Voice Of The Unborn Baby Court Case
UPDATE: JUNE 2022
The Constitutional Court handed down its judgement in the Voice of the Unborn Baby case on 15 June 2022. South Africa’s highest court was tasked with deciding several weighty questions. Based on the case that was put before it, it had to consider whether all parents have the right to bury the remains of children that die prior to live birth. On a more fundamental level, it had to consider the constitutional value or dignity of unborn human life, and what this means for how the remains of babies that die prior to live birth are treated.
Key findings of the Court
- The Births and Deaths Registration Act (BADRA) only regulates the burial of “dead human bodies”.
- In the Court’s opinion, the remains of a baby that dies during the first 26 weeks in the womb, is not a dead human body.
- Therefore, the burial rules in BADRA do not apply to the remains of babies that die before 26 weeks of existence in the womb (pre-viable babies). Accordingly, non-compliance with the burial requirements in BADRA does not result in the prohibition of the burial of the remains of pre-viable babies.
- The court is unable to confirm whether parents of a baby that dies during the first 26 weeks in the womb, have the right to bury their baby’s remains.
According to the Court, the confirmation of such a right would depend on whether the public healthcare system has the necessary resources to execute such steps as would be required of it to enable parents to bury their baby’s remains.
Key implications of the Court’s judgment
- There is no legal prohibition against the burial of babies that die during the first 26 weeks in the womb, or babies that die due to abortion.
- It is uncertain whether parents of babies that die during the first 26 weeks of existence in the womb, have the legal right to bury their babies’ remains.
Read our press releases to learn more about how the case progressed in the Constitutional Court:
- Press release: ConCourt finds law does not prohibit burial of miscarried babies
- Press release: ConCourt considers dignity of unborn human life
- Press release: Unborn babies’ ‘day in court’ has finally arrived
The Constitutional Court delivered its judgment on 15 June 2022 – eight months after the case was heard in court.
BACKGROUND: WHAT is the Cause about
Do all human beings have inherent worth or dignity? That is the question at the heart of the Voice of the Unborn Baby case. We say, all members of the human family, including unborn babies, have inherent worth and human dignity – and on 4 November 2021, we are going to the Constitutional Court to champion this truth!
Our road to the Constitutional Court began in March 2017, when a non-profit organisation called The Voice of the Unborn Baby NPC, launched a case in the Pretoria High Court. It asked the court to declare certain provisions of the Births and Deaths Registration Act (aka BADRA) and certain government Regulations to be unconstitutional.
Currently, South African law regards babies miscarried before 26 weeks in the womb as “medical waste”. This means these babies’ bodily remains are incinerated together with the remains of medical or surgical procedures (like appendixes or cut off limbs, etc.). Tragically, grieving parents of such deceased babies have no choice about whether they want to receive their baby’s body for the purposes of a burial.
If successful, parents’ right to bury their miscarried baby’s body would be vindicated. The High Court delivered its judgment on 29 March 2021 – and in general, the outcome was successful! The High Court, whose decision is subject to confirmation or amendment by the Constitutional Court, expressed the opinion that most parents who lose a child prior to birth, have a right to bury their baby’s remains no matter how long (or short) the baby was in the womb.
While celebrating this aspect of the High Court judgment, Cause for Justice was baffled that the court did not extend this right to all parents. Instead, the approach adopted by the High Court, would create a two-tier system that gives burial rights to parents who lose an unborn baby due to “natural causes”, while excluding parents whose unborn baby dies as a result of human intervention. We say, that is not fair – that is uncalled-for discrimination!
What is more, it is also an arbitrary denial of some unborn babies’ humanity.
This is why we are heading to the Constitutional Court – and we urgently need your help to get us there.
Want to help? You can support this cause by making a donation to:
- Enable mourning parents to lay their prematurely deceased baby to rest.
- Vindicate the inherent worth and humanity of babies in the womb.
In order to champion the dignity of all human life, Cause for Justice will participate in the case as a so-called “friend of the court”. Court proceedings are very expensive, if one wants to put together the best legal team. As a non-profit organisation, we rely on financial contributions like yours, to take up worthy causes like this one – and go to court when needed.
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INJUSTICE: WHY we must act and WHAT is at stake?
Under current South African law, babies who are miscarried prior to 26 weeks in the womb technically constitute “medical waste” (remains of medical/surgical procedures) and are treated as such. This means parents are unable to receive their baby’s bodily remains for the purposes of a burial.
The basis of the Applicant’s case is that the bereavement experienced by the grieving parents gives them a legal entitlement to bury their miscarried baby. Cause for Justice (CFJ) empathises with this and we are concerned about an even more fundamental issue that the case presents, namely THE DIGNITY (worth/value) OF UNBORN HUMAN LIFE.
