CONCURRING OPINION OF JUDGE DIEGO GARCIA-SAYÁN
JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF ARTAVIA MURILLO ET AL. ("IN VITRO FERTILIZATION")
v. COSTA RICA OF NOVEMBER 28, 2012
1. This Judgment is a very clear and important decision of the Court that enhances
the right to personal integrity, to private and family life, and to the principle of
non-discrimination. All of them were seriously harmed by the facts that gave rise to
this litigation. By establishing which rights had been violated and the corresponding
reparations, the Court addressed the Judgment, essentially, at an affirmation of
life.
2. Justifying the absolute prohibition of in vitro fertilization (IVF) by the alleged “right
to life” is a twofold contradiction. First, because indicating that IVF would result in
“embryonic loss” fails to take into account that, as it has been proved in the instant
case, embryonic loss also occurs in natural pregnancies and in other reproduction
techniques. Second, because the prohibition, allegedly based on the right to life,
resulted, paradoxically, in an impediment to life by obstructing the right of men
and women to have children. Thus, an unwarranted obstacle to life was
established, which will continue until the measures of reparation ordered by the
Court in this Judgment have been fully implemented.
3. Since reproductive self-determination is closely related to the rights to privacy and
to personal integrity (paras. 146 and 147), the absolute prohibition of IVF decreed
by the Costa Rican Constitutional Chamber on March 15, 2000, harmed these
rights, resulting in a serious impact on the victims.
4. This was increased by the discriminatory impact of the ban. As the Court recalled,
States must not introduce regulations that have a discriminatory impact on different
groups of the population when exercising their rights (para. 286). The Court
established that the ban had a discriminatory impact on the victims in relation to
crucial aspects such as their situation of disability or their financial situation (para.
284).
5. It is clear, as proved during these proceedings, that the disability consisting in
infertility requires special treatment and that State policies should be inclusive
rather than exclusive; also, that the ban had a disproportionate effect to the
detriment of infertile couples with less income because, in order to undergo IVF
treatment, they had to travel abroad.
6. Men and women who are infertile suffer from a disease, as the Court recalled in
this Judgment (para. 288), bearing in mind that the World Health Organization
(WHO) has established that infertility is “a disease of the reproductive system”
defined by the failure to achieve a clinical pregnancy after 12 months or more of
regular unprotected sexual intercourse.” 1
7. Taking this into consideration, the fact that the State refused them the right to use
this scientific method, owing to the ban established in March 2000, seriously
harmed the rights of those affected by this disease.
1
Cf. Written summary of the expert opinion provided by Fernando Zegers-Hochschild at the public
hearing before the Court (merits file, volume VI, folio 2828). As expert witness Zegers-Hochschild explained,
according to the World Health Organization (WHO) infertility is a disease of the reproductive system (merits
file, volume VI, folio 2818).