A view of the process on a montior as lab staff use a microscope stand and articulated hand controls to extract cells from 1-7 day old embryos that are then checked for viability at the Aspire Houston Fertility Institute in vitro fertilization lab in Hous

Why an international court struck down Costa Rica’s IVF ban

The World’s host Carolyn Beeler speaks with Lynn Morgan, a medical anthropologist focused on Latin America, about Costa Rica’s legal battles and religious debates about allowing access to IVF.

The World

The recent Alabama Supreme Court decision that embryos are people has sparked a debate that sounds familiar to many in Latin America.

Costa Rica was the first country in the world to ban in vitro fertilization. In the year 2000, Costa Rica’s High Court ruled that excess embryos created and discarded in the IVF process have a constitutional right to life.

About a dozen years later, the Inter-American Court of Human Rights struck down Costa Rica’s IVF ban. And the new ruling helped usher in an era of reproductive freedom. It was a decision some called the Roe v. Wade of Latin America. To discuss the situation, The World’s host Carolyn Beeler spoke to Lynn Morgan, a medical anthropologist focused on Latin America. Among other books, she’s written “Icons of Life: A Cultural History of Human Embryos.”
 

Carolyn Beeler: Lynn, let’s go back to Costa Rica’s IVF ban in 2000. How and why did it end up banning in vitro fertilization?
Lynn Morgan: In 1995, Costa Rica permitted in vitro fertilization. The Catholic Church was not happy about this decision, and an attorney who was working for the Conference of Catholic Bishops (USCCB) asked the high court to recognize that the embryos had a right to life. He argued that the embryos that were created through IVF were subject to what he called a disproportionate risk of death and should be protected, and nobody was paying much attention to this at the time. But the Costa Rican Constitutional Court agreed with him. They ruled that human life does begin at conception and that the embryos are therefore protected by a provision in the Costa Rican constitution that held that human life is inviolable.
Important to note that Costa Rica is Catholic by law.
Costa Rica is a Catholic country within its constitution, but it also guarantees freedom of religion. So, this was a quarter of a century before the Alabama Supreme Court did the same thing. The Costa Rican High Court ruled that embryos have full personhood with full legal rights and protections, including fertilized eggs and those that are created in the IVF lab and are sitting in a freezer.
One of large capacity IVFCryo One storage containers that can hold approximately 1,000 egg samples, immersed in liquid nitrogen, at the Aspire Houston Fertility Institute in vitro fertilization lab in Houston, Feb. 27, 2024.
One of large capacity IVFCryo One storage containers that can hold approximately 1,000 egg samples, immersed in liquid nitrogen, at the Aspire Houston Fertility Institute in vitro fertilization lab in Houston, Feb. 27, 2024.Michael Wyke/AP
So, that ban was in effect for a dozen years. And then the Inter-American Court of Human Rights ruled on the matter, overturning the ban. What did it decide, that court?
That court decided that embryos are not juridical persons and that the rights of embryos may not take precedence over those of women. It said that states do have responsibilities to embryos and fetuses, but that those responsibilities accrue gradually over the course of the pregnancy. And it said the best way to protect the rights of embryos is to protect the rights of pregnant people. It also stated, really importantly, that conception should be defined not as beginning with fertilization but as beginning when an embryo gets implanted in the womb. So, this would exempt IVF embryos. It also said that the IVF ban in Costa Rica violated the rights to privacy, the rights to liberty, the rights to personal integrity, the right to form a family and the right to be free from discrimination. And it made a big splash throughout the whole hemisphere.
So, the Inter-American Court of Human Rights has jurisdiction over many other countries, of course, not just Costa Rica. What were the repercussions of this decision beyond that one country?
Right so, when the Inter-American court ruled that the IVF ban was a violation of human rights, it ordered Costa Rica to lift the ban and to make the procedure available to everybody. That ruling was considered binding on the 22 countries of the Americas that accept the jurisdiction of the Inter-American Court of Human Rights. So, what this meant was that it applied not only to people in Costa Rica, but it said that everybody in those 22 countries cannot be barred from having access to in vitro fertilization. But because the court’s ruling was so broad in terms of defining that embryos aren’t persons, it also had major implications for other reproductive health issues like emergency contraception, stem cell research and abortion. So, it was immediately read as a landmark abortion case for Latin America, hence some people calling it the Roe v. Wade of Latin America.
What were those implications? Was it increased access to abortion in Latin American countries?
Yeah, it has led to that. A lot of people have said that the Inter-American court ruling was highly influential in the recent decisions to legalize abortion in Argentina, as was done in 2020, in Mexico in 2021 and in Colombia in 2022. So, it has had and continues to have major implications across Latin America, although not in the United States.
Right, because the US never ratified the American Convention on Human Rights. So, the ruling isn’t binding here.
That’s right.
A small petri dish holding several embryos is positioned onto a microscope stand used to extract cells from each embryo to test for viability at the Aspire Houston Fertility Institute in vitro fertilization lab in Houston, Feb. 27, 2024.
A small petri dish holding several embryos is positioned onto a microscope stand used to extract cells from each embryo to test for viability at the Aspire Houston Fertility Institute in vitro fertilization lab in Houston, Feb. 27, 2024.Michael Wyke/AP
So, when Costa Rica’s IVF ban was overthrown and did not have the impact of increasing access to abortion care in some Latin American countries, that was the opposite of what a lot of folks in Costa Rica would have wanted, right?
Yes, indeed. And that was a major setback for anti-abortion conservatives. They hoped that they could bank on Costa Rica’s reputation as a champion of human rights. They hoped to set up a sort of pro-life movement across the Americas. And that’s not, in fact, what happened. What happened was quite the opposite.
Latin America is still fairly Catholic, and the Vatican officially opposes IVF. Could you tell me how popular IVF is today in Latin America?
IVF is hugely popular in Latin America. The estimates are somewhere between about 200,000 and 500,000 babies have been born through IVF in Latin America. And a lot of people consider it a gift from God. They don’t consider it a violation of Catholic doctrine because it does produce babies.
As you mentioned, this is a personal decision for families. When you think about how folks are grappling with issues of reproduction and faith, is there one conversation you’ve had in the past that really sticks with you?
When I was doing fieldwork in Costa Rica, I was talking with a father about the controversy over in vitro fertilization. And he said, it’s true that only God can make children, and children are a gift from God. He also said that God gave us doctors and God granted them the knowledge to treat infertility. And shouldn’t we respect them and their knowledge also as a gift from God? And I think he was pointing out that not all people, even people of faith, think that it’s a good idea to elevate the rights of embryos above the rights of all the other people that are in God’s realm.

This interview has been lightly edited and condensed for clarity.

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