C)
Compensation for pecuniary and non-pecuniary damage
C.1)
Pecuniary damage
Arguments of the Commission and claims of the parties
345. The Commission asked the Court to order the State to “make full reparation to the
victims of the instant case, for both the pecuniary and the non-pecuniary aspects.”
346. Representative Molina indicated that consequential damage has been demonstrated
“with evidence such as, although not limited to, medical prescriptions, invoices, epicrises,
and medical reports.” He pointed out that “the collection of evidence from all the victims
permits an overall reconstruction of the expenses arising from the medical procedure that is
the purpose of this claim.” He requested the “payment of all expenses incurred by the
victims in their attempts to found a family with biological children, which, since it was not
offered by the State as a health service, meant that they had to resort to private medicine
and, in general, incur expenditure for items such as medical consultations, laboratory tests,
ultrasounds and x-rays, the purchase of medicines, transportation, trips abroad and meals,
payment of the costs of artificial insemination procedures, in vitro fertilization, and ICSI
[intracytoplasmic sperm injection].” For pecuniary damage, he requested: (i) for Maria del
Socorro Calderón and Carlos Vargas, the sum of US$4,821.69 each; (ii) for Enrique Acuña
Cartín, the sum of US$9,677.04; (iii) for Ileana Henchoz and Miguel Yamuni, the sum of
$17,516.29 each; (iv) for Julieta González and Oriester Rojas, the sum of US$9,661.07
each; (v) for Karen Espinoza and Hector Jiménez, the sum of US$5,015.52 each; (vi) for
Víctor Sanabria León, the sum of US$19,287.59, and (vii) for Joaquinita Arroyo and
Giovanni Vega the sum of $7,188.08 each.
347. Representative May requested “payment of compensation for pecuniary and nonpecuniary damage.” In particular, he asked for the following payments: (i) for Grettel
Artavia Murillo, the sum of US$830,000; (ii) for Miguel Mejías Carballo, the sum of
US$740,000; (iii) for Claudia Maria Carro Maklouf, the sum of US$700,000; (iv) for Andrea
Bianchi Bruna, the sum of US$210,000; (v) for Germán Alberto Morera Valencia, the sum of
US$120,000, and (vi) for Ana Cristina Castillo León, the sum of US$1,500,000. He argued
that the Court “has defined the concept of pecuniary damage, including within it the costs
and expenses incurred by the parties during all the proceedings and based on the causes for
responsibility that can be attributed to the State.” He indicated that “all of the expenditure
and disbursements made by the victims that are found to be proved either with documents
or determined reasonably based on the events and circumstances proved in this case”
should be recognized.” He also indicated that “all the expenditure incurred by the couples in
relation to the medical attention they received during the procedures to verify and
determine their infertility should be recognized, because a medical diagnosis would not have
been possible without these investments.” In addition, he stated that “the travel and other
related expenses incurred by those victims who had to go abroad in order to undergo this
technique should be compensated, because in the absence of the prohibition the technique
would have been available to them free of charge under the social security system.”
348. The State “analyzed the claims presented based on the specific situation of each
claimant couple” and concluded that the requests for pecuniary damage should be rejected
for the following reasons: (i) the expenses incurred by the couples “relating [to the]
infertility treatment, [are] the same as those they would have incurred even if the decree
regulating [IVF] had not been annulled”; therefore “they have no causal relationship to the
violations allegedly attributed to the State”; (ii) the medical expenses prior to the