30 PETITION 12.361 EXPLANATION OF DISSENTING OPINION 1. The Commission has unanimously decided that the State of Costa Rica violated Articles 11.2 (the right to private life) and 17.2 (the right to raise a family) of the American Convention on Human Rights insofar as judgment number 2000-02306 of March 15, 2000, issued by the Constitutional Chamber of Costa Rica declared unconstitutional Presidential Decree 24029-S of February 3, 1995, regulating in vitro fertilization (IVF) in Costa Rica. The Commission determined that the Constitutional Chamber’s judgment arbitrarily interfered with the privacy rights of these infertile married couples because other means, less restrictive of the victims’ rights, can serve to achieve the legitimate aim of safeguarding human embryos, which the State, like other States in the region, seeks to do pursuant to Convention Article 4. 2. A majority of the Commission also determined that the decision violates Article 24 of the Convention, guaranteeing equality and equal protection of the law. Three members of the Commission are unable to find discrimination in the Constitutional Chamber judgment, insofar as it banned access to in vitro procedures equally to all individuals and couples in the country. 3. The determination that the right to private life was violated is inconsistent in this case with also holding that the measure is discriminatory. The Commission first agreed that recourse to in vitro fertilization procedures falls within the scope of private life as guaranteed by Article 11.2. Like other rights in the Convention, this right inheres in all individuals equally. The victims in this case cannot claim to be a distinct group being treated differently from all others in the State whose private life is arbitrarily restricted as a result of the Constitutional Chamber judgment. If the right to private life extends to a person’s decision to have recourse to in vitro techniques, as the Commission has decided, then as a right it should extend to those who are married and unmarried, whether fertile or infertile, 110 under appropriate regulations adopted by the State. Indeed, the zone of privacy that surrounds this decision should make it irrelevant and outside the query of the State why an individual or couple seeks such access, provided it is not for an illegal purpose such as trafficking in embryos. The marital or medical status of those persons who seek in vitro fertilization is not an issue from the perspective of the State’s interest as expressed in this case. The objective of the State, found by the Commission to be a legitimate one, is to protect human embryos, not to regulate who is entitled to reproduce. Thus, from the perspective of the right to private life, the petitioners in this case are situated in exactly the same position as all other adults in Costa Rica who might, for their own reasons, seek access to the IVF procedure. 4. To find that the persons named in the petition were treated unequally, it is necessary to identify a characteristic that they share that sets them apart from the rest of society, causing such a disproportionate burden that the measure must be considered discriminatory. It does not appear that such a characteristic exists with respect to them. As summarized in the Admissibility decision of March 11, 2004, Report No. 25/04, the petitioner alleged that prohibiting the practice of in vitro fertilization constitutes unequal treatment because it makes a distinction between medical 110 Expert Judith Daar refers to functional and structural infertility, thus expanding the group considered infertile well beyond those described in this petition: “Structural infertility occurs when an individual or couple desires to reproduce but must do so through means other than sexual intercourse because of the social structure in which they self-identify. Single individuals and same-sex couples provide examples of structural infertility. If they wish to reproduce and rear children within their existing social milieu, they lack the necessary structures to achieve biological parenthood on their own. Thus, they must access assistance in order to conceive and carry a child to term.” Judith F. Daar, “Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms,” 23 Berkeley J. Gender L. & Just. 18, 24 (2008).