Johannesburg - The nurse handed Nicholas Fitch and his partner their tiny baby in a silver kidney bowl, wrapped in green hospital cloth.
Even though Lutz was dead, having only been alive for an hour, they spent the next hour cradling their son and talking to him. His twin sister, Anja, was still alive in their surrogate’s womb and the couple went to check on her condition.
But when they returned to the neonatal ward at the private KwaZulu-Natal hospital, Lutz had vanished. The nurse informed them that because he had been born at 25 weeks, his remains would be incinerated as medical waste.
“We were in so much shock over the loss of one child and on a knife-edge with the hope that the other twin will survive. We weren’t offered the chance to bury him. They told us that because he was 25 weeks and six days, he was one day short of what the government deems as viable. They wouldn’t give us his remains, and discarded him as medical waste.”
Voice of the Unborn Baby, a non-profit organisation, launched its constitutional challenge against the ministers of Home Affairs and Health over provisions of the Births and Deaths Registration Act this week.
South Africa’s legislation decrees that if a foetus is less than 26 weeks old, it cannot be legally buried, and is treated as medical waste. Fitch, a 46-year-old business analyst, describes it as “sick for a country that has one of the best constitutions in the world”.
Sonja Smith, the founder of the non-profit, said: “All I’m asking is for choice. If a pregnancy is lost, I must decide if I want to have a burial. Why won’t the law allow me to say goodbye to my baby in a dignified fashion? Our laws are old-fashioned and archaic, and have never been brought in line with the constitution.”
Smith, who runs a funeral group, says her activism started 13 years ago when she was called to a private hospital to collect triplets who had died at 20 weeks.
“When I got there, they were missing. I asked the hospital staff where they had gone. They told me they had gone in the medical waste truck. That’s when I became aware of this inhumane law.”
She cites a study, published in the SA Medical Journal last year, which found a “concerning gap” in obstetricians and gynaecologists’ knowledge of the law. “It’s about healing. But how do you start healing if you can’t even say goodbye?”
For Fitch and his partner, the nightmare continued. Their other twin, Anja, died two weeks after her brother. “The hospital called us at 4am and said they had to get rid of her remains for hygiene reasons. We were frantic. We found her in the morgue lying naked on top of all the other bodies. I was crying and screaming.”
After a long fight with hospital authorities, the couple could ultimately cremate their daughter. They have since adopted a two-year-old.