Abstract
During the last few years, the Americas have been stage for intense public debate and various judicial rulings over the scope of reproductive rights and access to reproductive technology. Yet only as recently as 2012 and for the first time in its history, the Inter-American Court of Human Rights (IACHR) accepted a case on reproductive rights: “Artavia Murillo c. Costa Rica.” In this case, the Court considered whether an absolute prohibition on access to in vitro fertility treatments (IVF) could be compatible with the rights recognized in the American Convention on Human Rights (ACHR). Costa Rica was the only country among the ACHR States in which access to IVF has been explicitly and absolutely prohibited. Among the other Convention signatories, legislation is not uniform—some countries permit IVF, but regulate it; while in others, absent any specific regulation, IVF is, in fact, practiced.
Through its ruling the Court resolved the various debates that had been circulating both in the legislative arena and in the courts: among other issues, the Court decided that human embryos are not legal persons. It also scrutinized whether the right to life is absolute, or whether, in determined contexts, it should cede before other rights such as autonomy and privacy, and whether prohibiting access to certain medical treatments involves a form of discrimination that is prohibited by the Convention. Because of its important and far-reaching implications for the exercise of the human rights recognized by the ACHR, this ruling demands detailed analysis and discussion.
This Article considers the Court’s historic decision and the challenges that ACHR States parties face in developing IVF regulations that are consistent with the ruling. In Part I, we will focus on the case background. Part II explains the Court ruling in detail. In Part III, we shall ask what kinds of regulations to the practice of IVF would be compatible with the rights recognized in the ACHR. We will especially focus on the perspective of women’s right to heath, the right to form (or abstain from forming) a family and we will consider aspects of the discussion involving the scope of anonymous donation. By way of conclusion, in light of the IACHR ruling, in Part IV we will offer some comments about possible next steps for Convention States Parties.
Recommended Citation
Martín Hevia and Carlos Herrera Vacaflor,
From Recognition to Regulation: Access to In Vitro Fertilization and the American Convention on Human Rights,
25 Fla. J. Int'l L.
(2013).
Available at: https://scholarship.law.ufl.edu/fjil/vol25/iss3/4