CCPR/C/116/D/2324/2013 equality. Under the Irish health-care system, women who terminate non-viable pregnancies are considered not to deserve or need counselling, whereas women whose fetuses die naturally do. This treatment illustrates that there is a stereotypical idea of what a woman should do when her pregnancy is non-viable, namely to let nature run its course regardless of the suffering involved for her. 3.20 The violations to which the author was subjected should be understood in the light of the structural and pervasive discrimination that characterizes the Irish abortion law and practice. The abortion regime discriminates against both the author as an individual woman and against women as a group. It fails to account for women’s different reproductive health needs, thus reinforcing their vulnerability and inferior social status. In conclusion, the author’s rights to non-discrimination and to enjoy equally her rights to be free from cruel, inhuman and degrading treatment, to privacy, and to access information, guaranteed under articles 2 (1) and 3 in conjunction with articles 7, 17 and 19 of the Covenant were violated, as was her right to equal protection under article 26. Exhaustion of domestic remedies 3.21 The author would not have had any reasonable prospect of success had she petitioned an Irish court for a termination of her pregnancy. While Ireland has a functioning and independent judiciary and domestic remedies would have been available to her, they would have been neither effective nor adequate. 3.22 At the time of the facts and until 2013, section 58 of the Offences Against the Person Act (1861 Act) criminalized abortion for both women and abortion providers, even in cases where it was necessary to save the woman’s life. It subjected to life imprisonment any woman who tried to terminate her pregnancy and any doctor who tried to help her. Furthermore, article 40.3.3 of the Constitution, introduced in 1983, reads: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”. Section 22 of the Protection of Life during Pregnancy Act 2013, provides that “(1) It shall be an offence to intentionally destroy unborn human life; (2) A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both”. 3.23 In Attorney General v. X and others, decided in 1992, the Supreme Court held that article 40.3.3 permits abortion only when “it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy”. In 2009, the Supreme Court further clarified the meaning of the constitutional protection of the “unborn”. In Roche v. Roche, the Court established that once an embryo has been implanted in a woman’s womb its relevant attachment with the pregnant woman has been created and it enters a state of “unborn”. That decision suggests that the constitutional protection of the “unborn” would extend to a fetus with a fatal anomaly as long as it was alive through being attached to the pregnant woman and having the potential to be born. That was the case for the author, who had received an implanted embryo, which had thus entered the state of “unborn” that is explicitly protected by article 40.3.3. 3.24 As long as the author’s fetus was alive she did not have a reasonable prospect of convincing the High Court, only a year after the decision in Roche v. Roche, that it was not protected under article 40.3.3, as it clearly had “the potential to be born, the capacity to be born” and its life was attached to hers. The Roche v. Roche decision also confirmed that article 40.3.3 was concerned with the balance between the lives of the pregnant woman and the fetus and not with the health or well-being of the woman. Furthermore, during the debate on the Protection of Life During Pregnancy Act (2013), the legislature opposed the inclusion of fatal fetal impairment as a legal ground for abortion. 7