'Latin America's Roe v. Wade' Case Enters Final Phase In Inter-American Human Rights Court

09/06/2012 12:16 pm ET | Updated Sep 06, 2012
  • Carlos Harrison Award-winning journalist and writer, author of The Ghosts of Hero Street

A case that pro-abortion rights advocates are calling Latin America’s “Roe v. Wade” moved Wednesday to an international court, which could make a decision with a far-reaching impact on abortion and contraception laws throughout the region.

“There is no question that it will have an impact on any abortion laws,” William Saunders, senior vice president of legal affairs for U.S.-based anti-abortion organization Americans United for Life, told The Huffington Post. “I expect that if the other side wins, they're going to be trying to go into all of these countries and change the laws on abortion.”

The case involves Costa Rica’s ban on in vitro fertilization. It arose from a March 2000 decision by Costa Rica's highest court which held that the “human embryo is a person from the moment of conception.” In vitro fertilization, as a result, was deemed unconstitutional because it “poses a conscious threat to human life.”

In its opinion, the court wrote:

“... given the conditions under which the technique is currently practiced...any elimination or destruction of embryos – whether intentional or as a result of the practitioner’s ineptitude or the inaccuracy of the technique itself - is a violation of the right to life.”

The plaintiffs appealed their case to a higher court, and it is now being heard in the human rights branch of the Organization of American States. All 35 independent nations that comprise the Americas are members of the organization.

The Inter-American Human Rights Court’s decision would have consequences throughout the region. Its rulings are binding for all the signatory nations to the American Convention on Human Rights. The group includes 24 of the 35 countries in the Americas, including almost all of Latin America. The U.S., Canada and Cuba are notable exceptions, and are not required to adhere to the court’s mandates.

The legal challenge now before the Inter-American Human Rights Court revolves around the IVF ban. But, because a key issue in the case is an embryo’s right to life, both sides agree that its implications are much broader.

Costa Rica’s court “decided that once an egg has been fertilized it has an absolute right to life,” Alejandra Cardenas, legal adviser for Latin America and the Caribbean for the Center for Reproductive Rights, said.

That "personhood" position, she said, is at the crux of a variety of reproductive rights laws throughout the region.

“They think there's a legal position that once an ovum has been fertilized, it has a right to life that trumps any other consideration for any other human rights,” Cardenas said. “That's causing bans on IVF, complete bans on abortion, and it's even restricting access to some forms of contraception in the region.”

Americans United for Life filed an amicus brief in the case, supporting Costa Rica’s position banning IVF.

Saunders said the anti-IVF argument in the case hinges on the language in the American Convention on Human Rights, which states: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”

The petitioners in the case, a group of infertile men and women unable to have children on their own, challenged Costa Rica's ban on the grounds that it violates their rights to “to have one’s private and family life respected, the right to found a family and the right to equality and non-discrimination,” according to court filings.

The plaintiffs want the court to order Costa Rica to implement recommendations made more than two years ago by the Inter-American Commission on Human Rights to lift the IVF ban and make the procedure accessible and free to all of its citizens.

The state and the anti-abortion advocates however, insist that the case hinges not on the would-be parents’ claims of infringement, but on the embryo’s right to life.

“It's not necessarily a contest of rights,” said Saunders. “It's a process of figuring out where the right lies. And we say that under this convention there is clearly an obligation on the state to protect life from the moment of conception.”

The court scheduled the equivalent of oral arguments before the U.S. Supreme Court on Wednesday and Thursday. Its decision is expected before the end of the year.

The extent of the case's potential impact, Loyola Law School of Los Angeles professor Cesare Romano told The Huffington Post, makes the court’s decision politically fraught.

“The court is in a very complicated and a very tight spot,” Romano said. “The court needs to be aware of the larger political impact, and the fact that states in Latin America tend to err on the side of conservative pro-Catholic positions.”

Under Romano's leadership, students in the law school's International Human Rights Clinic are finalizing an amicus brief to join the case. Their position, Romano said, is that the American Convention’s wording is “intentionally ambiguous as to when life begins.”

“We are trying to launch a lifeline to the court,” he said. Taking their argument, he said, “You don't need to get into the question of whether an embryo as human rights or not.”

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