High Court wrong about law on foetuses under 26 weeks, Concourt rules

Illustration: Lisa Nelson

• The Pretoria High Court ruled that certain sections of the Births and Deaths Registration Act is unconstitutional, saying it denied parents the right to bury the remains of a foetus less than 26-weeks.

• 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 not unconstitutional but silent on the matter as it only regulates the burial of dead human bodies or still-born babies.

• Had the Concourt confirmed the High Court ruling it would have had a profound effect on the termination of pregnancy services offered to women and the attached confidentiality, amicus in the case said.

The Constitutional Court has declined to confirm the constitutional invalidity of sections of the Births and Deaths Registration Act. This comes after the Pretoria High Court found that the Act denied parents the right to bury the remains of a foetus less than 26-weeks.

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.

The applicants argued that the Act was “insensitive, hurtful and disrespectful” as it only allows for a death certificate to be issued in “stillborn” cases when the foetus is more than 26-weeks.

High Court Judge Nomonde Mngqibisa-Thusi agreed and ruled that sections of the Act are unconstitutional on the basis it “deemed a foetus less than 26-weeks to be medical waste that must be incinerated”.

However, the Constitutional Court, in a unanimous judgment, said the judge was wrong. Acting Judge Pula 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.

“While it may be true, as the applicants argued, that throughout the years the practice has been to deny parents this right in the apparent belief that this is what the law provides, matters not. The Act contains no such prohibition,” Judge 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 still-born children”.

The Judge said that the court was not in a position to grant the relief.

The question as to what medical staff at public hospitals must do if parents expressed the wish to bury or cremate pre-viable foetal remains was 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 held “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 amici 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 offering termination and a diminution of sexual and reproductive rights.

However, the apex court did not comment on this.

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