Pregnancy loss can be emotionally traumatic to expecting mothers and fathers. If we are a compassionate society, should we not allow these bereaved parents to bury or cremate the foetal remains, if they so wish? I served as legal counsel for a non-profit organisation, Voice of the Unborn Baby, in a court application that aims to change the law to recognise the right of parents who suffer pregnancy loss to bury or cremate the foetal remains, if they so wish.
The case was heard by the Constitutional Court on 4 November 2021. Here are links to video recordings of my opening argument (about 10 minutes) and closing argument (about 2 minutes).
You can also read my heads of argument and my supplementary heads of argument.
On 15 June 2022, the Constitutional Court handed down its judgment. It held that the relevant national statute that regulates burial should be interpreted to exclude pre-viable foetuses. This means that – contrary to this statute’s interpretation in practice – burial of pre-viable foetuses is not prohibited. Although the Constitutional Court stopped short of recognising the right of parents who suffer pregnancy loss to bury or cremate the foetal remains, its judgment effectively clears the path for such parents in practice to bury or cremate the foetal remains.
Donrich Thaldar 