The Constitutional Court recently delivered a judgement which overturned the High Court’s ruling that certain sections of the Births and Deaths Registration Act 51 of 1992 (hereinafter referred to as “BADRA”) were unconstitutional due to there being a prohibition on the burial of foetuses which were either miscarried or aborted at less than 26 weeks of gestation, normally referred to as “pre-viable foetuses”. This article shall be an analysis that indicates how denying prospective parents the right to bury pre-viable foetuses is a violation of their rights to autonomy. In this instance the parents are not granted the option to bury their deceased child, but rather have the remains of such a child regarded as “medical waste” and simply incinerated by the hospital. This article has three segments: 1) A summary of the Constitutional Court’s judgement; 2) An observation of what determines viability and whether the standard currently used by our courts is problematic, and 3) How legislation and case law in the UK should serve as an example of how to properly give effect to the parents’ autonomy.
In this matter, the Applicants sought confirmation of the High Court’s ruling whereby sections 18(1), (3) and 20(1) of BADRA were deemed to be inconsistent with the Constitution as they only allowed for the burial of foetal remains in the case of a stillbirth.
In the High Court, the challenge was brought on the basis that the rights to privacy, dignity, religion and equality of prospective parents who experienced a pregnancy loss either through miscarriage or conscious human intervention, were being infringed. The High Court held that BADRA should be extended to cater for the burial of pre-viable foetuses, as this would restore dignity for prospective parents. Reason being, refusing this would clearly be an unjustifiable and irrational limitation on the prospective parents’ rights to dignity and equality.
The matter was subsequently brought before the Constitutional Court in order to determine whether the offending provisions actually prohibited the burial of pre-viable foetal remains. The Court had to be satisfied as to the unconstitutionality of the aforementioned BADRA provisions by establishing whether BADRA in fact prohibited the burials of foetal remains and if so, whether any rights within the Bill of Rights were limited. If this was indeed so, then it would have to be determined whether such a limitation was justifiable in terms of section 36 of the Constitution.
The Court, in its interpretation analysis, stated that the burial of a pre-viable or terminated foetus falls outside the scope of BADRA’s provisions for two reasons. First, a pre-viable foetus is not a still-born child, as it wouldn’t have had 26 weeks of intra-uterine existence. Secondly, a pre-viable foetus wasn’t a corpse for the purposes of BADRA. The court reasoned that it would be contradictory of the lawmakers to refer to a more developed foetus as a still-born and a far less developed foetus as a human body. Based on the above, no prohibition by BADRA was evident. The Court therefore held that the relevant provisions of BADRA were not inconsistent with the Constitution. The Court further stated that declaring that there exists a right to bury a pre-viable foetus can become complicated where the evacuation or removal of some of all of the foetal remains from the mother takes place in a healthcare facility. The logic of the court was that no clear indication exists, entailing what medical staff should do if prospective parents wish to bury or cremate the remains of a pre-viable foetus.
In South Africa, there is no consensus on viability, especially as different High Courts have stated different weeks of gestation. In S v Molefe, regarding the crime known as concealment of birth, viability was deemed to be at 28 weeks of gestation when determining what constitutes the element of a “child” in that offence. S v Mshumpa, which tackled the killing of an unborn child, stated that viability is 25 weeks of gestation.
Unfortunately, even international viability is ambiguous, with the World Health Organisation using 28 weeks of gestation to determine viability, which is followed by several countries such as Belgium, Denmark, Holland, etc. In the United Kingdom, however, viability is determined at 24 weeks of gestation. Based on the aforementioned examples, it is clear that both locally and internationally, no common standard exists for the determination of when a foetus is viable, which is not only confusing but also alarming upon consideration of the fact that there is clearly a legislative gap since only BADRA governs the burial of a foetus.
At this point, we shall observe how the UK has attempted to grant expecting parents some sort of autonomy over a pre-viable foetus, as well as relevant case law which has served to protect a patient’s right to autonomy. First, we shall observe section 53 of the Human Tissue Act of 2004 (“Human Tissue Act”) and then the landmark case relating to patient autonomy, being Montgomery v Lanarkshire Health Board.
Human Tissue Act
Section 53 of the Act treats foetal remains as the pregnant mother’s tissue. This is summarised under paragraph 141 of the Human Tissue Authority’s Code of Practice, which subjects foetal tissue to the same consent requirements under the Human Tissue Act as all other tissue from the living (including non-foetal products of conception, such as the placenta and amniotic fluid).
Montgomery v Lanarkshire Health Board
This case is significant in the UK for establishing informed consent as well as patient autonomy.
This case gave life to the idea that informed consent to medical treatment is inclusive of events arising as a consequence of that treatment. The innovative principle utilised by the court in Montgomery was followed in Spencer v Hillingdon Hospital NHS Trust, where the court held that the duty to warn patients of potential risks was extended to include the duty to warn a patient of the risk of post-operative complications.
Autonomy in South Africa?
Autonomy clearly underlies several constitutional rights, such as the right to have access to health care services, which is relevant in light of the Choice on Termination of Pregnancy Act 92 of 1996. To give effect to a woman’s bodily integrity should also encompass granting them autonomy through allowing for the foetal remains of either a miscarriage or induced pregnancy loss to be disposed of by burial, regardless of the gestational age, as a foetus is already sentimentally regarded as a child.
 2012 (2) SACR 574 (GNP)
 2008 (1) SACR 126 (E)
  UKSC 11
  EWHC 1058 (QB)