Pretoria - The Constitutional Court has reserved judgment in an application for the right to bury the remains of a foetus.
The application was brought by the Voice of the Unborn Baby and the Catholic Archdiocese of Durban, after some provisions of the Births and Deaths Registration Act were earlier declared unconstitutional.
The Gauteng High Court, Pretoria, in April granted bereaved parents the right to bury the remains of a foetus caused by a spontaneous pregnancy loss of less than 26 weeks. In terms of the act, remains younger than 26 weeks are discarded as medical waste.
As the high court declared the provisions of the legislation unconstitutional and prevented parents from burying their foetuses (younger than 26 weeks) following events such as a miscarriage, the Concourt first has to confirm the high court order before it can become law.
The high court, however, did not grant permission for bereaved parents to be allowed to bury their foetuses (younger than 26 weeks) in the case of medical intervention.
The Catholic Archdiocese of Durban yesterday appealed this aspect before the Concourt.
It argued that its members held the religious belief that they become parents and that their children were human beings from the moment of conception.
Their stance is that burial rights should be extended so that they also apply in cases of pregnancy loss by way of “human intervention”.
It was argued on behalf of the church that the act, as it stood, prohibited its members from burying foetal remains (apart from stillbirths), and therefore limits their constitutional right to freedom of religion.
It also argued that the qualification of the burial right and the distinction between different categories of foetal remains limited its members’ right to equality.
Argument advanced on behalf of the Home Affairs ministry was that if the court did confirm the rights of parents to bury their unborn children in either of the above categories, it would place an additional administrative burden on the department, as well as on the Department of Health.
It was said that this would require additional processing of the death and burial registrations by the State department, a task that was beyond its capacity.
The court was told that because of this administrative burden, the limitation (of only allowing foetuses older than 26 weeks to be buried) should remain in place.
The government argued that the issues before court were emotive and should not be dealt with by the court. It said it was not the role of the judiciary to decide moral dilemmas or to dictate society’s ethics when medicine, philosophy and theology were unable to arrive at consensus on these issues.
Pretoria News