Legal History in the Making

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Dr Donrich Thaldar, a senior lecturer in the School of Law and human rights expert, acted as counsel on behalf of Voice of the Unborn Baby in a landmark case in the Pretoria High Court.

Across cultures, burial or cremation is an important way for people to say their final goodbyes to loved ones. Psychologists note that burial or cremation can fulfil a crucial role in the grieving process. It helps those left behind to come to terms with the reality of the loss, while being supported by family and friends.

At the opposite end of the cycle is the beginning of life. Due to technologies like ultrasound, expectant parents can now see their unborn baby in the mother’s womb weeks or even months before the baby is born. This has contributed to parents starting to emotionally bond with their unborn baby more intensely before its birth.

In the tragic event of a miscarriage, many parents feel a great sense of loss which, for them, is the same as the loss of a child that was already born. The same can often be the case with termination of pregnancy. It should be remembered that termination may be as a result of a severe medical condition that is diagnosed in the unborn baby. In these heart-breaking cases, parents feel that it is better to end the life of their much-wanted unborn child than to bring the child into a very brief life of pain and suffering. If we are a compassionate society, we must surely give these parents our love, support, and understanding.

However, according to current South African law, an unborn child that is miscarried (born dead before 26 weeks of gestation) or perishes in a termination of pregnancy procedure cannot be buried or cremated. The remains are simply handled as medical waste, and unceremoniously incinerated with other such waste. Bereaved parents are legally banned from choosing to have a proper, dignified burial (or cremation) for their unborn child.

Voice of the Unborn Baby NPC was established in 2015 to fight for bereaved parents’ right to choose how they want to dispose of the remains of their unborn child after a miscarriage or termination of pregnancy – be it by burial or cremation. The Pretoria High Court heard Voice of the Unborn Baby’s application during the week of 11 November 2019. The application was opposed by the Minister of Health and the Minister of Home Affairs.

Thaldar used the case as a learning experience for his postgraduate students, five of whom accompanied him to the court hearing.

‘The evidence that we read to prepare for the case was over a thousand pages. It was quite a challenge, but very interesting!’ commented Ms Tamanda Kamwendo, a PhD student.

‘Only a fraction of the submissions before the court eventually end up in a reported judgment,’ said Mr Ntokozo Mnyandu, a developmental lecturer at the School of Law who accompanied Dr Thaldar and his students. ‘By being in court we gained insight into the “bigger picture” of this case – one that will certainly make legal history.’

Mr Bonginkosi Shozi, a PhD student remarked: ‘When Dr Thaldar gave his closing argument, I felt chills. This was an exciting opportunity to experience the law in action.’

Judgment is expected during the first term of 2020.

Words: Thandiwe Jumo

Photograph: Supplied