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[2021] ZAGPPHC 161
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Voice of the Unborn Baby NPC and Another v Minister of Home Affairs and Others (16402/17) [2021] ZAGPPHC 161; 2021 (4) SA 307 (GP) (26 March 2021)
REPUBLIC
OF SOUTH AFRICA
THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
no: 16402/17
In
the matter between:
THE
VOICE OF THE UNBORN BABY NPC
1
st
Applicant
CATHOLIC
ARCHDIOCESE OF DURBAN
2
nd
Applicant
and
MINISTER
OF HOME AFFAIRS
1
st
Respondent
MINISTER
OF HEALTH
2
nd
Respondent
and
CAUSE
FOR JUSTICE
1
st
amicus curiae
WOMEN’S
LEGAL CENTRE TRUST
2
nd
amicus curiae
WISH
ASSOCIATES
3
rd
amicus curiae
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
In its amended notice of motion, the applicant is seeking the
following
relief:
“
1.1
That for purpose of this Court Order, the following words shall have
the following matters:
a.
‘bereaved parent or parents’ shall mean, in the
context
of pregnancy loss, a person or persons who would have been a parent
or parents as
b.
defined in the Children’s Act, Act 38 of 2005, of such
child
that would have been born had the pregnancy resulted in a live birth.
c.
‘burial’ shall have the meaning as defined in the
Births
and Deaths Registration Act, Act 51 of 1992 (‘BADRA’),
but shall be expanded to include dead fetuses; ‘bury’
shall have a corresponding meaning;
d.
‘loss of pregnancy’ or ‘pregnancy loss’
shall
mean the death of a fetus prior to or during separation from the
pregnant woman’s body, irrespective of whether through
natural
causes or human intervention;
e.
‘stillbirth’ shall mean a species of pregnancy loss
where
the fetus at the time of separation is viable, and where the fetal
death is not caused by human intervention;
f.
‘viable’ with relation to a fetus, shall mean
the
gestational age (or other criteria) at which a fetus is considered
able to survive outside the womb by legislation that provides
what
entities qualify to be buried. For clarity, BADRA currently
sets the gestational age of viability at 26 weeks.
2.
THAT it is declared that in the event of a loss of pregnancy
other
than stillbirth, the bereaved parent or parents have the right to
bury the dead fetus, if such bereaved parent or parents
so elect.
3.
THAT section 20(1) of BADRA, read with section 1 (definition
of
‘stillbirth) and subsections 18(1)-18(3) of BADRA, is declared
inconsistent with the Constitution and invalid insofar
as it does not
make provision for the right declared in paragraph 2 supra.
4.
THAT the declaration of invalidity in paragraph 3 supra is suspended
to allow Parliament the opportunity to amend BADRA to provide for the
right declared in paragraph 2 supra.
5.
THAT pending the amendment by Parliament of BADRA to provide
for the
right stated in paragraph 2 supra:
a.
a medical practitioner shall act lawful if he or she issues
a
stillbirth certificate in terms of section 18(1) of BADRA, upon
request by a bereaved parent or bereaved parents following loss
of
pregnancy other than stillbirth.
b.
if no medical practitioner was present at a
loss of pregnancy other than stillbirth, or if no medical
practitioner examined the
remains of the dead fetus following said
loss of pregnancy, any person who was present at the loss of
pregnancy shall act lawful
if he or she makes a prescribed
declaration of stillbirth to any person contemplated in section 4 in
terms of section 18(2) of
BADRA, upon request by a bereaved parent or
parents following a loss of pregnancy other than stillbirth.
c.
a person contemplated in section 4 of BADRA
shall not refuse a burial order in terms of section 18(3) of BADRA
because the stillbirth
certificate or declaration of stillbirth
relates to the loss of pregnancy other than stillbirth.
6.
