The Eastern Cape government is set to draft a legal framework that compels all municipalities and hospitals in the province to give miscarriage victims the right to bury a foetus in all its gestational phases.
The action follows the provincial legislature’s approval of a motion tabled by ANC MPL Juan-Pierre Pretorius last week.
The motion instructs the provincial health and co-operative governance and traditional affairs MECs that within a year, they must present to the legislature a comprehensive provincial framework to guide the process and legislation of burial rights of foetuses after miscarriage.
It further emphasises that this should apply at all gestational stages with the hope of ensuring dignity, choice and consistency across all municipalities in the Eastern Cape.
This means that provincial hospitals would need consent from the families on whether they want to bury their foetus, including those delivered before 26 weeks, or regard them as medical waste.
This is expected to serve as a model for advocacy in all provinces, with the Eastern Cape spearheading the policy.
Currently, South African law does not permit the burial of foetuses that are less than 26 weeks gestation, with remains being treated as medical waste in hospitals.
The province’s decision is based on a high court judgment delivered in Pretoria in April 2021, where rights were afforded to parents to bury or cremate a foetus that is less than 26 weeks old.
In the matter, it was argued that a parent who lost a child due to a stillborn birth experienced 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 was treated after delivery.
The application was brought forward by nonprofit organisation, The Voice of the Unborn Baby NPC, and the Catholic Archdiocese of Durban against the national departments of home affairs and health.
The high court ruled in favour of the applicants and also rendered the Basic Conditions of Employment Act, Termination of Pregnancy Act, and the Births and Deaths Registration Act (BADRA), which the state used for its defence, as constitutionally invalid.
High court judge Nomonde Mngqibisa-Thusi deemed the order as “assisting in the process of healing”.
However, the Constitutional Court found that the existing laws had been misinterpreted for decades and clarified that the law was, in fact, silent on the matter of foetal remains prior to 26 weeks of gestation.
The judgment said: “Where the foetal remains are evacuated or removed from the mother outside of a healthcare environment, there may still be other restrictions, for example, limitations imposed by municipal regulations.
“The content and validity of any such regulations are not the subject of the present litigation.
“All that can be said is that if there is no other legal impediment to the burial of pre-viable foetal remains, BADRA does not stand in the way of that burial.”
Pretorius said the Constitutional Court judgment “causes more uncertainty in regulation, and leaves medical entities and funeral parlours in the dark”.
“This legal lacuna in the eyes of experts, is mainly caused by omission and incorrect terminology.
“Such as with Sarah Baartman District for example, where they classify ‘foetuses’ to also be ‘corpses’ in their by-laws, which creates inconsistency in relation to burial orders.
“In our recent health oversight visits, we found that medical facilities in Sarah Baartman encourage parents to take their dead foetuses to be buried, even though they are not of viable age according to the BADRA, which poses questions of legality on how death certificates get issued,” he said.
He said by-laws in municipalities such as the OR Tambo and Chris Hani districts did not include foetus under its definition of a corpse.
“This means a variance in legislation exists in the Eastern Cape and this is where the MEC for Cogta should come in, to ensure a uniformed and lawful approach in the province as this ambiguousness could cause criminal violations,” Pretorius said.
The Voice of the Unborn Baby NPC founder Sonja Smith said there had been no national guidelines to provide direction on the matter.
“Bereaved parents remain at the mercy of the discretion of healthcare professionals, often with inconsistent practices and outcomes.
“It is therefore essential that official policies and documentation — particularly at the department of home affairs — be reviewed and amended to make provision for the burial or cremation of non-viable foetuses.
“This would ensure that all parents who wish to lay their child to rest are afforded the dignity and compassion they deserve.”
Smith commended the Eastern Cape government for taking steps in developing a legal framework that could serve as a model for national advocacy.
The legislature further wants October to be recognised as international pregnancy and infant loss awareness month, with October 15 as world pregnancy and infant loss remembrance day.
The provincial health department has also been instructed to initiate awareness and support programmes on miscarriage and infant loss.
The resolution further wants staff training on how to handle pregnancy and infant loss.
Provincial health MEC Ntandokazi Capa confirmed their commitment to the cause and said they would provide the relevant training during the 2026/2027 financial year.
Daily Dispatch
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.