Luisa Cabal

(WOMENSENEWS)–Faced with difficulties in their ability to have children, Costa Ricans Ana Cristina Castillo Leon and her husband Victor tried hormones, surgery and artificial insemination in the late 1990s.

With her history of endometriosis and his low sperm count, they had no success.

By 2000, they turned to in vitro fertilization, or IVF, at the only clinic in Costa Rica to offer it, the Instituto Costarricense de Fertilidad in San Juan.

But their procedures ended abruptly on March 15, 2000, when IVF was officially banned in Costa Rica, the only country in North and South America to outlaw it.

The action came from a decision of the nation’s top court, the Costa Rican Constitutional Chamber, which held that the government had a duty to protect life from the moment of fertilization. Because some fertilized eggs or embryos might perish in the IVF process, the court voided a 1995 presidential decree permitting IVF.

The challenge against the government’s policy permitting IVF was brought by an individual attorney, Herman Navarro del Valle, who describes himself in the papers as “a Catholic lawyer.”

Now, the couple and nine others and their doctor, Dr. Delia Ribas, are at the center of the first international effort to apply human rights treaties to assisted reproductive technologies. The case, which could have implications worldwide, highlights international threats to women’s right to choose, not only on IVF and the right to bear children, but on birth control, emergency contraception, abortion and other healthcare, according to the Center for Reproductive Rights, which filed a brief to support the couples on Dec. 13.

Part of Legal Strategy

“What we’re seeing is conservative groups using the law in any way they can to place obstacles to women’s choices,” said Luisa Cabal, deputy director of the international legal Program of the New York-based Center for Reproductive Rights and an expert on reproductive rights in Latin America. Women’s eNews named Cabal a 21 Leader for the 21st Century 2003. “This is not an isolated case. It is part of an articulated legal strategy, attacking the same legal foundation that upholds other women’s rights and trying to mislead the courts into saying that the international law protects the right to life of the fetus.”

Several international human-rights principles support the Costa Rican couples, said Cabal, including the right to form a family, right to privacy, right to reproductive self-determination and right to benefit from scientific progress.

The Costa Rican couples are appealing to the seven-member Inter-American Commission on Human Rights, part of a human rights system created by the Organization of American States. The particular issue to be discussed, according to commission documents, is whether the Costa Rico decision “to restrict individual access to measures in favor of family planning and childbearing” is consistent with human rights treaties and principles that the country has ratified, including programs of action at two international women’s conferences in Cairo and Beijing.

The commission, located in Washington D.C., will hear the case at its next meeting in March 2005. It is empowered to release a report, negotiate a resolution, or refer the case to the Inter-American Court of Human Rights, which can decide on the measures that must be taken to protect violated rights. Increasingly, determinations from such international bodies are used as persuasive argument before various national forums, including the U.S. Supreme Court.

Elizabeth Abi-Mershed, a staff attorney and principal specialist in human rights at the Inter-American Commission, says no anti-choice organizations have filed amicus briefs at this time, although she said that the government, which is charged with defending the action, has the power to bring in other organizations.

The government, which must defend the policy before the Inter-American Commission, argues that in vitro fertilization violates the right to life of embryos and is contrary to public order, morals and customs. The government urges that international conventions recognize the protection of embryos and that the right to found a family is limited by higher values, such as the right to protect all life, before and after birth.

One of Several Procedures

“In vitro,” which literally means “in glass” in Latin, is one of several procedures used to help infertile couples bear children. Dating to the 1978 birth of Louise Brown in England, the IVF process involves surgically retrieving eggs from a woman, which are then injected with the partner’s sperm in a laboratory dish. Typically more eggs are fertilized than are needed. After several days, fertilized eggs are surgically deposited in the woman’s uterus in an embryo transfer (research on unused IVF embryos is at the heart of the U.S. debate on stem-cell research). If a large number mature, some are removed in a “selective reduction” abortion procedure.

Worldwide figures are unavailable, but over 250,000 IVF children have been born in the United States in the last 23 years, according to the American Fertility Association, an advocacy group in New York. The latest statistics collected by the Centers for Disease Control recorded more than 40,000 babies born in the United States in the year 2001 as a result of assisted reproductive technologies.

In the five years that IVF was legal in Costa Rica, 15 babies were conceived, according to Cabal. The 1995 presidential decree that legalized IVF set strict limitations on its use. IVF could only be used by married couples, was limited to a maximum of six eggs and all embryos were required to be transferred into the woman.

Court Objects to Cellular Manipulation

But the Costa Rican court objected to the “conscious and deliberate manipulation of reproductive cells,” according to findings released by the Inter-American Commission in March 2004.

The decision is consistent with the position of the Catholic Church. Seventy-six percent of Costa Rica’s 3.9 million citizens are Catholic. In the United States, current health care directives issued by the U.S. Conference of Catholic Bishops prohibit Catholic hospitals from using IVF, although some make accommodations when certain procedures are done outside the hospital facility, said Eleanor Nicoll, public affairs officer of the American Society for Reproductive Medicine, a trade association of medical professionals, headquartered in Washington, D.C.

Catholic anti-choice advocacy groups strongly oppose IVF. The American Life League, based in Stafford, Va., warns against IVF because it separates procreation from sex. Rev. Thomas J. Euteneuer, president of Human Life International, a worldwide organization with headquarters in Front Royal, Va., wrote in 2003 on “the immorality of in vitro,” which, in permitting the loss of embryos, indicates that “IVF manipulates, destroys and dehumanizes the tiniest human beings.”

Two medical doctors who studied the definition of “personhood” worldwide concluded that “religious tradition has had a great influence” on the moral and legal status of an embryo.

‘Personhood’ Varies Widely

In the May 2004 issue of Fertility and Sterility, physicians Howard W. Jones, Jr. of Eastern Virginia Medical School and Jean Cohen of Paris, report that “personhood” is recognized at various points: conception, implantation, 14 days, 120 days, viability, live birth. Even so, researchers in the Costa Rican case can identify only one other country, Libya, that outlaws IVF.

Some pro-choice individuals and groups also ask questions about the exclusivity, commercialization and health risks of assisted reproductive technologies and continuing scientific developments.

At a Dec. 9 seminar on biotechnology at the City University of New York, Dorothy Roberts, a professor of law at Northwestern University and author of “Killing the Black Body: Race, Reproduction, and the Meaning of Liberty,” said that inaccessibility of poor and minority women to these technologies poses the danger of “intensifying the racial divide.”

In April, Judy Norsigian, executive director of the Boston-based health group, Our Bodies, Ourselves, and the Center for Genetics and Society, wrote jointly to a Presidential Council, saying they support technology aiding infertile women, but are concerned about a “the unregulated and commercialized atmosphere.” Norsigian was also named a Women’s eNews 21 Leader 2003. Political issues also arise in some countries about access to technology by single women or lesbians, a current controversy in Australia.

Cynthia L. Cooper is an independent journalist in New York who writes frequently about reproductive rights.

For more information:

Center for Reproductive Rights–
Center Joins Couples’ Legal Battle Against Costa Rica’s IVF Ban:

Inter-American Commission on Human Rights–