263. Consequently, the Court concludes that the object and purpose of the expression “in
general” in Article 4(1) of the Convention is to allow, as appropriate, an adequate balance
between competing rights and interests. In the case that the Court is examining, it is
sufficient to indicate that the said object and purpose implies that the absolute protection of
the embryo cannot be alleged, annulling other rights.
C.5)
Conclusion on the interpretation of Article 4(1)
264. The Court has used different methods of interpretation that have led to similar
results according to which the embryo cannot be understood to be a person for the
purposes of Article 4(1) of the American Convention. In addition, after analyzing the
available scientific data, the Court has concluded that “conception” in the sense of Article
4(1) occurs at the moment when the embryo becomes implanted in the uterus, which
explains why, before this event, Article 4 of the Convention would not be applicable.
Moreover, it can be concluded from the words “in general” that the protection of the right to
life under this provision is not absolute, but rather gradual and incremental according to its
development, since it is not an absolute and unconditional obligation, but entails
understanding that exceptions to the general rule are admissible.
D)
Proportionality of the prohibition
Arguments of the Commission and allegations of the parties
265. The Commission indicated that the requirements of legality, necessity and suitability
had been met. However, the Commission considered that, when analyzing suitability, the
scientific evidence “that the assisted reproduction technique of [IVF] imposes a risk of
embryo loss [… that] is comparable to the natural reproduction process” “may be relevant.”
Regarding the need for the measure, the Commission indicated that “there were less
restrictive ways to accomplish the State’s objective and to reconcile the interests at stake;
for example, by some other form of regulation that could produce results that more closely
resembled the natural process of conception, such as a regulation that reduced the number
of eggs fertilized.” Lastly, it argued that “sufficient elements exist to conclude that: (i) “the
rights affected, […] are particularly relevant for the identity of a person and his or her
autonomy”; (ii) “the protection of life in the comparative constitutional and international
sphere is usually subject to degrees of protect that are applied incrementally”; (iii) “the
severe nature of the impact on the rights involved” should be considered, because “[t]he
effect was equivalent to an annulment of the exercise of their rights; (iv) “it is feasible to
consider that, in the practice, the ban on [IVF] does not contribute to a significant protection
of the life of the embryos, if it is compared to the high frequency [of embryonic loss] in the
natural conception process,” and (v) it is important to mention “the consistency and
coherence of the State’s action in relation to the embryo,” because there are “practices that
are currently allowed in Costa Rica [… that] entail a risk of fertilization of the said eggs, of
embryonic loss, and of multiple pregnancies.” The Commission observed that the ban on IVF
“had two effects that fall within the scope of the right to equality: (i) it prevented the
[presumed] victims from overcoming their situation of disadvantage by benefitting from
scientific progress, in particular, from a medical treatment, and (ii) it had a specific and
disproportionate impact on women.”
former is a condition for the latter.” For its part, the Federal Supreme Court of Brazil has indicated that “in order
for an embryo – in vitro – to be recognized the full right to life, it would be necessary to recognize the right to a
uterus; a view that is not established in the Constitution.” Federal Supreme Court. Action on unconstitutionality
No. 3,510 of May 29, 2008, p. 5.