On November 14 and 15 Cause for Justice (CFJ) will argue for the recognition of the inherent worth / human dignity of all members of the human family, including the stillborn child, when the case of the “Voice of the Unborn Baby” is heard in the Pretoria High Court.
In the case brought by non-profit company Voice of the Unborn Baby in March 2017 the applicants are asking, on constitutional grounds, for the law to be changed to allow parents to bury their unborn children after a miscarriage, no matter how far into pregnancy the miscarriage occurs. Currently, the law states that after a miscarriage, foetuses under 26 weeks must be disposed of as medical waste.
For a burial to take place a death certificate must be completed for a death notice to be issued. The departments of health and home affairs are contesting the application. Both argue that a child before 26 weeks is not viable to survive and therefore does not require a death certificate for burial.
If the constitutional challenge in the High Court is successful, grieving parents will be able to choose to receive and bury the bodily remains of their still-born child, irrespective of the gestational stage at which he or she ceased to be alive.
A question of human worth
In a media briefing ahead of the case CFJ, which joined the case as a friend of the court, notes that human dignity is a foundational value of the South African constitutional order.
“According to Laurie Ackermann, a former judge of the Constitutional Court of South Africa, in the South African Constitution, ‘dignity’ means ‘human worth’ or ‘inherent human worth’. Kate O’Regan, another former judge of the Constitutional Court, has observed that dignity is a value that informs the interpretation of many (and possibly all) other rights,” says CFJ.
The constitutional distinction between the value of human dignity and the right to human dignity is significant, it says.
The briefing continues: “The unborn child is unquestionably both human and living from the moment of conception. This is a medical fact. From the moment of conception, the unborn child is a living human being.
“While some in society may want to argue that the unborn child may not be the beneficiary/bearer of constitutional rights (a view with which we disagree), the constitutional value of human dignity nevertheless requires the law of the land to recognise the inherent worth of the unborn child as a human being.
“The destruction of human life – whether before or after birth – implicates the value of human dignity: it is the destruction of human worth. Likewise, the disposal of human remains – whether before or after birth – implicates the value of human dignity.
“The constitutional value of human dignity requires the law to treat the unborn child’s bodily remains – irrespective of his or her gestational development – in a manner consistent with his or her inherent worth as a human being.
“It is unacceptable that the law treats the bodily remains of unborn children who die before 26 weeks of gestation as medical waste to be incinerated. The bodily remains of the unborn child is not medical waste.
“Deceased unborn (stillborn) children are deceased human beings, and all deceased human beings are worthy of having their bodily remains treated with respect, and having their humanity and human dignity acknowledged by way of burial.”
CFJ says while it empathises with the grief of the bereaved parents of the deceased unborn child and agree that grieving parents should have a legal entitlement to bury the bodily remains of their miscarried child, their case is concerned with the more fundamental issue of the dignity (worth/value) of unborn human beings.
CFJ calls on all South Africans who believe in the inherent value of human life and in being a voice for the voiceless to “take a stand and speak up for the human dignity of the unborn child by raising awareness of this cause”.
Human Dignity: Lodestar for Equality in South Africa 2012 pg 98.
2 S v Makwanyane and Another 1995 (3) SA 391 (CC) at .
4 Excerpt from CFJ Expert Affidavit of Dr J La Grange in the matter of Excerpt from CFJ Heads of Argument in the matter of Voice of the Unborn Baby NPC v Minster of Home Affairs and Minister of Health at  to .
6 Ibid at  to .
7 Ibid at  to .