THAT the first respondent is ordered and directed to:
a.
take all reasonable steps to communicate the content of the
right
declared in paragraph 2 supra and the content of paragraph 5 supra to
all persons contemplated in section 4 of BADRA; and
b.
serve on all the other parties to this application and file
with the
Registrar of this Court an affidavit, within 20 days of this
judgment, detailing the steps that he has taken to give effect
to
subparagraph 6a supra.
7.
THAT should Parliament fail to amend BADRA to provide for the
right
stated in paragraph 2 supra within 12 months of the date of this
order, any interested person may apply to this Court or
any other
division of the High Court for any appropriate further relief.
8.
THAT the definitions of ‘corpse’ and ‘human
remains’ in regulation 1 of the Regulations Relating to the
Management of Human Remains, published by the second respondent
in
the Gazette of 22 May 2013, in terms of NHA, are declared
inconsistent with the Constitution and invalid insofar as these
definitions
do not make provision for the right declared in paragraph
2 supra.
9.
THAT the declarations of invalidity in paragraph 8 supra are
suspended to allow the second respondent the opportunity to amend the
Regulations referred to in paragraph 8 supra to provide for
the right
declared in paragraph 2 supra.
10.
THAT pending the amendment by the second respondent of the
Regulations
referred to in paragraph 8 supra to provide for the right
declared in paragraph 2 supra, the definitions of ‘corpse’
and ‘human remains’ in the Regulations referred to in
paragraph 8 supra shall forthwith be read as including a dead
fetus,
if burial order was issued in respect of such a fetus in terms of
section 18(3) of BADRA.
11.
THAT should the second respondent fail to amend the Regulations
referred
to in paragraph 8 supra to provide for the right stated in
paragraph 2 supra within 12 months of the date of this order, any
interested
person may apply to this Court or any other division of
the High Court for any appropriate further relief.
12.
THAT the second respondent is ordered and directed to:
a.
take all reasonable steps to communicate the content of the
right
declared in paragraph 2 supra and the content of paragraph 5 supra to
all public hospitals and clinics in South Africa that
provide
pre-natal care; and
b.
serve on all the parties to this application and file with the
Registrar of this Court an affidavit, within 20 days of this
judgment, detailing the steps that he has taken to give effect to
subparagraph 12a supra.
13.
THAT, in the event that this application is opposed, the costs of the
application, including the costs incumbent upon the employment of two
counsel, and including the qualifying costs of the experts,
be paid
by such respondent that is opposing, or if both respondents oppose
this application, by the respondents jointly and severally,
the one
to pay the other/s to be absolved.
14.
THAT the applicant be granted such further and/or alternative relief
as
the Court deems meet”.
[2]
The first applicant, Voice of the Unborn Baby NPC, is a non- profit
organisation.
The deponent to the first applicant’s
founding affidavit is a co-founder and executive director of the
first applicant.
The second applicant, the Catholic Archdiocese
of Durban, is a voluntary organisation which was granted leave to
intervene.
[3]
The first applicant brings this application in its own interest and
in
the public interest as contemplated in s 38 of the Constitution.
The second applicant is bringing this application in its
own interest
and on behalf of members of the Catholic Church in Durban and its
surrounds. The first and second respondents
are the political
heads of the departments of Home Affairs and Health, responsible for
the administration of the BADRA and the
Regulations, respectively.
[4]
The first amicus curiae, Cause for Justice (“CFJ”).
The second amicus curiae, Women’s Legal Centre Trust
(“WLC Trust”), a non-profit organisation whose object
is
to advance and protect the human rights of women and girls who suffer
systematic discrimination and disadvantage. The
third amicus
curiae, WISH Associates, (“WISH”), is an organisation
aimed at providing sexual and reproduction health
services to women.
As WLC Trust and WISH have a common interest in the outcome of these
proceedings, hereinafter and for
convenience they will be referred to
as WLC Trust. All three amicus curiae were admitted in order to
assist the court.
