On September 21, 2012, the Program for the Study of Reproductive Justice in the Information Society Project at Yale Law School filed an amicus brief in the Inter-American Court of Human Rights (IACHR) in In the Matter of Gretel Artavia Murillo y. Otros (“Fecundacion in Vitro”) v. Costa Rica, Case. No. 12.361, a challenge to Costa Rica’s ban on the use of IVF technology. In their brief, scholars for the ISP, Priscilla Smith and Genevieve Scott, argue that there is a global consensus that the rights to procreation and parenthood are intrinsic human rights, central to our sense of dignity and humanity, and present evidence from the IACHR, the European Court of Human Rights and United States courts supporting the opinion below issued by the Inter-American Commission on Human Rights (“the Commission”). In that opinion, the Commission held that Costa Rica’s ban on IVF violates Articles 11, 17, and 1.1 of the American Convention on Human Rights (“American Convention”).
First, amici show that the Commission’s decision is supported by jurisprudence of the Inter-American Court of Human Rights and the American Convention on Human Rights’ protections for the rights to honor and dignity, the right to protection against arbitrary or abusive interference with private life, including family privacy, the right to raise a family, and the right to exercise these rights free from discriminatory government interference. Second, amici examine the jurisprudence of the United States Supreme Court and the European Court of Human Rights (ECHR). The rights at issue in Fecundacion in Vitro have textual analogues in the United States Constitution’s protections for the rights to liberty and equal protection of the laws and in the European Convention of Human Rights’ (“European Convention”) protection for the rights to “respect for privacy and family life,” the right to marry and “found a family,” and the right to be free from discrimination based on status. In addition, amici demonstrate that the United States Supreme Court and the ECHR have interpreted these texts to include the right to procreate as a fundamental right. As in the Inter-American system, the rights to liberty, privacy, and to found a family create a protected sphere of privacy, and are understood to include the right to make decisions about whether and when to bear and beget a child, as well as the ability to access medical technology to further the exercise of this intrinsically private decision.
Finally, amici demonstrate that Costa Rica’s IVF prohibition fails to meet the standards applied to review governmental regulations of fundamental rights under all three systems of law. States Parties in all three systems of jurisprudence are only permitted to interfere with the right to procreate under the narrowest of circumstances, and only when taking into account the importance of the right at issue, the nature of the interference, the importance of the interest being regulated, as well as the appropriateness of the particular regulation to serve the interests asserted with the least damage to the right itself. All three systems have disallowed absolute prohibitions, such as Costa Rica’s IVF prohibition, on the exercise of these most important rights. Indeed, as the Commission held, rather than applying a means that is narrowly tailored to serve its claimed interest, Costa Rica has chosen the most restrictive means available, failing to provide any protection for the interests of infertile couples and rejecting a more carefully tailored regulation in the original Presidential Decree. (The IVF ban resulted from a decision of the Supreme Court of Costa Rica to annul Presidential Decree No. 24029-S that authorized and regulated IVF in Costa Rica, and ban all IVF procedures.). A similarly broad-based ban has been held to violate the European Convention and would also fail under the jurisprudence of the U.S. Supreme Court, because it prohibits exercise of the fundamental right to procreate and is not narrowly tailored to serve a compelling interest in potential life. Accordingly, amici urge the IACHR to join the global community in condemning this arbitrary and impermissible interference by State Parties with individuals’ ability to fully exercise their rights to procreate under the American Convention. The brief is available to read in full here: Brief of the Program for the Study of Reproductive Justice in the Information Society Project at Yale Law School, In the Matter of Gretel Artavia Murillo y. Otros (“Fecundacion in Vitro”) v. Costa Rica, Case. No. 12.361.