‘Voice of the Unborn Baby’ case commences

Pretoria High Court (PHOTO: Mia Lindeque/EWN).

The Pretoria High Court commenced hearing the matter of the Voice of the Unborn Baby versus The Minister of Home Affairs and the Minister of Health today.

The case, which deals with important constitutional issues, has attracted much public interest. The Births and Deaths Registrations Act (Badra) prohibits bereaved parents of unborn babies who die before 26 weeks of gestation in the womb, from burying the bodily remains of their unborn child.

Instead, BADRA (read with the Regulations Relating to the Management of Human Remains (the Regulations)) demands that the bodies of these unborn babies are incinerated as, and with, medical waste irrespective of the wishes of the grieving parents.

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During the course of the morning and early afternoon, counsel for the first applicant, Advocate Donrich Thaldar, presented argument on the constitutional rights of bereaved parents – the fundamental rights to dignity, privacy and equality – that are infringed by Badra.

Advocate Adrian D’Oliveira, counsel for the second applicant (the Intervening Party) – the Catholic Archdiocese of Durban – focused his arguments on the impact of Badra and the Regulations on parents’ right to equal treatment by the law and to live in accordance with their sincerely held beliefs regarding the worth/dignity of their unborn child (irrespective of whether their beliefs are religious or secular in nature).

His arguments highlighted the arbitrariness of – and lack of legitimate government purpose for – distinguishing and discriminating between parents who lose their unborn child prior to 26 weeks of gestation in the womb, and parents who lose their child after 26 weeks.

When the court resumed after the afternoon break, counsel for Cause for Justice (CFJ), advocate Darryl Cooke, presented argument which focused on and emphasised the value/worth of unborn human life as recognised by South African, foreign and international law.

The value of human dignity is a foundational value of the South African Constitution. It permeates and informs the interpretation and application of the constitution. It has direct implications for the way in which the bodily remains of unborn children should be treated.

The court adjourned late in the afternoon after counsel for the respondents, Advocate William Mokhare SC, and counsel for the second and third amici curiae, Frances Hobden, concluded their respective arguments. The Court will resume tomorrow morning with the applicants replying to the other parties’ arguments.

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