Would-be parents have been given the right to bury the remains of a dead foetus, if they so wish, the Pretoria high court has ruled.

Judge Nomonde Mngqibisa-Thusi declared sections of the Births and Deaths Registration Act (BDRA) — which effectively deems a foetus less than 26 weeks to be “medical waste” that must be incinerated — unconstitutional.

She has given parliament 12 months to amend the act but has ruled that in the interim, medical staff may, on request from parents, issue a death certificate to allow for burial.

The application was brought by The Voice of the Unborn Baby NPC and the Catholic Archdiocese of Durban against the ministers of home affairs and health.

They argued that BDRA — which only allows for a death certificate to be issued in “stillborn” cases, where the foetus is more than 26 weeks — was “insensitive, hurtful and disrespectful”.

Counsel submitted that it infringed on their rights to dignity, privacy, religion and equality.

Mngqibisa-Thusi said it had been argued that expectant mothers and fathers made significant emotional investment in the prospective child and through advanced technology, were able to observe the foetus while still in the womb.

Burying the remains, accompanied by rituals, would go a long way to dealing with the loss.

The ministers opposed the application. Their lawyers argued that there was no legal or scientific justification as to why the law should allow the burial of a foetus of less than 26 weeks.

The judge said: “It could not be disputed that to the medical staff the remains may just be trash or waste. But to the would-be parents, it is not just a thing to be thrown away. It represents what could have been a child and in some cases, a long-awaited child.

“By treating the remains as waste is, to say the least, insensitive and disrespectful.”

She said there were no rational reasons to differentiate between different losses of pregnancy.

“The pain will be the same. At the end of the day, there is no child born alive.

“The law can be adapted so that the dignity of parents who have suffered a loss will be restored. By allowing burials, it will go a long way to easing their pain and will assist the process of healing.”

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