The legal status of in vitro fertilization in Latin America and the American Convention on Human Rights.

• Author: Hevia, Martin

1. INTRODUCTION

   Assisted reproductive technologies have generated a worldwide "reproductive revolution." (1) Latin America is no exception. (2) Access to reproductive technology, and in vitro fertilization (IVF) in particular, can substantially benefit people's well-being. IVF is an assisted reproductive technology that involves fertilizing female eggs with sperm outside of a woman's body in a laboratory. In IVF, the ovulation process is hormonally controlled; eggs are extracted for fertilization, and later implanted in a woman's uterus. IVF enables infertile women, partially fertile women (e.g., menopausal women), and lesbians to become pregnant. It also allows single men and women, and same-sex couples to have children.

   The legal regulation of IVF is not uniform throughout Latin America. Some countries do regulate access to IVF. For instance, Mexico permits assisted reproduction only in cases of sterility that cannot be resolved by another means, (3) while Peru requires the gestating mother and the genetic mother to be the same person. (4) Most countries, however, do not regulate access to IVF at all, and consequently, it ends up being left in the hands of the medical community. (5) On the other end of the spectrum, only Costa Rica absolutely bans access to IVF. In 2000, invoking article 4(1) of the American Convention on Human Rights (Convention), the Constitutional Chamber of the Supreme Court of Costa Rica recognized the right to life of embryos. (6) The Constitutional Chamber (7) concluded, given the high probability that the embryos would be discarded in the process, IVF should be completely prohibited because it violates the right to life.

   Recently, in Gretel Artavia Murillo v. Costa Rica, (8) the Inter-American Commission of Human Rights (Commission) concluded that Costa Rica's complete prohibition on IVF violates the Convention. The Commission ruled the total ban is an arbitrary interference, and a restriction incompatible with the exercise of the rights of private and family life and the right to form a family that are enshrined in articles 11 and 17 of the Convention. (9) Moreover, impeding access to IVF is discriminatory as it constitutes a burden for a specific societal group: infertile women. Because Costa Rica did not comply with its recommendation to lift the ban, the Commission submitted the case to the jurisdiction of the Inter-American Court of Human Rights (Court), which is now ready to listen to the parties and resolve the controversy. (10)

   This paper analyzes the legal status of IVF in Latin America. In doing so, it critically evaluates the core of the Commission's report in Gretel Artavia Murillo, and determines the extent of the right to privacy and the right to life in Latin American countries. It examines whether the current legal status of IVF, in Costa Rica and other countries in the region, is consistent with the Convention. (11)

   This paper considers the argument before the Constitutional Chamber of Costa Rica on the right to life. In order to deduce the existing reasons--if there are any--for prohibiting or limiting access to IVF on the basis of this right, this section describes the jurisprudential and legislative developments that the right to life has undergone in Latin American countries. We will also consider questions that have not been contemplated in the Commission's report, namely, women's right to refuse the transfer of embryos to their bodies, and the right of women and men to forbid the use of their embryos without their consent. In particular, we will concentrate on IVF jurisprudence. Then, we will analyze the first argument used by the Commission against the absolute prohibition; that is to say, we will ask whether, effectively, prohibiting or limiting IVF is an illegitimate state infringement of the rights to privacy and family life. Also we will present the criterion of proportionality. Both the Convention and the Court adhere to this criterion for determining whether a state's decision to restrict one right in order to protect another legal asset (deemed comparatively more valuable) can be justified. Next, the article will focus on the second argument adopted by the Commission, namely, the question of whether an absolute ban on in vitro fertilization violates the principle of equality and non-discrimination. In particular, we will discuss the minority position of the Commission, which held that although the ban is not consistent with the Convention, an absolute ban does not discriminate against women. Finally, in closing, the paper will offer a conclusion and explain how the aforementioned arguments and debates may serve the Court as a source of information in researching the current state of the issue in Latin America.

