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

The indigenous hip hop group Bro MC'S from Brazil, during the Todos por Sawhoyamaxa intercultural festival in the Paraguayan capital in December. Credit: Natalia Ruiz Díaz/IPS

By Natalia Ruiz Diaz
ASUNCIÓN, Jan 7 2014 (IPS)

The Sawhoyamaxa indigenous community in Paraguay have spent over 20 years fighting to get back their land, which they were pushed off by cattle ranchers.

They started the new year by collecting signatures to press Congress to pass a bill that would expropriate their ancestral territory from ranchers, in order for the state to comply with a 2006 ruling by the Inter-American Court of Justice ordering the restitution of their land.

“More than 20 years after being expelled from our ancestral land and living [in camps] along the side of the road, watching the cows occupy the place where we used to live, we decided to return because that land is ours,” the Sawhoyamaxa said in a message accompanying the petition drive.

“Che rohenói, eju orendive, aldeia unida, mostra a cara” (I am calling you, come with us, the people united, show your face) thousands of people sang at the “Todos con (everyone with the) Sawhoyamaxa” intercultural festival in Asunción in mid-December.

The event launched the start of their new crusade demanding enforcement of the Inter-American Court sentence, which ruled that they be given back their territory and that they be provided with basic services, such as medical care and clean water.

The “Che rehenói” chorus was heard over and over again in a mix of Guaraní (one of Paraguay’s two official languages, along with Spanish) and Portuguese, sung by the hip hop ban Brô MC’S, whose members belong to the Jaguapirú Bororó indigenous community from Brazil.

The goal set by the Sawhoyamaxa leaders is to gather 20,000 signatures, to pressure Congress to approve the expropriation of the land.

The epicentre of the community’s two-decade struggle is the Santa Elisa settlement, where the largest group of families are camped out along the side of the road 370 km north of Asunción en Paraguay’s semiarid Chaco region.

They are living “in extreme poverty, without any type of services, and waiting for the competent bodies to decide on the land claim they filed,” according to the 2006 Court ruling.

The Sawhoyamaxa form part of the Enxet linguistic family. There are 19 indigenous groups belonging to five language families in Paraguay, spread out in 762 communities mainly in the east of the country and the Chaco region, a vast dry forest area.

According to the 2012 census, 116,000 of Paraguay’s 6.7 million people – or 1.7 percent of the population – are indigenous, with over half of that group belonging to the Guaraní people. However, the overwhelming majority of the population is “mestizo” – people of mixed European (principally Spanish) and native (mainly Guaraní) descent.

The Sawhoyamaxa, who had no title deeds to the land where they had always lived, were displaced from their land, which was taken over by large cattle ranchers.

“They don’t want us to progress in our way of life,” the leader of the community, Carlos Cantero, told IPS. “We want the land to dedicate ourselves to our ancestral activities, like hunting and gathering in the forest.”

He was referring to the powerful cattle industry, which has successfully lobbied to block implementation of the 2006 binding sentence handed down by the Inter-American Court, an autonomous Organisation of American States (OAS) body.

Cantero said it was important for the situation to be resolved immediately because “there is still a little forest left on our land, some swamps and streams; but if the state does not take a stance on this soon, those reserves are going to disappear.”

Cattle ranchers have steadily advanced on Paraguay’s Chaco region, where in November 549 hectares a day were deforested, according to the local environmental organisation Guyra Paraguay.

The Chaco scrub forest and savannah grassland, which covers 60 percent of Paraguay but accounts for just eight percent of the population, makes for good cattle pasture.

Since the 19th century, the worst dispossession of indigenous people of their lands in this landlocked South American country occurred in the Chaco, especially after the 1932-1935 Chaco War with Bolivia, when the government sold off huge tracts of public land to private owners.

Today, less than three percent of the population owns 85 percent of Paraguay’s arable land, making this the Latin American country with the greatest concentration of land ownership.

The Sawhoyamaxa community is fighting for 14,404 hectares of land.

In a largely symbolic move, when the final deadline set by the Inter-American Court expired in March, the native community began to “recover” their land, setting up small camps on the property to which they are waiting to be awarded a collective title.

Their fight for the return of their ancestral lands dates back to the early 1990s. After exhausting all legal recourse available in Paraguay, they took the case to the Inter-American Human Rights Commission in 2001, which referred it to the Court.

The Sawhoyamaxa case is one of three in which the Inter-American Court has handed down rulings against the Paraguayan state in defence of the country’s native people. None of the resolutions has been fully complied with.

After the 2006 sentence, the government attempted to acquire the land in question in order to live up to the resolution and return the property to the native community. But it failed, due to the refusal by the rancher who holds title to the property, Heribert Roedel, whose 60,000-hectare estate includes the land claimed by the Sawhoyamaxa.

“The other route for expropriation is through the legislature, for which a bill was introduced, currently being studied in the Senate,” said Oscar Ayala, a lawyer with Tierraviva, which supports indigenous communities in Paraguay.

This local non-governmental organisation and Amnesty International Paraguay are the main civil society supporters of the cause of the Sawhoyamaxa.

The bill Congress is debating was presented by the government in August for the expropriation of the land, in order to fulfil the Inter-American Court order.

According to Ayala, there is a more positive environment than in the past. “The impression we have is that there is greater openness” for an eventual solution and for justice to be done in the case, he said.

On Dec. 18, the Senate commission for audit and oversight of state finances pronounced itself in favour of expropriation of the land.

“This first favourable ruling is a good indicator; these questions are always complex because caught up in the middle is that deeply rooted economistic view of land, but in this case those issues are no longer in debate,” Ayala said.

The bill will now go to the agrarian reform and finance commissions and then on to the Senate floor, before being sent to the lower house.

Some 120 families – around 600 people, half of them children and adolescents – are living in the Santa Elisa settlement.

The Court also ordered the state to provide food and healthcare assistance to the community. But while the situation in this respect has improved in the new settlements, much more needs to be done.

“We have a health promoter but no health post,” Cantero said. “The worst affected are the children, who are suffering from dehydration because of the bad quality of the water.”

The settlements receive clean water every month, but it is not enough, and they depend on rainwater, which is scarce in the semiarid Chaco.

To find a solution, Sawhoyamaxa men and women have been knocking on doors everywhere, showing people papers that describe the history of their community, their struggle, and the Court ruling, in search of support.

“We won’t stop until we are living on our land; our very survival depends on that,” Cantero said.