Concourt sets aside application seeking right to bury foetus

In a unanimous judgment on Wednesday, the Constitutional Court (Court) set aside a North Gauteng High Court ruling granting parents the right to choose to bury or cremate a fetus. Last April, the high court ruled in favor of the applicants, declaring that some provisions of the Department of Home Affairs (BDRA) Births and Deaths Registration Act were unconstitutional. The NPC Voice of the Unborn Baby and the Catholic Archdiocese of Durban brought the application before the Supreme Court – against home affairs and the health minister. They sought to confirm the order of the High Court, so that …
In a unanimous judgment on Wednesday, the Constitutional Court (Court) set aside a North Gauteng High Court ruling granting parents the right to choose to bury or cremate a fetus.
Last April, the high court ruled in favor of the applicants, declaring that some provisions of the Department of Home Affairs (BDRA) Births and Deaths Registration Act were unconstitutional.
The NPC Voice of the Unborn Baby and Durban Catholic Archdiocese brought the request to the APEX – against home affairs and the health minister. They sought to uphold the High Court order, so that it could be enacted so that parents who lost their offspring before 26 weeks of pregnancy had the option of burying the fetus.
A lost fetus is routinely discarded as medical waste and incinerated at clinics and hospitals.
In his judgment, High Court Judge Nomonde Mngqibisa-Thusi affirmed that parents should be given a choice as to what should be done with a fetus.
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She asserted that certain parts of the BDRA were unconstitutional, saying that the fetus could be a medical waste for medical practitioners, but not for parents because it was a child they were waiting for, and that it was “insensitive and disrespectful “treat it as waste.
Mngqibisa-Thusi said that allowing the burial “would ease the pain and help the healing process.” It also instructed Parliament to amend the BDRA and allow the temporary issuance of death certificates for burials.
‘Burden on departments’
The IS Court The judgment, written by Judge Tlaletsi AJ, disagreed with the high court.
“An order of the High Court declaring Section 18 (1) to (3) of the Registration of Births and Deaths Act invalidated.
“An order of the High Court declaring Section 20 (1) of the Registration of Births and Deaths Act invalidated. The application is dismissed and each party has to pay its own costs, ”read the judgment.
The Department of Home Affairs argued that the High Court order, if enforced, would be a burden on itself and the health department.
“Such confirmation would require the category of buried fetuses to be extended to a pre-viable fetus. This would require further processing of death and burial registrations from the state, a task beyond his power, ”the Department argued.
According to the government, the Mngqibisa-Thusi order re-used legislative functions and violated the principle of separation of powers.
Supporting the Department was the Women’s Law Center Trust (WLCT) and the Coalition Government for Sexual and Reproductive Justice (SRJC), who acknowledged as friends of the court, who argued that a fetal burial right would place a burden on health facilities, create additional barriers to access services such as. abortion, thereby interfering with the right to sexual and reproductive rights.
A third friend of the Cause for Justice (CFJ) court submission argued that the disposal of the fetus as medical waste was “inconsistent with the value of human dignity,” and was tantamount to burial for bereaved parents and their constitutional rights. deny them. .
‘No clarity on role of medical staff’
Tlaletsi wrote that the Supreme Court was unable to grant the right to bury a fetus.
“Where some or all of the fetal remains of the mother are evacuated or removed from a healthcare facility, the implication of such a declaration for hospitals and other healthcare service providers is a challenging issue.
“The question is not what medical staff in public hospitals have to do if prospective parents indicate that they wish to bury or cremate pre-existing fetal remains. There is no doubt that burying or cremating the remains of pre-existing fetal remains will require the co-operation of healthcare professionals, and public hospitals would be expected to allocate the necessary resources. ”
“Given the plea of the case, we do not have the necessary evidence to assess the considerations of how hospitals would manage the burial or cremation of preterm fetuses. This is not the case that the applicants have pleaded, and in any case we are unable to consider it on the facts. ”
In addition, Tlalatsi said, BADRA provides for fetal burial only in cases of stillbirth.
“The High Court, therefore, declared that the contradictory legislation was constitutionally invalid in the misunderstanding that BADRA applies to and governs the burial of pre-viable fetuses.
“It is not possible to declare that the relevant sections of BADRA are inconsistent with the Constitution due to such a deficiency. Therefore the declaration of invalidity cannot be maintained. ”
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