The right to bury a foetus younger than 26 weeks

In a recent judgment delivered by the High Court in Pretoria during April 2021, rights were afforded to parents to bury or cremate a foetus that is younger than 26 weeks old. Prior to this case, no burial rights were afforded to foetus’s younger than 26 weeks. In this case, the court ruled that amendments needed to be made to the Birth and Deaths Registration Act to allow for such burials. Although the Constitutional Court still needs to endorse the ruling, the ruling has been widely welcomed by the general public.

In this matter, the Judge had to consider the arguments raised by the applicants which included the parents’ rights to dignity, religion, privacy and equality. It was argued that a parent who loses a child due to a stillborn birth experiences the same trauma as losing a “living” child and as such they  should not be forced to suffer an increased trauma arising out of the manner in which their stillborn is treated after delivery.

The court agreed that parents should be allowed the choice as to whether to bury or cremate the remains of a miscarriage, however, the court also made it clear that this right will only be afforded to parents of a stillborn which arose out of miscarriage and not as a result of any medical intervention such as an abortion.

The fight for this cause was led by a woman who founded an organisation known as “The Voice of the Unborn Baby”. She started this organisation after having to assist parents of stillborn triplets that had not yet reached 26 weeks. As  the owner of a funeral home she was traumatised to learn that a foetus that was not older than 26 weeks when it died was considered medical waste and was not afforded the right to a burial.

It is important to note that, although this change has been made to the rights to burial of a foetus younger than 26 weeks, in the legal sense a baby only acquires legal personality once taking their first breathe.

The court has given Parliament a year to make the necessary amendments to the Births and Deaths Registration Act but the change will only come into effect once the Constitutional Court has endorsed the ruling made by the High Court in Pretoria.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.