ON DECIDING ‘WHO IS HUMAN?’
On 29 March 2021, the High Court declared that most parents who lose a child prior to birth, have a right to bury their baby’s bodily remains irrespective of the stage of foetal development.
This is a victory to be celebrated by all.
The court, however, declined the opportunity to acknowledge the humanity of ALL babies prior to birth.
Cause for Justice was an amicus curiae party (‘friend of the court’) in this matter and participated in the case by way of evidence and legal argument.
Here is a deeper look into how and why the court came to its decisions.
DIGNITY AND EQUALITY FOR ALL (NOT ONLY SOME)
First question: Should all human beings be treated with dignity and equality before the law?
For most of us, the answer to this question is a very easy unequivocal and unqualified ‘yes’.
The next question is somewhat more consequential than our individual opinions –
Does the Constitution of the Republic of South Africa support our view? Let us see what the Constitution has to say about this.
- Everyone has inherent dignity and the right to have their dignity respected and protected.
- Everyone is equal before the law and has the right to equal protection and benefit of the law.
- Everyone has the right to life.
Bizarrely, ‘everyone’ in the Constitution does not necessarily mean literally ‘every human being’ but is interpreted by some to mean only human beings who have been born. According to South African common law, passage through the birth canal and/or a baby’s first breath is what bestows rights or the status of right-bearership on human beings. This is one of the enduring vestiges and shameful legacies of our oppressive colonial past – harking back to how the Romans, an empire with a particularly intense disregard for the value of human life and the inherent worth of all people, assigned legal personhood only to certain ‘qualifying’ individuals – and which made its way into South African law by way of the Roman-Dutch common law of the early 1600’s.
The Constitutional Court is yet to test the common law against the Bill of Rights, but the High Court has previously expressed the view that ‘everyone’ in the Bill of Rights should be interpreted in accordance with the common law.  This view is strange, seeing as overwhelmingly human rights lawyers and transformative jurists view their raison d’être as being to re-interpret the common law in accordance with the Constitution (not the other way around) – and if necessary: To develop, strike down, or change the common law’s systemic, patriarchal, colonial grip on the nation.
In other words, if like us, you expect South African courts to recognise and apply the provisions of the Constitution to as many members of the human family as can be found, you (as well as we) would be wrong, unfortunately.
THE VOICE OF THE UNBORN BABY COURT CASE
On 26 March 2021, the Pretoria High Court handed down its long-awaited judgment in The Voice of the Unborn Baby court case.
Legal proceedings were instituted by The Voice of the Unborn Baby NPC (later joined by the Catholic Archdiocese of Durban) against the Ministers of Home Affairs and Health to declare certain definitions and provisions of the Births and Deaths Registration Act, 1992 (BADRA) and the Regulations Relating to the Management of Human Remains, 2013 (the Regulations) unconstitutional. The practical effect of the contested provisions is that bereaved parents of miscarried babies are prohibited by law (i.e. they cannot choose) to bury the bodily remains of their deceased child.
- In contrast, BADRA secures the right of, and legally requires, parents of stillborn babies to bury their child.
- The distinction between ‘stillborn’ and ‘miscarried’ is essentially a legal distinction that is based on the standard of ‘viability’. According to law, a baby who dies before being ‘viable’ is miscarried and a baby who dies after, is stillborn.
- In relation to an unborn child, ‘viability’ means the gestational age at which a baby is considered able to survive outside the womb. Currently, BADRA sets the age of viability at 26 weeks.
- As advances in medical science enable doctors to save the lives of extremely premature babies (in some cases from only 22 weeks), the disconnect between ‘medical viability’ and legal ‘viability’ increases, emphasising the arbitrariness and irrationality of the legal distinction.
THE COURT’S RULING – THE GOOD AND THE BAD
The court’s declaration that grieving parents of miscarried babies “have the right to bury the dead fetus (i.e. their child)” and that certain provisions of BADRA and the Regulations are constitutionally invalid to the extent parents are denied this right, is to be welcomed. The court found that these provisions infringe the human dignity of parents who have suffered an unimaginable loss – the miscarriage of their unborn baby – by precluding them from burying the bodily remains of their child. This finding is a vindication of the dignity of bereaved parents.
To cure the constitutional defect, the court has directed Parliament and the Minister of Health to affect the necessary amendments to BADRA and the Regulations within 12 months.
Despite this encouraging finding – ironically, and also, sadly – from a human dignity perspective, the judgment is gravely disappointing in other respects: The court failed to extend the right to choose to bury the bodily remains of their unborn child all parents. Notably, where pregnancy loss is suffered due to human intervention (e.g. medical negligence and abortion), parents still do not have the right to bury their deceased child.
The court also failed to engage Cause For Justice’s arguments concerning the recognition of the inherent worth (dignity) and humanity of pre-natal human life by South African, foreign, and international law, and the implications thereof for how the bodily remains of babies who die prior to live birth should be treated.
DIGNITY (AND RIGHTS) FOR ALL GRIEVING PARENTS
When the court confirmed the right of bereaved parents of miscarried babies to bury their deceased child, its order specifically excluded parents who suffer “loss of pregnancy through human intervention”. The judgment ostensibly does not offer reasons for denying equal rights to these parents. It simply states that the court is not inclined to do so.
