Home South African Concourt to test common law against constitution on right to bury foetus

Concourt to test common law against constitution on right to bury foetus

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High court judgment declared certain provisions of the Births and Deaths Registration Act unconstitutional.

A high court judgment paved 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. Picture: File

Pretoria – The Constitutional Court is due to test the common law against the Constitution today, following the ground-breaking high court judgment in which certain provisions of the Births and Deaths Registration Act were declared 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 in April 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 paved 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 high court, however, excluded parents the right to bury their unborn children in the case of medical terminations, including abortions.

As the matter concerned issues of constitutionality, the Concourt had to speak the last word on the topic. The various parties will consequently present full arguments for or against the high court judgment today.

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.

The applicants will argue before the Apex Court that expecting parents who experience pregnancy loss (bereaved parents) and wish to bury their foetal remains, can find psychological healing through the process of burying the foetal remains.

According to them, this is because the process of burial is an age-old social institution that facilitates grieving, familial emotional support, and closure.

However, while the legislation provides that foetal remains following stillbirth (spontaneous pregnancy loss at 26 weeks) must be buried, it prohibits the burial following miscarriage loss at less than 26 weeks of gestation.

Unless the Concourt confirmed the unconstitutionality of the relevant provisions of the act, bereaved parents who suffer miscarriage will not have the option to bury the body of their dead unborn child.

It will be argued on behalf of the applicants, that the decision should be left to the parents, and not be prohibited by the state and legislation.

The Voice of the Unborn Baby will ask the Constitutional Court to declare that bereaved parents who suffer miscarriage, have the right, based on the constitutional rights to dignity, privacy, and equality, to elect to bury the dead foetus.

Besides the declaration of rights, the applicants will also ask that Parliament be instructed by the court to revise the act to give effect to the burial right.

Voice of the Unborn Baby said this application deals with pregnancy loss, the emotional consequences of such loss to the expecting parents, and how the State should deal with such bereaved expecting parents in our constitutional dispensation.

In particular, this application challenges the constitutionality of extant legislation that relates to how dead foetuses must be dealt with.

It made it clear that it does ask that the foetus must be awarded any legal rights, but its case is exclusively built on the constitutional rights of expecting parents who suffer miscarriage.

Pretoria News

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