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High court ruling to allow parents to bury unborn babies offers dignity, but not to all

On 29 March 2021, the high court declared that most parents who lose a child prior to birth have a right to bury their baby’s bodily remains, irrespective of the stage of foetal development. This is a victory to be celebrated by all. The court, however, declined the opportunity to acknowledge the humanity of all unborn babies, creating a two-tier system that gives burial rights in respect of “wanted” babies and discards the “unwanted”. This analysis is a second look into the judgment and its curious consequences.

According to sections 9, 10 and 11 of the Bill of Rights, everyone has inherent dignity and the right to have their dignity respected and protected; is equal before the law and has the right to equal protection and benefit of the law; and has the right to life.

Bizarrely, “everyone” in the constitution does not necessarily mean literally “every human being”, but only some human beings. According to South African common law, passage through the birth canal and/or a baby’s first breath is what bestows rights or the status of “right-bearership” on human beings. This is one of the shameful legacies of our oppressive colonial past which was adopted into South African law by way of Roman-Dutch common law of the early 1600s.

The Constitutional Court is yet to test the common law against the constitution, but in Christian Lawyers’ Association of South Africa vs Minister of Health a high court previously expressed the view that “everyone” in the constitution should be interpreted in accordance with the colonial common law.

So, if you had been expecting the courts to apply the provisions of the constitution to as many members of the human family as they can find, you would be wrong, unfortunately.

On 29 March 2021, the Pretoria High Court handed down its long-awaited judgment in The Voice of the Unborn Baby court case.

Legal proceedings were instituted by The Voice of the Unborn Baby NPC early in 2017 to declare certain provisions of the Births and Deaths Registration Act, 1992 and the Regulations Relating to the Management of Human Remains, 2013 unconstitutional.

Under the contested provisions, parents of miscarried babies are prohibited by law from burying their baby’s bodily remains. In contrast, the Act gives the parents of stillborn babies the right to bury their child’s remains.

According to law, a baby who dies before being “viable”, is miscarried, and a baby who dies after, is stillborn. “Viable” is when a baby is considered able to survive outside the womb. Currently, the Act sets viability at 26 weeks.

The court’s declaration that parents of miscarried babies “have the right to bury” their baby and that certain provisions of the Act and the regulations are unconstitutional for denying parents this right, is to be welcomed. The court found that these provisions infringe the human dignity of parents who have suffered an unimaginable loss – miscarriage of their baby – by precluding them from burying the baby’s remains. This finding is a vindication of the dignity of bereaved parents and the humanity of miscarried babies.

Despite this encouraging finding, the Court declined to extend the right or choice to bury to all parents. Notably, where pregnancy loss results from human intervention (for example medical negligence and abortion), parents still do not have the right to bury their baby.

In crafting its order, the court appears to have made several assumptions, including that an aborting mother and/or father would never want to bury their aborted child’s remains, and that, because aborted human beings are “unwanted” by their mother, neither parent has the right (choice or option) to bury.

More curiously, does the court mean to deny grieving parents the right to bury their deceased child where foetal death was caused by any instance of human intervention – including failed life-saving interventions such as complications during a Caesarean section? Or is it only where the intention of the human intervention was to cause the baby’s death, that the parents do not have a right to bury the baby’s remains?

The effect of the judgment is to create an arbitrary and irrational distinction between the nature of the remains of “wanted” and “unwanted” unborn babies. The humanity of wanted babies is recognised – their remains are “human remains”. According to the court, unwanted (aborted) babies are not human – their biologically human bodies are not human for legal purposes.

What exactly is the difference between the bodily remains of “wanted” and “unwanted” babies that died prior to live birth? On nothing more than a mother’s personal preference, the humanity and worth, the dignity and value, of an otherwise equally human being is vitiated.

The Voice of the Unborn Baby case will now proceed to the Constitutional Court for confirmation of the high court’s decision, and we can only hope the highest court will go further than the high court was willing to, by acknowledging and vindicating the humanity of all unborn babies and the dignity of all parents.

If we understand and agree that the foundational value of human dignity permeates and informs the interpretation and application of the constitution, we will know that this has direct implications for the way in which the bodily remains of all unborn children should be treated; “unwanted” does not mean “not human”.

However, when we exchange truth and sound principle for whatever scratches the itch of the zeitgeist, we end up with solutions and outcomes that betray our founding values. In this case, we will have exchanged our dignity and equality based constitutional values for the incongruent message that “all unborn babies are equal, but some unborn babies are more human than others”.

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Ryan Smit
Ryan Smit is executive director and legal counsel at Cause for Justice, a public interest legal advocacy non-profit organisation.

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