The judgment by the Gauteng High Court (Pretoria) in The Voice of the Unborn Baby case – that most parents who lose a child prior to birth have a right to bury their baby’s bodily remains, irrespective of the stage of foetal development – is a victory to be celebrated by all. The court, however, declined the opportunity to acknowledge the humanity of all unborn babies, creating a two-tier system that gives burial rights in respect of “wanted” babies and discards the “unwanted”.
So says Ryan Smit, executive director and legal counsel at Cause for Justice, a public interest legal advocacy non-profit organisation. Writing on the Mail & Guardian Online site, he notes that sections 9, 10 and 11 of the Bill of Rights confirms that everyone has inherent dignity and the right to have their dignity respected and protected; is equal before the law and has the right to equal protection and benefit of the law; and has the right to life.
However, “everyone” does not necessarily mean literally “every human being”. According to South African common law, passage through the birth canal and/or a baby’s first breath is what bestows rights or the status of “right-bearership” on human beings.
The Constitutional Court is yet to test the common law against the Constitution, but in Christian Lawyers’ Association of SA v Minister of Health, the High Court expressed the view that “everyone” in the Constitution should be interpreted in accordance with the colonial common law.
Smit notes legal proceedings were instituted by The Voice of the Unborn Baby NPC in 2017 to declare certain provisions of the Births and Deaths Registration Act, 1992, and the Regulations Relating to the Management of Human Remains, 2013 unconstitutional.
Under the contested provisions, parents of miscarried babies are prohibited by law from burying their baby’s bodily remains. In contrast, the Act gives the parents of stillborn babies the right to bury their child’s remains.
In the M&G analysis, Smit says the court’s declaration – that parents of miscarried babies “have the right to bury” their baby and that certain provisions of the Act and the regulations are unconstitutional for denying parents this right – is to be welcomed. The court found that these provisions infringe the human dignity of parents who have suffered the miscarriage of their baby by precluding them from burying the baby’s remains.
This finding is a vindication of the dignity of bereaved parents and the humanity of miscarried babies. However, the court declined to extend the right or choice to bury to all parents. Where pregnancy loss results from human intervention (for example medical negligence and abortion), parents still do not have the right to bury their baby.
Smit says the effect of the judgment is to create an “arbitrary and irrational” distinction between the nature of the remains of “wanted” and “unwanted” unborn babies.
The humanity of wanted babies is recognised – their remains are “human remains”. According to the court, unwanted (aborted) babies are not human – their biologically human bodies are not human for legal purposes. Smit adds the difference is based on nothing more than a mother’s personal preference.
He notes the case will now proceed to the Constitutional Court for confirmation. “We can only hope the highest court will go further than the High Court was willing to, by acknowledging and vindicating the humanity of all unborn babies and the dignity of all parents.”
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