Cape Town - Parents who suffered spontaneous pregnancy loss before the foetus reached the 26-week pregnancy mark, will still not have the right to bury the remains of the foetus as it is regarded as medical waste in terms of the Births and Deaths Registration Act (BADRA).
This comes after the Constitutional Court dismissed an application for confirmation of an order of constitutional invalidity, which would give bereaved parents the right to choose if they wanted to bury the foetus, lost through a miscarriage.
The application to confirm constitutional invalidity was brought by non-profit company Voice of the Unborn Baby and voluntary association Catholic Archdiocese of Durban, after some provisions of the act were declared unconstitutional in the Pretoria High Court.
Attorney for Voice of the Unborn Baby, Renaldi Ingram, said they were disappointed by the ruling, but said there was a “glimmer of hope” as the court interpreted legislation saying BADRA did not prohibit nor mention the burial of a pre-26 week gestation foetus.
“The judgment was some kind of disappointment but it also gives the grieving parents relief that they could then approach a court asking them to have their baby released to them for private burial or cremation.
“It is still a grey area but we hope to return to court in future to continue this fight,” said Ingram.
The applicants had challenged, according to court documents, the constitutionality of sections 20(1) and section 18(1) of the act on the basis that they “infringe the rights to privacy, dignity, religion and equality of prospective parents who have suffered pregnancy loss through miscarriage or conscious human intervention”.
“The applicants submitted that there is no justification for the distinction between the burial of the foetal remains of a pregnancy loss through miscarriage or induced pregnancy loss by human intervention and pregnancy loss through still birth. They further submitted that there is no legitimate governmental purpose served by depriving these prospective parents the option of burial.
“The respondents (ministers of home affairs and health) submitted that there is no legal or scientific justification for why the law should recognise the right to bury a foetus that is less than 26 weeks upon termination of pregnancy or induced pregnancy loss. The emotional attachment of the prospective parents does not mean that a legal right to bury the foetus exists. They further submitted that the emotional and psychological trauma suffered by the prospective parents does not give rise to the infringement of their constitutional rights. Finally, they submitted that there is a legitimate government purpose served by regulating aspects relating to the burial of a dead foetus,” court documents read.
The respondents further argued that such a process would require additional processing of the death and burial registrations by the state, “a task that is beyond its capacity”.
Acting Justice Pule Tlaletsi, said: “The impugned provisions of BADRA do not provide for foetal burial other than in cases of a still-birth. The High Court therefore declared the impugned legislation constitutionally invalid in the mistaken understanding (held by the litigants as well) that BADRA applies to and regulates the burial of pre-viable foetuses. The relevant sections of BADRA cannot be declared inconsistent with the Constitution because of such omission. It follows that the declaration of invalidity can therefore not be sustained.”
Cape Times