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CONSTITUTIONAL COURT OF SOUTH AFRICA

 

Case CCT 120/21

 

In the matter between:

 

 

THE VOICE OF THE UNBORN BABY NPC                                  First Applicant

 

CATHOLIC ARCHDIOCESE OF DURBAN                                    Second Applicant

 

and

 

MINISTER OF HOME AFFAIRS                                                      First Respondent

 

MINISTER OF HEALTH                                                                   Second Respondent

 

and

 

WOMEN’S LEGAL CENTRE TRUST                                              First Amicus Curiae

 

SEXUAL AND REPRODUCTIVE JUSTICE

COALITION                                                                                      Second Amicus Curiae

 

CAUSE FOR JUSTICE                                                                     Third Amicus Curiae

 

 

 

Neutral citation:     The Voice of the Unborn Baby and Another v Minister of Home Affairs and Another [2022] ZACC 20

 

Coram:                      Madlanga J, Madondo AJ, Majiedt J, Mhlantla J, Rogers AJ, Theron J, Tlaletsi AJ and Tshiqi J

 

Judgments:             Tlaletsi AJ (unanimous)

 

Heard on:                 4 November 2021

 

Decided on:             15 June 2022

 

Summary:                Births and Deaths Registration Act 51 of 1992 — constitutional validity of sections 18(1) to (3) and 20(1) — order of constitutional invalidity not confirmed

 

 

ORDER

 

 

On application for confirmation of an order of constitutional invalidity granted by the High Court of South Africa, Gauteng Division, Pretoria:

1.         The order of the High Court declaring section 18(1) to (3) of the Births and Deaths Registration Act constitutionally invalid is not confirmed.

2.         The order of the High Court declaring section 20(1) of the Births and Deaths Registration Act constitutionally invalid is not confirmed.

3.         The orders of the High Court are set aside and replaced with the following:

“The application is dismissed and each party is to pay its own costs”.

4.         The cross-appeal by the second applicant falls away.

5.         The rule 31 applications by the first respondent and the first and second amici curiae are dismissed.

6.         In this Court, each party must pay its own costs.

 

 

JUDGMENT

 

 

TLALETSI AJ (Madlanga J, Madondo AJ, Majiedt J, Mhlantla J, Rogers AJ, Theron J and Tshiqi J concurring):

 

Introduction

[1]          The applicants are seeking confirmation of an order of the High Court of South Africa, Gauteng Division, Pretoria (High Court)[1] which declared section 20(1), read with the definition of “still-birth” in section 1, and section 18(1) to (3) of the Births and Deaths Registration Act[2] (BADRA), as well as regulation 1 of the Regulations Relating to the Management of Human Remains[3] (Regulations) inconsistent with the Constitution insofar as they prohibit the burial of foetal remains other than in cases of a still-birth. In addition to the confirmation application, an application for leave to appeal has also been noted against the judgment and order of the High Court.[4]

 

Parties

[2]          The first applicant is The Voice of the Unborn Baby NPC[5] and the second applicant is the Catholic Archdiocese of Durban (Catholic Archdiocese), a voluntary association.[6] The first and second respondents are the Ministers of Home Affairs and of Health respectively. The Women’s Legal Centre Trust[7] (WLCT), the Sexual and Reproductive Justice Coalition[8] (SRJC) and Cause for Justice (CFJ)^[9] have been admitted as the first, second and third amici curiae (friends of the Court), respectively.

 

Preliminary issues

[3]          The Minister of Home Affairs filed an application in terms of rule 31 of the Rules of this Court to adduce further evidence. The first and second amici curiae have also filed an application in terms of rule 31 of the Rules of this Court to adduce evidence. In view of the conclusion I have reached on the confirmation application, it is unnecessary to deal with these applications.

 

High Court

[4]          The applicants challenged the constitutionality of section 20(1), read with section 1 and section 18(1) to (3) of BADRA, as well as regulation 1 of the Regulations on the basis that they infringe the rights to privacy, dignity, religion and equality of prospective parents who have suffered pregnancy loss through miscarriage or conscious human intervention.

