Across cultures, burial or cremation is an important way in which bereaved people say their final goodbyes to loved ones who have passed away. Psychologists tell us that burial or cremation can fulfil a crucial role in the grieving process. It helps those left behind to come to terms with the reality of the loss, while being supported by family and friends.

At the opposite side of the cycle of life is the beginning of life. Because of technologies like ultrasound, expecting parents can nowadays see their unborn baby in the mother’s womb weeks or even months before the baby is born. This has contributed to parents starting to emotionally bond with their unborn baby more intensely before its birth.

In the tragic event of a miscarriage, many parents feel a great sense of loss. For them, the loss of the unborn baby is the same as the loss of a child that was already born.

However, according to current South African law, an unborn child that is miscarried (born dead before 26 weeks of gestation) is regarded as a non-viable foetus. These little bodies are simply treated as medical waste, and unceremoniously incinerated with other medical waste. Bereaved parents are legally prevented from choosing to have a proper, dignified burial or cremation for what they already perceive as their prospective child. In terms of the Births and Deaths Registration Act, only stillborn babies (born dead after 26 weeks of gestation) can be buried or cremated.

Voice of the Unborn Baby NPC (VOTUB) was established in 2015 to fight for bereaved parents’ rights to choose whether they want to bury or cremate their unborn child after a miscarriage.

After all attempts to negotiate with the government failed, VOTUB filed suit in the Pretoria High Court in 2017 against the two relevant Ministers, namely the Ministers of Home Affairs and Health respectively. The Ministers opposed the Application.

On 29 March 2021, the Pretoria High Court found in favour of Voice of the Unborn Baby. Given the constitutional nature of the judgment, it must be confirmed by the Constitutional Court before entering into effect.

“We are relieved beyond words,” remarks Sonja Smith, founder of Voice of the Unborn Baby and managing director of Sonja Smith Funeral Group. “Although we realise that this judgment is not final, it is an important step towards legal recognition that for many parents and families miscarriage can be an indescribable emotional loss.”

“We are confident that the Constitutional Court will confirm the Pretoria High Court’s judgment,” says Renaldi Ingram, attorney for Voice of the Unborn Baby.

The case was argued in court by Adv Donrich Thaldar, a leading human rights advocate and University of KwaZulu-Natal law professor.


For further information please contact:

Sonja Smith on 082 253 8078 or email [email protected]

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.