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Politic(o)s

Rights in vitro: What Costa Rica's IVF struggle means for democracy

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A total of 15 years have passed since Costa Ricans lost the right to access modern medical techniques in hopes of becoming parents. While that situation may soon change, the way that change is taking place does democracy no favors, and reflects poorly on many of the central protagonists.

The recognition of rights is one of the quintessential and perpetual processes of modern liberal democracies. Costa Rica has one of the most advanced human rights records of any nation in the world. This has happened in two ways. First, the State – represented by the government – has been an eager signatory of international treaties on human rights. Second, the Constitutional Chamber of the Supreme Court, popularly known as the Sala IV, has expanded the scope of enforcement of those treaties domestically. In 2000, the court decided that international treaties on human rights bestowing greater guarantees to citizens than those contained in Costa Rica’s Constitution, even those not ratified by the State, are enforceable in the country. Legal academics and practitioners consider that this decision placed Costa Rica in a privileged position regarding the protection of human rights. When it comes to the recognition and enforcement of human rights, State authorities can no longer claim that the Constitution is the limit.

Despite these expansive judicial interpretations on human rights, the Sala IV has been ambivalent regarding the recognition of certain rights: for example, gay marriage. This, however, would be a topic for another column. Today, I would like to address the recognition of the right of access to medical techniques to procreate when natural means are impossible (known as in vitro fertilization, or IVF). The topic is an old one but has gained fresh relevance in Costa Rica, as the Legislative Assembly is currently debating a bill in the wake of the decision of the Inter-American Court of Human Rights allowing the technique. The bill’s passage is not without controversy, as it has been eagerly opposed by the so called “Christian parties” in Congress, altering the political agenda. Moreover, just a few days ago, the Sala IV suspended a new executive decree trying to regulate IVF in accordance with the Inter-American Court’s decision. (The Sala IV has since thrown out several challenges, but another challenge is still pending.)

Costa Rica is the only democracy in the Western Hemisphere that has banned this technique. Of course, this in itself is not an argument to support it. But discussion of IVF in Costa Rica should not be limited only to the question of whether we should have it or not, but also how we get access to it or not. The topic is as much about procedure as it is of substance. Unfortunately, the way in which Costa Rica has decided to ban or allow IVF has been one of the saddest episodes of our contemporary democratic history: one characterized by a lack of open and inclusive debate in the legislature, and of citizens having not only their reproductive rights denied for decades, but also their basic rights of democratic participation and opinion.

See also: Documentary on Costa Rica’s IVF battle airs on Sunday

In the year 2000, the Sala IV declared IVF unconstitutional because it opined that the procedure violated the right to life of embryos. The court also insisted that this type of practice should be regulated by only law and not by executive decree. It was up to the Assembly to decide the terms of IVF. However, one phrase in the same decision invalidated the latter argument: “Since this procedure [IVF], in and of itself infringes the right to life, express record must be made that, not even by law would it be possible to legitimately authorize its application, at least, the Court insists, while its scientific development remains in its current state.”

This decision triggered a long saga of judicial fights, political irresponsibility, and unfulfilled rights for couples wishing to access IVF. There have been two main consequences of the decision of 2000. Firstly, for almost 15 years Costa Rica has remained silent on the issue of reproductive rights and IVF. This is not healthy for any democracy. How can a court impose silence on a legislature for so long? Is this the best way to protect rights in a democracy? I doubt it. Moreover, while in 2012 the Inter-American Court reversed the Constitutional Court’s decision and declared that the IVF was in accordance with the American Convention of Human Rights, Costa Rica went from forbidding the IVF by order of a domestic court to allowing it by order of an international court. Supporters and detractors of IVF may have had different opinions, but neither had any opportunity to present their ideas in a legislature, or debate the recognition of reproductive rights. That was the work of courts.

Secondly, as the justices of the Inter-American Court said, couples seeking access to IVF saw their rights to have a family and to fulfill their life goals violated for a long time; moreover, the banning of the technique was an arbitrary intrusion of the State into their private lives, affecting their psychological integrity. Furthermore, and this is not in the decision of the Inter-American Court, couples seeking access to IVF were treated as second-class citizens, since their right of participation to fight for their reproductive rights in Congress was seriously restricted.

These couples finally found justice in an international court. That should not make our democratic institutions proud. Our Constitutional Chamber of the Supreme Court has been a pioneer of human rights, yet cases like this one should raise awareness not only of the moral and political – in the broad sense – nature of the Sala IV, but also of the limits of its powers.

