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.

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