Pretoria – A constitutional challenge by the organisation, Voice of the Unborn Baby, to establish parents’ right to bury a foetus will be heard on Thursday and Friday by the Gauteng High Court, Pretoria.
The organisation will ask the court to declare certain sections of the Birth and Deaths Registration Act to be invalid where it does not make provision for the right of bereaved parents – other than a stillborn – to bury the foetus if they so wished.
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 are regarded as medical waste and accordingly disposed of.
But 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 younger.
Renaldi Ingram, the attorney spearheading the challenge, said across cultures, burial or cremation is an important way in which bereaved people say their final goodbyes to loved ones who have passed away.
“Psychologists tell us that burial or cremation can fulfil a crucial role in the grieving process. It helps those left behind to come to terms with the reality of the loss, while being supported by family and friends.
"At the opposite side of the cycle of life is the beginning of life.”
She said because of technologies like ultrasound, expecting parents can nowadays see their unborn babies in the mother’s womb weeks or even months before the baby is born. This has contributed to parents starting to emotionally bond with their unborn babies more intensely before its birth.
“In the tragic event of a miscarriage, many parents feel a great sense of loss. For them, the loss of the unborn baby is the same as the loss of a child who was already born. The same can often be the case with the termination of pregnancy.”
However, according to current South African law, an unborn child that is miscarried (born dead before 26 weeks of gestation) or perished in a termination of pregnancy procedure, cannot be buried or cremated.
She said bereaved parents are legally banned from choosing to have a proper, dignified burial (or cremation) for their unborn child.
The ministries of Home Affairs and Health will oppose the application. They said the Birth and Death Registration Act did not make provision for the burial of a foetus.
It says a medical doctor present at a still-birth or examining the corpse shall issue a death certificate, which could not be done in the case of a foetus. It will be argued that foetuses, other than still-births, are incinerated with medical waste. Their argument goes that it is settled law that a foetus does not have legal rights.