31 conditions. 111 In response, it must be noted that States routinely regulate medical treatments and pharmaceuticals, allowing some procedures, restricting or even banning others. It does not make the regulations automatically discriminatory, although some such measures may be found to arbitrarily interfere with the patients’ right to private life, as was the case herein. 5. The majority singles out the fact that the named victims are married, functionallyinfertile couples who are only able to procreate, if at all, through in vitro fertilization. However, neither the fact of marriage nor the fact of infertility distinguishes these persons from other individuals and couples in society whose situations preclude sexual reproduction: medically infertile individuals or couples who are not married, homosexual couples who cannot legally marry or sexually reproduce, and married fertile couples who – for reasons entirely within their private lives – do not have sexual relations. All of these persons may be considered either functionally or structurally infertile and are equally barred from in vitro fertilization techniques by the Constitutional Chamber decision. Thus, those named in the petition constitute an under-inclusive group as far as the claimed lack of equal treatment is concerned. 6. The victims may also be an over-inclusive group. Some of them might be ineligible for in vitro fertilization under appropriate State regulations, despite having been previously on a waiting list for the procedure. Assisted reproductive technologies such as IVF inject third parties into the reproductive process and this necessarily impacts the scope of privacy and the regulatory powers of the state. “Whether these third parties are physicians specializing in infertility care, or strangers willing to provide the missing ingredients for the conception and birth of a child, the addition of one or more actors to the traditional two-party procreative process exponentially increases its complexity. The necessity of third parties in assisted conception means that the conception process is no longer purely internal to the couple, but rather is externalized, forcing prospective parents to seek out and procure services essential to their procreation.” 112 While the State in this instance regulated in order to protect human embryos, nothing in the decision suggests that the State is precluded from also regulating to protect maternal health and life. Indeed, States have been instructed to take measures to improve maternal health and reduce maternal mortality. 113 The risks of pregnancy increase with age and the State may very well set an upper age limit (as well as a lower one to protect girls from abuse). It may enact appropriate regulations on record-keeping and laboratory procedures to ensure that embryos are not mistakenly implanted in the wrong person, and to ensure the quality of medical treatment afforded. With all these possibilities, it is not clear that the victims in this case constitute a cohesive and similarlysituated group. 7. If the majority is correct that the named victims constitute a distinct category denied equal treatment, then it seems implicit that the State can rectify the problem by allowing only that category (medically infertile married couples) access to in vitro fertilization. Such a result seems inconsistent with the right to private life enjoyed by all persons in society. Indeed, it would serve to create discrimination rather than cure it. 111 The United States Center for Disease Control (CDC) considers a couple infertile if they have not used contraception and have not become pregnant for twelve months or more. See Nat'l Ctr. for Health Statistics, 1995 National Survey of Family Growth (1995). Note that the definition does not imply that there is an identifiable medical cause; infertility is the inability to conceive for whatever known or unknown reason. 112 Judith F. Daar, “Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms,” 23 Berkeley J. Gender L. & Just. 18, 21 (2008). 113 See, e.g. ICESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (art. 12) paras. 14, 21.