compatible with the American Convention because they are reasonable and objective, while
the latter constitute arbitrary differences that result in harm to human rights. In the instant
case, the effects of the ruling on unconstitutionality are related to the protection of the right
to private and family life, and the right to found a family, and not to the application or
interpretation of a specific domestic law that regulates IVF. Consequently, the Court will not
analyze the presumed violation of the right to equality and non-discrimination under Article
24, 439 but rather in light of Article 1(1) 440 of the Convention in relation to Articles 11(2) and
17 thereof. 441
286. The Court has indicated that the principle of the peremptory right to equal and
effective protection of the law and non-discrimination means that the States must abstain
from producing discriminatory regulations or those with discriminatory effects on the
different groups of the population when exercising their rights. 442 The Human Rights
Committee, 443 the Committee on the Elimination of Racial Discrimination, 444 the Committee
on the Elimination of Discrimination against Women, 445 and the Committee on Economic,
Social and Cultural Rights 446 have all recognized the concept of indirect discrimination. This
concept implies that a law or practice that appears to be neutral has particularly negative
repercussions on a person or group with specific characteristics. 447 It is possible that
exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status, and which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all
rights and freedoms”; Cf. United Nations, Human Rights Committee, General Comment No. 18, Non-discrimination,
10 November 1989, CCPR/C/37, para. 7; ICourtHR, Juridical Status and Rights of Undocumented Migrants.
Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 18, para. 92;
439
Article 24 of the Convention (Right to Equal Protection) stipulates than:
All persons are equal before the law.
equal protection of the law.
440
Consequently, they are entitled, without discrimination, to
Article 1(1) of the American Convention (Obligation to Respect Rights) establishes that:
The States Parties to this Convention undertake to respect the rights and freedoms recognized herein
and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and
freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or
other opinion, national or social origin, economic status, birth, or any other social condition..
441
The Court has indicated that if a State discriminates in the respect or guarantee of a convention-based
right, it would violate Article 1(1) and the substantive right in question. If, to the contrary, the discrimination refers
to an unequal protection under domestic law, it would violate Article 24. Cf. Case of Apitz Barbera et al. (“First
Administrative Law Court”) v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of August
5, 2008. Series C No. 182, para. 209, and Case of the Xákmok Kásek Indigenous Community v. Paraguay, para.
272.
442
Cf. Case of the Yean and Bosico Girls v. Dominican Republic, para. 141, and Juridical Status and Rights of
Undocumented Migrants. Advisory Opinion OC-18/03, para. 88.
443
Cf. Human Rights Committee, Communication No. 993/2001, Althammer v. Austria, 8 August 2003, para.
10.2. (“that a violation of article 26 [equality before the law] can also result from the discriminatory effect of a rule
or measure that is neutral at face value and without intent to discriminate.” Human Rights Committee, General
Comment No. 18, Non-discrimination.
444
Cf. Committee on the Elimination of Racial Discrimination, Communication No. 31/2003, L.R. et al. v.
Slovakia, 7 March 2005, para. 10.4.4.
445
Cf. Committee on the Elimination of Discrimination against Women, General Recommendation No. 25 on
temporary special measures (2004), note 1 (“Indirect discrimination against women may occur when laws, policies
and programmes are based on seemingly gender-neutral criteria which in their actual effect have a detrimental
impact on women”).
446
Cf. Committee on Economic, Social and Cultural Rights, General Comment No. 20, Non-discrimination in
economic, social and cultural rights (art. 2, para. 2 of the International Covenant on Economic, Social and Cultural
Rights), 2 July 2009.
447
Case of Nadege Dorzema et al. v. Dominican Republic. Merits, reparations and costs. Judgment of October
24, 2012 Series C No. 251, para. 234.