[5]
In brief
the first and second applicants seek in their respective applications
under the same case number, a declaratory order declaring
section
20(1) read with section 18 (1) to (3) of BADRA and Regulation 1
invalid for being inconsistent with the provisions of the
Constitution. It is the applicants’ contention that the
impugned provisions of the relevant sections and the regulation
infringes on the constitutional rights, in particular, the rights to
dignity
[1]
, privacy, religion
and equality
[2]
, of the
prospective parent(s) of a pregnancy loss through a miscarriage and
an induced pregnancy loss by denying such parent(s)
the right to bury
the remains of the pregnancy loss.
[6]
The loss of pregnancy can either be a spontaneous pregnancy loss, due
to natural causes (a miscarriage or still-birth), or an induced
pregnancy loss, due to conscious human intervention.
[7]
It is apposite at this stage to set out the statutory provisions in
BADRA
applicable to the disposal of the remains resulting from loss
of pregnancies and the relevant regulation thereto.
[8]
Section1 of the
BADRA,
inter
alia,
provides that
:
“
In
this Act, unless the context otherwise indicates
-
“
Birth”,
in relation to a child, means the birth of a child born alive
“
Burial”
means burial in earth or the cremation or any other mode of disposal
of a corpse
“
Corpse”
means any dead human body, including the body of any still-born child
“
Still-born”,
in relation to a child, means that it has had at least 26 weeks of
intra-uterine existence but showed no sign
of life after complete
birth, and “still-birth”, in relation to a child, has a
corresponding meaning.
[9]
Section 18(1) to
18(3) of BADRA reads as follows:
(1)
A medical practitioner who was
present at a still-birth, or who examined the corpse of
a child and
is satisfied that the child was still-born, shall issue a prescribed
certificate to that effect.
(2)
If no medical practitioner was
present at the still-birth, or if no medical practitioner
examined
the corpse of a still-born child, any person who was present at the
still-birth shall make a prescribed declaration thereanent
to any
person contemplated in section 4.
(3)
The certificate mentioned in
subsection (1) or the declaration mentioned in subsection
(2) shall
be deemed to be the notice of the still-birth, and a person
contemplated in section 4 shall, on the basis of such notice
and if
he or she is satisfied that the child was still-born, issue under the
surname of any parent concerned a prescribed burial
order authorising
burial”.
[10]
In turn Regulation 1 defines the following terms:
“
Corpse”
means a dead human body.
“
Human
remains” means a dead human body, or the remains of a dead
human body whether decomposed or otherwise.
[11]
In
terms of s 20(1)
[3]
of BADRA no
burial may take place in the absence of a burial order.
[12]
The effect of section 20(1) read with the
provisions of section 18 (1)-18 (3) and the definition of ‘burial’
and ‘corpse’
in BADRA is that a still-birth certificate
or declaration and a burial order in the event of a still-birth, to
the exclusion either
an early loss of pregnancy due to natural causes
(a miscarriage) or loss of pregnancy caused by human intervention.
[13]
In South
Africa a foetus is taken to have reached the stage of viability when
the pregnancy is 26 weeks old. The relevance
of this threshold
will become relevant below. The impugned provisions posit
viability as a criterion for determining whether
or not the remains
of a pregnancy loss can be buried.
As
BADRA provides for the burial of the remains of a still-birth, the
remains of a miscarriage and an induced pregnancy are
treated
as pathological or anatomical waste
[4]
and are disposed of through incineration with other medical waste.
[14]
The
applicants challenge the constitutionality of BADRA and the
regulation as it relates to how the remains of a spontaneous
pregnancy
loss which is less than 26 weeks and the remains of an
induced loss of pregnancy, should be disposed.
[15]
At the outset it should be stated that the first applicant is not
challenging the concept
of ‘viability’ as used in BADRA.
