woman is exacerbated and can lead to unstable marriage, domestic violence, stigmatization
and even ostracism.” 464 According to data from the Pan-American Health Organization,
there is a gender gap with regard to sexual and reproductive health, because ailments
related to sexual and reproductive health affect around 20% of women and 14% of men. 465
297. The Committee on the Elimination of Discrimination against Women has indicated
that, when a decision to postpone “[s]urgery due to pregnancy is influenced by the
stereotype that protection of the fetus should prevail over the health of the mother,” this is
discriminatory. 466 The Court considers that the instant case reveals a similar situation of the
influence of stereotypes, in which the Constitutional Chamber gave absolute prevalence to
the protection of the fertilized eggs without considering the situation of disability of some of
the women.
298. Meanwhile, expert witness Neuburger explained that “[t]he gender identity model is
socially defined and molded by the culture; its subsequent naturalization responds to socioeconomic, political, cultural and historic determinants. According to these determinants,
women are raised and socialized to be wives and mothers, to take care of and attend to the
intimate world of affections. The ideal for women, even nowadays, is embodied in sacrifice
and dedication, and the culmination of these values is represented by motherhood and the
ability to give birth. […] A woman’s fertility is still considered by much of society to be
something natural that admits no doubts. When a woman has fertility problems or is unable
to become pregnant, the reaction of society tends to be skepticism, disgrace and, at times,
even ill-treatment. […] The impact of infertility in women is usually greater than in men
because […] motherhood has been assigned to women as an essential part of their gender
identity, transformed into their destiny. The burden of their self-blame increased
exponentially when the ban on IVF arose. […] The pressure of the family and society
constitute an additional burden that increases the self-blame.” 467
299. In addition, although infertility can affect both men and women, the use of assisted
reproduction technologies is especially related to a woman’s body. Even though the ban on
IVF is not expressly addressed at women, and thus appears neutral, it has a
disproportionately negative impact on women.
300. In this regard, the Court underlines that the initial IVF procedure (induction of
ovulation) was interrupted for some of the couples; for example, the couples consisting of
Ms. Artavia Murillo and Mr. Mejías Carballo (supra para. 87), Mr. Yamuni and Ms. Henchoz
(supra para. 92), Ms. Arroyo and Mr. Vega (supra para. 108), Mr. Vargas and Ms. Calderón
(supra para. 118) and Mr. Acuña and Ms. Castillo (supra para. 121). This type of
interruption in the continuity of a treatment has a differentiated impact on women because
interventions, such as ovary induction and other interventions destined to achieve the
family project associated with IVF were being performed on their bodies. Moreover, women
may resort to IVF without the need for a partner. The Court concurs with CEDAW when it
has emphasized that it is necessary to consider “the health rights of women from the
464
Preamble, Current Practices and Controversies in Assisted Reproduction: Report of the meeting on
"Medical, Ethical and Social Aspects of Assisted Reproduction", Geneva: WHO (2002) XV-XVII to XV. Cited in the
affidavit provided by expert witness Paul Hunt (merits report, volume VI, folio 2206).
465
Cf. Pan-American Health Organization (PAHO), 'Chapter 2: Health Conditions and Trends’ in Health in the
Americas 2007, Volume I Regional, Washington, 2007. Cited in the affidavit provided by expert witness Paul Hunt
(merits report, volume VI).
466
Committee on the Elimination of Discrimination against Women, Case of L.C. v. Peru, Communication No.
22/2009, para. 8.15, Doc. UN CEDAW/c/50/D/22/2009 (2011).
467
Affidavit provided by expert witness Alicia Neuburger (merits report, volume V, folios 2519 and 2520).