The burial of a pre-viable or terminated foetus falls outside of Births and Deaths Registration Act’s scope

August 1st, 2022
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Voice of the Unborn Baby and Another v Minister of Home Affairs and Another (CC) (unreported case CCT120/21, 15-6-2022) (Tlaletsi AJ (Madlanga J, Madondo AJ, Majiedt J, Mhlantla J, Rogers AJ, Theron J and Tshiqi J concurring))

In the Voice of the Unborn Baby matter the voluntary associations the Voice of the Unborn Baby NPC and the Catholic Archdiocese of Durban (the applicants) approached the Constitutional Court (CC) seeking confirmation of an order of the Gauteng Division of the High Court, which declared s 20(1), read with the definition of ‘still-birth’ in s 1, and s 18(1) to (3) of the Births and Deaths Registration Act 51 of 1992 (the Act), as well as reg 1 of the Regulations Relating to the Management of Human Remains (Regulations) in terms of the National Health Act 61 of 2003 inconsistent with the Constitution insofar as they prohibit the burial of foetal remains other than in cases of a still-birth. In addition to the confirmation application, an application for leave to appeal has also been noted against the judgment and order of the High Court.

In the High Court the applicants challenged the constitutionality of s 20(1), read with s 1 and s 18(1) to (3) of the Act, as well as reg 1 of the Regulations on the basis that they infringe the rights to privacy, dignity, religion, and equality of prospective parents who have suffered pregnancy loss through miscarriage or conscious human intervention. The applicants submitted that there is no justification for the distinction between the burial of the foetal remains of a pregnancy loss through miscarriage or induced pregnancy loss by human intervention and pregnancy loss through still-birth. They further submitted that there is no legitimate governmental purpose served by depriving these prospective parents the option of burial.

The respondent submitted that there was no legal or scientific justification for why the law should recognise the right to bury a foetus that is less than 26 weeks on termination of pregnancy or induced pregnancy loss. The emotional attachment of the prospective parents does not mean that a legal right to bury the foetus exist. The respondents further submitted that the emotional and psychological trauma suffered by the prospective parents does not give rise to the infringement purpose served by the regulating aspects relating to the burial of a dead foetus.

The Women’s Legal Centre Trust and Wish Associates were admitted as amici curiae in the High Court and in some of their submissions, they submitted that the blanket foetal burial rights would burden the designated facilities, undermine the confidentiality provisions of the Choice on Termination of Pregnancy Act 92 of 1996, and create additional barriers to accessing facilities that offer services under the Choice on Termination of Pregnancy Act. The amici curiae also submitted that that if the declaratory order was to apply to the people seeking voluntary termination of pregnancy under the Choice on Termination of Pregnancy Act, the order should include provisions to ensure that the right does not disproportionately interfere with pregnant women’s rights to access termination of pregnancy procedures.

The High Court concluded that the impugned provisions of the Act are inconsistent with the Constitution and invalid to the extent that they exclude the issuance of a still-birth notice in the case of a pregnancy loss other than still-birth. This declaration of invalidity did not, however, apply in the case of a pregnancy loss through human intervention. In the CC, the issue was whether the High Court’s declaration of invalidity should be confirmed. The CC said that the High Court declared that s 20(1), read with s 1, and s 18(1) to (3) of the Act are inconsistent with the Constitution insofar as they prohibit the burial of foetal remains other than in cases of a still-birth (in other words, the remains of a pre-viable or terminated foetus).

The CC added that confirmation is not there for taking. The CC pointed out that it must satisfied that the impugned provisions are unconstitutional. Therefore, whether the High Court’s order should be confirmed depends on whether the provisions of the Act actually prohibit the burial of pre-viable foetal remains (the interpretation issue); and, if so, whether those provisions limit any of the right in the Bill of Rights and whether any such limitation is justified in terms of s 36(1) of the Constitution (the constitutional validity issue). The CC said in view of the conclusion it reached on the interpretation issue, which is that the Act does not prohibit the burial of a pre-viable or terminated foetus, the constitutional validity issues does not arise. The CC added that it is significant to recall the purpose for which the Act is intended to serve, namely, that its purpose is to regulate the registration of births and death and to provide for matters connected therewith.

The CC pointed out that s 20(1) of the Act provides that: ‘No burial shall take place unless notice of the death or still-birth has been given to a person contemplated in section 4 and he or she has issued a prescribed burial order’. The CC added that of relevance to this matter is s 1 of the Act, which defines the words ‘burial’, ‘corpse’ and ‘still-birth’. ‘Burial’ is defined as ‘burial in earth or the cremation or any other mode of disposal of a corpse’. ‘Corpse’ is defined as ‘any dead human body, including the body of any still-born child’. ‘Still-born’ is defined in relation to a child, as meaning ‘that it has had at least 26 weeks of intra-uterine existence but showed no sign of life after complete birth’. Section 1 further provides that ‘still birth’ in relation to a child, has corresponding meaning.

