307. The Court finds it necessary to examine this aspect further based on the evidence
provided in these proceedings in relation to the similarities and differences concerning the
loss of embryos in both natural pregnancies and in IVF.
308. The Constitutional Chamber based the prohibition of IVF on the difference in the loss
of embryos transferred by IVF and embryonic loss in a natural pregnancy, considering that
when applying IVF there was a “conscious [and] voluntary manipulation” of the embryos.
The Court observes that a scientific debate exists about the rates of embryonic loss in the
natural process and in assisted reproduction. In the proceedings before the Court, different
medical positions have been presented concerning the cause of embryonic loss in both the
application of IVF and in natural pregnancy, as well as the percentage of losses in both
cases. Expert witness Zegers-Hochschild indicated that “[t]he scientific information that has
been produced indicates that ‘the embryonic death that occurs in IVF procedures does not
occur as a direct result of the technique, [but rather] it occurs as part of the process
expressed by our nature,” 480 and that “[i]n women with healthy eggs, the possibility of
conceiving from an embryo generated in vitro is no different from one generated
spontaneously.” 481 For her part, expert witness Garza stated that “embryo mortality is
around 30% in natural circumstances and, for IVF, it is calculated that embryonic loss is
around 90%.” However, she clarified that “it is difficult to estimate the exact embryonic
mortality in natural circumstances, because some losses cannot be detected in early
pregnancy.” Expert witness Caruso stated that “the percentage of losses is much higher” in
IVF than “in natural conception.” 482
309. It is not incumbent on the Court to determine which scientific theory should prevail
on this issue; nor must it make a thorough analysis of which expert witness is right on these
matters that are outside the Court’s expertise. For the Court, it is sufficient to verify that the
evidence in the case file is consistent in indicating that there is embryonic loss in both a
natural pregnancy and in the context of IVF. In addition, both expert witness ZegersHochschild and expert witness Caruso indicated that it is difficult to measure embryonic loss
in natural pregnancies compared to the measurement of losses in IVF, and this places limits
on the implications that it has been attempted to give to some of the statistics submitted to
the Court. 483
310. Bearing in mind that embryonic loss occurs in both natural pregnancies and when
IVF is applied, the argument of the existence of conscious and voluntary manipulation of
cells in the context of IVF can only be understood in relation to the argument developed by
the Constitutional Chamber concerning the absolute protection of the right to life of the
embryo, which has been invalidated in preceding sections of this Judgment (supra para.
480
Written summary of the expert opinion provided by Fernando Zegers-Hochschild at the public hearing
before the Court (merits report, volume VI, folio 2835).
481
Written summary of the expert opinion provided by Fernando Zegers-Hochschild at the public hearing
before the Court (merits report, volume VI, folio 2839).
482
483
Affidavit prepared by expert witness Garza.
During the public hearing, the Commission questioned expert witness Caruso on this point, indicating that
in both IVF and in the natural conception process there is embryonic loss, and stressing that the difference would
be that, in IVF, it is possible to measure those losses. The Commission inquired whether the difference would
therefore be that, in IVF, it was simply possible to measure these losses. Expert witness Caruso answered that "In
IVF you can say to a certain extent; you can answer that question somewhat. The differences, as I’ve said before is
that there is a very big difference between the environment of the natural process in the Fallopian tube and the
dish with a medium in an incubator at 95 degrees and 5% CO2 in an IVF lab. So yes, you are going to see in IVF
you can quantify the loss of the embryos that you have. Number one, you cannot extrapolate that back to compare
it to natural pregnancy laws. And two: there may be reasons beyond nature that those embryos are lost". Cf.
Opinion provided by expert witness Anthony Caruso at the public hearing held in this case.