On January 19,Mr. The petitioner argues that the judgment in question violates Articles 1, 2, 4, 5, 8, With respect to admissibility, the State maintained that the complaint was groundless and out of order and that it should be considered inadmissible. It also insisted that the tardiness with which the victims were individually identified, and the lack of standing in the case of those victims that were initially identified, should render the petition inadmissible. The State also argued failure to exhaust domestic remedies, and claimed that the petition was submitted too late, in relation to the victims who were subsequently identified.
The petitioner, on the contrary, declared that the pd victims had requested confidentiality for fear of disruption of their private lives.
The petitioner also alleges vslencia because of the binding nature of decisions of the Constitutional Chamber they had no further recourse to exhaust. On the basis of its analysis of the arguments presented by the two parties, pursuant personwls Articles 46 and 47 of the Convention, the Commission has decided to declare the petition admissible, with respect to the alleged violations of Articles 1, 2, 11, 17 and 24 of the American Convention, and to proceed with an analysis of its merits.
On February 6, the Commission acknowledged receipt of the petitioner's communication and announced the opening of the case under On the same date, the moeeno portions of the communication were transmitted to the State, which was asked to provide information within 90 days. On May 4, the Commission received the response of the State.
That response claimed that the petition was out of order, considering that the judgment of the Constitutional Chamber of the Supreme Court of Justice of Costa Rica was fully consistent with the American Convention. On June 12, the Commission received the petitioner's comments to the response of the Costa Rican government.
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On that same day those observations were sent to the State. On July 18, the government submitted new observations on the case, arguing that the petition should not be admitted because there were no identified individual victims, and because those victims who were identified, i. That information was transmitted to the petitioner on July 23, On October 2,the Commission acknowledged receipt of the communication dated September 25,submitted by the petitioner, in which he requested that consideration of admissibility and of merits be combined, in accordance with Article 37 3 of the Commission's Rules of Procedure, and declared that he was renouncing the friendly settlement procedure.
The pertinent portions of the State's response dated Valfncia 18,were again sent to the petitioner, having been sent for the first time by the Commission on July 23,giving him a period of 15 days to respond. On January 29,the Commission acknowledged receipt of the observations of October 30,submitted by the State, which were transmitted vallencia the petitioner on that same day, and to which he responded on December 24,and on January 23, In valecnia communications the pd victims were identified and they granted powers to the petitioner to represent them before the Commission.
They reiterated the statement of the petitioner that they had not identified themselves for fear of disruption of their privacy. They also reiterated their request that consideration of admissibility and merits be combined, pursuant to Article 37 3 of the Convention.
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Those observations were transmitted to the State on March 11,which responded on May 27,opposing the combination of procedures and insisting on inadmissibility. On October 10, a communication was received from the petitioner in which he sought to expand the petition to include Articles 1, 2, 5, 8, 11 224, 25 and 26 of the American Convention, as well as Articles 3, 10 and 15 of the Protocol of San Salvador.
This communication was received on October 10,and its pertinent portions were transmitted to the State on November 25,giving it a period of 60 days to respond. On January 23,the response of the government to the expanded petition was received.
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In that communication, the State requested that the petition be declared inadmissible for the reasons mentioned earlier, i. The petitioner The petitioner relates that on February 3,Presidential Decree S was issued, authorizing the practice of in vitro fertilization in Costa Rica and regulating that practice. He explains that the model established in that decree differed from the model used in other countries, because it applied only to personsls couples; it prohibited the insemination of more than 6 ovules, and it provided that all embryos must be deposited in the maternal uterus, prohibiting the freezing, peraonals or discarding of embryos.
The Constitutional Chamber based its decision on the fact that the technique of in vitro fertilization practice at that time implied a high loss of embryos, caused directly by the conscious and deliberate manipulation of reproductive cells. The petitioner argued that the technique of in vitro fertilization as regulated in Costa Rica was not a threat to life. He claimed, on the basis of medical studies, that not all human embryos develop to birth, and that the percentages of successful gestation in natural processes and in in vitro fertilization are similar.
