declaration of unconstitutionality cannot be attributed to the State or considered for the
purposes of the requested compensation; (iii) “the violations attributed to the Costa Rican
State have no effect on the presumed victims’ employment”; (iv) the couples that had
biological children do not qualify as infertile couples and therefore “it cannot be considered
that the State limited the only possibility they ha[d] to become biological parents by
declaring the decree that regulated [IVF] unconstitutional, since it is clear that they were
able to have a biological child without undergoing [the said] procedure,” and (v)
representative May’s arguments did not provide “a clear and accurate determination of the
reasons why it [was] alleged that the State produced pecuniary or non-pecuniary damage.”
Considerations of the Court
349. In its case law, the Court has developed the concept of pecuniary damage, and has
established that it supposes “the loss or detriment to the victims’ incomes, the expenses
incurred owing to the facts and the pecuniary consequences having a causal nexus to the
facts of the case.” 503
350. Based on the arguments presented by the parties, the Court considers it necessary
to determine the criteria that it will take into account in order to establish the amounts for
pecuniary damage. First, the Court emphasizes that the violations declared above are
related to the impediment to exercise a series of rights autonomously (supra para. 317),
and not for being able or unable to have biological children; consequently, the State’s
argument that the couples that could have children should not be compensated is not
receivable. Second, the Court takes into account that the IVF technique was not a procedure
covered by the Costa Rican Social Security Institute (supra para. 70); thus the couples
would have had to incur the above-mentioned medical expenses irrespective of the
Constitutional Chamber’s judgment. Consequently, the Court finds that there is no causal
nexus between all the expenses mentioned above (supra paras. 346 and 347) and the
violations declared in this Judgment. Bearing in mind the foregoing, the Court concludes
that the expenses that have a causal nexus to the violations in this case are only those
resulting from the Constitutional Chamber’s decisions; mainly those expenses incurred by
the couples that had to travel abroad to undergo the treatment.
351. In the instant case, the Court observes that representative Molina provided
documentary evidence 504 for the couples consisting of Ileana Henchoz and Miguel Yamuni,
Julieta González and Oriester Rojas, and Víctor Sanabria León and Claudia Carro Maklouf, 505
who traveled abroad to undergo this technique. For his part, representative May did not
present specific evidence with regard to Andrea Bianchi Bruna and Germán Alberto Moreno,
who traveled abroad twice to undergo the treatment.
503
Cf. Case of Bámaca Velásquez v. Guatemala. Reparations and costs. Judgment of February 22, 2002.
Series C No. 91 para. 43, and Case of Nadege Dorzema et al. v. Dominican Republic, para. 281.
504
There is an invoice from Hotel “Renasa” (file of annexes to the pleadings and motions briefs, volume V,
annex XXVII, folio 5772) where they were in Valencia dated April 24, 2000, with the hotel expenses from April 18,
2000, to April 24, 2000, for a total of 640.33 euros. There are the receipts for the four days that they were in the
Hotel Roma in Panama paying US$33 for the 4 nights (file of annexes to the pleadings and motions briefs, volume
II, annex I, folios 4283 to 4285). The other is an Iberia ticket (file of annexes to the pleadings and motions briefs,
volume II, annex V, folio 4695) in the name of Victor Sanabria, between San Jose and Madrid for a total
US$681.58. Also, the representative submitted several tables in which he had calculated in colones and dollars
different expenses that he associated with the pecuniary damage (merits report, volume II, folios 587.24 to
587.39).
505
It is worth noting that Ms. Carro was represented by representative May, but representative Molina
presented evidence in her favor.