High Court challenge over parents’ right to bury foetus

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Parents who lose their unborn child before 26 weeks of gestation should have the choice to bury the remains and government has no right to place legal barriers in their way. A Pretoria News report says this was the argument presented by a group which called themselves “Voice of the Unborn Baby”, in its constitutional challenge for parents to be able to bury the remains of a foetus after a pregnancy loss at 26 weeks or earlier.

The group is taking on legislation with the aim of allowing parents to choose whether they want to bury the remains of foetuses 26 weeks or younger. In their challenge against the provisions of Births and Deaths Registration Act (BADRA), the group is asking the Gauteng High Court in Pretoria to declare these provisions unconstitutional. It wants Parliament to amend BADRA so that it would allow for the burial of foetuses up to 26 weeks. In the interim – until Parliament have changed the Act – they want an immediate solution by which parents who lose these foetuses, to be issued with a death certificate, allowing them to bury the foetus.

It is the stance of the applicant that grieving parents have the right to decide what to do with the remains of the foetus.

The report says 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 accordingly disposed of. 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 report says the Catholic Archdiocese have joined the proceedings, as it 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 stance of the Church is that human life starts at conception and that people should be legally entitled to treat the end of human life prior to live birth with the dignity of a burial.

Advocate Donrich Thaldar meanwhile argued that the parents of the foetus should be given the option to bury it if it is younger than 26 weeks. He said the death of an unborn child, no matter at what age, is a deeply traumatic event for many parents. They should have the option to bury their child as part of the grieving process. Thaldar proposed that BADRA be referred back to Parliament for it to get a practical solution to the issue.

The case is proceeding.

Pretoria News report

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