Ilse de Lange
2 minute read
12 Sep 2017
6:00 am

Fight for right to bury foetuses

Ilse de Lange

Those that die under 26 weeks do not go to parents, as they are seen as medical waste.

The Roman Catholic Church in Durban has joined a non-government organisation in its constitutional challenge aimed at giving bereaved partners the right to bury foetuses that die after a pregnancy of less than 26 weeks.

Under present legislation and regulations, such foetuses are regarded as medical waste and cannot legally be buried, while babies who die after 26 weeks are regarded as stillbirths whose remains must be buried.

An application by the organisation The Voice of the Unborn Baby was yesterday postponed in the High Court in Pretoria to give the ministers of home affairs and health time to consult experts and come to a decision if they should oppose the application.

Acting Judge Harshila Kooevertjie said it was a complex matter and advised the parties to approach the deputy judge president to arrange time periods for the filing of further court papers and a date for the application.

The group wants the court to declare the Births and Deaths Registration Act and the definitions of “corpse” and “human remains” invalid where it does not make provision for bereaved parents to bury foetuses due to pregnancy loss other than still-birth.

They want the court to refer the legislation to parliament for revision and to meanwhile allow the use of certificates or declarations of still-birth to be expanded to provide burial rights to all bereaved parents, irregardless of the age of the foetus.

The organisation’s co-founder, Sonja Smith, said in court papers the application was not aimed at allocating any legal right to a foetus, but was based on the reality that many expecting parents made a significant emotional investment in their prospective child and that pregnancy loss had an emotional impact on them.

This caused parents intense grief and the ceremony or ritual of a burial had a decidedly positive and healing effect.

The Catholic Archdiocese of Durban said it would seek to intervene as a co-applicant in the application.

Cardinal Wilfred Napier said the Act violated the right to freedom of religion and discriminated against church members as it prevented them from living in accordance with their faith that unborn children were human beings from conception. –