The latter assertion is correct, but the position adopted by the Judgment on this matter
is not in agreement with it. The Judgment reproaches that the State’s Decision opted
for “one of the scientific positions on this issue to define as of when it was considered
that life began” and that “understood that conception would be the moment when the
egg is fertilized and assumed that, as of that moment, a person existed who held the
right to life.” 59 However, while asserting this, the Judgment adopts the opposite view,
that which makes a difference between “two complementary and essential moments of
embryonic development: fertilization and implantation,” and holds that “only after
completion of the second moment that the cycle is concluded, and that conception can
be understood to have occurred.” 60
In order to reach this conclusion the Judgment resorts to two reasons. One is of a
scientific nature, “an embryo has no chance of survival if implantation does not
occur.” 61 The other is that “when Article 4 of the American Convention was drafted the
dictionary of the Real Academia differentiated between the moment of fertilization and
the moment of conception, understanding conception as implantation,” and, thus,
“[w]hen drafting the relevant provisions in the American Convention, the moment of
fertilization was not mentioned.” 62
As to the first argument, the Judgment acknowledges that there are several scientific
positions on the matter of “when life begins” 63 and of the understanding of
“conception.” 64 In spite of this, the Judgment sides with only one of them: that
conception is produced at the moment of the embryo’s implantation in the woman’s
uterus. The Judgment does not analyze the other positions, particularly the one that
considers that “human life begins with the fusion of spermatozoid and egg, an
observable ‘moment of conception’.” 65 This Judgment simply dismisses this position.
The Judgment’s position seems to reveal some inconsistencies with other of its
assertions. On the one hand, with the statement that “[t]he first birth of a baby
resulting from in vitro fertilization occurred in England in 1978,” and that “[i]n Latin
America, the first baby born through in vitro fertilization and embryo transfer was
reported in Argentina in 1984.” 66 On the other hand, with the statement that “the
definition of ‘conception’ accepted by the authors of the American Convention has
changed” because “[p]rior to IVF, the possibility of fertilization occurring outside a
woman’s body was not contemplated scientifically.”
Indeed, these statements show that, when the Convention was signed—in 1969—, it
was not possible to know that “conception” and “fertilization” were two absolutely
differentiated and distinct phenomena.
Hence, it is impossible to share the
understanding that “the definition of ‘conception’ accepted by the authors of the
American Convention has changed.” It may well be the case that some medical
59
Para. 177.
60
Para. 186.
61
Para. 187.
62
Para. 187.
63
Para. 177.
64
Paras. 180 to 185.
65
Para 182.
66
Párr. 66.