2. THE RIGHT TO LIFE AND IN VITRO FERTILIZATION

   1. The Constitutional Chamber's Decision

      The argument in favor of absolutely banning access to IVF is based on the state's obligation to respect the right to life. According to this argument, IVF presupposes "conception," a term recognized by the legislation (12) and constitutions (13) of several countries in the region, as well as by article 4(1) of the Convention, which establishes the right to life "shall be protected by law and, in general, from the moment of conception." (14) Thus, all pre-embryos and embryos, regardless of whether they are inside or outside of the woman's body, are comparable to born human beings, and have the right to life. This is an absolute right that trumps any other right.

      The Constitutional Chamber of Costa Rica employed this line of reasoning to invalidate a presidential decree allowing access to IVF under certain conditions. (15) Because the human embryo has a right to life, "it is not constitutionally valid that it be exposed to a disproportional risk of death." This risk of death arises from the potential that embryos may be discarded, or become unviable, during the procedure. The court declared the loss of embryos "cannot be justified by the fact that the aim here is to achieve a human being, granting a child to a couple that would be unable to have one in another way." This was because, "the embryos, whose lives are first sought and then thwarted, are human beings and the Constitution does not allow any distinction among these."

      The Chamber did recognize, under natural circumstances, embryos sometimes fail to implant themselves, or if implanted, are unable to develop. Yet, it saw an important difference: "the application of IVF-ET [In Vitro Fertilization-Embryo Transfer] implies a conscious, voluntary manipulation of the male and female reproductive cells for the purpose of obtaining a new human life, giving rise to a situation in which it is foreknown that, in considerable percentage of cases, the human life will not be able to continue." (16) The Chamber concluded that, although technology may develop to the point where fertilization does not involve taking a human life,

      the conditions in which it is currently applied, lead to the conclusion that any elimination or destruction of the conceived [beings]--[either] voluntary or as the result of the inexpertness of the person in charge of the procedure, or the procedure's inexactness--violates the right to life, such that the technology does not agree with constitutional law and for this reason, the regulation in question is unconstitutional by violation of article 21 of the Political Constitution and [article] 4 of the American Convention on Human Rights. (17) Before the Commission, Costa Rica defended the same position. (18)

      In what follows, this paper examines the legal status of IVF with the goal of comparing the official Costa Rican position--the absolute ban--with the positions of other countries in the region. Latin American jurisprudence generally presents three models for regulating IVF: (1) absolutely banning IVF because it violates the right to life; (2) allowing access to IVF in certain cases because a total ban would violate the rights to privacy and family planning (19); and (3) allowing access to IVF because embryos do not have a right to life.

   2. The Regional Backdrop

      1. The Legal Status Of IVF Across The Region

         Let us begin by examining the legal status of IVF. First, there are states that explicitly regulate access to IVF. Peru allows infertile women access to IVF as a treatment. (20) Similarly, in Mexico, married women have access to insemination, given the consent of their husbands. (21) Colombia, in turn, tentatively allows procreation by means of IVF; article 42(6) of its Constitution dictates that children can be conceived with scientific assistance. (22) Colombia's Health Ministry regulates the donation of gametes for assisted reproduction technology, including IVF. (23)

         Second, there are states that only informally regulate access to IVF. Brazil regulates only through resolutions enacted by the Federal Council of Medicine, and subsidiary laws about scientific research on embryos or emergency contraceptives. The Federal Council of Medicine permits IVF not only for couples, but also for single women. It also prohibits the destruction of embryos, though it does allow their cryopreservation and selection. (24) In early 2011, it issued a resolution allowing access to IVF for "all competent persons," a phrase that came to include unwed individuals and same-sex couples. (25) Additionally, a 2005 law, known as the "Law of Biosecurity," permits and regulates medically or therapeutically motivated research on cells and embryos obtained through IVF, including mother cells, embryonic cells, non-viable embryos, and embryos that had been cryopreseved for more than 3 years, (26) All of this offers a positive outlook for access to IVF, and the limits present when it is balanced against protecting other interests like the right to life.

         The situation in Chile is similar. The Chilean Ministry of Health published a report, devoid of legal force, establishing general steps for IVF. (27) The report...