The petitioner filed a petition to permanently suspend the marketing and sale of the emergency contraceptives “Postinor 2” and “Glanique,” also known as “morning after pills.” He claimed that the sale of these products constituted violations of the right to life of the unborn and criminal laws punishing abortion. He further argued that conception occurs at the moment of fertilization. The Third Civil Court of Guayaquil granted the petition. The Constitutional Court upheld this ruling, holding that although there is not scientific consensus on when conception occurs, when there is reasonable doubt, the court must err on the side of protecting the right to life of the unborn. According to the Court, women’s sexual and reproductive rights cannot take precedence over the rights of the unborn after fertilization occurs.
The petitioner filed a petition in the Third Civil Court of Guayaquil against the director of the National Institute of Hygiene and Tropical Medicine and the Public Health Minister, to permanently suspend the the marketing and sale of the emergency contraceptives Postinor 2, also known as the “morning after pill,” and the medication Glanique. He claimed that the medications, used to prevent unwanted pregnancies, violate provisions of constitutional and criminal law. The petitioner cited Ecuadorian criminal laws punishing abortion. He further argued that the sale and use of these medications violated the rights to legal certainty and life and the rights to be born, grow up, and choose.
The petitioner argued that although Ecuadorian law did not specifically define the moment of conception, once fertilization occurred, a unique person exists with his or her own genetic code, different from that of the mother. He insisted that it was disingenuous to classify the pill as a contraceptive, because even if a fertilized ovum has not yet implanted in the uterine wall, conception has occurred, so the pill is actually an abortion medication. Therefore, a vulnerable being entitled to protections exists from the moment of fertilization under Article 49 of the Constitution.
The Third Civil Court of Guayaquil granted the petition based on Articles 16 and 18 of the Constitution. The judge argued that the state’s paramount duty was to uphold and enforce human rights, which meant interpreting laws in a manner that tended to protect them. He went on to note that the right to life is guaranteed from the time of conception under the Constitution.
The Court started by emphasizing that the petition of unconstitutionality is intended to protect personal rights and freedoms provided under the Constitution against unlawful acts committed by authorities that create an imminent threat of serious harm.
It then went on to analyze the sanitary registration procedure report for Postinor 2, noting that it was contraindicated for pregnancy. It concluded that the effects of the medication were to 1) prevent ovulation, 2) prevent fertilization, and 3) prevent implantation. It added that once the zygote was implanted, the medication did not prevent pregnancy, but its use was contraindicated.
The Court went on to review the Code of Childhood and Adolescence in conjunction with Article 49 of the Constitution, which provides the right to life from conception. Article 20 of the Code provides special protections for the right to life of children starting at conception, while Article 148 provides special protections for pregnant women. Although the Court recognized that Ecuadorian law does not specify when the moment of conception occurs, it concluded that Article 20 of the Code of Childhood and Adolescence, which prohibits genetic manipulation starting at fertilization, creates a basis to find that life is protected from that moment. The Court, therefore, found that in light of the reasonable doubt regarding the moment of conception, an interpretation favorable to the right to life of the unborn was appropriate.
Regarding women’s sexual and reproductive rights, the Court held that these rights must give way to the right to life of the unborn. In a circular argument that the Court referred to as the principle of practical reconciliation, it argued that since no one may legally take his or her own life, no one may decide to take another’s life.
Turning to the petitioner’s standing to file a petition of unconstitutionality on these issues, the Court cited Article 61 of the Civil Code, which provides that any person, including a judge, may file suit in the event of danger to the unborn.
Finally, the Court found that the National Institute of Hygiene and Tropical Medicine should perform an assessment of the medication beyond its technical and medical characteristics, taking into account the right to life of the unborn under the Constitution.
The Constitutional Court upheld the Third Civil Court of Guayaquil’s decision to find in favor of the petitioner and grant the relief request. For this reason, as of August 5, 2004, the registration certificate for the emergency contraceptive medication Postinor 2/Levonorgestrel 0.75 were indefinitely suspended.