On the other hand, Congress should stop renouncing its duty to debate human rights. It has become a common practice for legislators – mainly those opposing legislation – to bring issues for the Sala IV to decide, particularly regarding rights of deep moral disagreement. If they are afraid to debate and make decisions about rights, they should not have run for office in the first place. Moreover, minority parties should have the same right as majority parties to propose, discuss and oppose legislation, but not to avoid debate with dilatory techniques. They can even negotiate with the government which official bills to support: That is their legitimate political capital, but they should not use it to block initiatives that have the support of a majority of legislators. In the end, that only continues to erode the confidence of citizens in the legislature, and translating it to other institutions, such as courts. The internal rules of the Assembly should be amended not only to speed up the approval of laws but also to avoid the foreclosure of debate.

It has been argued that courts are the best place to protect rights. As this case has shown, judges also differ in the content of moral rights. On the other hand, with increasing intervention of courts in political and moral debates, our Congress has become somewhat indolent of its role, repeating mechanically what courts say. Today, a new bill on IVF is being rushed for approval due to the pressure of the ruling of the Inter-American Court condemning the State. At the same time, minority Christian parties are using whatever legal and political tools they can to avoid the discussion and approval of the new law.

This is a poor way to debate our rights. We should be aware that the interests, projects and aspirations of citizens are at stake. The recognition of rights is not a matter of courts, political factions or confined spaces. The recognition of rights belongs to Congress following open and public debates. This is how we build stronger democratic societies. This is how we respect and make possible what Jeremy Waldron, a political theorist, has called “the right of rights”that is, the right to participate and to be heard by others.

Read more Politic(o)s columns here.

Tomás Quesada-Alpízar is pursuing his doctoral degree in politics at the University of Oxford. In the monthly column “Politic(o)s,” he explores current events and political issues in Costa Rica and around the world. He welcomes reader questions and comments at politicostt@gmail.com.

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Ken Morris

You know, I think I disagree with the political philosophy expressed here.

In my opinion, rights in democracies are rooted in their constitutions, and thus enforced or not by the courts, not in their legislatures. This is by intentional design. Since legislatures operate by majority or plurality rule, and compromise alot while also tending to bend with political fashions, most democratic theorists believe that rights should be anchored in constitutions immune to a great extent from legislative meddling. The risk of rooting rights in the legislature is to have rights routinely abridged by the “tyranny of the majority.”

True, there remains a necessary feedback loop in how this all works in practice. Legislatures can usually amend constitutions, but also usually only with a super-majority vote rather than a simple majority, while either they or executives appoint and sometimes remove judges. There is no way to get around some legislative input into fundamental rights, but in the main this input is intentionally made difficult in order to prevent legislatures from trampling on basic rights, and this I think is as it should be.

The only real uniqueness in this case is that the right in question was established by an international court, rather than Costa Rica’s court or constitution. However, the country through its legislature agreed to abide by the rulings of this international court, so there’s really no reason for anyone to make a fuss over it.

Unless of course the legislature decides to remove itself from the treaty in which it agrees to abide by the rulings of the Inter-American Court of Human Rights. This is could do. However, this still wouldn’t make IVF a legislative issue, at least insofar as it is decided as a matter of right. It would be an issue for Costa Rica’s court to decide.

Moving from philosophy to practice, I’d prefer that Costa Rica remain under the jurisdiction of the Inter-American Court of Human Rights and just abide by its rulings. I prefer this because I find Costa Rica’s constitution far too long and riddled with internal conflicts to provide great guidance, and also because I find its judges far too eager to rule both on the basis of personal opinions than the law and with their heads in idealistic clouds. (Half of the Sala IV rulings aren’t ever enforced anyway.) I also find the indifference to precedent a huge problem. The courts can actually issue opposite rulings on the same issue on consecutive days. This is just not a sturdy constitutional court system, or therefore a strong protector of rights, so I think it’s wise for the country to accept the jurisdiction of an international court when it comes to rights.

Also in practice, good God would I not want the clowns in the legislature meddling with rights. The absolute worst structural feature of Costa Rica’s government is the election of legislators by party slate modified by a quota system. Even if we want rights to be decided upon democratically, which I don’t think we do, Costa Rica’s legislature is hardly democratic.

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