In essence, we say that it is not the viability of the unborn baby at the time when he/she is miscarried that gives his/her life dignity and enables an acknowledgment of his/her existence. Rather, it is the fact that the unborn baby is human, a member of humanity (the human family), that gives his/her life incalculable value or worth. It is this reality that should inform the content of our laws and which the court in this case must consider and that is why we are taking action.
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 human life, whether at 26 weeks and 1 day or at 25 weeks and 6 days, may be accorded whatever dignity a 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.
The High Court has acknowledged in its order that parents of babies who die prior to 26 weeks in the womb, have a right to bury their babies’ bodily remains.
However, various aspects of the High Court’s order are being contested by the parties to the litigation. Most significant of these is the failure to extend the right to bury the remains of deceased unborn babies to all parents. This means that if the High Court order is confirmed ‘as is’ by the Constitutional Court, the bodies of some of these babies are still going to be discarded as medical waste against the wishes and hearts’ desires of their parents – and not buried as human remains!
Did you know: BADRA is so-called “national legislation”. This means, it is applicable to the whole Republic of South Africa (and not only a certain province or municipality). When national legislation is declared constitutionally invalid by a High Court (whether in whole or partially), the Constitutional Court must review the High Court decision. The Constitutional Court can either confirm, amend, or replace the High Court’s order with an order of its own.
In the end, the High Court decided to extend the dignity to bury their loved one to some, but not all parents.
Essentially, an irrational distinction will be put in place where the bodily remains of some unborn babies are seen and treated as ‘human’ remains, while others are not – simply based on whether a baby died in the womb due to human intervention or not.
This grave injustice needs to be corrected without delay! Our humanity cannot be based on something as fickle as whether someone else wanted us to live (be born alive) or not. Or on the way or circumstances of one’s death.
Take a deeper dive and learn more about how Cause for Justice advocates for the pre-eminent worth of all human life.
CFJ’s INVOLVEMENT: WHAT can be done and WHAT will we do?
The Constitutional Court will hear the matter on 4 November 2021. We have applied to again participate in the Constitutional Court case as a “friend of the court” party (aka an amicus curiae in legalese). Our role will be to assist the court by providing evidence and arguments on the importance of protecting the sanctity and worth of all human life. To this end, we have put together a strong legal team to conduct the necessary legal and scientific research, to prepare our court documents and present our case in court.
What have we already done (our involvement in the High Court case):
Cause for Justice participated in the High Court case as a “friend of the court” party. We assisted the court with the interpretation and application of the constitutional rights, values and interests implicated by the facts of the case.
Besides us, the other parties involved in the High Court case were:
- The Voice of the Unborn Baby NPC, the first applicant – who initiated the case.
The first applicant concentrated on the constitutional rights of bereaved parents (specifically their right to dignity, privacy and equality) who lose their unborn child prior to 26 weeks in the womb.
- The Catholic Archdiocese of Durban, who joined the case as an “intervening party” or second applicant.
The second applicant intervened on behalf of its members, who hold – as a matter of religious belief backed by medical science – that human life starts at conception. It held that people of such persuasion should have the right to treat the end of human life prior to live birth, with the dignity of a burial. The second applicant emphasised the right to freedom of religion, which includes the right to live and act in accordance with one’s sincerely held religious beliefs.
- The Ministers of Home Affairs and of Health, who acted as respondents in the matter and opposed the applicants’ case by arguing in defence of the existing law.
- The Women’s Legal Centre Trust and WISH Associates (WLC and WISH), two other amicus curiae.
WLC and WISH argued that providing bereaved parents with the legal right to bury their miscarried baby, will unjustifiably limit the rights of pregnant women who choose to terminate their pregnancy under the Choice of Termination of Pregnancy Act. In defence of unrestricted access to abortion, they sought to prevent (expressly limit) parents of aborted babies from acquiring any right to bury the bodily remains of their deceased child (irrespective of the personal wished of such parents).
The case was heard in the Pretoria High Court on 14 and 15 November 2019.
While Cause for Justice acknowledged and supported the fundamental rights of grieving parents and religious communities, we focused our case on what we consider to be the most important constitutional issue at the heart of the case: the foundational value of human dignity and its implications for the dignity with which the bodily remains of babies who die before birth are treated.
Read our press releases to learn more about how the case progressed in the High Court:
- Press release: Right to Bury Miscarried Babies to be Decided Soon
- Press release: Voice of the Unborn Baby – Final Day of Court Hearing
- Press release: Voice of the Unborn Baby – First Day of Court Hearing
The High Court finally delivered its judgment on 29 March 2021 – one year and three months after the case was heard in court.
STATUS UPDATE: WHERE do things stand and WHAT will happen next?
Our legal team is currently busy preparing to present a strong case to the Constitutional Court on 4 November 2021. Our objective is to present strong arguments and evidence in favour of the recognition and upholding of the dignity (or worth/value) of unborn human life.
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