21
iii.
Suitability
97.
The Commission must now establish the relationship of means to end, between the
measure that interferes with or restricts the exercise of a right and the end that the interference or
restriction is intended to serve. The determination regarding suitability is not in principle a value
judgment; instead, it is an objective assessment that determines whether a logical cause-and-effect
relationship exists.
98.
In the instant case, given the State’s legitimate interest in protecting the right to life,
there is a causal relationship between that interest and the imposition of controls on the practice of
in vitro fertilization. The Commission therefore concludes that the prohibition or ban does meet the
suitability test.
iv.
Existence of less restrictive alternatives
99.
For this aspect, the Commission must determine whether the State had other less
restrictive but equally suitable means to achieve the legitimate end that it pursued. In the instant
case the existence of less restrictive means is, in part at least, a function of scientific advances. A
review of the practice of in vitro fertilization reveals that it is not an isolated practice, but rather one
of several treatment procedures whose availability or suitability depends on a variety of factors.
100. In practice, a number of methods of in vitro fertilization are available in the countries
of the Americas and one can say that there is no prescribed standard regarding the control and use
of these methods. From the information available, it appears that the Constitutional Chamber’s
ruling made Costa Rica the only country in the hemisphere to ban in vitro fertilization.
101. Like Costa Rica, many countries of the region protect prenatal life in their laws or
constitutions, but they consider that the practice of in vitro fertilization is wholly consistent with
this basic value. Examples include countries like Argentina, Chile, Colombia, Ecuador, Guatemala,
Panama, Peru and Uruguay. These countries have found a way to reconcile the rights that infertile
persons and/or couples have to a private and family life and to form a family, with the State’s
interest in protecting life.
102. Some countries of this hemisphere have enacted laws to regulate the use of in vitro
fertilization. In most countries it is a matter for the medical field. 82 Article 7 of Peru’s General
Health Law makes provision for the right to procreate through the use of assisted reproductive
techniques, with certain limitations :
Every person shall have the right to infertility treatment and to procreate by means of assisted
reproductive techniques, provided the genetic mother and the gestational mother are one and
the same person. For treatment using assisted reproductive techniques, prior, written consent
of the biological parents shall be required. Fertilization of human eggs for purposes other than
procreation shall be prohibited, as shall human cloning. 83
103. Article 165 of the Tabasco State Civil Code provides that “married couples may plan
the number and spacing of their children and use a method of artificial reproduction to beget their
82
The Commission notes that the Latin American Network of Assisted Reproduction, formed in 1995, now has 141
centers
that
perform
assisted
reproductive
techniques
in
Latin
America.
Available
online
at:
http://www.redlara.com/esp/home1.asp
83
Article 7 of the General Health Law, Law No. 26842 of July 15, 1997.