A hearing in the Inter-American Court of Human Rights to follow up on compliance with its ruling that Costa Rica’s ban on in vitro fertilisation violates a number of rights. Credit: Inter-American Court of Human Rights

By Diego Arguedas Ortiz
SAN JOSE, Sep 15 2015 (IPS)

After banning in vitro fertilisation for 15 years and failing to comply with an Inter-American Court of Human Rights ruling for nearly three years, Costa Rica will finally once again allow the procedure for couples and women on their own.

On Sept. 10, centre-left President Luis Guillermo Solís issued a decree ordering compliance with the Inter-American Court’s 2012 verdict against the ban fomented by conservative sectors. The president ordered that measures be taken to overcome judicial and legislative barriers erected against compliance with the Court judgment.

“This was discriminatory,” lawyer Hubert May, the representative of several of the 12 couples who brought the legal action against the ban before the Court, told IPS. “The ban only affected those who couldn’t afford to carry out the procedure abroad, or those who weren’t willing to mortgage their homes or take out loans to fulfill their longing (for a child of their own).”

In November 2012, the Court ruled that the ban on in vitro fertilisation (IVF) violated the rights to privacy, liberty, personal integrity and sexual health, the right to form a family, the right to be free from discrimination, and the right to have access to technological progress. It gave Costa Rica six months to legalise the procedure.

But opposition from conservative sectors blocked compliance and hurt Costa Rica’s image in terms of international law.

Solís’s decree regulates IVF and puts the public health system in charge of the procedure, thus ensuring access for lower-income couples.

May said the decree “solves the problem of discrimination” by paving the way for the social security institute, the CCSS, to provide IVF as part of its regular health services.

IVF is a reproductive technology in which an egg is removed from a woman and joined with a sperm cell from a man in a test tube (in vitro). The resulting embryo is implanted in the woman’s uterus.

In its 2012 ruling, the Court stated that Costa Rica was the only country in the world to expressly outlaw IVF, a measure that directly affected local women and couples. In Latin America the procedure was first used in 1984, in Argentina.

One of the women affected by the ban was Gretel Artavia Murillo, who with her then husband ran up debt in an attempt to have a baby in the late 1990s.

Her now ex-husband, Miguel Mejías, declared before the Court that he had mortgaged his home and spent all his savings for the couple to undergo in vitro fertilisation in Costa Rica, but before they were able to do so, the practice was declared illegal.

IVF was first regulated in Costa Rica in 1995, but was banned in March 2000 by the constitutional chamber of the Supreme Court.

Five of the seven magistrates on the constitutional chamber argued that the law violated the right to life, which began “at conception, when a person is already a person…a living being, with the right to be protected by the legal system.”

Artavia and Mejía, along with 11 other couples, brought the case to the Inter-American Commission on Human Rights in 2001, and a decade later it reached the Inter-American Court. The Commission and the Court are the Organisation of American States (OAS) autonomous human rights institutions.

On Sep. 10 Costa Rican President Luis Guillermo Solís signed a decree making IVF legal after it was banned for 15 years. Credit: Casa Presidencial

A year later, the Court, which is based in the Costa Rican capital, San José, and whose rulings cannot be appealed and are theoretically binding, handed down its verdict.

“The constitutional chamber’s view was not shared by the Court, which considered that protection of life began with the implantation of a fertilised egg in the uterus,” said May.

May and other experts on the case said the position taken by Costa Rica’s highest court responded to the extremely conservative views of the leadership of the Catholic Church, and of other Christian faiths with growing influence in the country.

This Central American nation of 4.7 million people considers itself a standard-bearer of human rights in international forums. But the question of IVF tarnished that image when the conservative sectors took up opposition to it as a cause.

The debate in the legislature on a law to regulate IVF stalled for over two years, due to resistance by evangelical and conservative lawmakers.

In a Sep. 3 public hearing by the Court on compliance with the 2012 ruling, the executive branch said it planned to regulate the procedure by means of a decree, which civil society organisations saw as a reasonable solution to the stalemate over the new law.

“We know that in the legislature there is no way to forge ahead on key issues, such as practically anything to do with sexual and reproductive rights,” Larissa Arroyo, a lawyer who specialises in these rights, told IPS.

