COURT CASE ASKS WHETHER ALL HUMAN BEINGS ARE WORTHY OF DIGNITY AND RESPECT

Liesl Stander, legal advisor and parliamentary liaison, joined Benito Vergotine in conversation to discuss the sensitive topic of bodily remains of a still-born baby.

Listen to the conversation here:

Court Case about the treatment of the bodily remains of still-born babies:

THE QUESTION AT THE HEART OF IT ALL

Are ALL human beings worthy of dignity and respect?

On 14 and 15 November 2019, Cause for Justice (CFJ) will argue for the recognition of the inherent worth / human dignity of all members of the human family, including the stillborn child, when the case of the “Voice of the Unborn Baby” is heard in the Pretoria High Court.

A Question of Human Worth

Human dignity is a foundational value of the South African Constitutional order.

According to Laurie Ackermann, a former judge of the Constitutional Court of South Africa, in the South African Constitution, ‘dignity’ means ‘human worth’ or ‘inherent human worth’.[1] Kate O’Regan, another former judge of the Constitutional Court, has observed that dignity is a value that informs the interpretation of many (and possibly all) other rights.[2]

The constitutional distinction between the value of human dignity and the right to human dignity is significant.[3]

The unborn child is unquestionably both human and living from the moment of conception. This is a medical fact. From the moment of conception, the unborn child is a living human being.[4]

While some in society may want to argue that the unborn child may not be the beneficiary/bearer of constitutional rights (a view with which we disagree), the constitutional value of human dignity nevertheless requires the law of the land to recognise the inherent worth of the unborn child as a human being.[5]

The destruction of human life – whether before or after birth – implicates the value of human dignity: it is the destruction of human worth. Likewise, the disposal of human remains – whether before or after birth – implicates the value of human dignity.[6]

The constitutional value of human dignity requires the law to treat the unborn child’s bodily remains – irrespective of his or her gestational development – in a manner consistent with his or her inherent worth as a human being.[7]

It is unacceptable that the law treats the bodily remains of unborn children who die before 26 weeks of gestation as medical waste to be incinerated. The bodily remains of the unborn child is not medical waste.

Deceased unborn (Still-born) children are deceased human beings, and all deceased human beings are worthy of having their bodily remains treated with respect, and having their humanity and human dignity acknowledged by way of burial.

Background to the court case

In March 2017 Voice of the Unborn Baby, a non-profit company and the main Applicant, initiated court proceedings against the Minister of Home Affairs and the Minister of Health, seeking to declare certain provisions of the Births and Deaths Registration Act (the Act) and the Regulations Relating to the Management of Human Remains  (the Regulations) unconstitutional.

The effect of the Act and Regulations is that the law regards unborn children who are miscarried prior to 26 weeks in the womb as ‘medical waste’ and prevents parents from burying the bodily remains of their unborn child.

The case will be heard on 14 and 15 November 2019 in the Pretoria High Court. If the constitutional challenge is successful, grieving parents will have a choice. They will be able to recognise and honour the humanity and human dignity of their babies, whose lives were ended before birth. Practically, they will be able to choose to receive and bury the bodily remains of their still-born child, irrespective of the gestational stage at which he or she ceased to be alive.

CFJ’s role in the case

CFJ joined the case as a friend of the court – or an amicus curiae party – in order to assist the court in the interpretation and application of the constitutional rights, values and interests implicated by the subject matter of the case.

While CFJ empathises with the grief of the bereaved parents of the deceased unborn child  and agree that grieving parents should have a legal entitlement to bury the bodily remains of their miscarried child – our case is concerned with the more fundamental issue of the dignity (worth / value) of unborn human beings.

A Voice for the Voiceless

CFJ calls on all South Africans – all who believe in the inherent value of human life and in being a voice for the voiceless – to take a stand and speak up for the human dignity of the unborn child by raising awareness of this cause.