 

[5]          The applicants submitted that there is no justification for the distinction between the burial of the foetal remains of a pregnancy loss through miscarriage or induced pregnancy loss by human intervention and pregnancy loss through still birth. They further submitted that there is no legitimate governmental purpose served by depriving these prospective parents the option of burial.

 

[6]          The respondents submitted that there is no legal or scientific justification for why the law should recognise the right to bury a foetus that is less than 26 weeks upon termination of pregnancy or induced pregnancy loss. The emotional attachment of the prospective parents does not mean that a legal right to bury the foetus exists. They further submitted that the emotional and psychological trauma suffered by the prospective parents does not give rise to the infringement of their constitutional rights. Finally, they submitted that there is a legitimate government purpose served by regulating aspects relating to the burial of a dead foetus.[10]

 

[7]          The WLCT and Wish Associates, which were admitted as amici curiae in the High Court, argued that if the High Court decides to grant a declaratory order conferring rights on the bereaved prospective parents, the order should exclude persons who voluntarily terminate pregnancy in terms of the Choice on Termination of Pregnancy Act[11] (CTOPA). They submitted that blanket foetal burial rights would burden the designated facilities, undermine the confidentiality provisions of the CTOPA, and create additional barriers to accessing facilities that offer services under the CTOPA. They also submitted that if the declaratory order was to apply to people seeking voluntary termination of pregnancy under the CTOPA, the order should include provisions to ensure that the right does not disproportionately interfere with pregnant women’s rights to access termination of pregnancy procedures.

 

[8]          The High Court held that the impugned provisions of BADRA should be extended to cater for loss of pregnancy, other than in cases of a still-birth, for those who wish to bury the foetal remains. This extension would restore dignity, ameliorate pain and assist in the healing process of the prospective parents who have terminated their pregnancy or suffered pregnancy loss through a miscarriage. Absent such extension, the High Court seemingly held, prospective parents’ rights to dignity and equality would be unjustifiably limited. On this score, the High Court reasoned that there is no rational basis for permitting the burial of the remains of a still-born child while prohibiting the burial of the remains of a pregnancy loss other than in cases of a still birth. The High Court therefore concluded that the limitation is not reasonable or justifiable in terms of section 36 of the Constitution.

 

[9]          The High Court concluded that the impugned provisions of BADRA are inconsistent with the Constitution and invalid to the extent that they exclude the issuance of a still birth notice in the case of a pregnancy loss other than a still-birth.[12] This declaration of invalidity did not, however, apply in the case of a pregnancy loss through human intervention.

 

This Court

First applicant’s submissions

[10]       Before this Court, The Voice of the Unborn Baby largely made the same submissions it had made in the High Court. It was submitted that the provisions of BADRA have the effect that no burial order can be issued for foetuses lost through a miscarriage before the 26-week mark, and that the Regulations only make provision for the burial of “corpses” and “human remains” but not for foetal remains. As a result, the first applicant submits that the impugned provisions of BADRA and the Regulations infringe on the constitutionally protected rights of prospective parents, who are denied the choice to bury the foetal remains.

 

Second applicant’s submissions

[11]       The Catholic Archdiocese submitted that its members hold the sincere religious belief that they become parents and their children are persons from the moment of conception. In line with this, the Catholic Archdiocese seeks not only the confirmation of the High Court’s order of constitutional invalidity, but also to appeal against the High Court’s qualification of the burial right. The Catholic Archdiocese argues that the burial right should be extended so that it also applies in cases of pregnancy loss by way of human intervention.

 

First respondent’s submissions

[12]       The Minister of Home Affairs submitted that confirmation of the High Court’s order of constitutional invalidity would be burdensome on the Department of Home Affairs and the Department of Health. Such confirmation would require the category of foetuses that can be buried to be extended to pre-viable foetuses. This would require additional processing of the death and burial registrations by the state, a task that is beyond its capacity. In addition, the Minister contends that the relief granted by the High Court usurps the powers of the Legislature and contravenes the doctrine of separation of powers.

 

Second respondent’s submissions

[13]       The Minister of Health submitted that the statutory provisions imposing a duty to register a still-birth are established for legal purposes and not for reasons related to the mourning or recognition of the social and emotional consequences of a still-birth or miscarriage. The Minister further submitted that the Constitution gives municipalities the authority and obligation to administer cemeteries and to regulate the burial of foetal remains, and that the High Court erred in not considering BADRA and the Regulations in the context of the provincial and municipal legislation dealing with cemeteries, funeral parlours and crematoria. Finally, the Minister submitted that the impugned legislation does not violate any constitutional rights.

