- The Gauteng High Court in Pretoria ruled that certain sections of the Births and Deaths Registration Act are unconstitutional because it denies parents the right to bury the remains of a foetus that's less than 26 weeks old.
- The application was brought by The Voice of the Unborn Baby NPC and the Catholic Archdiocese of Durban.
- But the Constitutional Court said the act is silent on the matter and only regulates the burial of dead human bodies or stillborn babies.
The Constitutional Court has declined to confirm the constitutional invalidity of sections of the Births and Deaths Registration Act.
This comes after the Gauteng High Court in Pretoria found that the act denied parents the right to bury the remains of a foetus that was less than 26 weeks old.
The application was lodged by The Voice of the Unborn Baby NPC and the Catholic Archdiocese of Durban against the Ministers of Home Affairs and Health.
The applicants argued that the act was "insensitive, hurtful and disrespectful" because it only allows for a death certificate to be issued in "stillborn" cases when the foetus is more than 26 weeks old.
High Court Judge Nomonde Mngqibisa-Thusi agreed and ruled that sections of the act were unconstitutional on the basis it "deemed a foetus less than 26 weeks to be medical waste that must be incinerated".
However, in a unanimous judgment, the Constitutional Court said the judge was wrong.
Acting Justice Pule Tlaletsi said the applicants had submitted that the provisions of the act had the effect that no burial order could be issued for foetuses lost through miscarriage before the 26-week mark, and that the regulations only made provision for the burial of corpses and human remains, but not foetal remains.
Tlaletsi said:
"The relevant sections cannot be declared inconsistent with the Constitution because of such omission … the Act does not stand in the way of that burial," he said, noting that the act only regulated the burial of "dead human bodies or stillborn children".
The judge said the court was not in a position to grant the relief sought.
Read the judgment here
The question as to what medical staff at public hospitals must do if parents express the wish to bury or cremate pre-viable foetal remains is not clear, he said.
"Such a burial or cremation would no doubt require the cooperation of healthcare professionals and public hospitals would be expected to allocate the necessary resources.
"Because of the way the case was pleaded, we do not have the necessary evidence to evaluate considerations relating to how hospitals would manage this … There may be other restrictions, for example, limitations imposed by municipal regulations (regarding cemeteries and crematoriums)."
The Catholic Church, arguing that its members hold "sincere religious beliefs" that they become parents from the moment of conception, said the burial right should also extend to lost pregnancies "due to human intervention", including termination of pregnancies.
But two amicus curiae (friends of the court) in the case — the Women's Legal Centre Trust and the Sexual and Reproductive Justice Coalition — said this would have a profound impact on the termination of pregnancy services offered to women, and the attached confidentiality.
This burden, they said, would lead to a decrease in facilities that offer termination and a diminution of sexual and reproductive rights.
However, the apex court did not comment on this.
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