San José, Costa Rica, since 1956

Deadline for in vitro fertilization bill looms

More than 11 years ago, Claudia Carro and her then-husband began the process of in-vitro fertilization (IVF). Carro had taken the injections needed for the procedure when, in 2000, the Constitutional Chamber of the Supreme Court (Sala IV) ruled that IVF was unconstitutional on the grounds that it violates the right to life. The court ruled that life begins at conception, therefore embryos and fetuses have the same rights as already-born individuals.

The court ruling changed Carro’s life and the lives of many other couples in Costa Rica. Carro never had a child with her ex-husband. In January 2001, Carro, her ex-husband and eight other couples filed a suit against Costa Rica with the Inter-American Commission of Human Rights (IACHR).

 Late last year, the commission determined that the Sala IV’s ruling violated human rights that are guaranteed by international treaties, including the American Convention on Human Rights (the Pact of San José). IACHR issued a series of recommendations to the Costa Rican government last August, nearly a decade after the complaint was first submitted.

“It’s been a struggle that I truly wish would have been resolved years ago,” Carro said. “How many children have not been born? How many couples have not had the possibility?”

Carro’s inability to have children led to marital problems with her now ex-husband. But it also inspired a career, as Carro, who is a lawyer, decided to specialize in family rights.

The Costa Rican government responded to IACHR recommendations by proposing Bill 17,900 last October. The bill would allow IVF, but would ban the freezing or disposal of human embryos. Experts in the medical community have harshly criticized the restrictions contained in the bill, arguing that women’s health would be placed at risk.  

The IACHR set a Feb. 23 deadline for the Costa Rican government to comply with the commission’s recommendations, according to IACHR’s outreach office director, Maria-Isabel Rivero. Costa Rican officials can request more time to implement the recommendations, she said.

If after reviewing the bill the commission finds that it fails to comply with recommendations, the case would then be referred to the Inter-American Court of Human Rights, whose rulings are binding and cannot be appealed. 

In a Jan. 31 press conference, Costa Rican Ombudswoman Ofelia Taitelbaum said she supports IVF, but not the medical technique described by the bill, which she said does not comply with IACHR recommendations for guaranteed universal access. The bill violates women’s rights and fails to outline a viable technique of fertilization, she said.

The Ombudsman’s Office this week outlined three areas of concern for Costa Rica’s IVF bill: Article 3, which would require women to be in good physical and mental health in order to undergo the procedure, which Taitelbaum described as a “very broad concept;” Article 6, which states that human beings shall enjoy basic rights from the time of fertilization; and Article 8, which requires that all fertilized eggs be transferred to the woman who produced them.

Gerardo Escalante, director of the Costa Rican Institute for Infertility and the first doctor in Costa Rica to have performed IVF in 1995, said the procedure is a “delicate” topic in which there is no common consensus in the world. Laws regarding IVF vary even from state to state in the United States, he pointed out. He said that the U.S. National Institute of Health defines an embryo as a “potential” human being, whose rights should not be greater than adults who wish to have a child.

“Costa Rica says that we can’t preserve embryos. That’s an eminently religious concept. The Catholic Church considers conserving a frozen fertilized egg to be against human dignity,” Escalante said. “But only Costa Rica sees it that way. Other countries don’t think so.”

Escalante also said that requiring women to undergo mental health tests is discriminatory. “To have a child in real life, no one goes to a psychiatrist to see if they can be a mother or father.”

Escalante also said that allowing IVF on the condition that all of the fertilized eggs in the cycle of treatment are transferred to the woman who produced them is the most serious problem in the bill. “If a woman keeps ten implanted embryos, first, she’s going to lose all of them in some hospital at three or four months. And secondly, that woman will be running a very high risk of death,” he said. “It’s better to not have in vitro now, than to have in vitro practiced badly, with people in Costa Rica starting to die.”

Another issue is whether the Costa Rican Social Security System (Caja) will provide the procedure. “If they don’t do it,” Escalante said, “discrimination will exist.”

Claudia Carro agrees. She says she will be satisfied if IVF is allowed to be done properly, but will be even more so should the Caja offer the procedure, because then people with limited financial resources could access it.

Carro’s story has a happy ending. She now has a healthy 9-month-old son. But she also hopes Costa Rica will make the right move. “My personal struggle is for [in vitro fertilization] to come to all Costa Ricans,” she said.

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