The Gauteng High Court (Pretoria) has declared sections of the Births and Deaths Registration Act (BDRA) – which deems a foetus of less than 26 weeks to be "medical waste" to be incinerated – unconstitutional, reports MedicalBrief. Judge Nomonde Mngqibisa-Thusi has ruled that would-be parents have the right to bury the remains of a foetus, if they wish.
Parliament has been given 12 months to amend the Act but Mngqibisa-Thusi ruled that in the interim, medical staff may, on request from parents, issue a death certificate to allow for burial.
The application was brought by The Voice of the Unborn Baby NPC (first applicant) and the Catholic Archdiocese of Durban (second applicant) against the ministers of Home Affairs and Health. The court admitted as amicus curiae the Cause for Justice (CFJ), the Women's Legal Centre Trust (WLC) and Wish Associates.
Mngqibisa-Thusi said in her judgment: “It could not be disputed that to the medical staff the remains may just be trash or waste. But to the would-be parents, it is not just a thing to be thrown away. It represents what could have been a child and in some cases, a long-awaited child.
“By treating the remains as waste is, to say the least, insensitive and disrespectful.” There were no rational reasons to differentiate between different losses of pregnancy. “The pain will be the same. At the end of the day, there is no child born alive.
The Voice of the Unborn Baby NPC challenged the constitutionality of BADRA and the regulation as it relates to how the remains of a spontaneous pregnancy loss which is less than 26 weeks and the remains of an induced loss of pregnancy, should be disposed. The judge emphasises that the concept of ‘viability’ as used in BADRA was not being challenged.
They submitted that expectant mothers and fathers made significant emotional investment in the prospective child and through advanced technology, through which they are able to observe the foetus in the womb, they developed a bond with the foetus. The loss of the pregnancy, irrespective of whether it was due to natural causes or was induced, caused immense grief to the prospective parents.
Despite emotional trauma as a result of the pregnancy loss, which was acknowledged by the respondents, BADRA unfairly discriminates against the parent(s) of a pregnancy loss, other than a still-birth, by not allowing them to bury the remains of the loss. The giving of burial rights to the parent(s) of a still-born and denying same to parents who had suffered a pregnancy loss other than a still-birth, amounted to an unfair differentiation between parents in the same situation. Further, the manner in which the remains of the pregnancy loss other than a still-birth were dealt with through incineration was “insensitive, hurtful and disrespectful” to the feelings and dignity of the bereaved parents.
The burying of the remains of such pregnancy loss, accompanied by the performance of the necessary rituals would go a long way to dealing with their loss. Further, there was no legitimate government purpose for depriving parents who had suffered pregnancy loss due to miscarriage or induced termination of pregnancy of choosing whether or not to bury the foetal remains.
In support, the applicants submitted affidavits from a Dr Botha, a gynaecologist and obstetrician; Dr Louise Olivier, a clinical and counselling psychologist; and Reverend Braam Klopper, a pastoral therapist and counsellor.
Klopper wrote: “It should be clear … that burial or cremation would impact positively on the process of grief of expecting parents who have experienced miscarriage or termination of pregnancy”. Dr Olivier wrote: “Most of the cultures in Africa recognise the belief of the spirit of each human being (even the unborn) and the importance of rituals to take leave of such a spirit in time of death and if it is not done appropriately that it has consequences for the community and the individual”.
Moving from a premise that life begins at conception, the Catholic Archdiocese of Durban submitted that unborn children were human beings with dignity and entitled to respect. The impugned legislation infringes its members’ constitutional rights to equality and to freedom of religion, arguing that s 15 of the Constitution guaranteed everyone the right to freedom of conscience, religion, thoughts, beliefs and opinion, which according to the Constitutional Court includes: the right to entertain such religious beliefs as a person chooses; the right to declare religious beliefs openly and without fear or hindrance or reprisal and the right to manifest religious beliefs by worship and practice. In practice, counsel submitted, this involves giving the unborn child dignity and respect as given to persons that die after being born, including, amongst others, such practices as “prayer, blessings, and the invocation of secret rites”.
On the merits, counsel for the respondents submitted that since the main complaint of the applicants was that pregnancy loss often causes grief to expecting parents, the applicants have not laid a basis to seek to impugn the provisions of BADRA since they have not challenged the fundamental principle and legal concept underlying the burial of foetus, namely, the concept of viability. Counsel submitted that in the absence of viability there is no life therefore there is no basis to render section 20(1) and the regulations unconstitutional. It was further submitted that the concept of viability was introduced to serve a legitimate purpose.
Where no child was born alive, or where no viability is realised in terms of BADRA, “one cannot talk about bereaved parents, they are merely prospective parents”. According to the respondents there was no legal and or scientific justification as to why the law should recognise the burial of a foetus of less than 26 weeks upon termination of pregnancy or induced pregnancy loss. It was further submitted that the mere fact that a prospective mother felt emotionally attached to the pregnancy even if it is still at conception or is merely two weeks’ old, “does not mean that a legal right exists for the prospective mother to bury the foetus even if it is an embryo”.
It was submitted that the decision to grant prospective parents an election to bury a dead foetus would not resolve the emotional and psychological attachment every prospective parent is likely to have. Further, that burial of the dead foetus could be assisted by psychological and counselling support that government makes available to the bereaved parents.
