Constitutional Court asked to acknowledge humanity of unborn babies

By Cause For Justice

Human rights organisation, Cause for Justice (CFJ), is preparing to go to the Constitutional Court on November 4 to advocate for the inherent worth of all human beings – including unborn babies.

The Constitutional Court is set to consider the Pretoria High Court’s landmark decision in the Voice of the Unborn Baby case, which, if confirmed by the Constitutional Court, will secure grieving parents’ right to bury the bodily remains of miscarried babies. [1] [2]

Under current South African law, babies who are miscarried prior to 26 weeks in the womb technically constitute “medical waste” (remains of medical/surgical procedures) and are treated as such. This means parents of such miscarried babies are unable to receive their baby’s bodily remains for the purposes of a burial, with the babies’ remains being incinerated together with surgically-removed body parts and other medical waste.

According to CFJ, the central questions of the case are: what is the inherent worth (or dignity) of human life and what does this mean for how we should treat human remains?

Pretoria High Court judgment
The Pretoria High Court was asked to declare the current legal regime unconstitutional. CFJ was a party to that matter, which was heard over two days in November 2019. The High Court declared the current regime unconstitutional in its March 20 2021 judgment, confirming that the 26-week viability dividing line arbitrarily denies parents the right to bury their baby’s remains – a right that parents have in relation to babies that die from natural causes, no matter how long (or short) the baby was in the womb.

While celebrating this outcome, CFJ was perplexed that the court failed to extend the right to bury to all parents of babies that die prior to live birth. Specifically, parents whose baby dies in the womb as a result of human intervention still have no right – and are legally prohibited – to receive their baby’s remains for the purposes of a burial. According to CFJ, there is no rational basis for this denial of rights to parents who want to acknowledge the humanity of their baby and grieve their loss by way of burial.

Equally troubling, is that the judgment seems to give parents the power to determine whether a baby that died prematurely is legally recognised as human or not. CFJ considers this a grave injustice: our humanity cannot depend solely on whether someone else wants us to live or not, or on the manner of our death – whether by natural causes or because of human intervention.

In the Constitutional Court
CFJ has applied to act as an amicus curiae party (or “friend of the court”) in the Constitutional Court proceedings, having previously fulfilled the same role in the High Court. [3] It is preparing to assist the court in dealing with the relationship between unborn human life and the constitutional value of human dignity.

The Constitutional Court will hear appeals of the main parties against various aspects of the High Court order. [5] The Catholic Archdiocese of Durban is appealing the unjust distinction made between the rights of parents based on whether their baby died due to human intervention or as a result of natural causes. The presence or absence of an intervention does not determine whether parents are bereaved or not, it says.

In this regard, CFJ will argue against the arbitrary denial of some unborn babies’ humanity and their grieving parents’ rights. It will also request the Constitutional Court to engage arguments it made in the High Court concerning the inherent worth of all human beings, including babies in the womb, and its implications for how we treat their bodily remains. The High Court failed to consider the implications of the constitutional value of human dignity for how we dispose of human remains. [4]

End notes:

• [1] The court declared certain sections of the Births and Deaths Registration Act, 1992 and clauses of the Regulations Relating to the Management of Human Remains, 2013 unconstitutional to the extent that it denied parents the right to bury the remains of an unborn baby who died of natural causes before 26 weeks of gestation in the womb.
• [2] The Constitutional Court has the power to confirm, amend, or replace the High Court order with an order of its own.
• [3] The role of an amicus party is to assist the Court in the interpretation and application of the constitutional rights, values, and interests implicated by the subject matter of the case.
• [4] Based on South African, foreign, and international law.
• [5] The main parties in the case are The Voice of the Unborn Baby NPC, the Catholic Archdiocese of Durban, and the Ministers of Home Affairs and of Health.

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