it should be stressed that the Committee on Economic, Social and Cultural Rights 2
has indicated that the “precise nature” of the available health services and
programs “will vary depending on numerous factors, including the State party’s
developmental level.” This Committee has also indicated that one of the
components of accessibility without discrimination to health services is related to
“economic accessibility (affordability),” so that health facilities, goods and services
must be affordable for all. The Committee has added that the payment for healthcare services “has to be based on the principle of equity, ensuring that these
services, whether privately or publicly provided, are affordable for all, including
socially disadvantaged groups. Equity demands that poorer households should not
be disproportionately burdened with health expenses as compared to richer
households.” 3 These considerations allow me to stress the causal nexus of the
order issued by the Court in relation to the particular situation of persons whose
only possibility of procreation is access to IVF and who do not have the financial
resources to access this type of assisted reproduction technique.
In addition, as revealed by the answer to the submission of the case and the final
arguments of the State of Costa Rica, the State has medical programs and services
that offer different treatments for infertility problems, including assisted
reproduction techniques. The State advised that the only method excluded from the
public programs to treat reproductive health problems has been IVF, owing to the
ruling of the Constitutional Chamber. Thus, it is possible to relate the exclusion of
IVF to the arguments developed in the judicial decision analyzed in this Judgment,
and it is not evident that it was economic or budgetary considerations that justified
the said exclusion. In addition, it was not proved that a situation existed, such as
that of other States, in which the inexistence or insufficiency of resources to
subsidize part of the access to assisted reproduction techniques has been alleged.
Thus the State must continue making gradual progress to guarantee, without
discrimination, access to the adequate and necessary treatments to deal with
different forms of infertility.
In this regard, I would stress that the Court’s mandate is not addressed at
modifying any type of prioritization at the domestic level, in the understanding that
access to assisted reproduction techniques had already been incorporated into the
comprehensive care provided by the State. The Court, as is its consistent practice,
leaves in the hands of the local authorities the series of decision on the nature and
scope of the measures required to guarantee, progressively, whatever is pertinent
in relation to the series of techniques associated with the different methods of IVF
and, to this end, the authorities must implement the specific and necessary
regulations.
12. Bearing in mind that the main fact that gave rise to this litigation was the
prohibition of an assisted reproduction technique – IVF – in Costa Rica, this
Judgment not only establishes which articles of the Convention have been violated
and the corresponding reparations. In essence and based on its content, it makes a
fundamental contribution to life as expressed by the more than five million people
2
Committee on Economic, Social and Cultural Rights, General Comment 14 (2000): The right to the
highest attainable standard of health (article 12 of the International Covenant on Economic, Social and
Cultural Rights), E/C.12/2000/4, 11 August 2000, para. 12.a)
3
Committee on Economic, Social and Cultural Rights, General Comment 14 (2000): The right to the highest
attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural
Rights), E/C.12/2000/4, 11 August 2000, para. 12.b.iii)