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COSTA RICA: Infertile Controversy over Right to Form a Family

Daniel Zueras

SAN JOSÉ, Dec 16 2010 (IPS) - Costa Rica is one of the few countries in the world where in vitro fertilisation (IVF) is illegal. And the Vatican wants it to stay that way: Pope Benedict XVI himself recently urged the government not to pass a law that would make it legal.

But if IVF is not legalised soon, Costa Rica will be hauled before the Inter-American Court on Human Rights.

In 2000, the constitutional chamber of the Supreme Court banned IVF in this Central American nation, ruling that the procedure violated the right to life of embryos that are not successfully implanted in a woman’s womb

A year after the court handed down its decision, 10 Costa Rican couples filed a legal complaint with the Inter-American Commission on Human Rights (IACHR), arguing that the ban violated their right to form a family.

The IACHR issued a preliminary decision in August finding the ban to be a violation of basic human rights. It told the Costa Rican government that it must revise the country’s laws, to bring them into line with international conventions.

The Washington-based IACHR said the 2000 constitutional court ruling amounted to “arbitrary interference” and a restriction that is incompatible with article 17 of the American Convention on Human Rights, which recognises “The right of men and women of marriageable age to marry and to raise a family”.

The Organisation of American States (OAS) human rights body set a Feb. 2 deadline for the government of conservative President Laura Chinchilla to make significant progress towards eliminating the ban on IVF. If it fails to do so, the case will be referred to the San José-based Inter-American Court of Human Rights, whose rulings are binding and cannot be appealed.

The resurgence of the controversy in Costa Rica has coincided with the award of the 2010 Nobel Prize in Medicine to Robert Edwards, the 85-year-old British scientist who pioneered IVF. He received the prize in Stockholm on Dec. 10.

The first “test tube” baby, Louise Brown, was born in Britain in July 1978.

To keep the case from going to the Inter-American Court, the government submitted a bill on IVF to the single-chamber legislature — which only its sponsors find satisfactory.

“We have been careful with the text and are optimistic that it will find the necessary support among the legislators,” Chinchilla’s chief of staff, Minister of the Presidency Marco Vargas, told IPS.

But Andrea Bianchi, one of the petitioners who brought the IACHR complaint, told IPS that the government “has not changed its position; (the bill) is just a way of gaining time.”

In its report, the IACHR also told the state to pay the petitioners reparations.

The bill establishes that every embryo must be used, “which poses a serious risk to both mother and child,” Germán Trejos, a lawyer representing the couples who filed the complaint, explained to IPS.

The consensus in the medical community is that no more than three embryos should be transferred to the uterus.

The requirement that all embryos be implanted effectively bans the storage of embryos for use in subsequent attempts, in case the first try does not work.

The bill would also require a special psychological test for couples wishing to undergo IVF.

The chair of the IACHR, Felipe González of Chile, said in November that if the Commission sees “insufficient or no will” on the part of the state to introduce a law, or if there are delays, the case will go to the Inter-American Court.

IVF is a costly treatment, and unless it is provided by the public health system, it is unaffordable to many couples, Trejos explained. In the United States, for example, the average cost of each attempt is 12,400 dollars.

“People tend to go to places closer to home, because it is an uncomfortable treatment, and you need the support of your family,” said Bianchi, who underwent the treatment in Colombia in 2001, where she became pregnant with twins.

“I was really lucky,” she said. “It cost me a total of 14,000 dollars, and it worked on the first try. But that’s not common; it normally takes more like four attempts.”

The treatment now costs around 4,500 dollars per try in Colombia and 2,800 dollars in neighbouring Panama.

IVF has become one of the reasons for medical tourism, a growing phenomenon in Latin America, in which Costa Rica is usually a destination rather than an exporter of patients.

In any case, Trejos does not believe the controversial bill will be approved by February. He pointed out that the draft law preceding the IVF bill “was just sent back to committee with 67 motions, which must be debated one by one. They won’t make it on time.”

If the original version of the bill is passed, it will run into resistance from the powerful Catholic Church, which is opposed to the legalisation of IVF, and from evangelical congregations.

“It is to be hoped that Costa Rica does not violate the rights of the unborn with laws that legitimise in vitro fertilisation or abortion,” Pope Benedict told the new Costa Rican ambassador to the Vatican on Dec. 3.

The government rebutted claims that the Pope’s message amounted to “meddling in internal affairs.”

Minister Vargas said “The Church has to look at these issues at a global, rather than national, level, which means that in this case its stance is not exclusive to Costa Rica, but applies to the whole world. We must respect that position.”

But the group pushing for IVF to be legalised complained about the pressure exerted by the Pope. “The Church interferes excessively in life in Costa Rica,” Bianchi said.

“The bishops participate actively in politics,” Trejos added.

The lawyer said the Pope’s remarks were “complete nonsense” from a scientific point of view, and pointed out that “many Catholic theologians of great prestige take a different position.”

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