The Constitutional Court In Effect Shamefully Denies Many Traumatized Parents a Legal Right To Bury Their Deceased Babies Who Are Less Than 26 Weeks Old

The Constitutional Court In Effect Shamefully Denies Many Traumatized Parents a Legal Right To Bury Their Deceased Babies Who Are Less Than 26 Weeks Old

Professor Forstchen’s words about nazi Germany are chillingly applicable to South Africa today in its indifference to the daily slaughter of some 450 unborn children: “The true form of evil rarely looks evil on the surface, it seduces us with fair face as it leads, sometimes an entire nation, into damnation.”

The South African Constitutional Court handed down its judgment in the Voice of the Unborn Baby case on 15 June 2022. Amongst other things, the court had to decide whether to confirm a finding by the Pretoria High Court last year that certain provisions of the Births and Deaths Registration Act (“BADRA”) and related health regulations were unconstitutional for denying parents of babies who die during the first 26 weeks of existence in the womb the right to bury their babies’ remains.

The Constitutional Court overturned the High Court’s decision and in effect has ruled that unborn babies younger than 26 weeks are not human. (I assume that BADRA uses 26 weeks as the cut-off date based on the flawed reasoning that babies less than 26 weeks are not viable.) The practical effect of this is that already traumatised parents do not automatically have the right to the remains of their babies, so that they can bury them.

In this regard Cause for Justice, an amicus curiae (friend of the court) in the litigation, put expert medical evidence before the Court confirming that from the moment of conception the newly formed organism (zygote) is both living and human, i.e., is a living human being. In its judgment it did not deal with this evidence. (All the Constitutional Court needed to do to grasp how fatally flawed their decision is that unborn babies less than 26 weeks old are not human, is watch the 44 second long fetoscopy of a 9 week old, let alone a 26 week old, unborn baby elsewhere on this website.)

The best the Constitutional Court could do was spend the whole of two legalistic sentences to answer the central question in the case – whether the bodily remains of a child that dies prior to 26 weeks in the womb is a “dead human body” (i.e., a corpse, as legally defined)? In the Court’s view, an interpretation that such remains fall within the meaning of “dead human body”, “would unduly strain the meaning of the words … It also would not make sense for the Legislature to refer to a more developed foetus as still-born and a far less developed one as a human body, which ordinarily and plainly refers to people or “the born alive”.”

This is the same court that inter alia used the subjective concept of ubuntu to decide that vicious convicted multiple murderers were worthy of being treated with dignity (S v Makwanyane and Another 1995 (3) SA 391 (CC)). And which also used ubuntu to justify a total disregard for clear rules and procedures which had to be followed before a street could be renamed. In the latter matter the majority ruled that substance must always trump form (City of Tshwane Metropoliton Municipality and Afriforum and Another, [2016] ZACC 19).

And yet, when it comes to how to treat the remains of unborn children and their already traumatised parents, there is not even a hint of this same ubuntu interpretive lens. All there is, is  cold hearted legalism, form.

The justices of the Constitutional Court are able and have sharp minds, well aware of the previous jurisprudence of their court, not least of all the resort by the justices to a subjective and ill-defined concept such as ubuntu when expedient or when they believed justice required it. Furthermore, they are aware of the politically correct and oppressive culture they are operating in. It is a culture which simply does not tolerate treating all life as sacred when to do so will have a negative impact on that culture enabling the sacrificing of its children on the altar of self (since 1998 we are talking of a number of some 3.5 million unborn children who have been intentionally killed in effect with the blessing of the state, inclusive of the Constitutional Court – see footnote 3 of The Emperor Has No Clothing, referenced below, for the extrapolation to 3.5 million).

The legalistic and, in effect, callous decision in this matter only makes sense if the justices saw that to affirm the decision of the High Court would open the door to later courts finding that all unborn children are human beings, who must be treated with dignity and respect. And so, the justices forgot all about the lens of ubuntu and resorted to legalism, even unashamedly at one point stating that the possible economic implications of affirming unborn babies of less than 26 weeks as human beings also was part of the reason for their decision.

I ask myself the obvious question, if babies less than 26 weeks are not human, then WHAT (I urge the reader once again to watch the fetoscopy referred to above)?

Besides the further brutalising and dehumanising of our society, by aiding and abetting the ideology that some human life is more worthy of dignity than other human life, so fundamental to the apartheid regime of the past, in its effect this latest decision by the Constitutional Court is cruel and callous towards already traumatised parents.

Parents whose babies are younger than 26 weeks old, are left with no clearly recognised right to rely on if they want to bury their prematurely deceased child. If a hospital (as has been the norm and reality in most cases up until now) denies parents the bodily remains of their baby, parents would have to somehow persuade or financially remunerate or litigate against the hospital to prevent their baby’s remains from being disposed of as medical waste or used for experimentation, so that as parents they can bury their child. Practically speaking, where the unborn baby is less than 26 weeks old, most hospitals usually treat the remains of the baby merely as medical waste without having regard to the wishes of the parents. This makes it almost impossible for traumatised parents to act quickly enough to prevent hospitals from simply incinerating, or worse, their baby.

Knowing full well the reality on the ground, this failure by the Constitutional Court to use its enormous powers to affirm the dignity and worth of all human life, and to affirm the right of traumatised parents to pay their respects to their deceased babies, as opposed to expediently and conveniently leaving the question open as it has done, is a woeful and intentional moral failure by the Constitutional Court. (In any event, the justices of the Constitutional Court cannot simply claim ignorance of this reality on the ground or that they had too little evidence before them. For example, if they were uncertain about anything, they could have of their own accord called for further evidence. They have often done this in the past where politically correct, populist or other considerations prevailed.)

This moral failure by the Constitutional Court as regards unborn human life, also is clearly in evidence in an earlier decision it handed down in February 2018. There, no doubt for the same expedient reasons as above, it did not bother to give reasons for its decision not even to hear oral argument as regards whether or not to affirm unborn babies as human life worthy of dignity and protection. (In stark and shameful contrast, in the death penalty matter referred to above, the justices collectively gave in excess of 120 pages of reasons as to why the lives of convicted and vicious murderers are worthy of dignity.) The book, The Emperor Has No Clothing (available online here at no cost), in detail sets out the context of this decision by the Constitutional Court.

Keith Matthee SC, a senior advocate, practices law in South Africa.

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