The Constitutional Court has ruled that the Births and Deaths Registration Act does not prohibit the burial of a human body, including babies who passed on intra-uterine before reaching a gestational age of 26 weeks. This decision in Voice of the Unborn Baby NPC and Another v Minister of Home Affairs and Another (2024) addresses a conflict between the statutory framework and the constitutional rights of parents. While the court affirmed that the law does not explicitly ban the burial of pre-viable still-born remains, the article notes that the administrative process required to carry out the ruling remains the primary obstacle for grieving parents.
The Legal Framework for Burial
The Births and Deaths Registration Act 51 of 1992, specifically section 20(1), outlines the requirements for burial, stating that a notice of death or still-birth must be provided by a relevant official. This Act establishes a framework for registering births and deaths, including the issuance of a death notice for still-born children who have reached a gestational age of at least 26 weeks. Foetuses under 26 weeks are typically considered medical waste.
The Act defines a still-birth as a child that has had at least 26 weeks of intra-uterine existence but shows no signs of life after birth. A corpse is defined as any dead human body, including still-born children. These definitions apply to all individuals, regardless of age and gender, except for babies who die in the womb before reaching 26 weeks of gestation. As a result, the protection provided by the Act is available to all, except for these specific categories of babies.
The process of obtaining a burial order is administered in terms of sections 18(1) to 18(3) of the Act. 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. If no medical practitioner was present, any person who was present at the still-birth shall make a prescribed declaration to a person contemplated in section 4.
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The Judicial Ruling and Its Limits
The applicants in the case challenged section 20(1) of the Births and Deaths Registration Act, read together with sections 18(1) to 18(3). They argued that these provisions infringe upon the constitutional rights of mothers and parents, including the right to dignity, privacy, religion, and equality, by denying them the right to bury their baby’s remains. The High Court ruled that section 20(1) of BADRA, read with section 1 (definition of ‘still-birth’) and sections 18(1) to 18(3), was inconsistent with the Constitution and invalid to the extent that it did not make provision for the right declared in the order.
The court accepted that a distinction existed between mothers who experienced pregnancy loss before 26 weeks of gestation and those whose babies were still-born after reaching the statutory threshold of 26 weeks. The High Court found that the limitation of rights resulting from this distinction was not justified, as it did not serve a legitimate government purpose.
The Constitutional Court ruled that section 20(1) of the Act does not prohibit the burial of human remains, including babies who died in the womb before reaching 26 weeks of gestation. The administrative process outlined in sections 18(1) to 18(3) effectively excludes still-born babies below the statutory threshold of 26 weeks of gestation. As a result, mothers will continue to face difficulties in handling this process.
The Administrative Barrier
As such, medical practitioners are under no obligation to act in terms of section 18. Therefore, as it stands, this creates an indirect administrative prohibition. Consequently, mothers whose babies died before reaching 26 weeks of gestation may be required to approach the courts on a case-by-case basis. This contrasts with the position of mothers whose babies reached at least 26 weeks gestation, who can follow the standard statutory process.
