considered that infertility can only be referred to as a disability under certain conditions and
presumptions and, thus, only in determined cases, 452 expert witness Paul Hunt observed
that “involuntary infertility is a disability,” 453 considering that:
“The Preamble to the Convention on the Rights of Persons with Disabilities, to which Costa Rica is a
party, recognizes that ‘disability is an evolving concept and that disability results from the interaction
between persons with impairments and attitudinal and environmental barriers that hinder their full and
effective participation in society on an equal basis with others.’ According to the WHO biopsychosocial
model on disability, this entails one or more of the three levels of difficulty in human functions: a
physical-psychological impairment; a limitation of activity owing to an impairment (activity limitation),
and a participation restriction owing to an activity limitation. According to the WHO International
Classification of Functioning, Disability and Health, impairments are problems in body functions; activity
limitations are difficulties an individual may have in executing activities, and participation restrictions
are problems an individual may experience in involvement in life situations.” 454
290. Article 18 of the Additional Protocol to the American Convention in the Area of
Economic, Social and Cultural Rights (“Protocol of San Salvador”) states that “[e]veryone
affected by a diminution of his physical or mental capacities is entitled to receive special
attention designed to help him achieve the greatest possible development of his
personality.” The Inter-American Convention for the Elimination of all Forms of
Discrimination against Persons with Disabilities (hereinafter “ICEFDPD”) defines the term
“disability” as “a physical, mental or sensory impairment, whether permanent or temporary,
that limits the capacity to perform one or more essential activities of daily life, and which
can be caused or aggravated by the economic and social environment.” For its part the, the
CRPD establishes that “persons with disabilities include those who have long-term physical,
mental, intellectual or sensory impairments which in interaction with various barriers may
hinder their full and effective participation in society on an equal basis with others.” The
disability results from the interaction between an individual’s functional limitations and the
barriers that exist in the environment that prevent the full exercise of his rights and
freedoms. 455
291. The above-mentioned Conventions take into account the social model in their
approach to disabilities, which means that the disability is not defined exclusively by the
presence of a physical, mental, intellectual or sensorial impairment, but that it is
interrelated to the barriers or limitations that exist in society for the individual to be able to
exercise his rights effectively. 456 The types of limits or barriers that are commonly
encountered in society by individuals with functional diversity include those that are
attitudinal 457 or socio-economic. 458
452
Opinion provide by expert witness Anthony Caruso at the public hearing held in this case.
453
Affidavit provided by expert witness Paul Hunt (merits report, volume VI, folio 2650).
454
Affidavit of expert witness Paul Hunt, folio 2650.
455
The Preamble of the CRPD recognizes that disability is an evolving concept and that disability results from
the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full
and effective participation in society on an equal basis with others.”
456
Case of Furlan and family v. Argentina, para. 133.
457
Case of Furlan and family v. Argentina, para. 133. Cf. UN General Assembly, ONU, Standard rules on the
equalization of opportunities for persons with disabilities, GA/RES/48/96, 4 March 1994, forty-eighth session, para.
3 (“In the disability field, however, there are also many specific circumstances that have influenced the living
conditions of persons with disabilities. Ignorance, neglect, superstition and fear are social factors that throughout
the history of disability have isolated persons with disabilities and delayed their development”).
458
Cf. Case of Ximenes Lopes v. Brazil. Merits, reparations and costs. Judgment of July 4, 2006. Series C No.
149, para. 104, and Case of Furlan and family v. Argentina, para. 133. Cf. also Article III.2 of the Inter-American
Convention for the Elimination of All Forms of Discrimination against Persons with Disabilities, and Committee on
Economic, Social and Cultural Rights, General Comment No. 5, Persons with Disabilities, U.N. Doc. E/C.12/1994/13
(1994), 12 September 1994, para. 9.