The petitioner also challenged the ruling by the Constitutional Chamber that the human embryo is a person in law.
He referred to Article 31 and Article persnals the Costa Rican Civil Code, arguing that, while there is protection for the fetus, this is not absolute but conditional upon its live birth. The petitioner argues that the right to life is relative, and that although it is a fundamental right, it is subject to limitations when it is opposed to the protection of other fundamental rights.
He presents the present situation in that context, maintaining that to protect one right unconditionally is in effect to deny other rights. The petitioner extends this concept of zex to the protection of life as of the moment of conception. He claims that the American Convention recognizes this relativity in declaring, in Article 4, that life must be protected by law and, in general, from the moment of conception. He adds, however, that this right must be examined in light of Article 32 of the Convention, which stipulates the relationship between rights and duties.
The petitioner maintains perzonals the prohibition on the practice of in vitro fertilization in Personqls Rica constitutes discrimination and unequal treatment among patients, thereby violating Articles 1 and 24 of the American Convention. He argues that this prohibition makes it impossible to treat persons suffering from sterility or infertility, while at the same time it allows for the use of scientific and technological advances to cure or alleviate other illnesses.
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The petitioner argues further that the prohibition of in vitro fertilization implies violation of the right to health, enshrined in Article 10 of the Protocol of San Salvador, and the right to physical, mental and moral integrity protected in Article 5 of the American Convention. The petitioner also claims that the State of Costa Rica violated Article 17 of the American Convention through its prohibition of in vitro fertilization, by denying to men and women who suffer from infertility or sterility the possibility of founding or constituting a family.
The petitioner argues that the prohibition on in vitro fertilization in Costa Rica also constitutes arbitrary and abusive interference in the private and family life of persons who need and want to undergo that medical procedure in order to found a family, thereby violating Article 11 2 of the American Convention.
He adds that, given the nature of the unconstitutionality judgment, the pd victims were unable to enforce their rights or to be heard, which he claims is a violation of the judicial guaranties established in Articles 8 and 25 of the American Convention. The petitioner observes that the prohibition of in vitro fertilization in Costa Rica has caused severe pain and suffering to the pd victims, and in particular to the women, and maintains that the Costa Rican State failed to take effective measures to prevent or address those violations.
He stresses that there is very strong pressure, especially on women, to have children, and that the lack of treatment prolongs and exacerbates the emotional suffering caused by that pressure. The petitioner argued at first that the victims in the present case could not be identified individually because they chose confidentiality in order not to be subjected to interference in their private lives.
Moreover, he declared that the identity of the victims would only be revealed if requested by the Commission.
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Nevertheless, as noted earlier, in his later communications the petitioner presented a list of atures of the pd victims, who declared that they were granting him powers to represent them before the Commission. The petitioner asks the Commission to declare that the prohibition of in vitro fertilization violates Articles 1, 2, 4, 5, 8, He also asks that the victims be granted the right to fair compensation for the injuries caused to them, in particular in relation to those victims who had to move abroad in order to perform fertilization, and those who, because of their advanced age, would be unable to have children even if the practice were allowed in the future.
The petitioner also asks that the status of victim be accorded the company that acquired the medical equipment for practicing in vitro fertilization in Costa Rica, and that was unable to make use of that equipment because of the prohibition issued by the Constitutional Chamber. The State The State argues that, from the biological and legislative viewpoint, it can be demonstrated that the duty to protect a life begins at the moment that life is determined to exist.
The State adds that it does not matter whether that life is incorporated in a visible human being, but that on the contrary, protection must be given to that life at the earliest moment of its existence. It insists that, with fertilization, a personlas life begins to develop, and that it must be protected. The State maintains that, even though Executive Decree S required that all fertilized audios must be implanted in the maternal uterus, and it prohibited their elimination or preservation, the mere manipulation personale embryos so that only one will survive means the death of other embryos.
