Government is opposing the application, but so are organisations fearing these changes will provide even more barriers to accessing safe abortions in South Africa.

Busie Madikizela-Theu is one of South Africa’s miracle moms. She went into labour on November 7, 2018 when she was only 23 weeks pregnant. The smallest of the identical twin girls, Naledi, weighing only 490g, survived and after months in the neonatal intensive care unit recently celebrated her first birthday and her second swimming lesson.

But the bigger of the identical twins, Nzinga, died.

“Naledi became our loophole,” Madikizela-Theu said. “Because she lived, they gave us Nzinga’s body to bury.”

Madikizela-Theu had a miscarriage before that.

“I was in a bad space for a long time. We only scattered Nzinga’s ashes at the end of April. We went to Shark Rock Pier on Port Elizabeth’s beachfront and we put her ashes in the ocean. It gives me a place to grieve for her. A place to sit and remember that I had another daughter. I know where I left her. And I know that anywhere in the world where there is an ocean I can go and I will find her. Some days I go to sit with her and I put flowers for her into the sea. You need this.

“I spent a long time in the neonatal intensive care unit with Naledi and I saw the moms. It was easier for those who lost their babies in the NICU. They have closure. Their babies are not medical waste,” she said.

“When you become pregnant your status changes. You become a mom. If you leave a hospital without a baby then there are a whole lot of expectations that are being dashed,” she said. “Burial is a ritual that is needed to help everyone. The family as well. Our families were contributing names. When there is no baby, people feel robbed,” said Madikizela-Theu.

“A burial helps you anchor yourself,” she said. “I would love to enter this conversation. I have been looking for a cause to help me make sense of this and I think this can be it.”

Madikizela-Theu said the debate should be taken wider as doctors were also constrained in the type of medical assistance they were allowed to provide to women who go into labour at under 24 weeks.

On Thursday, the Pretoria High Court began hearing legal argument in an application to have parts of the Registration of Births and Deaths Act declared unconstitutional.

The Voice of the Unborn Baby, an organisation campaigning for the right of bereaved moms who lose a baby before 26 weeks to be given the option to have a burial, is bringing the application. Their argument is that it should not matter if pregnancy was ended through natural causes or terminated and adds that this infringes on moms or parents’ constitutional rights to dignity, equality, privacy and religion.

As the law stands there is no option to bury if a loss of pregnancy occurs before 26 weeks.

The application is backed by the Catholic Archdiocese of Durban, whose legal team is arguing that it infringes on the religious rights of women who wish to bury the remains, and religious women who believe that human life begins at conception should be given the option of a burial if their pregnancies end before 26 weeks.

The ministers of Home Affairs and Health are opposing the application with their legal teams stating that the law on this has been settled that the foetus does not have legal rights.

The Women’s Legal Centre Trust and Women in Sexual and Reproductive Health Associates represented by the Women’s Legal Centre and the Legal Resources Centre are also opposing the application, saying that they fear this will create even more barriers to safe and legal abortions, an area already riddled with stigma and discrimination.

They are arguing that voluntary terminations of pregnancy should be excluded if the court should find that there should be an option for moms to bury the foetus before 26 weeks.

Advocate Darryl Cooke, on behalf of Cause for Justice supporting the Voice of the Unborn Baby, will argue that there should be a significant difference between “the disposal of an appendix and the disposal of an unborn child”.

“Our society as a whole has an interest in treating the bodies of unborn babies with respect – protect and cherish the value of human dignity,” he stated in written argument before the court.

The hearing is expected to resume today. MC