75.
In addition, the Constitutional Chamber stated that “[i]nternational law […]
establishes strong guiding principles regarding the issue of human life,” 88 citing Article I of
the American Declaration, article 3 of the Universal Declaration of Human Rights, article 6 of
the International Covenant on Civil and Political Rights, and Article 4 of the American
Convention. Regarding Article 4 of the Convention, the Chamber considered that “[t]his
international instrument takes a decisive step, given that it protects the right [to life] from
the moment of conception[; in addition,] it emphatically prohibits imposing capital
punishment on pregnant women, which constitutes direct protection and, therefore, full
recognition of the legal and real personality of the unborn child and its rights.” 89 The
Chamber also referred to article 6 of the Convention on the Rights of the Child. In this
regard, it concluded that “[t]he norms cited impose the obligation to protect the embryo
from the abuse that it could be subject to in a laboratory and, especially, the most severe of
all, the one that can eliminate its existence.” 90
76.
Lastly, the Chamber concluded:
The human embryo is a person from the time of conception; hence it cannot be treated as an
object for investigation purposes, be submitted to selection processes, kept frozen and, the most
essential point for the Chamber, it is not constitutionally legitimate to expose it to a
disproportionate risk of death.[…] The main objection of the Chamber is that the application of
the technique entails a high loss of embryos, which cannot be justified by the fact that it is
intended to create a human being, providing a child to a couple who would otherwise be unable
to have one. The key aspect is that the embryos whose life is first sought and then violated are
human beings, and constitutional law does not allow any distinction among them. The argument
that in natural circumstances there are embryos that are not implanted, or that even if they are
implanted they do not develop until birth, is not admissible either, simply because the application
of [IVF] entails a conscious and voluntary manipulation of the female and male reproductive cells
in order to produce a new human life, which leads to a situation where it is known in advance
that the human life, in a considerable percentage of the cases, has no possibility to continue. As
the Chamber has been able to verify, the application of the technique of in vitro fertilization and
embryo transfer, as it is currently performed, jeopardizes human life. This Court knows that
advances in science and biotechnology are so dramatic that the technique could be improved so
that the reservations included herein disappear. However, the conditions in which it is currently
applied lead to the conclusion that any elimination or destruction of embryos – whether voluntary
or derived from the negligence of the person executing the technique or its inaccuracy – violates
the right to life, hence the technique is not in keeping with constitutional law and, consequently,
the regulation under consideration is unconstitutional as it violates article 21 of the Constitution
and Article 4 of the American Convention on Human Rights. Since the technique violates the right
to life, it shall be expressly placed on record that its application cannot be authorized even based
on a norm with legal status, at least while its scientific development remains at the current state
and entails conscious damage to human life. 91 (Underlining added)
77.
Justices Arguedas Ramirez and Calzada Miranda presented a joint dissenting opinion
on the judgment. 92 In this opinion, the justices considered that IVF “is not incompatible with
the right to life or human dignity; on the contrary, it constitutes a scientific instrument and
technique created to assist humanity, given that infertility […] must be regarded as a
88
Judgment No. 2000-02306 of March 15, 2000, delivered by the Constitutional Chamber of the Supreme
Court of Justice, Case file No. 95-001734-007-CO (file of annexes to the merits report, volume I, folio 90).
89
Judgment No. 2000-02306 of March 15, 2000, delivered by the Constitutional Chamber of the Supreme
Court of Justice, Case file No. 95-001734-007-CO (file of annexes to the merits report, volume I, folio 91).
90
Judgment No. 2000-02306 of March 15, 2000, delivered by the Constitutional Chamber of the Supreme
Court of Justice, Case file No. 95-001734-007-CO (file of annexes to the merits report, volume I, folio 92).
91
Judgment No. 2000-02306 of March 15, 2000, delivered by the Constitutional Chamber of the Supreme
Court of Justice, Case file No. 95-001734-007-CO (file of annexes to the merits report, volume I, folios 94 and 95).
92
Dissenting opinion of March 15, 2000, of Justices Arguedas Ramirez and Calzada Miranda (file of annexes
to the answering brief, volume VII, folios 10994 to 10996).