15
66.
This case concerns the Costa Rican Constitutional Chamber’s ban on the assisted
reproductive technique of in vitro fertilization. Given the parties’ arguments, the Commission must
now determine whether that ban is compatible with the American Convention. Accordingly, the
Commission will first assess whether the facts fall within the scope of the rights contemplated in
articles 11 and 17 of the American Convention. If so, the Commission will then examine whether
the prohibition of in vitro fertilization interferes with the exercise of those rights. If it concludes that
it does interfere with the exercise of those rights, then the Commission must proceed to determine
whether that interference meets the requirements that the Convention stipulates.
67.
Therefore, the Commission will analyze the arguments of the parties and the
information in the case file, in the following order: i) considerations regarding the scope of Article
11 of the American Convention; ii) considerations regarding the scope of Article 17 of the American
Convention; iii) analysis of whether the ban on in vitro fertilization constitutes interference in the
exercise of the rights recognized in articles 11 and 17 of the Convention; and iv) analysis to
determine whether that inference is compatible with the American Convention.
a.
Considerations regarding the scope of Article 11 of the American Convention
68.
Article 11(1) of the American Convention provides that everyone has the right to
have his honor respected and his dignity recognized. Under Article 11(2), “No one may be the
object of arbitrary or abusive interference with his private life, his family, his home, or his
correspondence, or of unlawful attacks on his honor or reputation.” Article 11(3) states that
everyone has the right to the protection of the law against such interference or attacks.
69.
The case law of the IACHR and the Inter-American Court holds that Article 11 of the
Convention has a broad content that includes protection of the home, the private life, the family and
correspondence. 55 Given the nature of the instant case, the Commission will focus here on the
scope and content of the protection of private and family life under Article 11 of the American
Convention.
70.
One fundamental purpose of Article 11 is to protect individuals from arbitrary action
by State authorities which intrudes into the private sphere. 56 The Inter-American Court has held
that “the sphere of privacy is characterized by being exempt and immune from abuse and arbitrary
invasion by third parties or public authorities.” 57 This protection extends into the realm of the
family. 58
55
I/A Court H.R., Case of Escué Zapata v. Colombia. Merits, Reparations and Costs. Judgment of July 4, 2007.
Series C No. 165, par. 91. It is important to note that the American Declaration of the Rights and Duties of Man also
recognizes the right of every person to protection of the law against abusive attacks upon his honor, his reputation, and his
private and family life.
56
IACHR, María Elena Morales de Sierra v Guatemala, Report No. 4/01, Case 11,625, January 19, 2001, par. 47,
citing Eur. Court H.R., Kroon v. the Netherlands, Ser. A No. 297-B, par. 31 (1994); European Court of Human Rights, Tysiac
v. Poland, par. 109.
57
I/A Court H.R. Case of Escher et al. v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment
of July 6, 2009. Series C No. 200, par. 113; I/A Court H.R.. Case of the Ituango Massacres v. Colombia. Preliminary
Objection, Merits, Reparations and Costs. Judgment of July 1, 2006. Series C No. 148. par. 194; I/A Court H.R.. Case of
Escué Zapata v. Colombia. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 165, par. 95, and I/A
Court H.R.. Case of Tristán Donoso v. Panama. Preliminary Objection, Merits, Reparations and Costs. Judgment of January
27, 2009. Series C No. 193, par. 55.
58
I/A Court H.R.. Case of Escher et al. v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment
of July 6, 2009. Series C No. 200, par. 113, I/A Court H.R.. Case of Tristán Donoso v. Panama. Preliminary Objection,
Merits, Reparations and Costs. Judgment of January 27, 1009. Series C No. 193, par. 55.