Costa Rica finally allows IVF after 15-year ban


Diego Arguedas Ortiz

SAN JOSE, Costa Rica, Tuesday September 15, 2015, IPS – After banning in vitro fertilization for 12 years and failing to comply with an Inter-American Court of Human Rights ruling for another three years, Costa Rica will finally once again allow the procedure for couples and women on their own.

On Sept. 10, centre-left President Luis Guillermo Solís issued a decree ordering compliance with the Inter-American Court’s 2012 verdict against the ban fomented by conservative sectors. The president ordered that measures be taken to overcome judicial and legislative barriers erected against compliance with the Court judgment.

“This was discriminatory,” lawyer Hubert May, the representative of several of the 12 couples who brought the legal action against the ban before the Court, told IPS. “The ban only affected those who couldn’t afford to carry out the procedure abroad, or those who weren’t willing to mortgage their homes or take out loans to fulfill their longing (for a child of their own).”

In November 2012, the Court ruled that the ban on in vitro fertilization (IVF) violated the rights to privacy, liberty, personal integrity and sexual health, the right to form a family, the right to be free from discrimination, and the right to have access to technological progress. It gave Costa Rica six months to legalize the procedure.

But opposition from conservative sectors blocked compliance and hurt Costa Rica’s image in terms of international law.

Solís’s decree regulates IVF and puts the public health system in charge of the procedure, thus ensuring access for lower-income couples.

May said the decree “solves the problem of discrimination” by paving the way for the social security institute, the CCSS, to provide IVF as part of its regular health services.

IVF is a reproductive technology in which an egg is removed from a woman and joined with a sperm cell from a man in a test tube (in vitro). The resulting embryo is implanted in the woman’s uterus.

In its 2012 ruling, the Court stated that Costa Rica was the only country in the world to expressly outlaw IVF, a measure that directly affected local women and couples. In Latin America the procedure was first used in 1984, in Argentina.

One of the women affected by the ban was Gretel Artavia Murillo, who with her then husband ran up debt in an attempt to have a baby in the late 1990s.

Her now ex-husband, Miguel Mejías, declared before the Court that he had mortgaged his home and spent all his savings for the couple to undergo in vitro fertilization in Costa Rica, but before they were able to do so, the practice was declared illegal.

IVF was first regulated in Costa Rica in 1995, but was banned in March 2000 by the constitutional chamber of the Supreme Court.

Five of the seven magistrates on the constitutional chamber argued that the law violated the right to life, which began “at conception, when a person is already a person…a living being, with the right to be protected by the legal system.”

Artavia and Mejía, along with 11 other couples, brought the case to the Inter-American Commission on Human Rights in 2001, and a decade later it reached the Inter-American Court. The Commission and the Court are the Organization of American States (OAS) autonomous human rights institutions.

A year later, the Court, which is based in the Costa Rican capital, San José, and whose rulings cannot be appealed and are theoretically binding, handed down its verdict.

“The constitutional chamber’s view was not shared by the Court, which considered that protection of life began with the implantation of a fertilized egg in the uterus,” said May.

May and other experts on the case said the position taken by Costa Rica’s highest court responded to the extremely conservative views of the leadership of the Catholic Church, and of other Christian faiths with growing influence in the country.

This Central American nation of 4.7 million people considers itself a standard-bearer of human rights in international forums. But the question of IVF tarnished that image when the conservative sectors took up opposition to it as a cause.

The debate in the legislature on a law to regulate IVF stalled for over two years, due to resistance by evangelical and conservative lawmakers.

In a Sep. 3 public hearing by the Court on compliance with the 2012 ruling, the executive branch said it planned to regulate the procedure by means of a decree, which civil society organizations saw as a reasonable solution to the stalemate over the new law.

“We know that in the legislature there is no way to forge ahead on key issues, such as practically anything to do with sexual and reproductive rights,” Larissa Arroyo, a lawyer who specializes in these rights, told IPS.

Arroyo pointed out that with regard to an issue like IVF, time is of the essence, given that a woman’s childbearing years are limited. She noted that “almost all of the victims lost their chance” to have children using the technique.

In the week between the public hearing and the signing of the presidential decree, the government consulted Costa Rica’s College of Physicians and the CCSS. While both backed the decree, the CCSS clarified that it preferred a law and warned that it would need additional funding, because each fertility treatment costs around 40,000 dollars.

The decree limits the number of fertilized eggs to be implanted to two.

In the same week, the legislative debate became further bogged down. While one group of legislators tried to expedite approval of the law to regulate IVF, another group continued to oppose the procedure as an attack on human life at its origin, likening it to the Jewish holocaust.

“The extermination camps of Nazi Germany are in the Costa Rica of today, the Costa Rica of the Solís administration,” evangelical legislator Gonzalo Ramírez, of the conservative Costa Rican Renewal Party, even said at one point.

Given that outlook and the impasse in the legislature, organizations like the Centre for Justice and International Law (CEJIL) celebrated the decree which offers “universal access” to IVF and “respect for the principle of equality.”

However, CEJIL programme director for Central America and Mexico Marcia Aguiluz recommended waiting until IVF is actually being implemented.

“The decree lives up to the requirements, but it is just a first step,” said Aguiluz, who is from Costa Rica. “Until the practice starts being carried out, we can’t say there has been compliance.”

Lawyers for the presidency said the decree is equipped to withstand legal challenges.

The 2012 ruling is the second handed down against Costa Rica in the history of the Court. The previous one was in 2004, when the Court found that the conviction of journalist Mauricio Herrera by a Costa Rican court on charges of defamation of a diplomat violated free speech, and ordered that the country enact new legislation on freedom of expression.