Arroyo pointed out that with regard to an issue like IVF, time is of the essence, given that a woman’s childbearing years are limited. She noted that “almost all of the victims lost their chance” to have children using the technique.

In the week between the public hearing and the signing of the presidential decree, the government consulted Costa Rica’s College of Physicians and the CCSS. While both backed the decree, the CCSS clarified that it preferred a law and warned that it would need additional funding, because each fertility treatment costs around 40,000 dollars.

The decree limits the number of fertilised eggs to be implanted to two.

In the same week, the legislative debate became further bogged down. While one group of legislators tried to expedite approval of the law to regulate IVF, another group continued to oppose the procedure as an attack on human life at its origin, likening it to the Jewish holocaust.

“The extermination camps of Nazi Germany are in the Costa Rica of today, the Costa Rica of the Solís administration,” evangelical legislator Gonzalo Ramírez, of the conservative Costa Rican Renewal Party, even said at one point.

Given that outlook and the impasse in the legislature, organisations like the Centre for Justice and International Law (CEJIL) celebrated the decree which offers “universal access” to IVF and “respect for the principle of equality.”

However, CEJIL programme director for Central America and Mexico Marcia Aguiluz recommended waiting until IVF is actually being implemented.

“The decree lives up to the requirements, but it is just a first step,” said Aguiluz, who is from Costa Rica. “Until the practice starts being carried out, we can’t say there has been compliance.”

Lawyers for the presidency said the decree is equipped to withstand legal challenges.

The 2012 ruling is the second handed down against Costa Rica in the history of the Court. The previous one was in 2004, when the Court found that the conviction of journalist Mauricio Herrera by a Costa Rican court on charges of defamation of a diplomat violated free speech, and ordered that the country enact new legislation on freedom of expression.

Edited by Estrella Gutiérrez/Translated by Stephanie Wildes

Contraceptives on sale at a store in Sanaa, Yemen. Credit: Rebecca Murray/IPS

By Joseph Chamie
NEW YORK, Oct 1 2014 (IPS)

For most of human history, reproductive rights essentially meant men and women accepting the number, timing and spacing of their children, as well as possible childlessness. All this changed radically in the second half of the 20th century with the introduction of new medical technologies aimed at both preventing and assisting human reproduction.

Those technologies ushered in historic changes in reproductive rights and behaviour that continue to reverberate around the world, giving rise to increasingly complex theological, ethical and legal concerns that need to be addressed.New reproductive technologies have given rise to serious theological, ethical and legal concerns that have not been satisfactorily addressed.

Up until around the middle of the past century, reproductive rights were limited. The available birth control methods were rhythm, coitus interruptus (withdrawal), condoms and for some, the diaphragm.

Those methods in too many instances were unreliable and not considered user friendly. Also, while induced abortion has been practiced for ages, it was a drastic, dangerous and largely unlawful medical procedure.

In 1960, the oral contraceptive pill was introduced, dramatically transforming women’s reproductive rights and behaviour. In addition to the pill, modern methods of family planning, including the intra uterine device (IUD), injectables, implants, emergency contraceptive pills and sterilisation, have given women and men effective control over procreation.

Modern contraceptives have contributed to major changes in sexual behaviour and marriage. Women empowered with modern contraception can choose without the fear of pregnancy whether to have sexual relationships, enabling them to postpone childbearing or avoid it altogether.

And instead of marriage, cohabitation has become increasingly prevalent among many young couples, especially in industrialised countries.

The use of modern contraceptives also facilitated a rapid decline in family size worldwide. Between 1950 and the close of the 20th century, the world’s total fertility rate fell from five children per woman to nearly half that level.

Every major region of the world experienced fertility declines during that half century, with the greatest occurring in Asia and Latin America and the smallest in Africa.

With improved medical techniques, changing social norms and grassroots movements, induced abortion also became increasingly legalised globally. Although some remain strongly opposed to induced abortion, nearly all industrialised countries have passed laws ensuring a woman’s right to abortion.

Also at the 1994 International Conference on Population and Development (ICPD), 179 governments indicated their commitment to prevent unsafe abortion and in circumstances where abortion is not against the law, such abortion should be made safe.

