cell […] but a new human being,” that “contains all the instructions necessary to build the
human body, and that immediately begins a complex sequence of events that establishes
the molecular conditions for the continuous process of embryonic development” and that
“by means of successive divisions and differentiation will form each of the cells present in
the embryo, fetus, newborn, child and adult.” In addition, it asserted that “if the human
embryo is […] a human being, in accordance with the definition contained in Article 1(2) [of
the Convention], the human embryo is a person.”
168. With regard to the teleological interpretation, the State argued that “although, in
1968, when the American Convention was being drafted there was no certainty as to when
conception occurred, and [IVF] did not exist, it is clear that the provision requires States to
protect human life from its earliest embryonic stage,” because “the intention of most of the
States of the inter-American system was always to protect human life from [the] moment of
conception,” so that the “terms ‘conception’ and ‘fertilization’ should be treated as
synonyms.” It argued that the process of approving the American Convention “clearly
reveals that it is not true that the intention of the States was not the protection of life as of
conception, because that was indeed the objective pursued in approving the provision,
contrary to what occurred many years previously when the American Declaration was
issued.” It alleged that the interpretation of the word ‘conception’ cannot be made by
referring to the Diccionario de la Real Academia de la Lengua Española, because that is not
“the reference work normally used to understand scientific terms,” nor has “the definition of
conception been updated in line with scientific advances since 1947,” and an “interpretation
of this nature has a restrictive nature, which is not permitted under Article 29(1) of the
Convention.” In addition, it argued that “the phrase ‘in general’ was only included for
exceptional cases, such as legitimate defense, the risk of death of the mother, or
involuntary abortion.”
169. As for other international human rights instruments, the State indicated that the
Universal Declaration of Human Rights “protects the human being from the moment of its
individualization, which can be determined from the moment when the spermatozoid and
the egg unite” and that the “International Covenant on Civil and Political Rights […]
recognizes the life of the embryo separately from that of its mother.” It added that the
“absolute right to life has been accepted […] even by the Human Rights Committee,” and
that the Convention on the Rights of the Child protects “the child even before birth.”
Regarding this last treaty, it argued that “the States agreed that the concept [of child]
should be sufficiently broad to enable countries that chose to provide protection to children
from before birth to be parties to the international instrument without having to amend their
respective laws”; it therefore argued that “a margin of appreciation [exists] to grant the
status of child to unborn children,” as the relevant Costa Rican law does.
170. Finally, the State alleged that “the doctrine of moral consensus as a factor in the
margin of appreciation […] has established that, in order to restrict it, the consensus must
be clear and evident.” In this regard, it argued that: (i) “there is no consensus regarding the
legal status of the embryo”; (ii) “there is no consensus on the beginning of human life,
[therefore] a margin of appreciation should also be granted concerning the regulation of the
technique” of IVF, and (iii) it is not valid to argue that, “since, through legislative omission,
the practice of IVF is permitted in other States, Costa Rica has lost its margin of
appreciation.” It considered that “[t]he doctrine of the margin of appreciation has been
comprehensively developed by the European Court of Human Rights” and that, in the case
law of the Inter-American Court, there are precedents that “contemplate the State’s
possibility of regulating certain matters according to its discretion.”
Considerations of the Court