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Nicaragua informed the Commission that the requested treatment had already been initiated.
This was a case in which physicians in Nicaragua refused to perform a legal medical intervention.
Indeed, this State’s legislation proscribes every form of direct termination of pregnancies, but
abortions occurring as the consequence of indispensable and urgent therapeutic interventions
for saving the life of the mother, without the direct killing of the unborn, are allowed by the law.
This brief will refer later on to the distinction between direct and indirect abortions.
The Commission’s most recent report in the matter of the unborn is the one that gave
rise to this case, Gretel Artavia et al. v. Costa Rica. This report is an answer to several claims
against the prohibition of in vitro fertilization in Costa Rica, 119 prohibition which was established
by a judgment of this country’s Supreme Court. This highest tribunal stated that in vitro
fertilizations currently involve the death of a high proportion of embryos, constituting a
violation of the right to life. 120 It is interesting to consider that the judge who delivered the
opinion of the Costa Rican Supreme Court was Rodolfo Piza Escalante, a former President of
the Inter-American tribunal who deemed this judgment to be in accordance with the Pact of San
José.
The Inter-American Commission considered that this decision violated the following
Articles of the Convention: 11(2) (to private and family life), 17 (2) (to raise a family), and 24
(equality before the law and equal protection of the laws), in relation to the general obligations
established in Articles 1.1 and 2. 121 The Commission’s report did not analyze the content of
Article 4(1), despite the fact that Costa Rica’s defense was mainly based on this right. Regarding
this Article, the Commission only asserted that the State had a legitimate aim in general terms,
consisting in the protection of a legal good such as life. 122
The Commission studied in detail whether Costa Rica’s prohibition violated the rights
established in Articles 11, 17 and 24. When analyzing whether the restriction of the first two
rights was adequate, this body stated that the measure of prohibiting in vitro fertilizations
fulfilled the requirements of legality, legitimate aim, and adequacy, but that there were less
119 Gretel Artavia Murillo et al. y Otros (Fertilización in vitro) (in Spanish), Costa Rica, Report No. 85/10,
Decision on the Merits, Case 12.361, 2010, Inter-Am. Comm’n H.R.
120 Supra note 29, especially “Considerando” IX. The Supreme Court also asserted that “The human
embryo is a person from the moment of conception” (author’s translation). Id. “Considerando” IX.
121 Gretel Artavia Murillo et Al. (In Vitro Fertilization), Costa Rica, Case 12.361, Inter-Am. Comm’n H.R.,
Report No. 85/10, Decision (2010).
122 Id., 96.