CCPR/C/119/D/2425/2014 Annex I [Original: French] Separate opinion of Committee member Yadh Ben Achour 1. I agree with the findings of the Human Rights Committee that the facts in the present case (communication No. 2425/2014) disclose a violation of articles 7, 17 and 26 of the Covenant. In paragraph 7.13 of its Views, the Committee decided nevertheless not to examine separately the author’s allegations under articles 2 (1) and 3 of the Covenant. 2. I am of the opinion that, in its consideration of the merits, the Committee should have upheld the author’s claim that, in Ireland restrictive abortion laws constitute a form of discrimination against women. The author points out that, in contrast, male patients and patients in other situations in Ireland are never expected to disregard their health needs and moral agency in relation to their reproductive functions, or to leave their family and country in order to receive health care. The rights to equality and non-discrimination require States to ensure that health services accommodate the fundamental biological differences between men and women in reproduction (see paragraph 3.9). According to the author, the Irish legislation that makes abortion a criminal offence also violates articles 2 (1) and 3 of the Covenant. 3. In paragraph 7.12 of its Views, the Committee begins by referring to this problem in the same terms as the author, noting that male patients in Ireland are not expected to disregard their health needs and travel abroad in relation to their reproductive functions and that the State party’s criminalization of abortion subjected the author to a gender-based stereotype according to which the primary role of women is reproductive and maternal. 4. But then, abandoning this logic and shifting its perspective, the Committee addresses the author’s claim on the basis of another ground, taken from another sphere, that differs in nature from the ground invoked by the author. In fact, the type of discrimination to which the Committee refers is no longer that of gender-based discrimination between men and women but rather discrimination on the basis of economic factors among women. It considers that the differential treatment to which the author was subjected created a legal distinction between similarly-situated women and that the existing legal situation in the State party, which allows women to seek, at their own expense, termination of pregnancy in foreign countries, imposes an exceptionally heavy burden on women of low socioeconomic status when compared to other women with superior economic means. 5. While I agree with this point of view, which is based on article 26, I nevertheless consider that the author was right to believe that, because of its effects, the Irish legislation in question also constituted a violation of articles 2 (1) and 3 of the Covenant. By denying women their freedom with regard to a matter concerning their reproductive functions, this type of legislation runs contrary to the right to non-discrimination on the basis of sex because it denies women the ability to exercise their free will in this area. No similar restrictions are imposed on men. This type of legislation imposes a disproportionate, abnormal and unjust existential burden on women, by virtue of being women. 6. Through its binding, indirectly punitive and stigmatizing effects, the prohibition of abortion in Ireland targets women, by virtue of being women, and places them in a specific situation of vulnerability that is discriminatory in comparison with men. As a result of the application of this legislation, the author was, in fact, subjected to a gender-based stereotype according to which a woman’s pregnancy should be continued no matter what the circumstances, except where her life is endangered, since the role of women is limited exclusively to that of procreative motherhood. The act of reducing the author to an instrument of procreation constitutes discrimination and simultaneously infringes her freedom of self-determination and her right to gender equality and personal autonomy. 7. On the basis of these considerations, I am therefore of the opinion that the fact that the State, in applying its internal legislation, did not allow the author to terminate her 16 GE.17-10463