Parents fight for right to bury dead foetuses
● Mere days stood between Christopher Fitchet’s prematurely born baby being legally considered human and being discarded as medical waste.
In November, he will closely follow a case in the high court in Pretoria in which an NGO, Voice of the Unborn Baby, will argue to have the law changed.
The law states that after a miscarriage, foetuses under 26 weeks must be disposed of as medical waste. This is because a foetus is only considered “viable”, or able to survive outside the womb, from that point.
But the NGO argues that parents have a right to bury their unborn children no matter how far into the pregnancy the miscarriage occurs. To bury the foetus, a death certificate must be completed for a burial notice to be issued.
The departments of health and home affairs are contesting the application. Both argue that a child before 26 weeks is not viable to survive therefore does not require a death certificate or burial
Fitchet’s twins, Anja and Lutz, were born prematurely in 2012. Retelling the story, the Benoni business analyst starts to sob.
Lutz was born 25 weeks and two days into the pregnancy, living for just two hours.
Fitchet was taken to see the body lying under a green cloth in a kidney-shaped bowel, used for medical instruments.
“You are so deurmekaar [confused], there is no other word to use,” he said. “We were told to say our goodbyes and basically were not given the option to bury him.”
The couple were preoccupied, with Fitchet’s wife, who did not want to be named, staying in the neonatal maternity ward where staff were trying to prevent Anja from being born prematurely.
“We put all our energy into trying to keep Anja in as long as possible,” Fitchet said.
When he returned to the room where Lutz was, he was told the foetus had been discarded.
“We were so numb, we did not comprehend that he was being discarded as medical waste.”
Anja, who was born two weeks later, died after seven days and it took a seven-month battle to get the paperwork enabling the parents to bury her.
The couple decided to cremate Anja, which does not require a death certificate. Once the death certificate was issued, they ceremoniously buried the ashes.
In court papers, the departments of health and home affairs argued that parents would suffer emotional distress at a miscarriage regardless of whether they could bury a foetus or not.
Voice of the Unborn Baby was founded by funeral director Sonja Smith after she had to watch a hospital employee search through medical waste for miscarried triplets.
She said that denying parents the right to bury a dead child stripped them of their constitutional right to equality, dignity and privacy.
Smith was moved to start her campaign 15 years ago when she was called to bury the foetuses after a woman miscarried triplets at 20 weeks. They were not in the morgue and Smith and the hospital manager found the foetuses among medical waste.
Voice of the Unborn Baby argues that a burial helps with the family’s grieving process and the government offers “no justification” to bereaved parents for its limitation.
The NGO has asked for the court to give parliament 12 months to change the law.
In joint papers, the departments argue that Smith is not bringing the case in the public interest but has “a strong financial interest”. “Given that the deponent is … managing director of a funeral home, it is doubtful if she genuinely acts in the interests of the members of Voice of the Unborn Baby,” they said.
Government court papers state: “It is only when you were born alive that one could be buried when one dies. The exception is the stillborn foetus, which the law permits its burial, based on the legal concept of viability.”
The departments of home affairs and health did not respond to requests for comment on the case.
“We were told to say our goodbyes and basically were not given the option to bury him . . . We were so numb, we did not comprehend that he was being discarded as medical waste Christopher Fitchet