A few days before Christmas, the inter-American Court of Human Rights (IAHR Court) issued the worst judgment in its history. The case concerned Costa Rica’s law banning in-vitro fertilization, or IVF, but the judgment went far beyond this. The IAHR Court’s decision severely limited the legal protection enjoyed by the unborn that heretofore had been the pride and distinction of the people of Latin America. Many specialists in international law believe that the Court acted in an arbitrary and excessive fashion.
Strictly speaking, the Court should not even have taken the IVF case at all. IVF is not even mentioned in the Court’s governing document, the American Convention on Human Rights. By taking the case, the Court vastly exceeded the limits of its jurisdiction.
The ruling itself is equally problematic. The American Convention on Human Rights, also known as the Pact of San José, clearly states in Article 4 that life is protected from the moment of conception. Abortion has always been considered a crime in Latin America.
Yet five judges of the IACHR, in an act of raw judicial tyranny, decided to reinterpret Article 4. Ignoring the scientific evidence, they decreed that a child can only be recognized as such after implantation, not at conception. To make matters worse, the Court went on to rule that the protection afforded the unborn child by law is not absolute. Rather, it depends entirely on what rights the Court chooses to recognize. Equally troubling, the judges added that within that body of rights are "reproductive rights," although they didn’t bother to define what these are.
Perhaps the most outrageous moment occurred in the public hearing, held on the 5th and 6th of September last year at the headquarters of the Court in San José, Costa Rica. The hearing was led by Chief Justice Diego Garcia Sayan (Peru), with judges Margaret May Macaulay (Jamaica) and Alberto Pérez Pérez (Uruguay) also present. All of these judges are known to favor abortion, so much so that they have engaged in public activism in its favor. PRI staff were present at this hearing and personally witnessed the unprofessional and discourteous way that officials from Costa Rica were taunted by these judges when they asserted that life begins at conception and that IVF kills embryos.
The reason why the IAHR Court’s judgment may have such dire consequences for unborn Latin Americans is because it is binding, to one degree or another, in all countries in the region. Some countries even hold that judgments by the IAHR Court are equivalent to constitutional amendments.
With this ruling, the Court has opened the door to both surgical and chemical abortion, and to its promotion through programs endorsed and funded by the state. Legislation promoting abortion used to fail in part because of Article 4 of the Pact of San José. From now on they will benefit from the Court’s reinterpretation of this article. The IAHR Court will itself pressure governments to comply with its judgment. Moreover, it is safe to say that we will see, in the near future, lawsuits filed in country after country to demand the legalization of abortion. We will see legislation introduced to the same end. And we will see cases challenging existing pro-life legislation prosecuted through the national courts of various countries.
The Court has also opened a Pandora’s Box with regard to all manner of assisted reproduction techniques. The implication of the Court’s statement, that human embryos are only “organic material,” is that the manipulation, destruction and selling of embryos is all permissible.
Finally, we have the inclusion of the infamous term “reproductive rights” in the judgment itself. Although the Court cleverly left the term undefined, it is defined by the abortion movement as including abortion on demand. It will certainly be cited in lawsuits as a justification for overturning current laws which make abortion a crime.
The bottom line is this: because of the IAHR Court’s ill-conceived decision, all of the constitutional and legal protections that unborn children in Latin America now enjoy is in danger of being swept away. This judgment ranks alongside of Roe v. Wade and Dred Scott as one of the worst in the history of the Americas and should be disregarded.
PRI refuses to allow millions of unborn children to be sentenced to death by five biased judges who have abused their positions by trying to legislate from the bench. This decision will not stand.
Carlos Polo is the Director of the Latin American office of Population Research Institute.