;
also having to support me constantly in things that he really doesn’t understand […]. I was subject to
social and family stress because my family was suddenly divided. 432
280. Thus, Ms. Henchoz Bolaños explained similar additional problems that it can be
inferred would not have arisen if she had been able to access IVF in her own country. She
indicated that, regarding her trip to Europe to undergo IVF, “the day [they] arrived [they]
had to look for a hotel, [they] had to look for the clinic, the doctor; [they] had never been
to Europe before, […] it is a totally strange place; [she] did not have [her] family, [her]
loved ones; [they] were alone; [she] felt like an exile. [They] arrived, [they] found the
doctor, but a doctor that did not know [them], who did not know who [they] were.” 433
281. Second, regarding the harm to personal autonomy and the life project of the
couples, the Court observes that IVF is usually used as a last resort to overcome serious
432
Statement made by Bianchi Bruna during the hearing held before the Inter-American Commission on
October 28, 2008.
433
Statement made by Ileana Henchoz during the public hearing held in this case.