The End of an Era

pareja(If you want to read this post in Spanish)

On the eve of the day that Mayans pointed to as the end of an era, the Inter-American Court of Human Rights condemned the Costa Rican state in the case Artavia Murillo et al for the ruling by its Constitutional Court which declared in vitro fertilization treatments unconstitutional in the year 2000.

The Constitutional Court of Costa Rica based its decision on ideas that recognize the embryo as a legal person with the right to life from the moment of conception, understood as fertilization. This reference to “the protection of the right to life from the moment of conception” has been used in numerous contexts in the region to avoid the recognition of other reproductive rights, such as the access to emergency contraception or abortion.

Without a doubt, the sentence of the Inter-American Court represents the end of an era for reproductive rights, because it clarifies once and for all a series of concepts that will be immensely valuable in the promotion and defense of these rights in Latin America and the Caribbean.

The most important sections of the sentence for this are:

1. Recognition of reproductive rights

The Court, as an authorized interpreter of the American Convention on Human Rights, recognizes that reproductive autonomy, access to reproductive health services, and reproductive rights are included in the rights to the protection of a private and family life, personal freedom, and to found a family (articles 11, 7 and 17 of the Convention, respectively):

“The Court also indicates that the right to a private life is related to: i) reproductive autonomy, and II) access to reproductive health services, which involves the right to access the medical technology necessary to assert that right. Therefore, the rights to a private life and personal integrity are also directly and immediately tied to healthcare. The lack of legal safeguards for reproductive health can result in a serious reduction of the right to autonomy and reproductive freedom. In regards to reproductive rights, it indicates that these rights are based on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number of their children, their birth spacing, and to have both access to information about how to do so, as well as the means to do so, and the right to reach the highest level of sexual and reproductive health.”

2. Conception should be understood as implantation

The American Convention establishes, in article 4.1, that all persons have the right to life and that this right will be protected, in general, from the moment of conception.

The Court recognizes that determining the moment at which life begins is a complex issue on which there is no consensus, but rather a multiplicity of beliefs and theories that cannot be imposed on those who do not share them.

Nevertheless, the Court considered it necessary to set an interpretation of article 4 of the Convention. According to available scientific tests it is clear that, although with the fertilization or union of the ovum with the spermatozoon a zygote is created that has the genetic material of a new human being, it is only with the implantation of that zygote in the uterus of a woman that any real possibilities of development exist. Therefore the Court established that the protection of the right to life from the moment of conception protected by the American Convention must be understood as applying as of the moment of implantation, and not of fertilization.

“In this sense the Court understands that the term “conception” cannot be understood as a moment or process outside of a woman’s body, since an embryo does not have any possibility of survival if implantation does not happen. Proof of the above is that it is only possible to establish whether or not a pregnancy has occurred once the fertilized egg has implanted in the uterus, when a hormone called “chorionic gonadotropin’ is produced, which is only detectable in a woman who has an embryo that has implanted. Before this it is impossible to determine if a union between an ovum and a spermatozoon happened inside the body, and if this union was lost before implantation.”

Fertilized ovum.

Fertilized ovum.

Six days old human embryo introduced in ovule lining

Six days old human embryo introduced in ovule lining

3. The right to life is not absolute

The Court carried out a grammatical, systematic, historical, evolutionary, and teleological interpretation of the protection of the right to life under international human rights agreements (including those of the universal, European, African, and of course the inter-American system), and concluded that this right is not absolute. Simultaneously, the Court admitted exceptions, and that this protection must occur gradually and take into consideration the different stages of development.

“ (…) it is possible to conclude from the words “in general” that the protection of the right to life in accordance with this ruling is not absolute, but is gradual and incremental according to its development, given that it is not an absolute and unconditional right, but rather one that implies understanding the origin of exceptions to the general rule.”

4. The embryo is not a subject of Rights

Of the basis of the above interpretation the Court also concludes that an embryo is not a holder of the rights contained in all human rights treaties, given that the preparatory work for such treaties makes it clear that their intention was never to give the status of a person to an embryo, nor to grant an embryo the same rights as persons who have been born. At the same time the Court notes that the defense of the unborn happens through the protection of the pregnant woman, who is the direct object of protection.

“The Court also notes that the expression “all persons” is used in numerous articles of the American Convention and the American Declaration. When analyzing all of these articles it is not feasible to maintain that an embryo can hold and assert the rights consecrated in each of these articles. Also considering, as noted above, that conception only happens within the body of a woman, it is possible to conclude with respect to article 4.1 of the Convention that the direct object of protection is fundamentally the pregnant woman, given that the defense of the unborn is essentially carried out through the protection of the woman. For all these reasons, the Court concludes that the historical and systematic interpretation of existing precedents in the Inter-American System, confirms that there is not precedent to grant the status of person to an embryo.”



A new era

There is no doubt that defending the reproductive rights of those who want to have children strengthens the arguments for defending the rights of those who do not want or cannot have them.

For those of us who have been working for years for the recognition and development of all reproductive rights in the region, this sentence marks the end of an era where we faced situations in which the autonomy and health of the woman were subsumed by the supposed absolute right to life of the embryo. In the future, those who want to prohibit or restrict access to contraceptives that work after fertilization but before conception, or to safe methods of voluntary interruption of a pregnancy, will not be able to allege that the American Convention of human rights justifies them.

Likewise, the agents of justice who are obliged to apply the jurisprudence of the Inter-American Court will have to recognize that reproductive rights include reproductive autonomy and the access to reproductive health services; that the right to life is not absolute but incremental; and that the way to defend the life of the unborn is to offer protection to pregnant women.

Welcome this new era.


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