Gretel Artavia Murillo and Others ('Fecundacion In Vitro') v Costa Rica
Forum: Inter-American Court of Human Rights
INTERIGHTS’ role: Third party intervener
Keywords: Bans and restrictions on assisted reproduction techniques, right to respect for private life, right to life, positive obligation on state to demonstrate proportionality of interference
Facts of the Case
This case is concerned with the across-the-board ban on the practice of in vitro fertilisation (IVF) in Costa Rica. Restrictions on IVF, and the resulting impact on the human rights of those seeking to use such techniques, are issues of increasing prominence given that one in six couples experience some form of infertility problem during their reproductive lifetime. The response to this phenomenon has been an exponential rise over the past few decades, on a global scale, in the availability of medically assisted procreation treatment, including IVF. In the last five years alone, there has been a substantial increase in the number of IVF clinics worldwide, the development of more sophisticated techniques, and a corresponding increase in regulatory activity by states (whether through legislation or guidelines).
This case was initially considered by the Inter-American Commission on Human Rights. In its merits report issued in July 2011, the Commission held that, in imposing such a ban, Costa Rica has violated various rights under the American Convention on Human Rights: the right to have one’s private and family life respected; the right to found a family; and the right to equality and non-discrimination. Despite the Commission’s decision, Costa Rica failed to make any significant progress towards compliance, and in July 2011, the Commission submitted the case to the jurisdiction of the Inter-American Court of Human Rights with the purpose of obtaining justice for the victims.
Latest Case Update
On 21 December 2012, the Inter-American Court found Costa Rica in breach of the American Convention on Human Rights, ruling that the State’s ban on IVF violated the right to privacy, the right to liberty, the right to personal integrity, and the right to form a family, in conjunction with the right to be free from discrimination.
The Court firstly considered the status of the embryo, finding that an embryo does not fall within the meaning of 'person' and is therefore not protected by the right to life provision under the ACHR. In reaching this decision, the Court considered the ACHR within the context of international and regional human rights systems, and applied various interpretive approaches. Secondly, the Court determined that the IVF ban constitutes an interference in private life as it restricts autonomous decision-making concerning treatment connected with a person’s sexual and reproductive health. It noted, among other things, that the severe and discriminatory impact of the ban was disproportionate to the legitimate aim sought to be achieved, namely the protection of embryos, as natural pregnancy also involves loss of embryos. In its analysis, the Court made reference to the comparative European jurisprudence and practice material set out in INTERIGHTS’ brief.
The Court ordered Costa Rica to legalise IVF within six months, to ensure implementation through the regulation of aspects of IVF, to provide free mental health services for the victims in this case, and to implement continued training on reproductive rights for judicial officials throughout the state. The Court’s decision is final and binding for each of the 22 countries that have accepted its jurisdiction, and can be accessed here (Spanish only).
INTERIGHTS contact: Susie Talbot