20
92.
In the case sub examine, the ban on in vitro fertilization was the result of a ruling of
the Constitutional Chamber which, under Costa Rica’s domestic law, has jurisdiction over questions
of constitutionality.
93.
As Article 2(b) of the Constitutional Jurisdiction Act states, it is the function of the
Constitutional Chamber to check the constitutionality of any norms and measures governed by
Public Law, and to determine whether the domestic laws comport with international law or
community law. It does so when an action is filed challenging the constitutionality of a norm or
action and other constitutionality issues. 80 Therefore, the rule requiring that the restriction be
provided by law has been satisfied.
ii.
Legitimate aim
94.
By this test, the IACHR evaluates whether the end pursued by the Costa Rican State
in banning in vitro fertilization can be considered legitimate under the American Convention.
95.
The State’s main argument for banning in vitro fertilization in Costa Rica is
predicated on protection of the life of the embryos not implanted in the uterus. For the
Constitutional Chamber, “given the conditions under which the technique is currently practiced, any
elimination or destruction of embryos –whether intentional or as a result of the practitioner’s
ineptitude or the inaccuracy of the technique itself- is a violation of the right to life. Thus, the
regulation being challenged is unconstitutional […] as it violates Article 21 of the Constitution and
Article 4 of the American Convention on Human Rights.”
96.
Article 21 of Costa Rica’s Constitution provides that “human life is inviolable.” The
Commission notes that the Constitutional Chamber’s purpose was to protect human life based on
the scope of that right under its legal system. The Commission therefore deems that the State was
pursuing a legitimate end in general terms, which was to safeguard a protected right, namely the
right to life. The measures adopted to achieve that end must be compatible with the obligations
undertaken in the American Convention and shall not arbitrarily restrict or interfere in the rights
recognized therein. 81 The analysis to determine whether the ban on in vitro fertilization in order to
protect life from the moment of conception, unduly restricted the right to a private and family life
and the right to found a family, will be analyzed in the next points of the test.
80
The Constitutional Jurisdiction Act, Law No. 7135 of October 11, 1989.
81
Article 29 of the American Convention on Human Rights.