as the “constellation of methods, techniques and services that contribute to reproductive
health and well-being by preventing and solving reproductive health problems.” 249
According to the Pan-American Health Organization (PAHO), sexual and reproductive health
“implies that people are able to have a satisfying and safe sex life, that they are able to
reproduce and that they have the freedom to decide if, when and how often to do so.” 250.
The right to reproductive health entails the rights of men and women to be informed and to
have free choice of and access to methods to regulate fertility, that are safe, effective,
easily accessible and acceptable.
150. Finally, the right to private life and reproductive freedom is related to the right to
have access to the medical technology necessary to exercise that right. The right to enjoy
the benefits of scientific progress has been internationally recognized 251 and, in the interAmerican context, it is contemplated in Article XIII of the American Declaration 252 and in
Article 14(1)(b) of the Protocol of San Salvador. It is worth mentioning that the General
Assembly of the United Nations, in its declaration on this right, described its connection to
the satisfaction of the material and spiritual needs of all sectors of the population.253
Therefore, and in keeping with Article 29(b) of the American Convention, the scope of the
rights to private life, reproductive autonomy and to found a family, derived from Articles
11(2) and 17(2) of the Convention, extends to the right of everyone to benefit from
scientific progress and its applications. The right to have access to scientific progress in
order to exercise reproductive autonomy and the possibility to found a family gives rise to
the right to have access to the best health care services in assisted reproduction techniques,
and, consequently, the prohibition of disproportionate and unnecessary restrictions, de iure
or de facto, to exercise the reproductive decisions that correspond to each individual.
151. In this case, the State considered that the said rights could be exercised in different
ways, under the assumption that IVF was not prohibited absolutely. This aspect has been
contested by the other parties. Accordingly, the Court will proceed to determine whether
there was a restriction of the rights mentioned and will then examine the justification given
by the State to support this restriction.
B)
Effects of the absolute prohibition of IVF
Arguments of the Commission and allegations of the parties
249
Cf. Platform for Action of the Fourth World Conference on Women, Beijing, para. 94, which also indicates
that “[r]eproductive health therefore implies that people are able to have a satisfying and safe sex life and that
they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this
last condition are the right of men and women to be informed and to have access to safe, effective, affordable and
acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of
fertility which are not against the law, and the right of access to appropriate health-care services that will enable
women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy
infant”;<www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20S.pdf>
250
Pan-American Health Organization, Health in the Americas 2007, Volume I - Regional, Washington D.C,
2007, p. 151, cited in the affidavit prepared by expert witness Paul Hunt.
251
Article 15(b) of the International Covenant on Economic, Social and Cultural Rights establishes that “the
States Parties to the present Covenant recognize the right of everyone: […] (b) to enjoy the benefits of scientific
progress and its applications.”
252
Article XIII of the American Declaration establishes that: “Every person has the right […] to participate in
the benefits that result from intellectual progress, especially scientific discoveries.
253
Cf. United Nations, Declaration on the Use of Scientific and Technological Progress in the Interests of
Peace and for the Benefit of Mankind, proclaimed by General Assembly resolution 3384 (XXX), of 10 November
1975, para. 3.