This raises a couple of vexing questions that now require answering –
Abortion – Biological mother and/or father of unwanted aborted baby:
- Has the court assumed that an aborting mother and/or biological father would never want to bury their aborted child’s bodily remains – and is such an assumption justified and correct?
- Has the court assumed that, because aborted human beings are ‘unwanted’, their parents do not have the right and should not be given the option/choice to bury the unwanted child’s remains – and is such an assumption justified and correct?
- Would a blanket denial of the right to bury your own child, not amount to discrimination against the aborting mother and/or the biological father (especially if one or both want to bury their deceased baby)?
Abortion – Biological father of wanted aborted baby:
- What rights do and should biological fathers have when they wanted their unborn baby to live, but the baby’s mother chose to abort their child? Will a blanket denial of these bereaved fathers’ right to bury their own children not amount to a violation of his human dignity (and constitute unfair discrimination)?
Human intervention – Biological mother and father of wanted baby:
- Does the court mean to deny grieving parents the right to bury their deceased child where foetal death was caused by any instance of human intervention, such as complications during a C-section (i.e. where in contrast to abortion, the intention of the human intervention was to save the baby’s life, rather than end the baby’s life)?
- Or is it only where the intention of the human intervention was to cause the baby’s death, that the parents do not have a right to bury their child’s remains?
HUMANITY (AND DIGNITY) OF ALL UNBORN CHILDREN
A further serious concern is the arbitrary and irrational distinction between, and subsequent treatment of, the remains of ‘wanted’ and ‘unwanted’ unborn babies.
- The humanity of wanted babies is recognised and protected. Correctly, the law allows parents to regard the loss of their lives as a tragedy, treats their remains as ‘human’, and affords their grieving parents the right to bury their bodily remains with dignity.
- Unwanted (i.e. aborted) babies are denied membership of the human family. According to the court, their remains are not ‘human’ – according to the court it is medical waste. Their biologically human bodies are not ‘human’ for legal purposes.
What exactly is the difference between the bodily remains of a ‘wanted’ and ‘unwanted’ baby that died prior to live birth? Only a mother’s personal preference. On nothing more, the humanity and worth, the dignity and value, of an innocent, vulnerable, and voiceless human being is decided.
It is unconscionable and constitutionally indefensible – in fact, it is inhuman – that one human being (in this instance, an aborting mother) has the power to decide whether the humanity of another human being (her defenceless unborn baby) is legally recognised, and the remains of her life (her human remains) is treated with human dignity.
Legally prohibiting the burial of the bodily remains of an unborn baby for the mere reason that according to the personal preference of someone else she was ‘unwanted’ – is an arbitrary and irrational denial of her humanity.
- History is marred with the heart-breaking and horrendous consequences that follow when human beings assume the power to decide the humanity and worth of others.
- The World Health Organisation estimates that between 40 and 50 million abortions are performed each year (or about 125 000 per day).
Disclaimer: Please note that this commentary is not arguing that the remains of all aborted babies must be buried – only that both parents of such aborted babies should be given the option of burying the babies’ remains, should they wish to.
The Road Ahead: Going to the Constitutional Court
The Voice of the Unborn Baby case will now proceed to the Constitutional Court for confirmation proceedings.
- When a High Court declares legislative provisions unconstitutional, its decision must be ‘confirmed’ by the Constitutional Court as a form of oversight and to provide legal certainty.
Cause for Justice will participate in and contribute to the confirmation proceedings to request the Constitutional Court to:
- Look deeper into the critical human rights issues the High Court neglected to address.
- Vindicate human dignity not only as a constitutional right but as a foundational value of the South African Constitution to guide the content of our law and the consequences it attached to human actions and legal facts.
‘UNWANTED’ DOES NOT MEAN ‘NOT HUMAN’
If we understand and agree that the foundational value of human dignity permeates and informs the interpretation and application of the Constitution, we will know that this has direct implications for the way in which the bodily remains of ALL unborn children should be treated.
We will understand and agree that ‘unwanted’ does not mean ‘not human’.
When we abandon truth and sound principle for whatever scratches the ideological itch of the zeitgeist, we exchange fact for fiction – and risk creating a reality reminiscent of a dystopian horror novel. We end up creating solutions and outcomes that follow the Marxist inclination George Orwell so strikingly warned against in the 1945 novel, Animal Farm.
In this case, the ominous message of the court rings a clear and frighteningly familiar refrain:
“ALL unborn babies are equal, but SOME unborn babies are MORE human than others.”
 Christian Lawyers’ Association of South Africa v Minister of Health 1998 (4) SA 1113 (T).
READ MORE ABOUT CAUSE FOR JUSTICE’S INVOLVEMENT IN THE VOICE OF THE UNBORN BABY MATTER
- Voice of The Unborn Baby – Final day of court hearing
- Voice of The Unborn Baby – First day of court hearing
- Right to bury miscarried babies to be decided soon
- Voice of the Unborn Baby court case