 

First and second amici curiae’s submissions

[14]       The WLCT and the SRJC submitted that the right to terminate a pregnancy is guaranteed by the right to bodily integrity in section 12(2) of the Constitution and the right to have access to healthcare services, including reproductive healthcare, in section 27(1)(a) of the Constitution. They further contend that South Africa has ratified international instruments which impose clear obligations on the South African government to ensure the legal, economic and social conditions that enable and encourage women to exercise their sexual and reproductive rights, including their right of access to abortion services, freely and voluntarily. Finally, they submit that if the foetal burial right is extended, this would have a profound impact on the termination of pregnancy services offered to women. They submit that the additional burdens would lead to a decrease in facilities offering termination of pregnancy services and a concomitant diminution of associated sexual and reproductive rights.

 

Third amicus curiae’s submissions

[15]       The CFJ contended that the disposal of foetal remains as medical waste is inconsistent with the value of human dignity. They further submitted that a foetus has intrinsic worth and must be respected. This flows from the value of human dignity and is buttressed by South African law, as well as international and foreign law. The CFJ submitted further that prospective parents should be allowed to choose how they dispose of the foetal remains, regardless of the gestational age. Denying them that opportunity is a denial of their constitutional rights and the inherent value of the deceased foetus. The CFJ argued, however, that the Regulations, in contrast to BADRA, do not limit the rights of parents to bury foetal remains, and, therefore, there was no need for the High Court to declare the definitions in the Regulations invalid. The CFJ further submitted that a differentiation between people who suffer pregnancy loss because of natural causes, and people who choose to terminate their pregnancy under the CTOPA, bears no rational connection to a legitimate government purpose. Alternatively, such differentiation would amount to unfair discrimination, and in either event would be inconsistent with section 9 of the Constitution.

 

Jurisdiction

[16]       In terms of section 167(5) of the Constitution, this Court must confirm an order of constitutional invalidity made by the Supreme Court of Appeal, the High Court, or a court of similar status, before that order has any force.[13] It also makes the final decision regarding the constitutionality of an Act of Parliament, provincial Act or conduct of the President. Because these are confirmation proceedings, this Court’s jurisdiction is automatically engaged.

 

Issues

[17]       Primarily, the issue before this Court is whether the High Court’s declaration of invalidity should be confirmed. The High Court declared that section 20(1), read with section 1, and section 18(1) to (3) of BADRA are inconsistent with the Constitution insofar as they prohibit the burial of foetal remains other than in cases of a still-birth (in other words, the remains of a pre-viable or terminated foetus). Confirmation is not there for the taking. This Court must itself be satisfied that the impugned provisions are unconstitutional. Therefore, whether the High Court’s order should be confirmed depends on whether the provisions of BADRA actually prohibit the burial of pre viable foetal remains (the interpretation issue); and, if so, whether those provisions limit any of the rights in the Bill of Rights and whether any such limitation is justified in terms of section 36(1) of the Constitution (the constitutional validity issue). In view of the conclusion I reach on the interpretation issue, which is that BADRA does not prohibit the burial of a pre-viable or terminated foetus, the constitutional validity issue does not arise.

 

Does BADRA prohibit the burial of foetal remains other than in cases of a still birth?

[18]       It is significant to recall the purpose BADRA is intended to serve. Its purpose is to regulate the registration of births and deaths and to provide for matters connected therewith.[14]

 

[19]       Section 20(1)[15] of BADRA provides that “[n]o burial shall take place unless notice of the death or still-birth has been given to a person contemplated in section 4 and he or she has issued a prescribed burial order” (own emphasis). Of relevance to this matter is section 1 of BADRA which defines the words “burial”, “corpse” and “still born”. Burial is defined as “burial in earth or the cremation or any other mode of disposal of a corpse” (own emphasis). “Corpse” is defined as “any dead human body, including the body of any still-born child” (own emphasis). “Still-born” is defined in relation to a child, as meaning “that it has had at least 26 weeks of intra-uterine existence but showed no sign of life after complete birth”. Section 1 further provides that “still birth” in relation to a child, has a corresponding meaning.