The WLC Trust and Wish Associates, the second and third amicus curiae, although abiding the decision of the court with regard to the merits of the relief sought by the applicant, they raised concerns with regard to the effect the relief sought as currently formulated is granted on the rights of pregnant women who chose to terminate their pregnancies in terms of the provisions of the Choice of Termination of Pregnancy Act (CTOPA). The relief sought would mean additional burdens would be placed on designated facilities; the relief would undermine the confidentiality provisions of the CTOPA; the right to bury might create an additional barrier to accessing facilities offering services under OCTOPA.
WLC Trust asked that any declaratory order conferring burial rights on bereaved parent or parents should expressly exclude the accrual of such rights on a person who seeks pregnancy loss under the voluntary termination of pregnancy regime under CTOPA. Should the declaratory order also apply to persons seeking voluntary termination of pregnancy under CTOPA, the order should include a provision ensuring appropriate mechanisms are put in place to ensure the practical fulfilment of that right does not disproportionately interfere with pregnant women’s right to access a termination of pregnancy procedure.
In her judgment, Mngqibisa-Thusi wrote:
“Having considered the concerns raised in submissions on behalf of WLC with regard to the impact of the relief sought by the applicants is granted, I am not inclined to grant the relief sought where it would have a blanket effect on loss of pregnancy other than still-birth. Accordingly the first applicant’s draft order will be amended to exclude application to people falling under the purview of CTOPA.
“It is trite that an unborn ‘child’ is not a bearer of rights. However, in certain instances the law has protected the ‘rights’ of an unborn child in the event that he or she is born alive. It is common cause that pregnancy loss results in emotional and psychological pain or trauma.
“It is further common cause that in terms of BADRA and the regulations, a notice of death or stillbirth can only be completed in the case of a human being or a still-born. Since in terms of the impugned provisions a burial order can only be issued once a notice of still-birth has been completed, the burial of the foetal remains of a pregnancy loss due to natural causes which occurs before 26 weeks of gestation or the foetal remains of a voluntary induced termination under CTOPA.
“It is the applicants’ contention that the impugned provisions infringe on the constitutional rights of dignity, privacy, religion and equality in denying the parents of a pregnancy loss other than a still-birth the right to bury the foetal remains, particularly as these rights have been afforded to the parents of a still-birth. It was submitted on behalf of the applicants that the emotional pain and grief these parents suffer and endure, is no different from those of a parent(s) of a still-birth, taking into account the emotional investment made and the bonding between the parent(s) and the foetus which has been enabled by technological medical advancement.
“The emotional pain is exacerbated by the manner in which the foetal remains are dealt with after separation from the mother and the lack of sympathy received from hospital staff during the separation. Further these foetal remains are put together with other medical waste and incinerated. It cannot be disputed that to the medical staff the foetal remains may be just trash or waste but to the would be parent(s) it is not just a thing to be thrown away. To the would be parents the foetal remains represent what could have been a child, in some instances a long-awaited child. By treating the foetal remains as waste is, to say the least, insensitive and disrespectful to the parent(s) who procreated with the hope that the foetus will result in a living being.
“It cannot be disputed that the impact of the loss of a pregnancy cannot be said to be different or of a lesser magnitude in the case of a foetus which has not reached the stage of viability when the loss occurs. The issue is not, as incorrectly assumed by counsel for the respondents’ viability or non-viability of the foetus. The argument by counsel for the respondents that the use of the criterion of viability in order to accord burial rights is a necessary limitation as envisaged by s 36 of the Constitution is not convincing. It is about the emotional loss and the pain felt by the expectant parent(s). No rational reason exists why there is a differentiation in treating the consequences of a still-birth on the one hand, and on the other hand those of a pregnancy loss other than a still-birth. The intensity of the pain felt by both parents who have suffered a loss must be the same. In both instances at the end of the day there is no child born alive.
“This court has been referred to various foreign jurisdictions where there is a recognition of the need to cater for the emotional needs of parent(s) who has lost a pregnancy in a situation other than a still-birth and no distinction is made as to how the foetal remains should be disposed of in the case of a still birth and cases other than a still-birth. Policies and guidelines have been developed on how the parent(s) of a pregnancy loss should be dealt with after the loss. For instance, in Alberta, Canada in terms of Cemeteries Act, the definition of a ‘cemetery’ read with s 18(1) is all encompassing to include foetal remains whatever the cause.
“There is no reason why the impugned provisions cannot be adapted in order to cater for a loss of pregnancy other than a still-birth for those who wish to perform the last rites for the prospective baby and conduct a burial. The dignity of the parents who have suffered a loss will be restored. Further, there is no rational link between the purpose of incinerating the fetal remains of a pregnancy loss other than a still-birth and the cause of the loss. By allowing the ‘bereaved parents’ to bury the fetal remains under the circumstances will go a long way towards ameliorating the pain caused by the loss and will assist in the process of healing. The applicants are not calling for a blanket burial right but are suggesting that such right be given to those who request a burial.
“I am therefore of the view that the impugn provisions of BADRA and the regulation are inconsistent with the Constitution and are invalid to the extent of excluding the issuance of a still-birth notice in the case of a pregnancy loss other than a still-birth. The declaration of invalidity does not however apply in the case of a pregnancy loss due to an inducement.”
No order was made on costs.
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