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ConCourt ruling on the burial of foetuses solidifies the right of women to choose

A Constitutional Court judgment setting aside a high court order pertaining to the burial of foetal remains. Picture: Itumeleng English/ANA

A Constitutional Court judgment setting aside a high court order pertaining to the burial of foetal remains. Picture: Itumeleng English/ANA

Published Jun 20, 2022

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Cape Town - A Constitutional Court judgment setting aside a high court order pertaining to the burial of foetal remains has reaffirmed women’s right to choose when it comes to sexual reproductive health rights.

The litigation was instituted by Voice of the Unborn Baby (VUB) – an NPO advocating for the right to bury loved ones, and the Catholic Archdiocese in Durban.

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They sought confirmation of a high court order to declare parts of the Births and Deaths Registration Act “invalid” and “inconsistent” with the Constitution insofar as it prohibits the burial of foetal remains unless it was a still birth.

It was VUB’s submission that the regulations within the act infringe on the constitutionally protected rights of prospective parents, who are denied the choice to bury foetal remains.

For the purposes of their case, they argued that the act effectively means that no burial order can be issued for foetuses lost through a miscarriage before 26 weeks of pregnancy, and the regulations make provision only for the burial of “corpses” and “human remains”, but not for foetal remains.

The Catholic Archdiocese pleaded with the court that its members hold the sincere religious belief that they become parents, and their children are persons from the moment of conception. It was therefore argued that the burial rights ought to apply in cases of pregnancy loss due to human intervention, for example abortions.

In response, the Department of Home Affairs put forward that to confirm this perceived constitutional invalidity would require the category of foetuses that can be buried to be extended to pre-viable foetuses. This would require the Department of Home Affairs to further burden their systems with additional processing of the death and burial registrations by the state, which is beyond its capacity.

The court found that the act does not contain any kind of prohibition of this nature because the definition of a pre-viable foetus does not fall within the definition of a corpse as set out in the act, and simply falls outside the scope of the regulations.

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The court also found this omission cannot be found inconsistent with the Constitution, and therefore the order for invalidity could not be upheld.

“While there is no prohibition in the act on the burial or cremation of pre-viable foetuses, this court is not in a position to grant the declaratory relief sought, namely, that there is a right to bury such a foetus.

“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,” Judge Pule Tlaletsi said.

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The Women’s Legal Centre which made submissions as a friend of the court has welcomed the judgment as “solidifying women’s right to choose”.

They told the court, if the foetal burial right is extended, this would have a profound impact on the termination of pregnancy services offered to women, because it would lead to a decrease in facilities offering abortion services.

WLC attorney Khuliso Managa said: “The judgment really went a long way to ensure that a women’s right to choose is protected. It’s gone a long way to ensure that when women try to access abortion services they are able to do so wilfully, where they are available.”

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