304. In his testimony during the public hearing before this Court, Mr. Mejías Carballo
declared that he and his former wife felt “very sad […] because they could not travel to
another country because they did not have the resources; and they could not do it here in
Costa Rica because it had been banned.” 475 In her affidavit, Grettel Artavia Murillo indicated
that she and her former partner, Miguel Mejías, felt “totally desperate and tremendously
frustrated, and [their] relationship began to have many problems on seeing the hopes of
becoming parents curtailed, together with the impossibility of going abroad to undergo this
practice owing to a lack of resources, which effectively resulted in a lessening of their
individual usefulness and, thus, a net loss of [their] social well-being.” 476 Ana Cristina
Castillo León explained that they “did not have the necessary financial resources to go
abroad to obtain” IVF. 477 Furthermore Mr. Vargas stated that “the only alternative was to
consider traveling to Spain or Colombia to undergo IVF; however, the corresponding costs
had tripled for [them], and [they] simply felt defeated, discriminated against and punished
by a court that had curtailed the possibility of having access to a medical treatment that
was permitted in every other country in the world.” 478
D.3)
Dispute regarding the alleged embryonic loss
305. As indicated previously (supra para. 76), the Constitutional Chamber justified the
prohibition of IVF based on the “high loss of embryos,” their “disproportionate risk of
death,” and the inadmissibility of comparing the loss of embryos in a natural pregnancy with
the loss in IVF. The State considered that “to date, the [IVF] technique entails discarding,
by act or omission, embryos that, otherwise, could come to term.” The Constitutional
Chamber indicated that:
The argument that, under natural circumstances, there are also embryos that do not become implanted
or even if they achieve implantation do not develop up until birth […] is irreceivable, simply due to the
fact that the application of [IVF] entails a conscious and voluntary manipulation of male and female
reproductive cells in order to obtain a new human life, during which a situation is promoted in which it
is known in advance that human life has no possibility of continuing in a significant percentage of
cases. 479
306. In this regard, the Court observes that the Decree that the Chamber declared
unconstitutional included measures of protection for the embryo, because it established the
number of eggs that could be fertilized. In addition, it prohibited “discarding or eliminating
embryos, or preserving them for transfer in subsequent cycles of the same patient or other
patients.” In this regard, there were measures to ensure that a “disproportionate risk” for
the life expectation of the embryos was not created. In addition, according to the said
decree, the only possibility of loss of viable embryos was if they failed to become implanted
in the woman’s uterus once the embryonic transfer had taken place.
475
go abroad to undergo the treatment but he “did not have
subsist[ed] on a State pension, and everyone knows that
like that; therefore [they] could not go.” Cf. Statement
this case.
476
Cf. Affidavit of Grettel Artavia Murillo (file of annexes to the pleadings and motions brief, volume I, folio
Likewise, Mr. Mejías declared that he wanted to
the money and had already spend a great deal and [he]
State pensions are not sufficient to cover an expenses
made by Mr. Mejías Carballo at the public hearing held in
4077)
477
Cf. Testimony of Ana Cristina Castillo León (file of annexes to the pleadings and motions brief, volume I,
folio 4102).
478
5280).
Cf. Affidavit of Giovanni Vargas (file of annexes to the pleadings and motions briefs, volume IV, folio
479
Judgment No. 2000-02306 of March 15, 2000, delivered by the Constitutional Chamber of the Supreme
Court of Justice, Case file No. 95-001734-007-CO (file of annexes to the merits report, volume I, folio 85).