‘Not wanted’ does not equal ‘not human’
By Cause For Justice
On one level, the case concerns the constitutional right of grieving parents to bury the bodily remains of their deceased unborn baby (up to now a choice denied to parents of miscarried babies). On another, even deeper, level the case concerns a much more fundamental human rights question: What is the meaning and worth, or “inherent dignity”, of human life (and what does this mean for how human beings should be treated before and after death)?
Human rights organisation Cause for Justice (CFJ) acted as an amicus party (or ‘friend of the Court’) in the “Voice of the Unborn Baby” matter, delivered submissions on the relationship between unborn life and human dignity, and eagerly awaited delivery of the ruling. 
CFJ welcomes the court’s declaration that bereaved parents of miscarried babies (i.e. unborn babies who died of natural causes before 26 weeks of gestation in the womb) “have the right to bury the dead fetus” and that certain sections of the Births and Deaths Registration Act, 1992 (BADRA) and clauses of the Regulations Relating to the Management of Human Remains, 2013 (the regulations) are unconstitutional to the extent that parents are denied this right. The court found that these provisions infringe the human dignity of parents who have suffered an unimaginable loss – the miscarriage of their unborn baby – by precluding them from burying the bodily remains of their child.
To cure the constitutional invalidity, the court further directed Parliament and the Minister of Health to affect the necessary amendments to BADRA and the regulations, respectively.
Despite this encouraging finding, the judgment is very disappointing in other respects. The court failed to:
- Engage CFJ’s arguments concerning the recognition of the value of unborn human life by South African, foreign, and international law and the direct implication for the way in which the bodily remains of all unborn children should be treated; and
- Extend the right to choose to bury the bodily remains of their unborn child to all parents – notably where pregnancy loss is suffered due to human intervention.
It is unconscionable and constitutionally unacceptable that one human being (in this instance a mother) can decide whether or not another human being (her unborn baby) is legally recognised and treated with dignity as a human being.
CFJ regards the practical implication of this aspect of the judgment as wholly irrational and unacceptable. Legally prohibiting the burial of the bodily remains of an unborn baby simply because someone has chosen to terminate her life intentionally through human intervention – for the mere reason that she was unwanted – denies her membership of humanity by law.
The “Voice of the Unborn Baby” case will now proceed to the Constitutional Court for confirmation proceedings.
CFJ will continue to follow the progress of the case closely and will use the confirmation proceedings as an opportunity to request the Constitutional Court to look deeper into these critical human rights issues and vindicate human dignity not only as a constitutional right but as a foundational value of the South African Constitution.
The right to human dignity permeates and informs the interpretation and application of the Constitution, and has direct implications for the way in which the bodily remains of unborn children should be treated. This is a matter that cannot be ignored and a right that cannot be denied: Not wanted does not equal not human.