perspective of women’s needs and interests in view of the distinctive features and factors
that differentiate women from men, namely: (a) biological factors […], such as […] their
reproductive function.” 468
301. For his part, regarding the situation of infertile men, Mr. Mejías Carballo declared
that he “is fearful of forming part of a couple again.” He added that “it was very hard
following [the ban on IVF]; they began to have problems when it was like a requirement
wanting to have a child, and the years passed, birthdays came and went, Mother’s Day,
Father’s Day, Christmas, when all [his] siblings and nephews and nieces gave presents to
their children, and […] another Mother’s Day, and yet another one, and [he] still did not
have a child; in other words, all this troubles one morally.” 469 Meanwhile, Mr. Vargas stated
that “for years [he] felt diminished, [he] did not feel like a man, and thought that [his]
inability to conceive a child was unmanly. Thus, [he] punished [him]self in the silence of
[his] own thoughts, in the pain of swallowing thousands of tears so nobody could see [him]
cry.” 470 For his part, Mr. Sanabria León explained that he received “the message of
impossibility and, together with this, [he] felt disabled, [his] perception of [him]self was
negatively affected and [he] became angry with and resentful of his body; [he] rejected
[him]self; in brief, [his] self-image was severely diminished.” 471 Expert witness Neuburger
explained that “fertile disability causes men to feel a strong sense of impotence and,
consequently, a questioning of their gender identity. Concealing their fertile dysfunction
socially is the usual defensive strategy because they fear being laughed at or questioned by
other men.” 472
302. The Court emphasizes that these gender stereotypes are incompatible with
international human rights law and measures must be taken to eliminate them. The Court is
not validating these stereotypes and only recognizes them and defines them in order to
describe the disproportionate impact of the interference caused by the Constitutional
Chamber’s judgment.
D.2.c) Indirect discrimination in relation to financial situation
303. Finally, the ban on IVF had a disproportionate impact on the infertile couples who did
not have the financial resources to undergo IVF abroad. 473 The case file shows that Grettel
Artavia Murillo, Miguel Mejías Carballo, Oriéster Rojas, Julieta Gonzalez, Ana Cristina Castillo
León, Enrique Acuña, Geovanni Vega, Joaquinita Arroyo, Carlos Eduardo de Jesús Vargas
Solórzano and María del Socorro Calderón Porras did not have the financial resources to
undergo IVF treatment abroad. 474
468
Cf. Committee on the Elimination of Discrimination against Women, General Recommendation No. 24,
para. 12.
469
Cf. Statement made by Mr. Mejías Carballo at the public hearing held in this case.
470
Cf. Affidavit of Giovanni Vargas (file of annexes to the pleadings and motions briefs, volume IV, folio
5281).
471
4937).
472
Affidavit of Viktor Sanabria León (file of annexes to the pleadings and motions brief, volume II, folio
Affidavit provided by expert witness Alicia Neuburger (merits report, volume V, folios 2519 and 2520).
473
Cf. Article 1(1) of the American Convention (“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 […] economic status”).
474
Cf. Affidavit of Oriéster Rojas (file of annexes to the pleadings and motions brief, volume II, folio 4516).