“the embryo cannot be understood to be a person for the purposes of Article 4(1)
of the American Convention.” 52
It is evident that the Judgment represents a very significant shift in the Court’s case
law.
In order to find a basis for this change, the Judgment resorts to the interpretation of
the terms “conception” and “in general.” This, because the Court considers that “for
the purposes of the interpretation of Article 4(1), the definition of person stems from
the mentions made in the treaty with regard to ‘conception’ and to ‘human being’.” 53
When doing so, the Court resorts to Articles 31 and 32 of the Vienna Convention,
which provide for the interpretation according to the ordinary meaning of terms, the
systematic and historical interpretation, and the evolutive interpretation.
1.- Method in accordance with the ordinary meaning of terms.
This is one of the issues where this vote differs from the Judgment, because the
majority uses as a starting point that the “scope” of the Convention terms “conception”
and “human being,” “should be assessed based on the scientific literature.” 54
The Convention gave these terms no “special meaning” whereby the “intention of the
parties” to the Convention is expressed. 55 Neither did it submit itself to the definition
of medical science. The Judgment fails to note that because of this, the interpreter
must abide by the “ordinary meaning” attributed to the aforementioned terms. The
most natural and obvious meaning of them is that of the dictionary, which, as pointed
out, understands conception as the union of the egg and the spermatozoid.
It is not appropriate, then, to have recourse to medical science for valuing or
understanding the meaning and scope of the terms in reference. It is not what
medical science understands for “conception” what matters, but what the Parties to the
Convention intended by the term, which is the ordinary meaning of the term
“conception” (found in the dictionary).
Besides, a significant part —if not the
majority— 56 of the medical science 57 agrees with the ordinary meaning of the term
“conception.” The scientific definition of a term is relevant in as much as it has been
integrated into law, or when the law submits itself to science, neither of which occur in
the case at hand.
In this regard, it is imperative to underline that the Judgment states that “some
opinions view a fertilized egg as a complete human life”, “may be associated with
concepts that confer certain metaphysical attributes on embryos. Such concepts
cannot justify preference being given to a certain type of scientific literature when
interpreting the scope of the right to life established in the American Convention,
because this would imply imposing specific types of beliefs on others who do not share
them.” 58
52
Art. 264.
53
Para. 176.
54
Ibid.
55
Art. 31(4) of the Vienna Convention.
56
Notes 265 to 284 of the Judgment.
57
Paras. 182 to 184.
58
Para. 185.