[16]
On behalf of the first applicant counsel submitted that ordinarily
many expectant mothers
and fathers make significant emotional
investment in the prospective child and that through advanced
technology through which they
are able to observe the fetus whilst
still in the womb, these prospective parents develop a bond with the
fetus. That the
loss of the pregnancy, irrespective of whether
it was due to natural causes or was induced, causes immense grief to
the prospective
parents.
[17]
Counsel for the first applicant further submitted that despite
emotional trauma as a result
of the pregnancy loss, which is
acknowledged by the respondents, BADRA unfairly discriminates against
the parent(s) of a pregnancy
loss other than a still-birth by not
allowing them to bury the remains of the loss. It is the first
applicant’s contention
that the giving of burial rights to the
parent(s) of a still-born and denying same to parents who have
suffered a pregnancy loss
other than a still-birth, amounted to an
unfair differentiation between parents in the same situation.
Further, it is the
first applicant’s contention that the manner
in which the remains of the pregnancy loss other than a still-birth
are dealt
with through incineration is insensitive, hurtful and
disrespectful to the feelings and dignity of the ‘bereaved
parents’.
[18]
Counsel for the first applicant further submitted that in order for
the parents of a pregnancy
loss who are denied a burial to deal with
their grief, they wish to bury the remains of the pregnancy loss
which would contribute
to their healing emotionally. It was
submitted that the burying of the remains of such pregnancy loss,
accompanied by the
performance of the necessary rituals would go a
long way to dealing with their loss.
[19]
It was further submitted on behalf of the first
applicant that there is no legitimate government purpose suggested by
the respondents
for depriving parents who have suffered pregnancy
loss due to miscarriage or induced termination of pregnancy of
choosing whether
or not to bury the fetal remains.
[20]
In support of its assertion of the impact of a pregnancy loss and the
emotional consequences
on the parent(s), the applicant has attached,
amongst others, the affidavits of Dr Botha, a gynaecologist and
obstetrician, Dr
Louise Olivier, a clinical and counselling
psychologist and Reverend Braam Klopper, a pastoral therapist and
counsellor.
[21]
Dr Daniel Johannes Botha is of the opinion on the psychological
effects of a miscarriage
are based on his observation of patients he
consulted with.
[22]
[23]
Rev Klopper is of the opinion that:
“
It
should be clear … that burial or cremation would impact
positively on the process of grief of expecting parents who have
experienced miscarriage or termination of pregnancy”.
[24]
Dr Olivier expressed the following view:
“
Most
of the cultures in Africa recognise the belief of the spirit of each
human being (even the unborn) and the importance of rituals
to take
leave of such a spirit in time of death and if it is not done
appropriately that it has consequences for the community
and the
individual”.
[25]
Moving from
a premise that
life
begins at conception and it was submitted on behalf of the second
applicant that unborn children are human beings with dignity
and
entitled to respect. The second applicant contends that the
impugned legislation infringes its members’ constitutional
rights to equality and to freedom of religion. Counsel for the
second applicant submitted that s 15 of the Constitution guarantees
everyone the right to freedom of conscience, religion, thoughts,
beliefs and opinion, which according to the Constitutional Court
includes: the right to entertain such religious beliefs as a person
chooses; the right to declare religious beliefs openly and
without
fear or hindrance or
reprisal
and the right to manifest religious beliefs by worship and practice,
which practice involves giving the unborn child dignity
and respect
as given to persons that die after being born, including, amongst
others, such practises as ‘prayer, blessings,
and the
invocation of secret rites. Furthermore, it was submitted on
behalf of the second applicant that the right to freedom
of religion
contains the element of the absence of coercion or restraint.
Reference was made to
S
v Lawrence
;
S v Senegal; S v
Solberg
[5]
at where the court held that
“
[92]
… I cannot offer a better definition than this of the main
attributes of freedom of religion.
But, as Dickson CJC went to
say, freedom of religion may mean more than this. In particular
he stressed that freedom implies
an absence of coercion or constraint
and that freedom of religion may be impaired by measures that force
people to act or refrain
from acting in a manner contrary to their
religious beliefs”.
