01 February 2022

Extended: The Rights of Grieving Parents to Choose Burial After Pregnancy Loss

Expectant parents who lose a pregnancy before 26 weeks (the age set by the Births and Deaths Registration Act (BADRA) in its definition of “still-born”) have until now had no right to bury their foetus, which had to be incinerated as “medical waste”.

That has changed with a recent High Court order declaring the relevant provisions of BADRA unconstitutional. That order is suspended to give Parliament an opportunity to amend BADRA, plus it must also go to the Constitutional Court for confirmation. But in the interim the Court has allowed burial (via the issue of a “stillbirth certificate” or “declaration of stillbirth”) on request by the bereaved parent or parents.

The Court declined to extend this new choice to foetal deaths resulting from human intervention (“voluntary induced termination”) so for now at least this new freedom to choose is available only to grieving parents in the case of natural deaths (miscarriages).

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