The CC said that having regard to these definitions, it is clear that s 20(1) of the Act only requires a burial order for the burial of any corpse namely, either a dead human body or a still-born child. The CC added that a pre-viable foetus is not a still-born child, as such foetus will not have had 26 weeks of intra-uterine existence. The CC said it is unnecessary to decide whether the termination of a pregnancy of a viable foetus by human intervention results in a ‘still-birth’ for purpose of the Act. The CC noted that part of the evidence was medical evidence to explain why this approach was followed.

The CC said that all that it can say is that if this approach to the definition of ‘still-born’ is correct, burial orders may, indeed must, be obtained before burying such foetal remains, and this after all is the relief sought by the applicants. The CC added that this approach is incorrect, the Act simply does not apply, meaning that there is no prohibition in the Act against the burial of such foetal remains. The CC further said that in the absence a clear prohibition of the interment or cremation of a pre-viable or terminated foetus, and in the face of the command in s 39(2) of the Constitution, an interpretation of the Act that commends itself is one that leaves untouched any right which parents may have to interment or cremate their pre-viable foetus.

The CC added that while it may be true, as the applicants argued, that throughout the years the practice has been to deny parents this right in the apparent belief that this is what the law provides, this matters not. The Act simply contains no such prohibition. The impugned provisions of the Act do not provide for a foetal burial other than in cases of still-birth. The CC pointed out that the High Court declared the impugned legislation constitutionally invalid in the mistaken understanding (held by the litigants as well) that the Act applies to and regulates the burial of pre-viable foetus. The CC added that the relevant sections of the Act cannot be declared inconsistent with the Constitution because of such omission. The CC said the declaration of invalidity can, therefore, not be sustained.

The CC noted that where the foetal remains are evacuated or removed from the mother outside of a healthcare environment, there may still be other restrictions, for example, limitations imposed by municipal regulations. The content and validity of any such regulations are not subject of the present litigation. The CC said that all that can be said is that if there is no other legal impediment to the burial of pre-viable foetal remains, the Act does not stand in the way of that burial.

The CC said that in a cross appeal, the Catholic Archdiocese contended that the declaration of invalidity made by the High Court should be extended to cases of pregnancy loss due to an inducement. The CC pointed out that given that the declaration of invalidity order will not be confirmed, the cross-appeal falls away. The CC looking at whether the High Court’s declaration, that definition of ‘corpse’ and ‘human remains’ are inconsistent with the Constitution, should be confirmed. The CC said that the Voice of the Unborn Baby NPC argued that the regulations do not make provision for the burial of a pre-viable foetus. Because regulations are not Acts of Parliament, their validity or otherwise is not subject to confirmation by it. The CC pointed out that it is, therefore, necessary to confirm the High Court’s order in terms of which reg 1 of the Regulations was declared to be inconsistent and invalid.

The CC said that the applicants correctly submitted that the High Court misapplied the Biowatch principle (see Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC)). That it declined to award costs in favour of the applicants, despite their success in that court. The CC pointed out that it is careful not to be too eager to interfere with costs order of other courts. However, because of the misapplication of Biowatch it is entitled to interfere with the High Court’s costs order. The CC said the applicants were successful in the High Court and the respondents should have been ordered to pay their costs. The CC added that the failure not to make such an order or provide reasons, therefore, was thus a misapplication of the Biowatch principle, and a material misdirection. The CC said the costs order of the High Court should subsequently be set aside. However, in the light of it finding the applicants should not have succeeded in the High Court.

The CC pointed out that the applicants asked for it to confirm the High Court’s order for constitutional invalidity and they have been unsuccessful. The CC therefore said that each party must pay its own costs.

The following order was made:

‘1. The order of the High Court declaring section 18(1) to (3) of the Births and Deaths Registration Act constitutionally invalid is not confirmed.

  1. The order of the High Court declaring section 20(1) of the Births and Deaths Registration Act constitutionally invalid is not confirmed.
  2. The orders of the High Court are set aside and replaced with the following:

  1. The cross-appeal by the second applicant falls away.
  2. The rule 31 applicants by the first respondent and the first and second amici curiae are dismissed.
  3. In this court, each party must pay its own costs’.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2022 (August) DR 25.

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