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Pretoria - If we are a caring and compassionate society, why do we not allow allow grieving parents to bury their unborn babies? This was the question posed by counsel acting for the organisation Voice of the Unborn Baby to Judge Nomonde Mngqibisa-Thusi.

The organisation is asking the Gauteng High Court, Pretoria, to declare that if parents lose their unborn baby before 26 weeks, they must be allowed to bury it, as is in the case of babies which are stillborn.

They are asking the judge to declare certain provisions of the Births and Deaths Registration Act (BADRA) as being unconstitutional in so far as it precludes the right to parents to bury their dead foetuses up to 26 weeks of gestation. 

Parents who are awaiting the outcome of the application will meanwhile have to wait a while longer, as Judge Mngqibisa-Thusi on Friday said she needed time to work through all the arguments. She indicated that she will deliver her judgment sometime during the first term next year.

Advocate Donrich Thaldar, acting for the organisation, meanwhile delivered a passionate and emotional argument this week in his bid to convince the court that the parents have the right to grieve their unborn child. He said some parents chose to do this by way of burying their unborn child and it is inhumane to deny them this.

As things now stand, parents who lose a foetus younger than 26 weeks do not have the right to bury or cremate the remains. These remains are regarded as medical waste and incinerated alongside other medical waste.

BADRA provides for the issuing of a certificate of burial only in cases where a human dies after being born alive, or where the unborn child has lived for longer than 26 weeks in the womb, but died prior to birth, thus stillborn. The Catholic Archdiocese, which have joined the proceedings, said it too believed that from a Christian point of view, parents should have a say in whether or not to be able to bury these unborn children.

The ministers of home affairs and health, however, opposed it and said the application is mainly based on moral issues and not on the law.. It argued that it is settled law that a foetus does not have legal rights. 

The judge was told that the applicant’s case is that pregnancy loss often causes grief to expecting parents and that bereaved parents process of dealing with their grief is aided by burial of the foetus. 

But, the government said, BADRA does not recognise the burial of a dead foetus of less than 26 weeks. It was further argued that viability is a legal concept which gives meaning to the concept of life and human life. In legal terms, there is no human life in the absence of viability.

Government referred to the court papers of the applicant, in which it was said that the purpose of this application is not to engage the issue of the appropriate gestational age for viability in the South African context.

The applicant also did not challenge 26 weeks as the benchmark for viability. Government, in this argument, said the law defines at what stage of gestation viability is recognised.

It is then at that stage (older than 26 weeks) that a certificate of death can be issued in the case of a dead foetus. According to Government the court cannot change the law simply on the perceived emotional state of “bereaved parents” in the event of pregnancy loss.

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Pretoria News