of the instant case, it is evident that the State’s acts and omissions that prejudiced them
impeded the achievement of their highest hopes.”
358. In this regard, representative Molina argued that the non-pecuniary damage could be
calculated by three methods, namely: (i) “Monthly temporary income”; (ii) “Psychological
loss of earnings,” and (iii) “Equity and justice.” Regarding “monthly temporary income” he
argued that it was possible to estimate the non-pecuniary damages in the sum of US$3,500
per month for the men, and US$4,500 for the women, calculated from the date on which
IVF was prohibited and until the date of its eventual authorization, which, “following the
Courts parameters to make the calculation based on simple interest and the LIBOR rate at
the beginning of each year,” would result in “a sum of US$654,435.84 for each woman, and
US$466,651.98 for each man [… which] would mean that they could turn around their “Life
project” and prepare to enjoy, with a monthly temporary income, their old age in better
financial conditions.” Regarding the “psychological loss of earnings,” he argued that this was
not “about the person who stopped working or who died and, consequently, this capital has
to be replaced; but rather about a person who continues working or whose work is not
remunerated; […] this would be the case for a housewife or student who, without working in
exchange for a salary, can also be the victim of damage and who is not, because of this
condition, left unprotected as a beneficiary of compensation. Thus, we classify this kind of
damage as non-pecuniary, because its causal nexus arises from a psychological or affective
harm, more than direct harm to their salary.” 511 Regarding the criterion of “Equity and
justice,” he asked that “significant financial compensation be established in favor of the
victims.” He concluded that “a sum no less than US$800,000 […] should be established in
favor of each victim in these proceedings, as a way of establishing a true balance between
the arbitrariness of the State and the intense, prolonged, and now perpetual, suffering of
the victims.”
359. Representative May argued that “the Constitutional Chamber’s decision […] produced
a loss of opportunity that is included in the principle of full reparation,” because “the
victims’ real and genuine possibility of becoming parents, founding a family, and being able
to enjoy the right to equality in relation to the rest of the community disappeared with the
prohibition, while before the prohibition (the harmful event), the victims had a real and
genuine possibility of having biological children.” The sums requested for non-pecuniary
damage are those presented for pecuniary damage (supra para. 346).
360. With regard to the presumed non-pecuniary damage, the State argued the lack of a
causal nexus between this and the judgment of the Constitutional Chamber, considering
that: (i) “[i]n none of the cases […] had it contributed, by act or omission, to the infertility
of the persons who appear as victims”; (ii) that “the suffering that the couples might feel
because they were unable to procreate children […] is related to their natural condition of
being unable to have children, and not to the prohibition indicated by the Constitutional
Chamber,” and (iii) that “there would have to be absolute certainty that the use of in vitro
fertilization techniques […] would have resulted in the birth of a child or, at least, that there
was a high level of probability of this,” when “the evidence provided by the State allows it to
be established that the probability that a child would be born following the practice of the in
511
Representative Molina requested as “psychological loss of earnings”: (i) for Maria del Socorro Calderón
Porras the sum of US$180,847.05; (ii) for Carlos Eduardo Vargas Solórzano the sum of US$201,213.61; (iii) for
Julieta González Ledezma the sum of US$187,787.01; (iv) for Oriester Rojas Carranza the sum of US$485,114.98;
(v) for Joaquinita Arroyo Fonseca the sum of US$771,489.23; (vi) for Giovanni Antonio Vega the sum of
US$1,814,061.98; (vii) for Ileana Henchoz Bolaños the sum of US$1,013,454.54; (viii) for Miguel Antonio Yamuni
Zeledón the sum of US$1,259,961.59; (ix) for Karen Espinoza Vindas the sum of US$752,620.35; (x) for Héctor
Jiménez Acuña the sum of US$590,306.84; (xi) for Víktor Hugo Sanabria León the sum of US$1,862,581.64, and
(xii) for Enrique Acuña Cartín the sum of US$1,268,470.28 (merits report, volume II, folio 587.35).