Judge rules 'hurtful' foetus burial law unconstitutional
Would-be parents have been given the right to bury the remains of a foetus, if they so wish, the Gauteng High Court (Pretoria) has ruled.
Judge Nomonde Mngqibisa-Thusi declared sections of the Births and Deaths Registration Act (BDRA) – which effectively deems a foetus of less than 26 weeks to be ‘medical waste’ that must be incinerated – unconstitutional.
A TimesLIVE report notes she has given Parliament 12 months to amend the Act but has 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 and the Catholic Archdiocese of Durban against the Ministers of Home Affairs and Health.
They argued that BDRA – which only allows for a death certificate to be issued in ‘stillborn’ cases, where the foetus is more than 26 weeks – was ‘insensitive, hurtful and disrespectful’.
Counsel submitted that it infringed on their rights to dignity, privacy, religion and equality.
The Ministers' lawyers argued there was no legal or scientific justification as to why the law should allow the burial of a foetus of less than 26 weeks. The law can be adapted so that the dignity of parents who have suffered a loss will be restored.
The judge said: ‘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.’
She said there were no rational reasons to differentiate between different losses of pregnancy.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
