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In a unanimous judgement on Wednesday, the Constitutional Court (Concourt) set aside a North Gauteng High Court ruling allowing parents the right to choose to bury or cremate a foetus.
Last April, the high court ruled in favour of the applicants, declaring some provisions of the Department of Home Affairs’ Births and Deaths Registration Act (BDRA) unconstitutional.
The application was brought to the apex court – against home affairs and the minister of health – by the Voice of the Unborn Baby NPC and the Catholic Archdiocese of Durban. They sought to have the high court order confirmed, so that it could be legislated in order to allow parents who lost their offspring before 26 weeks of pregnancy to have an option of burying the foetus.
A lost foetus is routinely discarded as medical waste and incinerated at clinics and hospitals.
In her judgement, high court Judge Nomonde Mngqibisa-Thusi declared that parents should be given a choice on what to do with a foetus.
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She declared some sections of the BDRA unconstitutional, saying the foetus might be medical waste to medics, but not to parents as it had become a child they had waited for, and that treating it as waste was “insensitive and disrespectful.”
Mngqibisa-Thusi said allowing the burial would “ease the pain and help in the healing process.” She further directed Parliament to amend the BDRA and temporarily allow the issuing of death certificates for burials.
The Concourt judgement, penned by Justice Tlaletsi AJ, disagreed with the high court.
“The order of the High Court declaring Section 18 (1) to (3) of Births and Deaths Registration Act invalid is not confirmed.
“The order of the High Court declaring Section 20 (1) of Births and Deaths Registration Act invalid is not confirmed. The application is dismissed and each party is to pay its own costs,” read the judgement.
The Home Affairs department submitted that the High Court’s order, if implemented, would be burdensome on it and the health department.
“Such confirmation would require the category of foetuses that can be buried to be extended to pre-viable foetuses. This would require additional processing of the death and burial registrations by the state, a task that is beyond its capacity,” the department argued.
According to government, Mngqibisa-Thusi’s order usurped legislative functions and contravened the principle of separation of powers.
Supporting the department were Women’s Legal Centre Trust (WLCT) and the Sexual and Reproductive Justice Coalition (SRJC), admitted as friends of the court, who submitted that a blanket foetal burial right would burden health facilities, create additional barriers to accessing services such as abortion, and thus interfere with the right to sexual and reproductive rights.
The third friend of the court submission by Cause for Justice (CFJ), contended that disposal of the foetus as medical waste was “inconsistent with the value of human dignity,” and that denying grieving parents a burial was equal to denying them their constitutional rights.
Tlaletsi wrote that the apex court was not in a position to grant the right to bury a foetus.
“Where the evacuation or removal of some or all of the foetal remains from the mother takes place in a healthcare facility, the implication of such a declaration for hospitals and other healthcare service providers becomes a challenging question.
“The question as to what medical staff at public hospitals must do if would-be parents express the wish to bury or cremate pre-viable foetal remains, is not clear. The burial or cremation of pre-viable foetal remains would no doubt require the cooperation of healthcare professionals, and public hospitals would be expected to allocate the necessary resources.”
“Because of the way the case was pleaded, we do not have the necessary evidence to evaluate the considerations relating to how hospitals would manage the burial or cremation of pre-viable foetuses. This is not the case which the applicants pleaded, and we are in any event not in a position on the facts to adjudicate it.”
Furthermore, said Tlalatsi, BADRA does not provide for foetal burial other than in cases of a still-born baby.
“The High Court, therefore, declared the impugned legislation constitutionally invalid in the mistaken understanding that BADRA applies to and regulates the burial of pre-viable foetuses.
“The relevant sections of BADRA cannot be declared inconsistent with the Constitution because of such omission. It follows that the declaration of invalidity can therefore not be sustained.”
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