Reproductive rights to terminate a pregnancy, however, have also led to excess female fetus abortions. Particularly widespread in China and India, their sex ratios at birth of 117 and 111 boys per 100 girls are blatantly higher than the typical sex ratio at birth of around 106.

Consequently, the numbers of young “surplus males” unable to find brides are more than 35 million in China and 25 million in India.

The introduction in 1970 of in vitro fertilisation (IVF) – fertilisation in a laboratory by mixing sperm with eggs surgically removed from an ovary followed by uterine implantation – radically altered the basic evolutionary process of human reproduction.

IVF provides childless couples the right and means to have biological children. It is estimated that more than five million IVF babies have followed since the birth of the first “test-tube baby” in 1978.

However, IVF has also raised ethical concerns. In addition to creating a pregnancy through “artificial” means, IVF has become a massive commercial industry prone to serious abuses and exploitation of vulnerable couples in the desire to make profits from childbearing.

IVF also permits gestational surrogacy, which extends reproductive rights to same-sex couples. In contrast to traditional surrogacy, where the surrogate is the actual mother, gestational surrogacy allows the surrogate to be unrelated to the baby with the egg coming from the intended mother or donor.

While those who are childless have a right to have biological children, gestational surrogacy raises challenging ethical questions, such as the exploitation of poor women, as well as complex legal issues, especially when transactions cross international borders.

In 1997, the cloning – or propagation by self-replication rather than through sexual reproduction – of the first mammal, Dolly the sheep, was achieved. The birth of Dolly was a major reproductive development.

Following the cloning of Dolly, scores of other animals, including fish, mice, cows, horses, dogs and monkeys, have been successfully cloned. These developments suggest that in the near future some humans may wish to assert their reproductive rights to be cloned, again raising serious theological, ethical and legal questions.

Among the transhumanist reproductive technologies imagined in the more distant future, one that stands out is ectogenesis, or the development of a fetus outside the human womb in an artificial uterus.

While ectogenesis may expand the extent of fetal viability, free women from childbearing and expand reproductive rights, it poses serious, unexplored medical, ethical and legal issues.

During the past half-century remarkable technological progress has been made in human reproduction. As a result of this medical progress, women and men have acquired wide-ranging reproductive rights and technologies to determine the number, timing and spacing of their children and to overcome childlessness with biological offspring.

The new reproductive technologies, however, have also given rise to serious theological, ethical and legal concerns that have not been satisfactorily addressed. Anticipated future medical breakthroughs in human reproduction make it even more imperative for the international community of nations to address the growing challenges and concerns regarding reproductive technologies and rights.

Edited by Kitty Stapp

Excerpt:

A fertility clinic in Cairo. Credit: Rachel Williamson/IPS

By Rachel Williamson
CAIRO, Oct 3 2013 (IPS)

The young couple inspecting Dr Bassem Elhelw’s Cairo Fertility Clinic knew what they wanted from him: a baby boy. They also knew they wanted the child by in vitro fertilisation (IVF).

After only four months of marriage they were already experienced at this game. They had seen two other fertility doctors, and the young woman had undergone two ovulation inductions to stimulate egg development.

Elhelw said that had his advice been to be patient and try less invasive procedures before going straight to IVF, the couple would have moved on to their fourth doctor.

Assisted reproductive technologies (ART) in Egypt have boomed of late. According to specialists such as Elhelw this is now a fertile area for practitioners in it only for the cash.

Doctors and reproductive experts say IVF treatments have risen significantly after the Jan. 25 revolution of 2011. "It's easy for the wealthy but fertility is too important for Egyptians, even the poor will ask for money to get it done." -- Dr Ashraf Sabry, director of three fertility clinics

Across-the-board restrictions of what could be shown on television channels ended with the departure of former president Hosni Mubarak after the revolution. IVF clinics in Cairo and Alexandria began heavy advertising campaigns following the easing of restrictions.

Elhelw said a profusion of “infomercial”–style television advertising is now reaching once-isolated rural provinces, and greater awareness was creating excessive expectations of what the technology could do.

But beyond such specific changes, medical personnel say the 2011 revolution and the turmoil since have created a new dynamic. With the revolution came a governmental vacuum and a societal shift.