[26]
It was further submitted on behalf of the second
applicant that the respondents did not proffer any justification for
the distinction
in the treatment of the remains of a stillbirth and
those of a loss of pregnancy other than stillbirth except to say that
the legislation
protects the health and welfare of human beings
without providing any evidence in support of that assertion.
Furthermore,
that there was no justification for the limitation of
the bereaved parents’ right to bury the remains of the
pregnancy loss
other than a still-birth and therefore that the
impugned legislation should be declared inconsistent with the
Constitution and
invalid to the extent of that inconsistency.
[27]
The respondents raised the issue of
the first applicant’s locus standi. On behalf of the
respondents it was submitted
that the deponent to the first
applicant’s founding affidavit is not genuinely acting in the
interest of the first applicant
but that her interest was
self-serving as she has a strong financial interest in the current
application and is driven by financial
self-interest. Further, the
respondents question whether the deponent to the first applicant’s
founding affidavit is acting
in the public’s interest.
[28]
In the
founding affidavit the deponent to the first applicant’s
founding affidavit asserts that the application is brought
in her own
right and in the public interest in terms of s 38(a)
[6]
and (d). Further, the deponent to the first applicant’s
founding affidavit, has disclosed her personal experience when
her
daughter suffered a pregnancy loss and was not able to bury the fetal
remains and its emotional consequences on her daughter.
[29]
I am satisfied that the respondents’ complainant about the
first applicant’s
locus standi has no merit.
[30]
On the merits
counsel for the respondents submitted that since the main complaint
of the applicants is that pregnancy loss often
causes grief to
expecting parents, the applicants have not laid a basis to seek to
impugn the provisions of BADRA since they have
not challenged the
fundamental principle and legal concept underlying the burial of
foetus, namely, the concept of viability.
Counsel submitted
that in the absence of viability there is no life therefore there is
no basis to render section 20(1) and the
regulations
unconstitutional. It was further submitted that the concept of
viability was introduced to serve a legitimate
purpose.
[31]
It was
submitted
that where no child is born alive or where no viability is realised
in terms of BADRA one cannot talk about bereaved parents,
they are
merely prospective parents. According to the respondents there
is no legal and or scientific justification as to
why the law should
recognise the burial of a foetus of less than 26 weeks upon
termination of pregnancy or induced pregnancy loss.
It was
further submitted that the mere fact that a prospective mother feels
emotionally attached to the pregnancy even if it is
still at
conception or is merely two weeks’ old does not mean that a
legal right exists for the prospective mother to bury
the foetus even
if it is an embryo.
[32]
It was
further submitted that the fact that prospective parents suffer
emotionally and psychologically after the loss of a prospective
child
does not give rise to the infringement of the constitutional rights
of such prospective parents. Further it was submitted
that
there is a legitimate government purpose for regulating aspects
relating to the burial of a dead foetus with regards to the
aspect of
human conduct that has an impact on society.
[33]
With regard
to the right to privacy it was submitted that such right is not
absolute and is subject to limitations by the legitimate
interest of
others in the public interest. It is the respondents’
view that the right to privacy is limited by the
law of general
application in that the government is in no way able to ascertain in
each case as to whether the disposal was done
in accordance with the
law. Therefore, the limitation is about the health and safety
in relation to the handling of healthcare
risk waste. was legitimate.
[34]
In
NM
v Smith
[7]
the Constitutional Court held that
:
“
Privacy
encompasses the right of a person to live his or her life as he or
she pleases. In
Bernstein and
Others v Bester NNO and Others
this
Court stated:
‘
A
very high level of protection is given to the individual’s
intimate personal sphere of life and the maintenance of its basic
preconditions and there is a final untouchable sphere of human
freedom that is beyond interference from any public authority.