 

[20]       Having regard to these definitions, it is clear that section 20(1) of BADRA only requires a burial order for the burial of any corpse i.e., either a dead human body or a still-born child. A pre-viable foetus is not a still-born child, as such a foetus will not have had 26 weeks of intra-uterine existence. It is unnecessary to decide whether the termination of a pregnancy of a viable foetus by human intervention results in a “still birth” for purposes of BADRA. Part of the new evidence which the first respondent wanted to adduce was evidence that such terminations are treated by the state as resulting in a “still-birth”, such that BADRA applies. Part of the new evidence was medical evidence to explain why this approach was followed. All that I can say is that if this approach to the definition of “still-born” is correct, burial orders may, indeed must, be obtained before burying such foetal remains, and this after all is the relief sought by the applicants. If this approach is incorrect, BADRA simply does not apply, meaning that there is no prohibition in BADRA against the burial of such foetal remains.

 

[21]       A further question we must consider is whether a pre-viable foetus is a “dead human body” as contemplated by the definition of corpse. That interpretation would unduly strain the meaning of the words “dead human body”. 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”.

 

[22]       Since a pre-viable foetus is not a corpse for purposes of BADRA, it therefore means that BADRA does not prohibit or restrict the interment or cremation of a pre viable foetus, as it falls outside of the two categories of corpse i.e., a still-born child or dead human body that BADRA regulates. Put differently, the burial of a pre viable or terminated foetus simply falls outside of BADRA’s scope.

 

[23]       This reading accords with the self-evident purpose of BADRA in requiring a burial order in relation to the “burial” of any “corpse”. Chapter III of BADRA, which deals with the registration of deaths, distinguishes between death from natural causes and death which was or might have been due to something other than natural causes. In the latter case, the matter must be reported to a police officer who must then act in accordance with the Inquests Act.[16] This applies also to the case of a death at or near the time of birth – if there is doubt as to whether the infant was still-born or was born alive and then died, such death must be reported to the police.[17] While the state has a self evident and legitimate interest in investigating the possible unnatural death of a person born alive (such as an infant), there is no similar interest in relation to a pre viable foetus.

 

[24]       In Makate this Court held:

 

“[C]ourts must at all times bear in mind the provisions of section 39(2) when interpreting legislation. If the provision under construction implicates or affects rights in the Bill of Rights, then the obligation in section 39(2) is activated. The court is duty bound to promote the purport, spirit and objects of the Bill of Rights in the process of interpreting the provision in question.”[18]

 

[25]       In the absence of a clear prohibition of the interment or cremation of a pre-viable or terminated foetus, and in the face of the command in section 39(2) of the Constitution,[19] an interpretation of BADRA that commends itself is one that leaves untouched any right which parents may have to inter or cremate their pre-viable foetuses. While it may be true, as the applicants argued, that throughout the years the practice has been to deny parents this right in the apparent belief that this is what the law provides, this matters not. BADRA simply contains no such prohibition.

 

[26]       The impugned provisions of BADRA do not provide for foetal burial other than in cases of a still-birth. The High Court therefore declared the impugned legislation constitutionally invalid in the mistaken understanding (held by the litigants as well) that BADRA applies to and regulates the burial of pre-viable foetuses. The relevant sections of BADRA cannot be declared inconsistent with the Constitution because of such omission. It follows that the declaration of invalidity can therefore not be sustained.

 

Relief

[27]       The applicants are, among others, seeking declaratory relief to the effect that in the event of a loss of pregnancy other than still-birth or loss of pregnancy through human intervention, the bereaved parent or parents have the right to bury the dead foetus, if such bereaved parent or parents so elect. While there is no prohibition in BADRA on the burial or cremation of pre viable foetuses, this Court is not in a position to grant the declaratory relief sought, namely, that there is a right to bury such a foetus. Where the evacuation or removal of some or all of the foetal remains from the mother takes place in a healthcare facility, the implication of such a declaration for hospitals and other healthcare service providers becomes a challenging question. The question as to what medical staff at public hospitals must do if would-be parents express the wish to bury or cremate pre-viable foetal remains, is not clear. The burial or cremation of pre viable foetal remains would no doubt require the cooperation of healthcare professionals, and public hospitals would be expected to allocate the necessary resources. Because of the way the case was pleaded, we do not have the necessary evidence to evaluate the considerations relating to how hospitals would manage the burial or cremation of pre viable foetuses. This is not the case which the applicants pleaded, and we are in any event not in a position on the facts to adjudicate it.