“I think what’s changed now is an attitude to infertility rather than cases of infertility,” Elhelw told IPS. “Attitudes changed because in the last two years things were happening very fast. The pace of life in Cairo used to be very slow.”

Sperm counts among Egyptian men are already low, as documented by Yale reproductive researcher Marcia Inhorn in her 2004 study Middle Eastern Masculinities in the Age of New Reproductive Technologies: Male Infertility and Stigma in Egypt and Lebanon.

Inhorn told IPS that Middle Eastern women, besides, suffer from an above-average incidence of polycystic ovary syndrome, and obesity-related problems are a major fertility issue for Egyptian women.

These problems have been exacerbated since the revolution, medical personnel say. Unemployment and social tensions are driving a change that has put shisha cafes at the centre of the social lives of young men and women, leading them to spend long hours in smoke-filled environments. Smoking is a known cause of infertility.

“Smoking is hematotoxic, it’s not good for sperm quality,” Inhorn said, adding that at least 50 percent of men in the Middle East smoke.

Dr Ashraf Sabry, director of three eponymous fertility clinics in and around Cairo, said 60 to 70 percent of his business was from male infertility. He attributes this partly to cigarettes and partly to a rise in the social acceptability of young men smoking in shisha cafes since 2011. 

“It’s too easy to smoke,” he said. “These boys spend so much time in these cafes, they can go through two or three shishas at one time.”

He said unlicensed cafes were now common and it had become socially acceptable for young women to smoke shisha in cafes, as well as cigarettes, and young men and even boys were spending hours in shisha cafes where once they would not have been permitted entry.

Such factors are pushing more Egyptians into seeking medical help to conceive, medical personnel say.

“Our observation in the infertility centre in Maadi or the infertility centre at Al-Azhar University, where we have a public unit for IVF, is that the number of couples who are coming for treatment of male infertility is on the rise,” said Dr Gamal Serour, director of the IVF Unit at Al-Azhar University in Cairo and expert in Islamic reproductive law. He added that male and female infertility affects about 10 to 15 percent of Egyptian couples.

Regulation of medical treatments has not been on the Egyptian government’s radar since January 2011. A draft law proposed in late 2010 to further regulate aspects of IVF such as sex selection fell by the wayside.

Ministry of Health spokesman Dr Mohamed Fathalla declined to say whether legislation would be introduced to control fertility centres.

The sector is loosely supervised by the Health Ministry and the Egyptian Medical Syndicate, and guided by Islamic law.

With governmental attention focussed elsewhere, bad practices are flourishing. Expensive and unnecessary procedures are thrust on patients such as full IVF treatment where only hormone regulation may be required.

Elhelw said he had not personally seen many women physically hurt by other doctors, but these cases were not uncommon in his clinic. Sabry said he saw “a lot” of women who had been physically, mentally and financially hurt by reckless practitioners.

“I will be happy [to see greater regulation]. These cowboys are hurting our business.”

Sabry said he had refused egg donation in his clinics. The practice is forbidden under Islamic law, though IVF is not.

IVF was introduced into Egypt in 1986 and a set of Islamic guidelines quickly followed. Many were reassured that such treatment was not forbidden by religion.

But since then, calls for a dedicated national supervisor, clinic registration, doctor accreditation, and the draft law in 2010 have fallen by the wayside as Egyptians focussed on building a new democracy.

This also means the precise number of clinics and practitioners is unknown.

Dr Ragaa Mansour, one of the pioneers of IVF in Egypt and a director of the Egyptian IVF&ET Centre, told IPS that “there is no national accreditation specific to IVF and there is no body that monitors and follows up the practice in each IVF centre.”

Serour does not believe legislation is needed.

Such legislation would inhibit flexibility with new technologies, he said.

The cost for a round of treatment ranges between 6,000 to 12,000 Egyptian pounds (870 to 1,740 dollars) for basic IVF, and between 25,000 to 30,000 Egyptian pounds (3,600 to 4,300 dollars) to choose the sex of a child.

By developed world standards these prices are low but minimum wage in Egypt is around 730 Egyptian pounds (105 dollars) a month. Yet people find the money somehow, says Sabry.

“It’s easy for the wealthy but fertility is too important for Egyptians, even the poor will ask for money to get it done.”