So much so that, in regard to this most intimate core of privacy, no
justifiable limitation thereof can take place. But this
most
intimate core is narrowly construed. This inviolable core is
left behind once an individual enters into relationships
with persons
outside this closest intimate sphere; the individual’s
activities then acquire a social dimension and the right
of privacy
in this context becomes subject to limitation’.”
[35]
The first applicant submits that pregnancy loss
due to miscarriage or termination of pregnancy and the subsequent
decision whether
to bury the foetal remains or not falls within the
personal realm, as contemplated in
Bernstein
v Bester.
[36]
It was
submitted that the decision to grant prospective parents an election
to bury a dead foetus would not resolve the emotional
and
psychological attachment every prospective parent is likely to have.
Further, that burial of the dead foetus could be
assisted by
psychological and counselling support that government makes available
to the bereaved parents.
[37]
It is the
view of CFJ that the denial of the choice to bury the fetal remains
of the unborn child infringes the value of human dignity.
[38]
The
WLC Trust and Wish Associates, the second and third amicus curiae,
although abiding the decision of the court with regard to
the merits
of the relief sought by the applicant, they have raised concerns with
regard to the effect the relief sought as currently
formulated is
granted on the rights of pregnant women who chose to terminate their
pregnancies in terms of the provisions of the
Choice of Termination
of Pregnancy Act
[8]
(“CTOPA”).
[39]
The WLC Trust with the relief as currently
formulated is that:
39.1
the relief sought will mean additional burdens will be placed on
designated facilities;
39.2
the relief will undermine the confidentiality
provisions of the CTOPA;
39.3
The right to bury may create an additional
barrier to access facilities offering services under OCTOPA.
[40]
It was submitted on behalf of WLC Trust that in
the event of the court granting a declaratory order conferring burial
rights on
bereaved parent or parents, the order should expressly
exclude the accrual of such rights on a person who seeks pregnancy
loss
under the voluntary termination of pregnancy regime under
CTOPA. Further that should the declaratory order also apply to
persons seeking voluntary termination of pregnancy under CTOPA, the
order should include a provision ensuring appropriate mechanisms
are
put in place to ensure the practical fulfilment of that right does
not disproportionately interfere with pregnant women’s
right to
access a termination of pregnancy procedure.
[41]
Having considered the concerns raised in submissions on behalf of WLC
with regard to the
impact of the relief sought by the applicants is
granted, I am not inclined to grant the relief sought where it would
have a blanket
effect on loss of pregnancy other than still-birth.
Accordingly the first applicant’s draft order will be amended
to
exclude application to people falling under the purview of CTOPA.
[42]
Section 172(1) of the Constitution reads as follows:
“
When
deciding a constitutional matter within its power, a court-
(a)
must declare that any law or conduct that is inconsistent with the
Constitution
is invalid to the extent of its inconsistency; and
(b)
may make
any order that is just and equitable
[9]
,
including –
(i)
an order limiting the retrospective effect of the declaration
of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period
and
on any conditions, to allow the competent authority to correct the
defect”.
[43]
It is trite that an unborn ‘child’ is not a bearer of
rights. However,
in certain instances the law has protected the
‘rights’ of an unborn child in the event that he or she
is born alive.
[44]
It is common cause that pregnancy loss results in emotional and
psychological pain or trauma.
[45]
It is further common cause that in terms of BADRA and the
regulations, a notice of death
or stillbirth can only be completed in
the case of a human being or a still-born. Since in terms of
the impugned provisions
a burial order can only be issued once a
notice of still-birth has been completed, the burial of the fetal
remains of a pregnancy
loss due to natural causes which occurs before
26 weeks of gestation or the fetal remains of a voluntary induced
termination under
CTOPA.
[46]
It is the applicants’ contention that the impugned provisions
infringe on the constitutional
rights of dignity, privacy, religion
and equality in denying the parents of a pregnancy loss other than a
still-birth the right
to bury the fetal remains, particularly as
these rights have been afforded to the parents of a still-birth.
