The Constitutional Court has reserved judgment in an application for the right to bury the remains of a foetus. The application was brought by the Voice of the Unborn Baby and the Catholic Archdiocese of Durban after some provisions of the Births and Deaths Registration Act were earlier declared unconstitutional.
The Gauteng High Court (Pretoria) in April granted bereaved parents the right to bury the remains of a foetus caused by a spontaneous pregnancy loss of less than 26 weeks. In terms of the Act, remains younger than 26 weeks are discarded as medical waste.
The High Court declared the provisions of the legislation unconstitutional, reports Pretoria News. The court, however, did not grant permission for bereaved parents to be allowed to bury their foetuses (younger than 26 week) in the case of medical intervention.
The Catholic Archdiocese of Durban on Thursday last week (4 November) appealed this aspect before the apex court. It argued that its members held the religious belief that they become parents and that their children were human beings from the moment of conception. Its stance is that the burial rights should be extended so that they also apply in cases of pregnancy loss by way of “human intervention”.
It was argued on behalf of the Church that the Act, as it stood, prohibited its members from burying foetal remains (apart from stillbirths) and therefore limits their constitutional right to freedom of religion.
The Home Affairs Ministry argued that if the court did confirm the rights of parents to bury their unborn children in either of these categories, it would place an additional administrative burden on the department, as well as on the Health Department. It was said that this would require additional processing of the death and burial registrations by the state department, a task that is beyond its capacity.
See more from MedicalBrief archives:
'Insensitive and disrespectful' to treat dead foetus as 'medical waste'
High Court challenge over parents' right to bury foetus
Unborn baby case offers dignity but not to all — Cause for Justice