A woman holds a foetus doll in the palm of her hand. Picture: AP
A woman holds a foetus doll in the palm of her hand. Picture: AP

Parents given right to bury stillborns, even if less than 26 weeks old

By Zelda Venter Time of article published Apr 6, 2021

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Pretoria - The “voice of the unborn baby” has finally been heard.

Parents opting to bury the remains of a dead foetus, even if the unborn child is less than 26 weeks old, may now do so. In the past, a foetus less than 26 weeks old was discarded as medical waste.

While this judgment is considered a victory for prospective parents, the Gauteng High Court, Pretoria excluded them the right to bury their unborn children in the case of medical terminations, including abortions.

A group called the Voice of the Unborn Baby, as well as the Catholic Archdiocese of Durban, had challenged the constitutionality of some of the provisions of the Births and Deaths Registration Act (Badra) as it related to how the remains of a spontaneous pregnancy loss of less than 26 weeks and the remains of an induced loss of pregnancy should be disposed of.

Judge Nomonde Mngqibisa-Thusi said in the case of a pregnancy loss, other than by medical intervention, bereaved parents should have the choice to bury the foetus.

She declared the provisions of Badra unconstitutional and invalid where it did not make provision for this.

Parliament has a year to amend the act to make provision for the burial of a foetus younger than 26 weeks of gestation. The Constitutional Court will also first have to confirm the judgment before it can come into effect.

The applicants earlier argued that parents who lose their unborn child before 26 weeks of gestation should have the choice to bury the remains and the government has no right to place legal barriers in their way.

The judge said she was not inclined to grant an order where it would have a blanket effect on loss of pregnancy other than stillbirth.

She said there was no doubt that pregnancy loss results in emotional and psychological pain or trauma to the prospective parents.

According to the applicants, the provisions of the act infringed on the constitutional rights of dignity, privacy, religion and equality, in denying the parents of a pregnancy loss other than a stillbirth the right to bury the foetal remains, particularly as these rights have been afforded to the parents of a stillbirth.

They argued that the emotional pain and grief these parents suffer was no different from those of a parents of a stillbirth, taking into account the emotional investment made and the bonding between the parents and the foetus.

“The emotional pain is exacerbated by the manner in which the foetal remains are dealt with after separation from the mother, and the lack of sympathy received from hospital staff during the separation. These foetal remains are put together with other medical waste and incinerated.

“It cannot be disputed that to the medical staff the foetal remains may be just trash or waste. But to the would-be parents it is not just a thing to be thrown away. To them the foetal remains represent what could have been a child, in some instances a long-awaited child,” the judge said.

She added that treating the foetal remains as waste was “to say the least, insensitive and disrespectful to the parents who procreated with the hope that the foetus will result in a living being”.

The judge said there was no reason why the provisions cannot be adapted to cater for a loss of pregnancy other than a stillbirth for those who wish to perform the last rites for the prospective baby and conduct a burial.

“The dignity of the parents who have suffered a loss will be restored. There is no rational link between the purpose of incinerating the foetal remains of a pregnancy loss other than a stillbirth and the cause of the loss.

“Allowing the parents’ to bury the foetal remains under the circumstances will go a long way towards ameliorating the pain caused by the loss and will assist in the process of healing,” the judge said.

She concluded that those parents who request a burial (excluding medical terminations) should be given the right to do so.

Pretoria News

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