It was submitted
on behalf of the applicants that the emotional pain
and grief these parents suffer and endure, is no different from those
of a
parent(s) of a still-birth, taking into account the emotional
investment made and the bonding between the parent(s) and the fetus
which has been enabled by technological medical advancement.
The emotional pain is exacerbated by the manner in which the
fetal
remains are dealt with after separation from the mother and the lack
of sympathy received from hospital staff during the
separation.
Further these fetal remains are put together with other medical waste
and incinerated. It cannot be disputed
that to the medical
staff the fetal remains may be just trash or waste but to the would
be parent(s) it is not just a thing to
be thrown away. To the
would be parents the fetal remains represent what could have been a
child, in some instances a long-awaited
child. By treating the
fetal remains as waste is, to say the least, insensitive and
disrespectful to the parent(s) who procreated
with the hope that the
fetus will result in a living being.
[47]
It cannot
be disputed that the impact of the loss of a pregnancy cannot be said
to be different or of a lesser magnitude in the
case of a fetus which
has not reached the stage of viability when the loss occurs.
The issue is not, as incorrectly assumed
by counsel for the
respondents’ viability or non-viability of the fetus. The
argument by counsel for the respondents
that the use of the criterion
of viability in order to accord burial rights is a necessary
limitation as envisaged by s 36 of the
Constitution is not
convincing. It is about the emotional loss and the pain felt by
the expectant parent(s). No rational
reason exists why there is
a differentiation in treating the consequences of a still-birth on
the one hand, and on the other hand
those of a pregnancy loss other
than a still-birth
[10]
.
The intensity of the pain felt by both parents who have suffered a
loss must be the same. In both instances at the end of
the day there
is no child born alive.
[48]
This court
has been referred to various foreign jurisdictions where there is a
recognition of the need to cater for the emotional
needs of parent(s)
who has lost a pregnancy in a situation other than a still-birth and
no distinction is made as to how the fetal
remains should be disposed
of in the case of a still birth and cases other than a still-birth.
Policies and guidelines have
been developed on how the parent(s) of a
pregnancy loss should be dealt with after the loss. For
instance, in Alberta, Canada
in terms of Cemeteries Act
[11]
,
the definition of a ‘cemetery’ read with s 18(1) is all
encompassing to include fetal remains whatever the cause.
Regulation 65(1) of the Act reads as follows:
“
The
Minister may make regulations respecting the disposal of foetuses and
the bodies of newborn infants who have died, subject in
each case to
the parents’ or guardians’ request, and defining newborn
infant for the purposes of the regulations”.
[49]
There is no reason why the impugned provisions cannot be adapted in
order to cater for
a loss of pregnancy other than a still-birth for
those who wish to perform the last rites for the prospective baby and
conduct
a burial. The dignity of the parents who have suffered
a loss will be restored. Further, there is no rational link
between the purpose of incinerating the fetal remains of a pregnancy
loss other than a still-birth and the cause of the loss.
By
allowing the ‘bereaved parents’ to bury the fetal remains
under the circumstances will go a long way towards ameliorating
the
pain caused by the loss and will assist in the process of healing.
The applicants are not calling for a blanket burial
right but are
suggesting that such right be given to those who request a burial.
[50]
I am therefore of the view that the impugn provisions of BADRA and
the regulation are inconsistent
with the Constitution and are invalid
to the extent of excluding the issuance of a still-birth notice in
the case of a pregnancy
loss other than a still-birth. The
declaration of invalidity does not however apply in the case of a
pregnancy loss due to
an inducement.
[51]
As
this case involves a constitutional issue, the
Biowatch
Trust v Registrar, Genetic Resources and Others
[12]
principle applies with regard to costs. In as much as costs were
argued, I am of the view that no order as to costs should be made.
[52]
In the result, an order is granted in terms of the amended draft
order marked “X”.
