At 26 weeks a foetus might recognise its mother’s voice, have hair and a 90% chance of survival if born. But in South African law it is regarded as medical waste not fit for burial.
But this could soon change.
Laws preventing thousands of grieving people from burying stillborn babies and criminalising doctors who help them circumvent the law by signing death certificates, are to be challenged.
By law, foetuses born before 26 weeks of pregnancy are considered “medical waste”, disposed of in medical waste bags and incinerated with amputated limbs and organs.
Now scores of doctors, refusing to bow to what they describe as a “grossly inhumane” law, are challenging this despite the risk of losing their licences.
For Pretoria mother Felicia van Niekerk the loss of two babies would have been unbearable had it not been for her gynaecologist.
“He gave my babies the dignity they deserved,” she said, looking at ink prints of their hands and feet.
“Deon would have been 10 years old next month,” she said, staring at a photograph of him in his coffin. It was taken five days after he was born. He was 25 weeks old.
Nurses at a Pretoria hospital where he was born told his parents he was not human but “waste” and had to be destroyed.
Seven years later Van Niekerk suffered the same horror when she lost her second son, Adriaan, who died at 23 weeks.
“The nurses were kind but insistent. He had to be disposed of. They said he was not living, but he had hair. You could see his heart beat in the scans.
With nurses refusing to issue a birth or death certificate, her gynaecologist acted and signed his death certificate, giving her the permission needed to have Adriaan’s death recorded and to give him a dignified burial.
Adriaan and Deon are buried next to each other. It is a place where the Van Niekerk family can go, a place that gives them the closure the state denied them.
“As a parent you need this [a grave], you need it to be able to say goodbye to your baby. How do you live with yourself when you are prevented from saying goodbye to your child?” she asked.
Now Van Niekerk, and several other women who had the same experience, will through non-profit organisation The Voice of the Unborn Child fight for mothers whose children die before 26 weeks of gestation to choose to bury their baby. Other than acknowledging the organisation’s letter in September requesting a meeting to discuss the protection of parents and their children’s constitutional rights, the departments of Health, Home Affairs and Environmental Affairs have ignored Voice of the Unborn Child.
The silence has forced the organisation’s head, Sonja Smith, to approach the courts. Papers calling for the law’s amendment are to be filed in the Pretoria High Court soon. “Mothers can terminate their pregnancy up to 20 weeks for social or economic reasons, yet they cannot bury their child unless it is 26 weeks or older, regardless of the reason for the termination. We are fighting to ensure parents’ constitutional right to privacy, equality and dignity. Burial brings this.”
A foetus is considered viable at 20 weeks. Smith’s lawyer, Renaldi Ingram, said as the law stood, if doctors helped parents to bury their foetus under 26 weeks, both would be “contravening the law”.
”The constitutional challenge is to amend current legislation to allow expecting parents, who suffer loss of pregnancy through either termination or miscarriage, to elect whether they want to bury or cremate the dead foetus or have the hospital dispose of it,” he said.