Foetal Burial Right Provisions in South African Law: Addressing Ambiguities Through a Comparative Analysis

The South African Births and Deaths Registration Act (BADRA) clearly accommodated the use of burial as a means of disposing of foetal remains emanating from stillbirths while denying parents who suffered from other forms of pregnancy loss the same right. However, the recent order by the South African Constitutional Court (CC) in the case of the Voice of the Unborn Baby NPC has revealed that BADRA does not stand in the way of bereaved parents who would elect burial as a means of disposing of the foetal remains of their lost pregnancies when the dead foetus has not attained the stipulated age of a stillborn. As a consequence, the CC judgment pointed out the fact that BADRA has been misinterpreted in practice. This study is conducted to investigate the provisions of some jurisdictions on the subject of foetal burial and compare them with those of South Africa, with the aim of addressing the ambiguity in the latter legislative document using a doctrinal legal approach. It is found that many of the selected jurisdictions not only have provisions relating to the disposal of foetal remains emanating from stillbirth but also spell out explicitly provisions on the disposal of dead foetuses arising from miscarriages and pregnancy terminations. The study concludes by recommending that the South African legislation be revised to accommodate the needs of all prospective parents who may suffer the loss of pregnancy.