_________________________
MNGQIBISA-THUSI
J
Appearances:
For
1
st
Applicant: Adv D Thaldar (instructed by Ingram
Attorneys)
For
2nd Applicant: Adv AJ D’Oliveira (instructed by Bruce
Burt Attorney)
For
1
st
and 2
nd
Respondents: Adv WR Mokhare
SC assited by Adv V Magagane and Adv C Lithole (instructed by State
Attorney)
For
1
st
Amicus Curiae: Adv D Cooke (instructed by Craig
Snyders & Associates)
For
2
nd
Amicus Curiae: Adv F Hobden assisted Adv P
Mdakane (instructed by Woman’s Legal Centre)
For
3
rd
Amicus Curiae: Adv F Hobden assisted Adv P
Mdakane (instructed by Legal Resources Center)
[1]
Section
10 of the Constitution provides that:
“Everyone
has inherent dignity and the right to have their dignity respected
and protected”.
[2]
Section
9 of the Constitution provides that: “(1)
Everyone
is equal before the law and has the right to equal
protection and benefits of the law; (2) Equality includes the full
and equal
enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and other measures designed to
protect or advanced persons, or categories of persons, disadvantaged
by unfair discrimination may be taken. (3) The state may
not
unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy,
marital
status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture,
language and
birth. (4) No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in terms
of
subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination. (5) Discrimination on one
or more of
the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair”.
[3]
Section 20(1) of BADRA reads as follows: “
(1)
No burial shall take place unless a 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.
[4]
The
South African National Standards (“SANS”) 10248, titled
‘Management of Healthcare Risk Waste’[4],
defines
‘pathological waste or anatomical waste’ as follows:
“Waste that contains tissues, organs, body parts,
blood and
body fluids from patients, fetuses and animal carcasses, but
excludes teeth and hair”.
Further,
Part
1 of the SANS describes ‘waste’ as: “Undesirable
or superfluous by- products, emission, residue or remainder
of any
process or activity, any matter, gaseous, liquid or solid or any
combination thereof, which is: (a) discarded by any person;
(b)
accumulated and stored by any person with the purpose of eventually
discarding it with or without prior treatment connected
with the
discarding thereof; or (c) is stored by any person with the purpose
of recycling, reusing or extracting a usable product
from such
matter”.
[5]
1997
(4) SA 1176
(CC).
[6]
Section 38 of the Constitution provides that: “Anyone listed
in this section has the right to approach a competent court,
alleging that a right in the bill of rights has been infringed or
threatened, and the court may grant appropriate relief, including
a
declaration of rights. The persons who may approach the court
are–(a) anyone acting in their own interest; (b)
anyone acting
on behalf of another person who cannot act in their own name; (c)
anyone acting as a member of, or in the interest
of a group or class
of persons; (d) anyone acting in the public interest; and (e) an
association acting in the interest of its
members.”
[7]
[2007] ZACC 6
;
2007
(5) SA 250
(CC) at para
[33]
.
[8]
Act
92 of 1996.
[9]
See also
section
8(2) of the PAJA “The court or tribunal, in proceedings for
judicial review in terms of section 6(3), may grant
any order that
is just and equitable.”
[10]
In
Harksen
v Lane
[1997] ZACC 12
;
1998
(1) SA 300
(CC) held that: “[42]
Where
section 8 is invoked to attack a legislative provision or executive
conduct on the ground that it differentiates between
people or
categories of people in a manner that amounts to unequal treatment
or unfair discrimination, the first enquiry must
be directed to the
question as to whether the impugned provision does differentiate
between people or categories of people.
If it does so
differentiate, then in order not to fall foul of section 8(1) of the
interim Constitution there must be a rational
connection between the
differentiation in question and the legitimate governmental purpose
it is designed to further or achieve.
If it is justified in
that way, then it does not amount to a breach of section 8(1).
[11]
Alberta,
Canada, Alberta Cemeteries Act RSA 2000-cC-3.
[12]
2009
(6) SA 232
(CC).