Pretoria – Parents who lose their unborn child before 26 weeks of gestation should have the choice to bury the remains and government has no right to place legal barriers in their way.
This was the argument presented by a group which called themselves ‘Voice of the Unborn Baby’, in its constitutional challenge for parents to be able to bury the remains of a foetus after a pregnancy loss at 26 weeks or earlier.
The group is taking on legislation with the aim of allowing parents to choose whether they want to bury the remains of foetuses 26 weeks or
In their challenge against the provisions of Births and Deaths Registration Act (BADRA), the group is asking the Gauteng High Court in Pretoria to declare these provisions unconstitutional.
It wants Parliament to amend BADRA so that it would allow for the burial of foetuses up to 26 weeks. In the interim – until Parliament have changed the Act – they want an immediate solution by which parents who lose these foetuses, to be issued with a death certificate, allowing them to bury the foetus.
It is the stance of the applicant that grieving parents have the right to decide what to do with the remains of the foetus.
As things now stand, parents who lose a foetus younger than 26 weeks do not have the right to bury or cremate the remains. These remains
are regarded as medical waste and accordingly disposed of.
BADRA provides for the issuing of a certificate of burial only in cases where a human dies after being born alive, or where the unborn child has lived for longer than 26 weeks in the womb, but died prior to birth, thus stillborn.
The Catholic Archdiocese have joined the proceedings, as it believed that from a Christian point of view, parents should have a say in whether or not to be able to bury these unborn children.
The stance of the Church is that human life starts at conception and that people should be legally entitled to treat the end of human life prior to live birth with the dignity of a burial.
Advocate Donrich Thaldar meanwhile argued that the parents of the foetus should be given the option to bury it if it is younger than 26
He said in the case of abortion, the mother’s right to bury her foetus should be subjected to confidentiality.
He said the death of an unborn child, no matter at what age, is a deeply traumatic event for many parents. They should have the option to bury their child as part of the grieving process. It is highly traumatic for many parents to have their fetuses treated as medical waste.
Thaldar said this is an insult to many parents and a violation of their Constitutional rights.
In illustrating how the law was discriminating against some parents, he gave the example of two sisters who fall pregnant within weeks of
each other. Both are in the same car accident, losing their unborn babies. But the one sister, who is 27 weeks pregnant, is allowed to
bury her baby, while the other, who is 25 weeks pregnant, had to have hers disposed of as medical waste.
Thaldar proposed that BADRA be referred back to Parliament for it to get a practical solution to the issue.
It was meanwhile argued on behalf of Cause for Justice, who entered the fray as a friend of the court, that it should not be a problem for
State hospitals to preserve foetuses younger than 26 weeks. It could be kept in specimen bottles in the morgues, until the funeral
undertakers fetch it.
The court was told that there is no evidence that the hospitals would be overburdened if they were required to do this.
Government, however, argued that a foetus has no legal rights because it is not yet a human being and not capable of surviving on its own.
Thus, it said, there is no legal or scientific justification as to why the law should recognise the burial of a foetus of less than 26 weeks
upon termination of pregnancy or pregnancy loss.
The case is proceeding.