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Parents who want to bury foetus younger than 26 weeks left in limbo

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

Published Jun 17, 2022


Pretoria - Parents who wish to bury the remains of a dead foetus following a spontaneous pregnancy loss after less than 26 weeks have been left in limbo.

This week, the Constitutional Court opted not to to confirm an earlier high court order which declared certain provisions in the Births and Deaths Registration Act unconstitutional.

The issue relates 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.

Gauteng High Court, Pretoria, Judge Nomonde Mngqibisa-Thusi earlier ruled that in the case of a pregnancy loss other than by medical intervention, bereaved parents should have the choice to bury the foetus.

The judgment was interpreted as paving the way for parents opting to bury the remains of a dead foetus, even if the unborn child is less than 26 weeks old, to do so.

In the past, a foetus less than 26 weeks old was discarded as medical waste.

The application was sparked by a group called the Voice of the Unborn Baby, as well as the Catholic Archdiocese of Durban, who had challenged the constitutionality of some of the provisions of the act, which barred parents from burying a foetus younger than 26 weeks.

But the Concourt, in an unanimous judgment, found that on an interpretation of act, there was nothing which prohibited parents from burying a foetus younger than 26 weeks.

Judge Pule Tlaletsi said: “While it may be true, as the applicants argued, that throughout the years the practice has been to deny parents this right in the apparent belief that this is what the law provides, this matters not. The act simply contains no such prohibition.”

The high court earlier declared sections of legislation inconsistent with the Constitution insofar as they prohibit the burial of foetal remains aged under 26 weeks. As it was said to be a constitutional issue, the apex court had to have another look at the matter to decide whether to confirm the high court ruling.

Judge Tlaletsi said: “Confirmation is not there for the taking. This court must itself be satisfied that the impugned provisions are unconstitutional … In view of the conclusion I reach on the interpretation issue, which is that the act does not prohibit the burial of a pre-viable or terminated foetus, the constitutional validity issue does not arise.”

The judge remarked that the purpose of the act was to regulate the registration of births and deaths and to provide for matters connected with it. The act, the Concourt said, only required an order for the burial of any corpse, either a dead human body or a stillborn child.

The high court declared the impugned legislation constitutionally invalid in the mistaken understanding (held by the litigants as well) that the act applied to and regulated the burial of pre-viable foetuses.

“The relevant sections of the act cannot be declared inconsistent with the Constitution because of such omission. It follows that the declaration of invalidity can therefore not be sustained. 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 judge added that where the evacuation or removal of some or all of the foetal remains from the mother takes place in a health-care facility, the implication of such a declaration for hospitals and other health-care service providers becomes a challenging question.

The judge said while the legislation did not stand in the way of these burials, parents would have to look at their specific municipal regulations in this regard.

Renaldi Ingram, who appeared for Voice of the Unborn Baby, explained that while the court interpreted the act as not standing in the way of burying foetuses younger than 26 weeks, there was also nothing in this legislation which allowed for it.

She said that according to the judgment, parents would have to look at what the municipality’s regulations were regarding burial under these circumstances.

Another option was for parents to approach a court on an individual basis if they sought permission to bury their unborn child.

Pretoria News