18
c.
The prohibition of in vitro fertilization as interference in the exercise of the rights
recognized in articles 11 and 17 of the Convention
82.
Based on the observations made in the preceding sections, a combined reading of
articles 11 and 17 of the Convention indicates that: i) protecting the right to found a family also
means protecting the right to decide to become a biological parent and the option and access to the
means by which one’s decision can be realized; ii) this decision is part of the most intimate realm of
private life and is the sole prerogative of each person and/or couple; and iii) any attempt on the
State’s part to interfere in these decisions must be assessed on the basis of the criteria established
in the American Convention.
83.
The present case concerns a ban that the Costa Rican State imposed on the practice
of the assisted reproductive technique of in vitro fertilization. This technique was available in that
country and had been practiced successfully before the Costa Rican Constitutional Chamber
declared the practice unconstitutional. As in vitro fertilization was the only means through which
the alleged victims could become biological parents, the prohibition that denied the alleged victims
access to that technique constitutes interference in decisions taken on a particularly important
aspect of private and family life. In this case, it also constitutes a restriction on the right to found a
family when a couple so decides.
84.
As has been established in earlier paragraphs, both the right to private and family life
and the right to found a family may be subject to certain limitations. The following are the criteria
by which the Commission is called upon to assess whether the restrictions on the rights provided
for in articles 11 and 17 of the American Convention are compatible with that instrument or are
arbitrary limitations and hence violations of the Convention.
d.
The analysis to determine whether the interference is compatible with the American
Convention
85.
Article 30 of the Convention provides that “[t]he restrictions that, pursuant to this
Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein
may not be applied except in accordance with laws enacted for reasons of general interest and in
accordance with the purpose for which such restrictions have been established.”
86.
This article, like the specific provisions of the Convention that establish the criteria for
evaluating the permissible restrictions on the rights in question, incorporates the notion of
proportionality in a broad sense as a synonym for the non-arbitrariness of the State’s intervention and
its compatibility with the American Convention. Thus, when dealing with a legal concept that is not
clearly defined, both the Inter-American Commission and the Inter-American Court have opted to use
criteria to assess, in any given case, whether the restriction of a right or the state’s interference in the
exercise of that right is lawful.
87.
Thus, the Inter-American Court has written that the restrictions on the rights
recognized in the Convention “must meet certain requirements of form, which depend upon the manner
in which they are expressed. They must also meet certain substantive conditions, which depend upon
the legitimacy of the ends that such restrictions are designed to accomplish." 74
74
IACHR. Report No. 38/96, X and Y (Admissibility and Merits), Argentina, Case 10,506, October 15, 1996, par.
59; I/A Court H.R., Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and
29 American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, paragraph
37.