Last updated on Apr 15th, 2021 at 12:02 pm

The sudden passing of a child in utero can be a devastating encounter for any family to undergo.

Until now, parents with children who are miscarried before 26 weeks of gestation could not bury their foetuses.

Their foetuses were regarded as “medical waste” transported in a truck for waste disposal. They were then incinerated.

The emotional detachment of this act has been at the forefront of the agenda for Sonja Smith of Sonja Smith Funerals. Speaking to ENCA, she has dedicated the last 15 years to raising awareness of laws she calls “inhumane.” She started the NGO The Voice of the Unborn Baby and together with the Catholic Archdiocese of Durban, they took on the act.

Sonia says, “the gravity of the loss does not depend on the stage of the pregnancy.”

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According to TimesLive, Sonja’s team argued that  identifying a miscarried foetus as “medical waste” because they were not yet 26 weeks in utero is “insensitive, hurtful and disrespectful”.

The High Court judge Judge Nomonde Mngqibisa-Thusi declared these sections of the Births & Deaths Registration Act 51 of 1992 unconstitutional.

Parliament has 12 months to rectify sections of the act that deal with stillbirths.

Stillborn children (26 weeks and later) were given a death certificate, but a death certificate would not be issued in the case of a miscarriage, therefore not granting a family the right to a burial. You cannot bury someone without a death certificate and burial order.

A death certificate issued to a family after a stillbirth does not reflect a child’s name. They are just called “Baby of X”. Yonela Rasi has been raising awareness about child loss after her own experiences. Her son, Aviwe-Lakhanya, documented on his death certificate as Baby of Yonela, has inspired her to share the truths and challenges of child loss.

Maternal health

The loss of a child triggers emotions that a lot of moms don’t know how to navigate. Hanging on to the prospects of mothering a baby just to be met with “something is wrong,” is a life-changing experience. Some women lose that human life in the most brutal, bleeding through their clothes, losing them, one blood clot at a time.

Like Yonela, some lose them under anaesthetic in an operation room and healing from that emotional trauma is a complicated journey. A lot of mothers need closure; a name, a burial, and a gravesite.

They can finally have it, and have a funeral, that would not only help with their healing but will be a place to come back to years down the line. Sonja says “even women that have lost children 10 years ago still remember that pain.” A pain with nothing to show for it cuts deeper than most, and child loss is exactly that. The grieving process is harder when there is nothing to show for it.

The child you lost was the one thing you could hold onto, and now they’re gone.

This is a victory for women everywhere, where the courts finally recognise the emotional journey of child loss, granting women the right to grieve as they see fit. Given the constitutional nature of the judgment, it must be confirmed by the Constitutional Court before entering into effect.


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