‘I want to bury my child.’ A Saturday Star report says these were the words heard by the Gauteng High Court (Johannesburg) from a Soweto mother who was forced to obtain a court order compelling Bheki Mlangeni District Hospital to release the remains of her child, who died in utero at 26 weeks.

The Legal Resources Centre (LRC), which took on the mother’s case, is now fighting parts of the Gauteng Department of Health circular 08 of 2025 – which requires bereaved parents to obtain a court order before the remains of a pre-viable foetus may be released for burial – to  be reviewed and set aside.

The mother told the court the loss of her baby was ‘extremely painful’ and she wanted the opportunity to honour her child and to mark the tragic end of her life.

‘I believe that a burial will assist me in working through my grief and processing the trauma I have suffered. Performing a burial is also in line with my religious and cultural beliefs and is an important way to show respect for those who have passed away,’ she said.

Ektaa Deochand, the LRC’S lead attorney in the matter, said the circular’s requirements were irrational, unreasonable, unlawful, and unjustifiably infringed on the constitutional rights of bereaved parents.

‘We further request a declarator that in the event of a loss of pregnancy other than a stillbirth or a loss of pregnancy through human intervention, bereaved parents have a right to bury the foetal remains should they elect to do so upon request without having to obtain a court order,’ she said.

According to the Saturday Star, she explained that it was important to pursue the matter because the impugned policy places significant emotional, financial, and procedural burdens on bereaved parents at a time of profound grief.

‘Such barriers disproportionately affect vulnerable families and risk undermining their dignity and cultural and religious practices and freedoms. Despite the Constitutional Court dealing with this issue in 2022, there remain gaps as to how this matter is regulated in practice, which requires legal certainty,’ said Deochand.

In 2022, the Constitutional Court found that the Births and Deaths Registration Act contained no prohibition on the burial of pre-viable foetuses.

However, according to the Gauteng Department of Health’s circular at issue in the case, if parents requested a pre-viable foetus, they should be informed that a court order was required to compel the department to release the remains.

The department acknowledged that the judgment may have broader implications for the interpretation and implementation of current policies and procedures.

‘At this stage, the department believes there is a need for further legal and policy reflection on the evolving court judgments as well as the concerns and requests raised by affected families. It is important that any future policy position provides legal certainty, aligns with applicable legislation, and gives clear guidance to healthcare facilities on the management and release of pre-viable foetuses.’

Full Saturday Star report