The difference between a stillborn baby and a medical waste foetus in light of the current South African Law

Abstract

South Africa’s Constitution is the supreme law of the Republic and protects the rights of all people in South Africa. The right to inherent human dignity is guaranteed to ‘everyone’. Therefore, the state has a duty to protect and promote the human dignity of everyone. The question arises, does the constitutional guarantee of human dignity extend to the yet unborn? The thesis examines the South African position regarding the legal regulation of the burial of foetuses. The law states a foetus meeting with death before 26 weeks intra uterine may not be buried but should be disposed of as medical waste. This is in sharp contrast to the law which stipulates that a woman may no longer terminate her pregnancy ‘on demand’ once 20 weeks of gestation has been reached and may do so only for medical and other specified reasons after 20 weeks of pregnancy. The above creates a paradox: once 20 weeks of gestation is reached, the foetus is not worthy of burial, but worthy of protection against being aborted. Put differently, after 20 weeks’ intra uterine existence a foetus is given some measure of protection by the law; before 26 weeks’ intra uterine existence has been achieved, nevertheless, the foetus is not worthy of burial. This paradox forms the crux of the thesis. The South African legal position as well as that of selected foreign jurisdictions regarding the burial of foetuses are examined. Changes are proposed to the Registration of Births, Deaths and Marriages Act 51 of 1992 in order to afford parents of foetuses who meet with death before 26 weeks of gestation the option of affording the foetus a dignified burial.