Do prospective parents have a right to bury their deceased previable foetuses? A discussion of how the Constitutional Court has created great legal uncertainty

Abstract

The Constitutional Court, in Voice of the Unborn Baby NPC v Minister of Home Affairs, was faced with a request to recognise a constitutionally protected right to bury a deceased previable foetus. This is a sensitive topic, since many persons who lose a foetus in utero wish to bury the remains for personal or religious purposes. Prior to this case, the general understanding was that such burials were prohibited in terms of the Births and Deaths Registration Act (BADRA), which allows the burial only of viable foetuses. The case, therefore, turned on whether BADRA permits the burial of a deceased previable foetus and, if not, whether this is unconstitutional. The applicants requested that the court declare that prospective parents have a right to bury their previable foetuses. The High Court found that BADRA does not allow such burials, and that this is unconstitutional. The Constitutional Court, however, found that BADRA does not prohibit such burials, since such deaths are not covered by the Act at all. This article discusses the lacuna that the Constitutional Court's decision created. It specifically considers whether such a right is protected in the Bill of Rights, and what the current law is regarding the burial ofpreviable foetuses, given the finding that this matter is not covered by BADRA.