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Thursday, June 1, 2023

A Rebirth for In Vitro Fertilization?

On Monday, the Nobel Assembly, meeting at the Karolinska Institute in Sweden, recognized 85-year-old Robert Edwards for helping to bring more than 4 million children into the world.

The British scientist received the Nobel Prize in Medicine for pioneering the field of in vitro fertilization (IVF) and “conferring the greatest benefit to mankind,” according to the Nobel citation.

“By a brilliant combination of basic and applied medical research, Edwards overcame one technical hurdle after another in his persistence to discover a method that would help to alleviate infertility,” it read. Today, 2-3 percent of all newborns are conceived with the help of IVF.

In conferring the prize, Professor Christer Höög said the world has moved past ethical misgivings about the medical procedure. “It is no longer debated in any country as a technique to be used,” he said.

But he overlooked the little Central American country of Costa Rica, which has leveled a ban against in vitro fertilization since 2001. One of the few countries in the world to prohibit all forms of the reproductive technique, Costa Rica is now under fire by the Inter-American Commission on Human Rights (IACHR) for its position.

In August, the Foreign Ministry received notification from the IACHR, an entity of the Organization of American States, that it would have to take steps to revise its stance or face penalties. Costa Rica now has less than a month to respond.

A Question of Religion


For Rubén Hernández, a constitutional lawyer with the firm GHP Abogados, the fact that Costa Rica is nearly alone in its prohibition of IVF is most certainly a product of its relationship with the Catholic Church, which has argued that children should be conceived naturally and that any manipulation of the reproductive process is morally unacceptable (TT, Oct. 24, 2008).

The Church was critical of the Nobel selection, saying that while Edwards made progress in science, he is also responsible for embryo destruction and spawning a human egg market, according to press reports out of Vatican City.

Roman Catholicism is recognized in Costa Rica’s Constitution as “the religion of the state” and today, an estimated 75 percent of the population considers itself Catholic.

Judges argued that IVF is unconstitutional because most embryos implanted during the procedure never take hold in the woman’s uterus, and subsequently die. The “loss” of these embryos violates their right to life and human dignity, which are also guaranteed by the Constitution.

Although the judges presumably based their decision on their interpretation of Costa Rican law, not church doctrine, Hernández believes their interpretation was guided by their religious beliefs.

“This decision was most certainly a result of the composition of the court,” Hernández said. “The majority of the judges who decided this case were Catholics and the majority of Catholics believe the procedure goes against life. But these are religious considerations, not judicial ones.”

Andrea Bianchi, who left for Colombia in 2001 to undergo IVF, said the procedure, which involves fertilizing the egg outside the body and its subsequent implanting in the mother’s uterus, has nothing to do with religion.

“This is not about spiritual beliefs,” she said. “I am fully Catholic. This is about a medical disorder that requires medical treatment to correct.”

Costa Rica’s Conundrum


The Washington, D.C.-based IACHR considers the right to have a family to be a basic human right. Its position is supported by a series of international agreements signed by Costa Rica, such as the American Convention on Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, and the Cairo Programme of Action.

The fact that Costa Rica prohibits IVF “violates the human rights of Costa Rican citizens” and “opposes international guarantees protecting the right to health, intimacy and reproductive autonomy, the right to physical integrity, the right to form a family and the right to benefit from scientific progress,” according to an amicus curiae brief filed by the Center for Reproductive Rights,  a U.S.-based lobbying group. “The state is obligated to respect human rights commitments assumed by having ratified international treaties and laws.”

Yet, because Costa Rica’s highest court ruled in 2000 that in vitro fertilization is unconstitutional, the country can’t very easily reverse that decision.

“Judges clearly stated that in vitro violates the country’s laws,” Hernández said. If Costa Rica were to comply with the request of the IACHR, it would owe indemnification to the couples who missed their chance to have children.

“Some say, ‘Well, pass a law to protect in vitro,’” he said. “But if you pass a law, the next day anyone can arrive and submit a note of unconstitutionality.”

Hernández believes that the only solution would lie in a decision of the Inter-American Human Rights Court, which Costa Rica would be obligated to respect. The court may pick up the case if Costa Rica rejects the IACHR request.

In a press conference last week, Costa Rican President Laura Chinchilla, a committed Catholic, said the matter is in “the hands of the state” and that it is the obligation of the Foreign Ministry and Legislative Assembly to respond. 

However, this week Chinchilla said that Costa Rica has complied with most international human rights standards, and that “we don’t want this to be the exception.”

A Generation Lost

Since Costa Rica’s Supreme Court ruled against IVF in 2000, dozens of couples have left the country to seek treatment in Panama, Mexico and Colombia. But many others have let go their dream of having a family because they didn’t have the money to leave Costa Rica.

“This is economic discrimination and it’s the worst kind of discrimination because it differentiates between those who can afford to go to other countries and who  can’t,” said Bianchi.

The mother of 8-year-old twins, Bianchi sought treatment in Colombia when she was 37. Had she not been able to leave, she would have missed her opportunity, as most clinics won’t treat women over 42.

The court ruling fell on Ana Cristina Castillo’s 37th birthday, just as she was preparing to undergo in vitro fertilization. She decided against seeking treatment abroad due to the expense and stress. The situation put a strain on her marriage and she divorced her husband in 2002.

“People have sunk into depression, couples have divorced over this,” she said. “This is the most infuriating thing because you have to wait for someone else to decide whether you can kiss your kids goodnight.

“It’s a medical disorder like a missing finger or poor eyesight,” she said. “It can be fixed.”


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