the rights and freedoms recognized in the Convention or limit them to a greater extent that
the Convention establishes.
260. In this regard, the Court considers that other judgments in comparative
constitutional law endeavor to find an adequate balance between possible competing rights
and, consequently, constitute a relevant reference to interpret the scope of the expression
“in general, from the moment of conception” contained in Article 4(1). The Court will now
refer to some examples of case law in which a legitimate interest in protecting prenatal life
is recognized, but where this interest is differentiated from entitlement of the right to life,
stressing that any intent to protect the former interest must be harmonized with the
fundamental rights of other individuals, especially the mother.
261. In the European sphere, for example, the German Constitutional Court, stressing the
State’s general obligation to protect the unborn child, has established that “[t]he protection
of life, […] is not so absolute to the extent that, without any exception, it enjoys prevalence
over all the other rights,” 418 and that “[t]he fundamental rights of women […] subsist in the
face of the right to life of the nasciturus and, consequently, must be protected.” 419 Moreover,
according to the Constitutional Court of Spain, “[t]he protection that the Constitution
provides to the nasciturus […] does not mean that the said protection must be of an
absolute nature.” 420
262. In the Americas, the United States Supreme Court has indicated that “[i]t is
reasonable and logical for a State, at certain times, to protect other interests […] such as,
for example, those of the potential human life,” which should be weighed with the personal
intimacy of the woman – which cannot be understood as an absolute right – and “other
circumstances and values.” 421 Furthermore, according to the Constitutional Court of
Colombia, “[a]lthough it corresponds to Congress to adopt appropriate measures to comply
with the obligation to protect life, […] this does not mean that all the measures that it takes
to this end are justified, because, despite its constitutional relevance, life does not have the
nature of an absolute value or right and must be weighed with the other constitutional
values, principles and rights.” 422 The Argentine Supreme Court of Justice has indicated that
no mandate is derived from either the American Declaration or the American Convention
under which the scope of the criminal norms that permit abortion in certain circumstances
must be interpreted restrictively, “because the wording of the pertinent provisions of these
instruments was expressly delimited so that the invalidity of a supposed abortion [such as
the one established in the Argentine Penal Code] could not be derived from them.” 423
Similarly, the Supreme Court of Justice of Mexico has declared that, based on the fact that
life is a necessary condition for the existence of other rights, it cannot be validly concluded
that life should be considered more valuable than any of those other rights. 424
418
BVerfG, Judgment BVerfGE 88, 203, 28 May 1993, 2 BvF 2/90 and 4, 5/92, para. D.I.2.b.
419
BVerfG, Judgment BVerfGE 88, 203, 28 May 1993, 2 BvF 2/90 and 4, 5/92, para. D.I.2.c.aa.
420
Constitutional Court of Spain, Judgment on action on unconstitutionality 53/1985, 11 April 1985, paras. 8
and 12.
421
United States Supreme Court, Case of Roe v. Wade, 410 U.S. 115, 157 (1973)
422
Constitutional Court of Colombia, Judgment C-355 of 2006, VI.5.
423
Supreme Court of Justice of Argentina, “F., A.L. ref/ self-realization measure” Judgment of March 13,
2012, F. 259. XLVI., Considering paragraph 10.
424
Cf. Judgment of the Supreme Court of Justice of the Nation of August 28, 2008, action on
unconstitutionality 146/2007 and joindered action 147/2007. In particular, the judgment indicated that: “In other
words, we can accept as true that unless one is alive, one is unable to exercise any right; but, we cannot infer from
this that the right to life enjoys pre-eminence in the face of any other right. To accept a similar argument would
force us to accept also, for example, that the right to food is more important than the right to life, because the