The Inter-American Court versus the Rule of Law

Late last week the Inter-American Court on Human Rights struck down a Costa Rican law that banned in vitro fertilization, ruling that the restrictions violated rights to privacy, personal autonomy and “sexual and reproductive health” under the American Convention on Human Rights (ACHR), commonly known as the Pact of San José.  The Court further ruled that that a human embryo lacks the legal status of “person.”

The 5-1 decision, Murillo v. Costa Rica, stoked concern because the ACHR is the only treaty to explicitly protect the right to life “from the moment of conception.” Costa Rica argued that its in vitro fertilization ban was consistent with the ACHR, given that the technique destroys “spare” embryos.

Jorge Oviedo Alvarez, Costa Rica’s Deputy Solicitor General and a key member of the legal defense team, denounced the decision as “outrageous.” He noted that the court, despite conceding that Costa Rica offered ample evidence to demonstrate that human life begins at fertilization, i.e., conception, instead chose to “arbitrarily” redefine conception as beginning with “implantation.”

Oviedo praised the dissent of Eduardo Vio Grossi, which criticized the majority for violating basic interpretive rules.  Vio Grosso also contended that the Court exceeded its jurisdiction, intruding into an area that was solely within Costa Rica’s competency.

Critics see the ruling as a predetermined, incremental step toward creating abortion “rights” in the Americas.

Ligia de Jesus, a law professor at Ave Maria University and an expert on the Inter-American human rights system, pointedly criticized the pro-abortion predilections of certain judges. “Presiding judge Diego Gracía Sayán wrote an article promoting abortion as a necessary ‘public health’ measure, equating pro-life views as that of the “religious right wing” having no place in human rights debate.  Margarette May Macauley had been part of an advisory group that recommended abortion liberalization in Jamaica. ”

De Jesus also noted that Colombian Constitutional Tribunal Humberto Sierra Porto, who will be ascending to the Inter-American bench in 2013, was the author of the decision liberalizing abortion in that country.

Sierra Porto’s 2006 decision is widely regarded as a sweeping usurpation of legislative functions on par with the United States Supreme Court’s decision in Roe v. Wade, compounded by Sierra Porto’s elevation of non-binding soft-law opinions by United Nations treaty monitoring bodies into binding hard law “norms.”

Critics contend that such a stacking of the deck with judges with a progressive political agenda does not bode well either for democracy or rule of law.

The Inter-American Court decision falls on the heels of last year’s ruling against Chile in In re Atala, where the Court read into the Convention a previously undiscovered non-discrimination category based on “sexual orientation.”  Likewise, the Court last week fabricated a novel “right to sexual and reproductive health.”

The Court’s interpretations of the Convention are supposed to bind nations that have ratified the Convention.  In addition to Sierra Porto, Mexico’s Eduardo Ferrer MacGregor and Brazil’s Roberto de Figueriedo Caldas will join the bench next year, replacing three judges whose terms end.

This article is courtesy the "Friday Fax" of the Catholic Family and Human Rights Institute (C-FAM).