Mar
25
2013

The Fall of the Inter American Court of Human Rights: A recent decision of the Inter American Court of Human Rights should move member states to reconsider membership in the Inter American system as it currently exists.

In 1973, abortion activists in the United States discovered that it is easier to change the constitution by securing sympathetic justices on the Supreme Court instead of using the means intended by the nation’s founders, the Constitutional Amendment process. The strategy is simple: once you have a majority of justices sympathetic to your cause, find victims whose story has the necessary elements, reach out to friends in the media, and proceed to bring a case on the behalf of the victims that will undo any problematic legislative obstacles to your desired end.

Forty years after Roe v Wade, a similar judicial usurpation of law happened with the decision of the Inter American Court of Human Rights (ACHR) issued against Costa Rica because it had prohibited the practice of in vitro fertilization (IVF).

Inter-American Court of Human Rights, J. Arguedas/EPA/Corbis

There is an important difference in this case, however; the court in question has issued its ruling from outside the legal authority of Costa Rica. Citizens of the United States and its Latin American neighbors would do well to pay attention to the growing power of this body of unaccountable political appointees.

Several months ago, the ACHR condemned Chile in Atala Riffo and daughters v. Chile, in favor of “homosexual rights.” In December, the ACHR condemned Costa Rica for defending human life from its biological beginning. It is worth noting that Costa Rica does so in accordance not only with its own Constitution, but also with the Inter-American Convention of Human Rights. According to this convention, “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” (Article 4.1).

The Court did not find significant the fact that that many more embryos are killed via in vitro fertilization than by natural birth. Nor did they consider the growing number of peer-reviewed studies showing that there are often grave physical problems in the children who survive to be born. One would think that such scientific evidence would be relevant to the case, but what is worse is that the science employed in the Court’s decision is specious at best. For example, the Court held that human life begins from the moment of implantation in the uterus, attempting to leave without protection the embryo prior to that moment.

As a practicing scientist in the field of human genetics, I would like to ask the judges to what species they believe growing human embryos belong to before implantation.  Additionally, what do they do with all of the evidence that demonstrates that during fertilization and the transit via the fallopian tubes, the embryo receives a vast stimulation from the mother, as well as its own self-development? This natural process is not comparable to the in vitro process.

Indeed, IVF deficiently mimics what happens in the fallopian tubes under natural circumstances. There is mounting scientific evidence of harm done to children who survive the IVF process and are not aborted selectively, as is common among parents who only want the number of children ordered.

In the dispositive part of the sentence, the Court ordered that IVF in Costa Rica not only be fully legalized, but that State health services include the controversial procedure among its “treatments.” Juridically, this is the only binding part of the sentence.

As if this were not enough, the Court asserted that “it is not possible to sustain that the embryo can be considered a person under the terms of Article 4 of the Convention.” This is contrary to the same text, to which all Latin American states have accepted.

Judge Vio Grossi, the lone dissenting vote among the jurists, demonstrates how the term “conception” found in the Convention is synonymous with fecundation, and that is how it had been understood universally in 1969 when the Convention was written and signed. Grossi also states that in the 1999 decision Children of the Street v Guatemala, the Court affirmed:

[T]he right to life is a fundamental human right, and to enjoy it is a prerequisite for the enjoyment of all other rights. If it is not respected, all other rights lack meaning. On the basis of the fundamental character of the right to life, all restrictive understandings of it cannot be admitted.

Nonetheless, now the ACHR sustains in its vote that the right to life is not absolute and must be considered along with other rights, such as the “right of intimacy.” With this, the Court has opened the doors to all matter of attacks against human life, in particular against the persons who are most defenseless at the beginning and end of their lives, thus contradicting its own charter as a court of human rights.

Consequently, Judge Grossi affirms that the Court made a political decision by taking on a prescribing function, thus distorting the nature of the role of the Court that will have an effect on the role of the entire Inter-American Convention of Human Rights. The judges modified the Convention forcing member states to proceed in a different manner to what they had committed to themselves when they signed the Convention. They did not issue their decision in accordance with the express law, but in accordance with their opinions. In doing so, they admit to forwarding an “evolving” interpretation to the Convention. They are taking on a function that does not correspond to them and which lays only with the power of the sovereign states of Central and North America.

When confronting this situation, we find ourselves standing in front of a corrupt system in which the right to life is relative. The so called “sexual and reproductive rights” have been accepted by the Court. Now the doors are open wide so that the Convention can be used to legalize abortion, euthanasia, and any other attempt against life (including the death penalty), all in the name of “human rights,” and all decided by judges who are entirely unaccountable to any single member nation’s laws and politics.

When a panel of unelected and unaccountable political appointees can ignore any nation’s laws and constitution and issue binding decisions that are beyond appeal, it is time for this organization’s member states to revisit whether the Court and its supporting structures still serve their stated and intended purpose.

The nations of Latin America must awaken. They must reclaim their rightful sovereignty and defend not only their Constitutions and traditions, but also their most vulnerable brothers and sisters. They must keep these unaccountable supranational entities in their place while developing robust institutions for collaboration and free trade. We need only look across the ocean to see an overweening supranational body that not only usurps the laws of member nations, but will drag its members into fiscal and moral insolvency to do so.

The entities created ostensibly to unite the nations of North and South America have instead become divisive precisely because they have abandoned the common understanding of human rights that their charter empowered them to uphold. As we see in the United States, this abandonment does not lead to greater unity, but to greater division and acrimony that infects every facet of politics and culture.

If we desire true unity and peace, we must dispense with the ACHR and build structures that represent the true values of Latin American people, and not only the elites who want to change who we are and what we believe.

Dr. Alejandro Leal is a full professor of human genetics in the University of Costa Rica School of Biology, and president of the Association For The Defense of Life (Asociación para la Defensa de la Vida / ADEVI). He served as scientific advisor and member of the Official Costa Rican Mission to the Interamerican Commission on Human Rights in this case.
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