By Cause For Justice
After hearing arguments in the Voice of the Unborn case today, the Constitutional Court must decide several weighty questions.
At first glance, it needs to consider whether all parents have the right to bury the remains of their unborn children.
On a much deeper level, however, it has to determine the constitutional value of unborn human life, and what this means for the way unborn babies’ remains are treated.
The applicants contest the constitutionality of the Births and Deaths Registration Act and its Regulations (BADRA),  and were substantially successful in the Pretoria High Court.  The Gauteng Court’s order will now be reconsidered by the Constitutional Court.
Human rights organisation Cause for Justice (CFJ), who participated in today’s proceedings as a friend of the court party,  emphasised the value of human dignity.
Counsel for CFJ, Darryl Cooke, argued that “the value of human dignity entails that all human beings, including unborn human children, have worth and ought to be treated with respect”. Advocate Cooke submitted that prohibiting parents from burying their unborn children not only violates parents’ rights, but amounts to treating human beings as objects.
Disrespecting unborn children and their human worth is not consistent with the value of human dignity, he said. “It is not only parents who have an interest in how the remains of their unborn children are treated, but society. We are all demeaned in a sense, if parents are denied a choice and children are disposed of as medical waste.”
The Voice of the Unborn Baby NPC focused on bereaved parents’ rights. Its counsel argued that, if South Africa truly aspires to be the compassionate society envisioned by the Constitution, “we will comfort parents who suffer pregnancy loss and not cause them even greater grief”. He referred to evidence proving that parents can find psychological healing and comfort through the burial of their unborn child with the love and support of their family, friends and community.
The Catholic Archdiocese of Durban submitted that its members, as well as many other South Africans (both religious and non-religious), regard a foetus as a human child and should that child die, would want to bury the remains. Its counsel noted the irony of South Africans being allowed to bury their pets, while some parents are not allowed to bury their own children.
He pointed out that these parents suffer a double loss: the tragic loss of their unborn child and the trauma of being denied receiving the remains for burial. “The South African Constitution envisions a society where people can bury their loved ones in accordance with their beliefs, while others are free to not do so if they wish”, he said.
A few of the Constitutional Court judges questioned whether BADRA indeed precluded parents from burying miscarried babies or those who die due to selective abortion. Both the applicants and CFJ emphasised the practical reality: irrespective of the Court’s interpretation of BADRA, parents of miscarried or aborted babies are currently prevented from receiving the remains for burial. All three parties concluded that this only stresses the importance of the Court declaring that all parents are indeed entitled to receive their deceased unborn babies’ bodies for burial.
The Minister of Home Affairs, the first respondent, emphasised the societal value of the sanctity of and right to life, and its implication for protecting “potential life”.  Its counsel argued that a foetus is protected by quasi-legal rights and that this protection increases as the foetus develops. However, it also contended that any quasi-right to life a foetus might enjoy, can be justifiably limited due to the administrative burden of separating and storing foetal remains for burial.
In response, the Catholic Archdiocese of Durban noted that no evidence was presented to show that the alleged burden was likely to realise and that, in any event, the case concerned the existence of constitutional rights and not the availability of state resources. In addition, CFJ pointed out that the minster erred by failing to appreciate that “pre-viable life” is also “potential life”. 
The Minister of Health, the second respondent, argued that the provisions of BARDA were not the true issue, but rather municipal bylaws. It contended that each municipality should regulate the disposal of foetal remains for itself. The Catholic Archdiocese of Durban pointed out that municipal bylaws are subject to BADRA and that it would be unthinkable for municipalities to regulate the disposal of human remains.
Two other ‘friend of the court’ parties (amici/WLC) participated in the case.  These amici focused their submissions on access to abortion and “directive counselling”. The Catholic Archdiocese of Durban noted that the WLC presented no evidence that providing women with the choice to bury the remains of their foetuses, would limit access to abortion. It further pointed out the irony of the WLC – with its strong commitment to the freedom and ability to make one’s own decisions in one’s own circumstances – seemingly wanting to deprive women who terminate their pregnancies of choosing for themselves what to do with the foetal remains.
After having heard all the parties, the proceedings were adjourned, with the Constitutional Court reserving its judgment. The court will now consider the arguments and evidence presented to it in order to arrive at a decision.
In the meanwhile, CFJ remains convinced that the only appropriate outcome would be one that protects and enforces the Constitution and its rights and values – especially the foundational value of human dignity – for all and not only some human beings. This, the human rights organisation says, should be the loadstar guiding the court’s decision.
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