‘Problematic’ ConCourt ruling leaves parents with ‘no clear right’ to bury deceased unborn babies

The Constitutional Court has found that the Births and Death Registration Act (BADRA) does not prohibit the burial of the remains of a child that died in the womb during the first 26 weeks of intra-uterine existence.

However, in its ruling handed down on Wednesday, the court overturned a High Court finding that parents have the right to bury miscarried babies. The ConCourt says there was not sufficient evidence before it to determine whether hospitals and other healthcare service providers would be able to allocate the necessary resources to realise the right asserted by parents.

In a press release today Ryan Smit, legal counsel and executive director of human rights organisation Cause For Justice (CFJ), said: “Although the court’s finding that BADRA does not prohibit the burial of the remains of a pre-viable baby, is a positive for parents who want to bury their prematurely deceased baby, the non-resolution of parents’ right to bury is highly problematic.

“Parents are left with no clear right to rely on if they want to bury their prematurely deceased child. If a hospital (as has been the norm and reality up until now) denies parents the bodily remains of their baby, they would have to somehow persuade or financially remunerate or litigate against the hospital to prevent their baby’s remains from being incinerated as medical waste and to obtain the baby’s remains to conduct a burial of their choosing.”

In its press release on the ConCourt’s findings in the so-called “Voice of the unborn baby” case, CFJ provides background information on the constitutional questions which were considered by the court, as well as a summary of the court’s findings and reasons.

The full press release reads:

Introduction

The Constitutional Court handed down its judgement in the Voice of the Unborn Baby case on 15 June 2022. South Africa’s highest court was tasked with deciding several weighty questions. Based on the case that was put before it, it had to consider whether all parents have the right to bury the remains of children that die prior to live birth. On a more fundamental level, it had to consider the constitutional value or dignity of unborn human life, and what this means for how the remains of babies that die prior to live birth are treated. 

Background

The Applicants ^[1] contested the constitutionality of the Births and Deaths Registration Act  (BADRA) and certain health regulations, and were substantially successful in the Pretoria High Court.^[2] The High Court’s order has now been overturned on a technicality by the Constitutional Court. 

Both the above questions rested on the practical reality that hospitals interpret and apply BADRA in such a manner that parents of babies that die before 26 weeks in the womb are prevented from burying their child’s mortal remains.

Both the Applicants and human rights organisation, Cause for Justice (CFJ), emphasised this practical reality, arguing that it heightens the importance of the Court declaring that all parents are indeed entitled to receive their deceased babies’ bodily remains for burial. 

The Court’s first finding: Does BADRA prohibit the burial of the remains of pre-viable babies?

The Constitutional Court held that even though the effect of hospitals’ interpretation and application of the law might be that parents are prevented from burying their miscarried babies’ remains, they needed only to consider if BADRA, in law, truly prohibits the burial of miscarried and aborted babies.

Section 20(1) of BADRA provides that, “No burial shall take place unless notice of the death or still-birth has been given to a person contemplated in section 4 and he or she has issued a prescribed burial order”. Burial is defined as “burial in earth or the cremation or any other mode of disposal of a corpse”.

The Court found that BADRA only regulates the burial of a “corpse”. And a corpse is defined as “any dead human body, including the body of any still-born child”. “Still-born” is legally defined as a child that has had at least 26 weeks of intra-uterine existence but showed no sign of life after complete birth.

The Court found that BADRA does not prohibit the burial of the remains of a child that died in the womb during the first 26 weeks of intra-uterine existence. There is therefore nothing in law that prevents parents from burying their prematurely deceased baby, in the opinion of the Court.

The Court’s reasons

The Court dedicated two sentences to answer the central question in the case – whether the bodily remains of a child that dies prior to 26 weeks in the womb is a “dead human body” (i.e. a corpse)? In the Court’s view, an interpretation that such remains fall within the meaning of “dead human body”, “would unduly strain the meaning of the words … It also would not make sense for the Legislature to refer to a more developed foetus as still-born and a far less developed one as a human body, which ordinarily and plainly refers to people or “the born alive”.”

In essence, the Court found that the Legislature’s intention with section 20(1) of BADRA is not to provide an all-encompassing legal requirement that must be met before any burial is allowed to take place. Rather, the Court found that BADRA only deals with the legal requirements that apply when burying a “dead human body”, which, in the Court’s opinion, the remains of a baby that dies prior to 26 weeks of existence in the womb, is not.

Cause for Justice’s response

Responding to this part of the Constitutional Court’s judgment, CFJ Executive Director and Legal Counsel, Ryan Smit said:

“It seems clear that the Court conflated a very specific understanding of what a legal person is with what it means to be a human being, as it argued that “a human body […] ordinarily and plainly refers to people or “the born alive”.”

“Cause for Justice put expert medical evidence before the High Court, which formed part of the record before the Constitutional Court, confirming that from the moment of conception the newly formed organism (zygote) is both living and human, i.e. a living human being.”

“In the final analysis, it is very difficult to see how a finding that the bodily remains of a baby that dies in the first 26 weeks of intra-uterine existence, is a “dead human body”, would unduly strain the meaning of these three words. Would it be unfair to suggest that it is the Court who unduly strained the meaning of words to arrive at their conclusion that the bodily remains of a baby that dies in the first 26 weeks of intra-uterine existence is not a dead human body?”

“Whatever the right way of looking at this, what is clear is that as it stands, the legal consequences attaching to the mortal remains of babies that die in the first 26 weeks in the womb, differ from the legal consequences flowing from the death of all other human beings, including babies that die after 26 weeks of intra-uterine existence and human beings that die after live birth.”

The Court’s second finding: Do parents have a right to bury their prematurely deceased baby?

The Court was asked to declare that parents of babies that die in the first 26 weeks of intra-uterine existence and parents of aborted babies, have the right to bury their babies’ bodily remains. Whereas the High Court confirmed that parents have such a right, the Constitutional Court found that it is not able to confirm that parents have such a right. According to the Court, there was not sufficient evidence before it to determine whether hospitals and other healthcare service providers would be able to allocate the necessary resources to realise the right asserted by parents.

CFJ Executive Director and Legal Counsel, Ryan Smit, responded to this aspect of the judgment, saying:

“Essentially, the Court concluded that parents’ right to bury the bodily remains of their prematurely deceased baby depends on whether there are sufficient economic resources to capacitate whatever cooperation is required from healthcare facilities to enable parents to bury their baby.”

“Although the Court’s finding that BADRA does not prohibit the burial of the remains of a pre-viable baby, is a positive for parents who want to bury their prematurely deceased baby, the non-resolution of parents’ right to bury is highly problematic.”

“Parents are left with no clear right to rely on if they want to bury their prematurely deceased child. If a hospital (as has been the norm and reality up until now) denies parents the bodily remains of their baby, they would have to somehow persuade or financially remunerate or litigate against the hospital to prevent their baby’s remains from being incinerated as medical waste and to obtain the baby’s remains to conduct a burial of their choosing.”

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