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Right to life vs right to found a family: The case of Costa Rica

19 September 2011
By Dr Morven Shearer and Dr Sheryl Vanderpoel
Dr Shearer is from the School of Medicine, St Andrews, and Dr Vanderpoel is from the Department of Reproductive Health and Research at the World Health Organisation (WHO). As a staff member of the World Health Organisation, Dr Vanderpoel alone is responsible for the views expressed in this publication and they do not necessarily represent the decisions, policy or views of the World Health Organisation
Appeared in BioNews 625
Costa Rica is being taken to the Inter-American Court of Human Rights (IACHR) for failing to lift a national ban on IVF (1), which is sometimes the only medical intervention that can resolve a case of infertility or sub-fertility. The Costa Rican law making IVF illegal came into force in 2000. Costa Rica's Constitutional Court ruled IVF violated Article Four of the American Convention on Human Rights - 'the right to life' - by defining life from the moment of fertilisation (2). The IACHR ordered this ban on IVF to be lifted but, by the end of July 2011, the Costa Rican Government had not met extended deadlines to comply.

A right to 'found[ing] a family' is clearly stated in Article 17 of the American Convention and in Article 14 of the Universal Declaration of Human Rights (3). Several other countries in the Americas, such as Argentina, Brazil, Chile, Colombia and Mexico that have laws reflecting 'right to life' beliefs allow IVF and therefore their citizens are able to make their own decisions on use of IVF and related technologies (4).

During debates in Costa Rica, some opponents have actively advertised on radio and targeted couples who may be seeking IVF across borders. One advertisement used a young girl's voice: 'Hi. I'm Sofie, the third of three brothers and sisters. Though my parents love me with all of their hearts, I know that for me to enter the world, seven of my siblings died in a laboratory' (quoted (5)).

Giving existence to the unborn by redefining embryos as family members could be argued as a form of scaremongering that uses fear and guilt to strengthen the position of those opposing IVF. These tactics target a highly stigmatised, vulnerable and disabled group (infertility is internationally recognised as a disability (6)). It was heartening to see that the Costa Rican Government had these advertisements removed.

Worldwide, national debate on IVF needs to be explained to the electorate through reasoned, balanced, and ethically- and evidence-based medically-sound discussions.

WHO has defined access to care and interventions to assist infertile patients as a key component of its Reproductive Health Strategy (7). This Strategy, adopted by the World Health Assembly, provides the basis for reaching Millennium Development Goal (MDG) 5b: Achieving universal access to reproductive health (8).

Infertility has been defined by the WHO, clinically, as a disease of the reproductive system (9). Further, infertility is a major global public health issue; a burden most strongly felt in lower resource settings which suffer from high levels of secondary infertility. Denying people IVF technologies denies access to care to the vulnerable, disabled and those in need.

Finally, the case of Costa Rica raises pertinent issues for those living in countries where IVF is legal. What restrictions on access to IVF are appropriate if it is not just compatible with, but rather part of, the right to 'found a family' and addresses an unmet need?

Currently in the UK, regulatory guidelines place an age limit on access to IVF for women - a limit applied according to age-adjusted average IVF success rates, rather than a woman's reproductive ability and overall health condition. Should legal restrictions on IVF interfere with the medical judgment of trained and qualified caregivers who, in all other areas of health, determine best clinical practice by assessing patient health and needs?

However, access to infertility services like IVF where legally allowed, can be limited, in many countries worldwide, mainly due to economic constraints (10). Despite a frequent dismissal as 'a disease of the wealthy', infertility does not respect national or economic boundaries.

Will a positive outcome in Costa Rica strengthen the arguments that infertility is a serious disability and impeding access to treatment for infertile people a violation of rights? (11) Will this outcome also finally prioritise research (operations, implementation and health systems) into affordable solutions to infertility care that helps policy makers develop evidence-based global guidance and best practice? (12)

The arguments advanced at the IACHR and its outcomes will delight Costa Rican couples who have been battling since 2000 to access reproductive technologies. The IACHR case will also interest the wider global community as the strength and implications of 'the right to found a family' become defined. The rulings will help prioritise research and programmes that ensure infertility issues are recognised as a key component of MDG5b and global public health. 

01) Jara, F. Costa Rica's in-vitro fertilisation ban challenged
AFP News Online |  3 August 2011
02) American Convention on Human Rights
|  1969
03) Universal Declaration of Human Rights
United Nations |  1948
04) Silk, J.L. Inter-American Commission on Human Rights: In the Matter of Ana Victoria Sanchez Villalobos and others (Costa Rica) Admissibility Report No. 25/04, Petition 12.361 - brief of the Allard K Lowenstein International Human Rights Clinic at Yale Law School as amicus curiae
Yale Law School |  2005
05) Balinski, T. Controversial Costa Rican ads liken IVF to homicide |  2011
06) World Report on Disability
WHO/World Bank |  2011
07) Progress Report: Reproductive health strategy
WHO |  2010
08) Millennium Development Goals
UN |  2000
09) Zegers-Hochschild, et al International Committee for Monitoring Assisted Reproductive Technology (ICMART) and the World Health Organization (WHO) revised glossary of ART terminology
Fertil Steril Nov; 92(5) 1520-4; Human Reprod Nov; 24(11) 2683-7 (simultaneous publication) |  2009
10) Cui, W. Mother or nothing: the agony of infertility
Bull World Health Organ 2010;88:881–882. doi:10.2471/BLT.10.011210 |  2010
11) Cui, W. Maasai couples seek safer solutions to infertility
Bull World Health Organ 2010; 88:883-884 |  2010
12) ESHRE Special Task Force on 'Developing Countries and Infertility'
ESHRE |  2011
The Low Cost IVF Foundation
|  2011
14 December 2015 - by Antony Starza-Allen 
Almost three years after the Inter-American Court of Human Rights ruled that Costa Rica's ban on IVF was unlawful, the Costa Rican Government has attempted to legalise the fertility procedure – only for the measure to be suspended by the country's Supreme Court...
7 January 2013 - by Antony Starza-Allen 
The Inter-American Court of Human Rights (IACHR) has overturned a prohibition on IVF in Costa Rica saying that it infringed provisions under the American Convention on Human Rights....
21 November 2011 - by Rachel Lloyd 
The US Supreme Court will decide whether children conceived through IVF after the death of their biological father are entitled to receive survivor benefits - general welfare benefits paid by the state designed to replace the lost support of a deceased wage earner....
7 February 2011 - by Nishat Hyder 
The Indian Parliament is debating new surrogacy laws to establish a clear regulatory framework to reduce exploitation in its commercial surrogacy market. If passed in its current form, India will recognise surrogacy agreements as legally binding....
14 June 2010 - by Rosemary Paxman 
A private clinic offering stem cell treatments has been closed by the Costa Rican government due to little evidence that the treatments work....
22 November 2004 - by BioNews 
The Legal Committee of the General Assembly of the United Nations (UN) last week abandoned proposals to adopt an international convention on human cloning. A proposal led by the US and Costa Rica, which would have meant an international treaty banning all forms of human cloning, including for medical research...
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