The Pretoria High Court heard the parties in the court case about legal burials for all miscarried children for the first time on Monday, 11 September 2017.
The Applicant in the case, Voice of the Unborn Baby NPC, approached the court with an application to scrap the opposition of the two Respondent Ministers, the Ministers of Home Affairs and of Health. The Ministers have been ‘dragging their feet’, so to speak, to file their answering court papers setting out the bases of their opposition to the application.
BASIS OF THE COURT PROCEEDINGS
The Applicant launched the application on 8 March 2017, asking the court to declare that certain provisions of the Births and Deaths Registration Act (51 of 1992, “BADRA”) and the Regulations Relating to the Management of Human Remains are unconstitutional. The effect of the requested relief, if given, will be that parents who lose a child before 26 weeks in the womb will entitled to receive the body of their ‘still-born’ baby and have a burial, if they want to.
The current state of the law is that babies miscarried prior to 26 weeks in the womb technically constitute medical waste (remains of medical/surgical procedures) and are treated as such, with no clear entitlement for the parents to receive their baby’s body for purposes of a burial.
The Ministers gave notice in April of their intention to oppose the application, but have not yet filed their answering affidavits to disclose the basis of their case.
CAUSE FOR JUSTICE INVOLVEMENT
Cause for Justice (CFJ) have obtained the parties’ consent to be joined to the case as a friend of the court (amicus curiae) to assist the court in the interpretation and application of the constitutional rights, values and interests implicated by the facts of the case.
According to CFJ attorney, Ryan Smit,
“The current state of the law is a dreadful miscarriage of justice and cannot remain unchallenged – the life growing inside the womb is human
and as such, human life, whether at 26 weeks and 1 day or at 25 weeks and 6 days, must be accorded whatever dignity and respect a loving parent wishes to bestow on the loss of such a precious human life.
When someone loses a baby, they lose a loved one – and everyone should be legally entitled to bury their loved ones.”
COURT ORDER AND FURTHER PROGRESS IN THE CASE
The court today postponed the hearing of the scrapping application and instructed the parties to approach the Deputy Judge President of the court for directions around a timeline for the further progress of the case.
It is expected that the parties will conclude the filing of court papers by the end of October 2017 and that the matter is likely to be heard in the first quarter of 2018.
CFJ also has it on good authority that one of the Diocese of the Catholic Church is poised to intervene in the matter on behalf of its members, who hold – as a matter of religious belief – that human life starts at conception and that people of such persuasion should be legally entitled to treat the end of human life prior to live birth, with the dignity of a burial.
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