San José, Costa Rica, since 1956

Costa Rica's Supreme Court strikes down decree on IVF legalization, orders lawmakers to act

The fight to legalize in vitro fertilization in Costa Rica faces yet another setback after a high court struck down a recent decree by the administration of President Luis Guillermo Solís to legalize the procedure.

Ordered by the Inter-American Court of Human Rights to legalize IVF in the country, Solís – who faced legislative roadblocks on the issue – last September signed an executive decree to regulate IVF in Costa Rica, opening the possibility for people to pursue the fertility treatment here for the first time in 15 years.

But the Constitutional Chamber of the Supreme Court, or Sala IV, on Wednesday struck down that decree, saying a law to legalize and regulate IVF must be passed by the Legislative Assembly in order to be constitutional. The legal challenge to Solís’ decree was filed by evangelical lawmakers supported by conservative religious groups in the country.

The Sala IV also ordered lawmakers to abide by the international human rights court order to authorize IVF.

“The Costa Rican state has an obligation to comply with the Inter-American Court’s ruling” of November 2012, Sala IV justices stated.

Several bills to regulate IVF have languished in the Assembly, blocked by conservative Christian lawmakers who claim the reproductive procedure violates a constitutional right to life. A block of four evangelical lawmakers – of a total of 57 legislators in the Assembly – have repeatedly resorted to obstructionist tactics to prevent any of those bills from moving forward.

The country’s failure to legalize IVF violates the rights of an estimated 15,000 Costa Ricans who could benefit from IVF, according to Boris Molina, an attorney who represents several couples who filed a formal complaint before the Washington, D.C.-based human rights court.

Some of those plaintiffs last September expressed skepticism over the Solís administration’s decree. Plaintiff Andrea Biachi told The Tico Times at the time, “I really applaud the decision to do something, but I’m really not confident that it’s been worded in a way the Constitutional Chamber [of the Supreme Court] won’t reject, as they have with everything else dealing with [IVF] since 2000.”

It was the same court – the Sala IV – that banned IVF in 2000, making Costa Rica the only country in the Western Hemisphere to outlaw the fertility procedure.

Following Wednesday’s ruling, President Solís issued a brief statement saying that while he respected the Sala IV’s jurisdiction, he strongly disagreed with its decision.

“In my position as head of state, I have the obligation to utilize legal mechanisms at my disposal to guarantee the human rights of all Costa Ricans,” Solís said in a news conference.

Watch President Solís’ news conference on the ruling (in Spanish):

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Ken Morris

Although this and other articles on this issue are sketchy, if this article is correctly written, the case illustrates an ongoing problem with Costa Rica’s Supreme Court.

The court, I believe, was correct to rule against the presidential decree. Although it is a close call and I don’t mind Solís having given it a try, I’m pretty sure that IVF is a legislative rather than executive matter. It’s the legislature that must pass the appropriate laws, and yes the legislature is obligated to pass laws consistent with the requirements of the international treaties to which Costa Rica is a party–either that or rescind its agreement to the treaties.

However, where does the court get off “order[ing] lawmakers to abide by the international human rights court order to authorize IVF”? This was NOT, as I understand it, the case it adjudicated. That case was solely concerned with the legality of a presidential decree. The lawmakers were not a party to the case, and the court had no authority to order the legislature to do anything.

While common sense tells us that the legislature is obligated to do something–either abide by the international human rights court’s ruling or opt out of the treaty obligating it to abide by it–the SALA IV had no authority to use a case involving the authority of a president to issue a decree to rule on the obligations of the legislature too, since those obligations were not part of the case.

Basically, the court overstepped its authority. Instead of interpreting and ruling on the matters of constitutional law before it, which is its purpose, it added an extraneous opinion about an issue not even before the court. This is judicial overreach–and a serious problem in Costa Rica.

How serious? Well, serious enough for an estimated half of all overly broad SALA IV rulings to go unenforced, and make a mockery of the court.

These unenforced overly broad court rulings include one ordering the city of San José to remove illegal street vendors (albeit in a manner consistent with respecting their human rights). Obviously, this ruling has not resulted in the removal of the street vendors, and just as obviously the court’s mistake was to fail to limit itself to ruling on the specific case (street vendors are illegal) but to take the next stupid step of telling the city of San José that it was obligated to do the impossible (remove the vendors but respect their human rights).

And during the case involving the traffic fines being too high, a Supreme Court Justice actually added opinions about both traffic engineering and what the traffic laws ought to be. The Justice had no background in these matters, only personal opinions, and no authority to rule on anything except the specific case at hand. But this didn’t stop a judge from blathering on about engineering and legislative matters.

Meanwhile, with respect to IVF, it’s the court itself that declared it illegal before declaring it legal, sort of. Whatever. When judges rule based upon their personal opinions and show no restraint in offeriing their opinions or confusing them with constitutional law, you’re bound to get inconsistent rulings.

The courts, I believe, are still the most respected political institution in the country, and maintaining this respect is crucial. Once the courts lose their legitimacy, nothing else in the country can work.

A fast way for courts to lose this respect and legitimacy is for the judges to issue overly broad opinionated rulings that they have no authority to issue and won’t likely be enforced anyway. This ruling about the presidential decree regarding IVF, while correct in specifics, appears dangerously incorrect for once again revealing the court’s pattern of issuing expansive, opinionated decisions about issues it has no authority to comment upon.

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