28
130. The complete prohibition of a means that could allow victims to reach a situation of
equality, exacerbates the differences between them and persons and/or fertile couples, and even
couples and/or infertile persons, that had access to other means to procreate biologically. It serves
to perpetuate a distinction that should only be deemed compatible with the American Convention if
it is reasonable and objective. To evaluate distinctions of this kind, the Commission, the Court and
other international organizations and courts have applied criteria similar to those used when
analyzing restrictions on human rights. Thus, a distinction will be reasonable if it pursues a
legitimate aim, is suitable for achieving that aim, there are no other less restrictive alternatives and
is proportionate. The Commission has already analyzed these criteria in the section on the right to a
private and family life and the right to found a family. Its conclusion was that the ban on in vitro
fertilization was unnecessary and, therefore, incompatible with the provisions of Article 24 of the
Convention.
131. As for the second point, the Commission observes that the technique of in vitro
fertilization is a procedure that more directly concerns the woman’s treatment and body and hence
women bear the brunt of the impact of the Costa Rican Constitutional Chamber’s decision. The
purpose of in vitro fertilization is to enable the embryo to become implanted in the woman’s uterus;
in other words, the procedure is in large part centered on what a woman wants and decides to do
with her own body. These are questions that, in principle, are up to the woman, in consultation
with her physician, and to the couple as well. It is in this sense that the absolute ban on the
procedure will take a heavier toll on women. In effect, while infertility is a condition that can affect
both men and women, the use of assisted reproductive technologies places greater demands on the
woman’s body. Therefore, the prohibition of in vitro fertilization has a direct effect on women’s
free will with regard to their bodies.
132.
Article 12(1) of the CEDAW reads as follows:
States Parties shall take all appropriate measures to eliminate discrimination against
women in the field of health care in order to ensure, on a basis of equality of men and
women, access to health care services, including those related to family planning.
133. The CEDAW Committee has written that “the obligation to respect rights requires
States parties to refrain from obstructing action taken by women in pursuit of their health goals.” 109
Hence, the ban on in vitro fertilization has very serious consequences for women and denies them
access to the ever-evolving benefits of scientific progress in this area.
134.
Given the above considerations, the Commission concludes that the Costa Rican
State violated the right to equality and the principle of non-discrimination, recognized in articles 24
and 1(1) of the American Convention, in relation to the obligations undertaken in Article 2 of that
instrument, to the detriment of Gretel Artavia Murillo, Miguel Mejía Carballo, Andrea Bianchi Bruno,
German Alberto Moreno Valencia, Ana Cristina Castillo León, Enrique Acuña Cartín, Ileana Henchos
Bolaños, Miguel Antonio Yamuni Zeledón, Claudia María Carro Maklouf, Víctor Hugo Sanabria León,
Karen Espinoza Vindas, Héctor Jiménez Acuña, Maria del Socorro Calderón P., Joaquina Arroyo
Fonseca, Geovanni Antonio Vega, Carlos E. Vargas Solórzano, Julieta González Ledezma and
Oriester Rojas Carranza.
V.
109
CONCLUSIONS
United Nations. Committee on the Elimination of Discrimination against Women, General Recommendation 24,
Women and Health.