CCPR/C/119/D/2425/2014 Annex IV Individual opinion of Committee member Anja Seibert-Fohr (partly dissenting) 1. The Committee’s Views are not about the prohibition of abortion in general but relate to the particular facts of this case. The holding and the recommendations therefore apply only to the case in which the fetus, according to the uncontested submission by the author, was not viable.a 2. The denial of postnatal medical attention, as well as the failure to provide the author with bereavement care that is available to women who carry their non-viable fetus to term, contributed, inter alia, to the author’s suffering, which led the Committee to find a violation of article 7 in her case (see paras. 7.5-7.7 of the Views). While I agree with this holding, I fail to recognize why it was necessary and appropriate to find on the same grounds also a violation of article 26 after the Committee had already concluded that articles 7 and 17 had been violated. Not only are the claims on which the majority of the Committee based its findings under article 26 already absorbed by the wider issue decided under articles 7 and 17, such that there is no useful legal purpose served in examining them under article 26 (see paragraph 7.12 of the Views), b they are also insufficient to sustain a violation of article 26. 3. I recognize that the Committee limited its holding to the difference in treatment “in relation to other women who decided to carry to term their unviable pregnancy” (see para. 7.12 of the Views) and did not find a discrimination based on sex and gender. Nevertheless, I cannot agree with the majority’s conclusion under article 26 for the following reasons. 4. According to the Committee’s standing jurisprudence, the term “discrimination” as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. c Difference in treatment requires comparable situations in order to give rise to discrimination.d 5. With respect to abortion, the medical needs and services sought by the author are fundamentally different from obstetrics. Thus, in regard to termination of pregnancy, women are not in a comparable medical situation with respect to those who carry the pregnancy to term. For this reason, there are no grounds for finding the denial of abortion services to be discriminatory. 6. The situation is different with respect to post-partum care. I recognize that the postpregnancy situation of women who have carried and lost a non-viable fetus is comparable irrespective of whether they carried the pregnancy to term. They suffer from the loss of a fatally ill fetus. It is cruel to deny bereavement support to women who, due to the nonviability of their fetus have undergone an abortion, whereas such support is available to women who have carried the pregnancy to term. But in the context of article 26 the issue remains whether this difference in treatment is based on any of the grounds specified therein, that is, race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This is doubtful in the present case because the State party’s regulatory framework does not have its origin in the status of a woman who undergoes an abortion but is based on moral views on the nature of life, which are held by the Irish population. One may disagree with the sustainability of protecting a fatally ill fetus. a b c d 20 See the references to “as indicated in present Views” and “similar violations” in paragraph 9 of the Views. See also European Court of Human Rights, Dudgeon v. United Kingdom, application No. 7525/76, judgment of 22 October 1981, paras. 67-69. See general comment No. 18 (1989) on non-discrimination, para. 7. See communication No. 1062/2002, Šmídek v. Czech Republic, decision of inadmissibility adopted on 25 July 2006, para. 11.5. GE.17-10463