The beginning of human life before the scenario proposed by the Inter- American Court of Human Rights

Abstract

This article analyzes the arguments used by the Inter-American Court of Human Rights (hereinafter, “the IAHR Court”) in the case of Artavia Murillo et al. V. Costa Rica regarding the adoption of the theory of nesting, pointing out the lack of their consistency with the degree of protection that would deserve a right as essential as life and with scientific discoveries on the subject (in particular, studies on DNA).
Therefore, the decisions of the Peruvian Constitutional Court regarding the nasciturus preserve the idea of dignity of the human person, as established by the current Constitution of our country, as well as preserve the harmony of our Law. Thus, it offers guarantees that the Inter-American Human Rights system has ceased to provide the nasciturus and the fertilized in vitro embryo.
To accommodate the concept of conception - as the IAHR Court has understood - a reform of article 2, numeral 1 of the Constitution would be needed, activating the derived constituent power. An interpretation by the national courts that echoed the provisions of the Inter-American Court could distort the guarantee position that, up to now, is handled in Peruvian domestic law.