CCPR/C/119/D/2425/2014
But this does not render moot the State party’s intent to protect any fetal life until death.
After all, we would never accept a death sentence carried out on a pregnant woman,
irrespective of whether the pregnancy is viable or not. e Though the Committee in its
findings under article 17 does not agree with the outcome of the State party’s balancing of
the right to life of the unborn and the rights of the woman because the fetus was fatally ill in
the present case, this does not warrant the conclusion that the difference in treatment of
women who undergo an abortion and those who carry to term is based on a personal
characteristic of the woman concerned. The Committee thus has failed to explain why the
difference in treatment was based on an impermissible ground.
7.
Even if we assumed that the denial of bereavement support was based on an
impermissible ground, the author has neither submitted that local remedies have been
exhausted in this respect nor that there is objectively no prospect of success to challenge the
denial of bereavement support and post-abortion medical care in domestic proceedings. f
Pursuant to article 5 (2) (b) of the Optional Protocol the Committee is therefore prevented
from finding a violation of article 26 in this regard.
8.
Finally, for the reasons given in my separate opinion in Mellet v. Ireland I do not
agree with those members who would have preferred if the Committee had found a
violation on the basis of sex and gender. I refer to my previous opinion. g I also repeat that
the Committee should preserve the autonomous meaning of article 26 by giving due
account to the notion of discrimination and to the grounds prohibited thereunder rather than
presuming a violation of this provision whenever a violation of one of the other rights
protected under the Covenant are found. An overbroad reading is unnecessary under our
Covenanth and would deprive article 26 of its particular value.
e
f
g
h
GE.17-10463
See article 6 (5) of the Covenant.
The author only submitted that she had no reasonable prospect of success had she petitioned an Irish
court for a termination of her pregnancy.
See communication No. 2324/2013, Mellet v. Ireland, Views adopted on 31 March 2016.
The Covenant provides not only for non-discrimination but also for substantive rights. The
Committee, therefore, can deal with violations irrespective of whether they involve discrimination.
21
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents