Catholic church takes foetus burial fight to ConCourt

The Catholic church wants the Constitutional Court to allow all would-be parents who lose their unborn children – whether “through human intervention” or not – to bury their remains.

Foetuses which don’t survive past 26 weeks are effectively considered “medical waste” under the Births and Deaths Registration Act in its present form and have, as a result, been incinerated in the past.

But the High Court in Pretoria handed down a landmark ruling setting aside various sections of the Act and giving would-be parents who had lost children during pregnancy the right to bury them – so long as the loss was not “through human intervention” or, for example, abortion.

But when the matter comes before the Constitutional Court in November, the Catholic Archdiocese of Durban – which has been joined as a party in the case – is hoping to convince the justices to reconsider this stance.

“The church respectfully contends that the burial right should be afforded to all bereaved parents,” Cardinal Wilfrid Fox Napier, recently retired Archbishop of Durban, said in an affidavit.

He argued the high court had erred. “If a mother has a miscarriage, the bereaved parents will be allowed to bury and grieve for their deceased child in a manner they consider sacred and just.

However, if a mother has a voluntary or involuntary termination of pregnancy the bereaved parents may not bury their deceased child but must accede to their child being disposed of as medical waste,” Napier said.

“By excluding pregnancy loss ‘through human intervention’ from the scope of the burial right, the court’s order perpetuates an unjustifiable limitation of the rights of bereaved parents who have experienced pregnancy loss of that nature and wish to, but may not, bury their children”.

In the high court, it was argued there was a stigma associated with a termination of pregnancy.

But, argued Napier, differentiating between the loss of an unborn child “through human intervention” and otherwise was not only “unjust” but could also in fact perpetuate that stigma.

The departments of health and home affairs are also appealing the ruling. Home affairs director-general Livhuwani Tommy Makhode said in papers there was “no factual or legal basis” for its order.

– bernadettew@citizen.co.za