CCPR/C/116/D/2324/2013 Annex V Individual opinion of Committee member Anja Seibert-Fohr (partly dissenting) 1. I am writing separately because I do not agree with the finding of a violation of article 26 and the reasoning in paragraphs 7.10-7.11. 2. I appreciate that the Views apply only to the particular facts of the present case in which the foetus according to the uncontested submission by the author was not viable. Accordingly the recommendation in paragraph 9 is confined to fatal foetal impairment. a But I fail to recognize why it was necessary and appropriate to find a violation of article 26 after the Committee concluded that articles 7 and 17 were violated. 3. The central issue in the present case resides in the prohibition on abortion in Irish law in situations where a foetus is fatally ill. The grounds which are outlined in paragraph 7.4 leading to the finding of an article 7 violation are substantially the same as those on which the Committee finds a violation of article 26 and which are again outlined in paragraph 7.4: the author’s denial of health care and bereavement support which is available to women who carry the foetus to term and the need to travel abroad at personal expense. These claims were already absorbed by the wider issue decided under articles 7 and 17 and there was no useful legal purpose served in examining them under article 26. b 4. Furthermore I cannot agree with the conclusion under article 26. 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 But the Committee has failed to explain in the present case where the difference in treatment resides and to what extent such difference was based on a ground which is impermissible under article 26. 5. With respect to the concrete medical treatment the medical needs of a woman pregnant with a foetus with a fatal impairment who undergoes abortion is substantially different in comparison to the situation of women who decide to carry a fatally-ill foetus to term. Therefore, in order to find a discrimination of a woman who undergoes abortion in comparison to those carrying the foetus to term it is insufficient to refer, as the Committee does in paragraph 7.10, to the denial of “health insurance coverage for these purposes”. The subject of the treatment for which health insurance is sought in case of abortion is fundamentally different from obstetrics. 6. I recognize that the author also claims a difference in treatment with respect to subsequent medical care and bereavement counselling. Though such a difference a b c d 28 The reference “as indicated in these Views of the Committee” in para. 9 applies to all aspects of the recommendations. See also the preceding reference to the “obligation to take steps to prevent similar violations occurring in the future”. See mutatis mutandis ECtHR, Dudgeon v. United Kingdom (1981), paras. 67-69. General Comment No. 18, para. 7. Šmíde v. Czech Republic, Communication No. 1062/2002, para. 11.5.