reproductive difficulties. Its ban had a greater impact on the life plans of the couples whose
only option to procreate was IVF, as in the case of Mr. Mejías and Ms. Calderón Porras. In
this context, Ms. Arroyo Fonseca, who had attempted several inseminations and who
subsequently was able to have children, indicated that, at the time, she “was unable to
overcome [her] infertility problems with an assisted reproduction technique that [at that
time] would have allowed [her] to have more children.” 434
282. Third, the psychological integrity of the individual is harmed by denying him or her
the possibility of acceding to a procedure that makes it possible to exercise the desired
reproductive freedom. In this regard, one of the victims stated that, following the
prohibition, he and his partner, “became extremely depressed; she cried all the time, she
shut herself up in her room and refused to come out; she continually reminded [him] of the
desire to have [their] own child, of the names [they] had chosen […]. [They] also
underwent unpleasant experiences; for example, [they] stopped going to church because
each Sunday it was painful to go to mass and to hear the priest refer to those who wanted
[IVF] as people who killed children and that God rejected and abominated those children
[…]. [They] did not go back to any church and [they] felt abandoned by God himself.” 435
283. Meanwhile, Ms. Carro Maklouf stated that she “felt indescribable interference in [her]
private life” and stressed that, her other children, “also wanted to have a baby brother or
sister, because they were adults, and the matter had become a family project; they also
suffered with [her] all the pain caused by the Constitutional Chamber’s decision. 436 For her
part, Andrea Bianchi Bruna explained that when IVF, as her “final option, […] had been
banned, [… she] felt a whirlwind of pain and incredulity in [her] mind.” Ms. Artavia Murillo
testified that the State’s decision “led to the failure of [her] marriage owing to the
depressions that both [her] former husband and [she], suffered because of this ban [on in
vitro fertilization], so [they] decided it was better to end the relationship, leaving an even
greater wound, and with incalculable moral damage.” 437
284. Thus, for the said reasons, the couples suffered a severe interference in relation to
their decision-making concerning the methods or practices they wished to attempt in order
to procreate a biological child. However, differentiated impacts also existed in relation to the
situation of disability, gender and financial situation, aspects related to the factors alleged by
the parties regarding possible indirect indiscrimination in the instant case.
D.2) Severity of the interference as a result of indirect discrimination owing to the
disproportionate impact in relation to disability, gender and financial situation
285. The Inter-American Court has indicated repeatedly that the American Convention
does not prohibit all differentiation in treatment. The Court has signaled the difference
between “differentiation” and “discrimination,” 438 so that the former are differences that are
434
Affidavit of Joaquinita Arroyo Fonseca (file of annexes to the pleadings and motions brief, volume IV,
annex XI, folio 5266).
435
Affidavit (file of annexes to the pleadings and motions brief, volume IV, annex XXI, folio 5620).
436
Cf. Affidavit of Claudia María Carro Maklouf, “Life story” (file of annexes to the pleadings and motions
brief, volume I, folio 4140).
437
Brief of Ms. Artavia and Mr. Mejías of December 19, 2011 (file of annexes to the pleadings and motions
brief, volume I, folio 4077).
438
Regarding the concept of “discrimination,” although neither the American Convention nor the International
Covenant on Civil and Political Rights include a definition of this term, the Commission, the Court and the United
Nations Human Rights Committee have taken as a basis the definitions contained in the International Convention
on the Elimination of All Forms of Racial Discrimination and in the International Convention on the Elimination of All
Forms of Discrimination against Women in order to maintain that discrimination constitutes “any distinction,