genuine disease.” 93 They also indicated that “assisted reproduction techniques […] are
offered as a way to exercise the legitimate right to human reproduction which, even though
it is not expressly recognized in [the] Constitution, is derived from the right to freedom and
to self-determination, the right to privacy and family life, and the freedom to found a
family.” 94
D)
Remedies filed by Ileana Henchoz and Karen Espinoza
78.
On May 30, 2008, Ms. Henchoz filed an action on unconstitutionality against the
judgment of the Constitutional Chamber of March 15, 2000, which was rejected
summarily. 95 In its decision, the Chamber considered that its case law was binding “erga
omnes except for itself, so that the opinion provided in it can be amended when this is
justified or for reasons of public order.” 96
79.
Subsequently, Ms. Henchoz filed a judicial complaint against the Costa Rican Social
Security Institute with the purpose that she be allowed to undergo IVF. The Institute argued
that it was not possible to practice this procedure owing to the judgment of March 15,
2000. 97 In a judgment of October 14, 2008, the Superior Court of Accounts for Contentious
Administrative and Civil Proceedings, concluded that IVF as an assisted reproduction
mechanism was not prohibited in Costa Rica while it did not entail the problems indicated by
the Constitutional Chamber, “especially because the actual evolution of this medical
procedure makes it possible to fertilize a single egg during the female reproductive cycle for
its subsequent transfer to the mother’s uterus.” 98
80.
The Superior Court of Accounts for Contentious Administrative and Civil Proceedings,
ordered the Costa Rican Social Security Institute to make a diagnosis and perform the
corresponding medical tests in order to determine the feasibility of practicing assisted
reproduction methods, including IVF, on Ms. Henchoz. 99 In addition, it indicated that this
procedure should be performed respecting the guidelines established by the Constitutional
Chamber, based on the current development of the technique, “so that it [was] not
permitted to fertilize more than one ovule in each of the patient’s reproductive cycles for
transfer, or to fertilize two or more ovules in the same reproductive cycle and much less to
93
Dissenting opinion of March 15, 2000, of Justices Arguedas Ramírez and Calzada Miranda (file of annexes
to the answering brief, volume IX, folios 10994).
94
Dissenting opinion of March 15, 2000, of Justices Arguedas Ramírez and Calzada Miranda (file of annexes
to the answering brief, volume IX, folios 10994).
95
Cf. Decision No. 2008009578. Action of unconstitutionality filed by Ileana Henchoz Bolaños of June 11,
2008 (file of annexes to the pleadings and motions brief, volume V, annex XXVIII, folios 5842).
96
Judgment of the Constitutional Chamber 2005-10602 of August 16, 2005 (file of annexes to the pleadings
and motions brief, volume V, annex XXVIII, folios 5842).
97
Judgment No. 835-2008 delivered by the Fifth Section of the Court of Accounts for Contentious
Administrative and Civil Proceedings in the case brought by Ileana Henchoz Bolaños seeking a declaratory
judgment against the Costa Rican Social Security Institute, Case file No. 08-00178-1027-CA of October 14, 2008
(file of annexes to the pleadings and motions brief, volume V, annex XXVIII, folios 5845 to 5872).
98
Judgment No. 835-2008 delivered by the Fifth Section of the Court of Accounts for Contentious
Administrative and Civil Proceedings in the case brought by Ileana Henchoz Bolaños seeking a declaratory
judgment against the Costa Rican Social Security Institute, Case file No. 08-00178-1027-CA of October 14, 2008
(file of annexes to the pleadings and motions brief, volume V, annex XXVIII, folio 5859).
99
Judgment No. 835-2008 delivered by the Fifth Section of the Court of Accounts for Contentious
Administrative and Civil Proceedings in the case brought by Ileana Henchoz Bolaños seeking a declaratory
judgment against the Costa Rican Social Security Institute, File No. 08-00178-1027-CA of October 14, 2008 (file of
annexes to the pleadings and motions brief, volume V, annex XXVIII, folio 5871).