Moreover, it argues, even if deaths occur within the maternal uterus as a result of natural causes it is unacceptable that death should be predictable as a result of human manipulation. The State adds that the problem is not limited to the of human peersonals lost, but has to do primarily with the predictability of those deaths.
The State rejects the petitioner's argument that the embryo has no legal personality. The State uses legislative arguments such as the provisions of the Costa Rican Civil Code, Article 31 of which protects the right to life as of days prior to birth.
In addition, the State argues that the technique of in vitro fertilization is not an emergency treatment to save lives. It maintains that infertility or sterility should not be considered a disease, because perosnals does not involve an alteration of a person's health, but is rather a biological condition or consequence of a disease. It maintains that in vitro fertilization is not an emergency treatment nor a cure for a disease, since it does not resolve its causes: it is, instead, an artificial recourse that seeks to overcome that biological condition.
The State concludes that it would be playing with human lives to practice in vitro fertilization, for this reason it would be contrary to the rights that protect life within Costa Rican domestic law.
The State also argues that authorization of in vitro fertilization in Costa Rica would be violating not only the right to life recognized in the American Convention, but also other instruments of international human rights law such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which recognizes the need for special protection for children, both before and after birth.
The State maintains that the principle of equality and nondiscrimination does not mean giving identical treatment to each medical situation, but instead requires that the particular circumstances of each case be considered in order to provide proper medical intervention. It insists that the treatment to which people suffering from infertility or sterility may submit must be limited by the provisions of the Constitution and by international provisions for the protection of human rights.
With respect to the right to raise a family, the State argues that, while there is a right to have children and to found a family, that right must be limited by higher values such as the right of all human beings, without distinction, to have their life protected. On this point, it declares that the principle of the indivisibility and interdependence of human rights means that some rights cannot be sacrificed for the sake of other rights.
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It is not legitimate to exercise that right by depriving other human beings of their life. On this point, it declares that the principle of the indivisibility and interdependence of human rights holds that some rights cannot be sacrificed for the sake of others. As to the relationship between rights, the State argues that the principle implies that every right has its limits, which are determined by the rights valencis others.
In its own interest, it declares that the right to life for embryos implies a limit on the rights of others, including couples seeking to have children and scientists seeking to experiment with embryos. As to the alleged violation of privacy, the State maintains that the practice of in vitro fertilization is not a private matter, or one that implies no offense to society.
It adds that, as established, the current technique of in vitro fertilization is not only contrary to public order, morals and customs, but in deed inconsistent with the right to life, which means that the State moreeno a legitimate interest in intervening.
With respect to the alleged violation of judicial guaranties and protection, the State points out that constitutionality proceedings in Costa Rica Articles 81 and 83 of the Constitutional Jurisdiction Act require notice to be published three times in the official gazette, indicating intention to file a petition.
The purpose of this is to provide public notice that proceedings are to be initiated, so that persons with a legitimate interest can participate in those proceedings.
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The State also points out that, while constitutional jurisprudence is binding, it does not tie the hands of the Chamber itself, which could eventually reverse its decision if there were sufficient grounds for doing so. Thus, the State maintains, the pd victims identified did not have their complaints examined by domestic courts, and on these grounds it argues failure to exhaust domestic remedies, and the untimeliness of the petition, because of the late perssonals of the prison victims.
It maintains that the petition in question does not refer to any act of violence against women, or any lack of diligence that might provoke such violence.
It adds that the suffering caused to men and women by the problem of infertility has no causal valenca to valenvia Costa Rican State. With respect to admissibility, the State argues that the petitioner lacks standing in the case because he has failed to identify the victims individually at the proper time during the proceedings, and he did not establish the relationship between those victims and the case in question.
It also maintains that the companies Costa Rica Ultrasonografia S. The State again argues that the petition is groundless and out of order because it does not State facts that would characterize a violation of the human rights protected in the American Convention.