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  • Sonny Fox

    IVF is a perfect great solution for those ones who can
    carry a child but can’t conceive due to various medical reasons. It can be seen
    that today European countries step by step have been liberalizing bans
    concerning the use of assisted reproductive methods. And it must be so!!! Just look
    at the figures – every seventh couple in the world can’t conceive or bear a
    child. And these people must have opportunity and right to use possible methods
    in order to have children. I appreciate countries that allow surrogacy and egg
    donation procedures, such as Ukraine for example, or some American states. The
    only thing is to write correct laws taking into account rights and obligations
    of all parties participant in the program. Costa Rica has started this way and
    I hope will develop this needed branch. I know in Ukraine for example such IVF procedure
    costs €9,900 with unlimited number of attempts, and moreover with repayment in
    case of negative result. It’s incredible! In America these programs are more
    expansive. Nevertheless America is a kind of world brand “made in America”. So
    time will show. Any way I think Costa Rica has made a right step. Time will show how it will be. But anyway I wish Costa Rica and local officials to try their best in order to become good leader
    in this useful field.

  • Melissa

    Today many countries revise
    local laws concerning assisted methods of reproductive medicine.
    As they see
    people go foreign states in order to solve the problem of infertility with the
    of surrogacy. And I see nothing evil in such procedure. The main aspect is
    that laws must be
    written in such way to protect rights of all participants of the
    program. Surrogacy is rather
    popular program as well. Ukraine can be a good
    example in this issue. According to the
    Ukrainian law parents considered to a
    couple who used surrogate motherhood and surrogate mother has no biological connection
    with a child. There are rather good clinics in Ukrainian
    capital that conduct
    such programs. They are extremely attractive for foreigners because
    of the good
    price, high level and what is the most important are high success rates of ivf
    programs and guarantee of result. Some clinics even guarantee 100% positive
    result of the
    program and refund in the case of failure. I guess Costa Rica can
    make a right decision.
    As Ukraine for example meets thousands of infertile
    couples each month and develops
    medical tourism in such good way. Maybe in
    future Costa Rica will become a competitor
    for Ukraine. Time will show. But it’s
    rather interesting.

  • Melissa

    As of Ukraine Sonny I have found a lot of information about this state. I read that in Ukraine services of reproductive medicine with the use of assisted methods (IVF, donor eggs, and surrogacy) monopolized and conducted by one big medical center BioTexcom. Yeh, it shows great result. Nevertheless I read both positive and negative comments concerning service of this clinic. But I’d like to say that Ukraine has the most friendly legislation concerning the use of ART than any country in Europe. “Ukraine is the friendliest country as of surrogacy. In the sphere of surrogate motherhood Ukrainian legislators have proven to be far more progressive than many of their European colleagues. Today, there are only a few countries that permit surrogacy conduction. Unlike other nations that limit or even ban surrogacy, in Ukraine the intended parents of child are considered to be biological parents from the moment of conception, and they are specifically named as biological parents in the birth certificate without any mentioning of surrogate mother. So, first of all, it is worth mentioning that surrogacy in Ukraine is legal over the whole territory of the country. In Ukraine,
    juridical aspects of surrogacy are regulated by the following legislative acts Family code of Ukraine; Ukrainian Ministry of Justice act on “alterations to civil registration regulations in Ukraine” № 1154/5 from 22.11.2007; Ukrainian Ministry of Health order “on approval of reproductive technologies appliance” № 771 from 23 December 2008. By paragraph 10 article 3 of Ukrainian Ministry of Justice act from 22.11.2007 № 1154/5 procedure for the children registration is established, meaning children who were born with the help of reproductive programs: “In case a baby is born by a woman, who was implanted an embryo conceived by a married couple, registration of birth is carried out upon application of married couple who consented implantation. In this case concurrently with the document, avowing birth of a child by this woman, verified by notary written consent on recording married couple to be parents is applied”. Rights of birth parents are protected by law. Corresponding, children rights are protected, who are born with ART (assisted
    reproductive technology): genetic (biological) relationship with mother and father is considered.

  • Melissa

    As of Agreements in this law. Various agreements have to be signed between the parties, including contracts with the medical institution responsible for insemination and further medical surveillance, the surrogate mother and surrogacy agency (if any). The surrogacy agreement must be in writing and signed before a notary prior to the embryo transfer. At a bare minimum, the following issues should be addressed: surrogate mother’s health status; conditions which surrogate mother should observe; medical institution where the procedure will be performed; surrogate mother’s remuneration, additional expenses, timing of payment(s); expenses connected with impregnation, pregnancy, act of delivery and registration of child; procedure of child transfer and registration; any force majeure provisions, including the delivery of handicapped child, delivery of more than one child, delivery of dead child, delivery complications resulting in surrogate mother’s future infertility; confidentiality provisions and non-disclosure of information to the child or any third party, etc. An
    agreement with the medical institution deals primarily with the medical institution’s services, including responsibility for choice of surrogate mother (if applicable) and her full medical examination, obligation to carry out all procedures in accordance with the methods approved by the Health Ministry of Ukraine and intended (genetic) parents’ requirements, the terms and conditions of medical observation during the pregnancy, payment structure, confidentiality and non-disclosure of information to the child or any third party, among others. Some medical institutions request that intended parents “shall not to submit any legal claims against the institution for any reason,” which clearly contradicts Article 3 of the Civil Procedural Code of Ukraine, namely, the individual’s right to defend his or her interests in court. Since the Ukrainian Family Code presumes that genetic parents of the child born by a surrogacy will be a married couple, a Ukrainian notary will need to see a marriage certificate of the genetic parents, notarized and apostilled (at your home state department), translated and translation must be notarized.