December 21, 2012, (C-FAM) – Late on Thursday, the Inter-American Court of Human Rights released a lengthy opinion (Murillo et al. v. Costa Rica, dated November 28, 2012) holding that Costa Rica’s law which protects life at its earliest stages by prohibiting in vitro fertilization violates the American Convention on Human Life. In so doing, the Court turned the Convention, which protects the right to life “from conception,” on its head.
Costa Rica banned a technique which results in the destruction of “spare” embryos as inconsistent with its legal protection of unborn life.
A Costa Rican Supreme Court decision in 2000 upheld the ban, noting that it was consistent with the Convention, which protected life “from conception.” (For the background, see here.)
A preliminary reading of the ruling, which the Court has yet to post online and is only available in Spanish, indicates that the Court elevated secondary rights – such as the right to privacy, a right to personal autonomy, and a right to sexual and reproductive health – above the right to life, which by necessity takes precedence over all other rights.
The Court engaged in linguistic deconstruction to get around the general protection of life “from conception” in the Convention.
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While reciting the weight of authority that holds that “conception” is the equivalent of “fertilization,” the Court noted that there are those who would say conception only occurs at “implantation,” and apparently relied on this redefinition to help it reach the result it desired. This is not only bad science, but it is also bad law, for it rejects the pro homine principle, which holds that any ambiguity must be decided in a manner most protective of human life.
Thursday’s result is unsurprising, as a number of six judges prior to ascending to the Inter-American bench had indicated their support for abortion rights.
The linguistic engineering used in reinterpreting treaties by courts and transnational bodies is a phenomenon we have commented on before.
Beyond the impact this decision will have on the protection of life at its most vulnerable stages, it will also lead to an erosion of respect for the authority Court, which in previous decades had been lauded for helping establish rule of law in Latin America following decades of authoritarian rule. With results-oriented decisions such as this, the Court is squandering its accumulated moral capital.
The Alliance Defending Freedom, C-FAM, and Americans United for Life submitted an amicus brief to the Court on article 4 of the American Convention, which is the article containing protection of life “from conception.”