 

[28]       Where the foetal remains are evacuated or removed from the mother outside of a healthcare environment, there may still be other restrictions, for example, limitations imposed by municipal regulations. The content and validity of any such regulations are not the subject of the present litigation. All that can be said is that if there is no other legal impediment to the burial of pre-viable foetal remains, BADRA does not stand in the way of that burial.

 

Should the declaration of invalidity be extended to cases of pregnancy loss due to an inducement?

[29]       In the cross-appeal, the Catholic Archdiocese contended that the declaration of invalidity made by the High Court should be extended to cases of pregnancy loss due to an inducement. Given that the declaration of invalidity order will not be confirmed, the cross-appeal falls away.

 

Should the High Court’s declaration, that the definitions of “corpse” and “human remains” are inconsistent with the Constitution, be confirmed?

[30]       The first applicant argued that the Regulations do not make provision for the burial of a pre viable foetus. Because regulations are not Acts of Parliament, their validity or otherwise is not subject to confirmation by this Court.^[20] It is therefore not necessary to confirm the High Court’s order in terms of which regulation 1 of the Regulations was declared to be inconsistent and invalid.

 

Costs

[31]       The applicants correctly submitted that the High Court misapplied the Biowatch principle.[21] It declined to award costs in favour of the applicants, despite their success in that Court. Biowatch holds that courts have to shield a private party from an adverse costs order, where a party’s intention is to vindicate its constitutional rights. According to Biowatch, the award of costs in constitutional litigation between the state and a private party is that, if the private party’s application succeeds, the state should pay the costs, but where it does not, each party should pay its own costs.[22] If the Court decides not to make an award as to costs, despite the private party’s successful application, it must provide compelling reasons.[23]

 

[32]       This Court is careful not to be too eager to interfere with the costs orders of other courts.[24] However, because of the misapplication of Biowatch we are perfectly entitled to interfere with the High Court’s costs order.

 

[33]       The applicants were successful in the High Court and the respondents should have been ordered to pay their costs. The failure not to make such an order, or provide reasons therefor, was thus a misapplication of the Biowatch principle, and a material misdirection. The costs order of the High Court should consequently be set aside. However, in light of our finding, the applicants should not have succeeded in the High Court. An appropriate order would therefore be that each party should carry its own costs in the High Court.

 

[34]       Moving on to costs before this Court. The applicants asked this Court to confirm the High Court’s order for constitutional invalidity and they have been unsuccessful. Therefore, each party must pay its own costs.

 

Order

[35]       The following order is made:

1.         The order of the High Court declaring section 18(1) to (3) of the Births and Deaths Registration Act constitutionally invalid is not confirmed.

2.         The order of the High Court declaring section 20(1) of the Births and Deaths Registration Act constitutionally invalid is not confirmed.

3.         The orders of the High Court are set aside and replaced with the following:

“The application is dismissed and each party is to pay its own costs”.

4.         The cross-appeal by the second applicant falls away.

5.         The rule 31 applications by the first respondent and the first and second amici curiae are dismissed.

6.         In this Court, each party must pay its own costs.

 

 

For the First Applicant:                                        D Thaldar instructed by Ingram Attorneys

 

For the Second Applicant:                                  A d’Oliveira, Z Hoosen and H van Eetveldt instructed by BJ Burt Attorneys

 

For the First Respondent:                                  L Nkosi Thomas SC, N Ntuli and C Lithole instructed by the State Attorney, Pretoria

 

For the Second Respondent:                             H Jacobs SC, K Bokaba and P C Swele instructed by the State Attorney, Pretoria

 

For the First and Second Amici Curiae:           N Stein and T Pooe instructed by the Women’s Legal Centre

 

For the Third Amicus Curiae                              D Cooke instructed by Guthrie and Theron Attorneys

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