(Archive photo: Freepik)
The Pretoria High Court is hearing a case about the legality of so-called “baby boxes”. The minister of social development argues that parents who place babies in them are guilty of abandonment in terms of the Children’s Act.
The Center for Children’s Rights argues the law is unconstitutional, because it does not provide a safe way for mothers to surrender newborns.
Around 3,000 babies are left in unsafe places every year, while the baby box system is believed to have already saved 580 lives.
Deur Tania Broughton, GroundUp
A mother who cannot keep her child alive does not abandon the child by placing him or her in a place where someone else can take care of him. Rather, it is an act of unconditional love: the choice to let the child live and thrive, at the expense of the mother never knowing him or her.
This week it was the submission of the Center for Children’s Rights (CCL) in a ground-breaking case that is being heard in the Pretoria High Court.
Baby Savers South Africa and Door of Hope Children’s Mission are embroiled in a lawsuit with the minister of social development over the legality of so-called baby boxes which offer a way for mothers to leave their children in a place where they can be immediately secured.
However, the minister argues that parents who place their babies in the boxes are “rejecting them” and committing a crime.
However, the CCL, one of three organizations admitted to the case as amicus curiae (friends of the court), says the issue extends far beyond just baby safes.
In its written argument, the center says that over centuries and continents, mothers who find themselves in extreme circumstances have left their babies at the doors of churches, monasteries, hospitals and fire stations.
According to the minister’s interpretation of the Children’s Act, this would also be considered the crime of abandonment.
The CCL argues that the minister says the government has provided several legal means by which unwanted babies can be surrendered – but none of them have been identified.
Around 3,000 babies are left unsafe every year and the baby box system is believed to have saved around 580 lives so far.
“If the legal routes that the department relies on did exist and were available, those figures would not be what they are,” argues the CCL.
The CCL does not agree that the law, correctly interpreted, criminalizes the safe surrender of a child. He argues that the law is in any case incompatible with the Constitution because it offers no route for the safe surrender where a mother has decided that she cannot care for her newborn baby.
What is missing, the center argues, is a guilt-free gateway through which a mother can of her own accord place her newborn baby within a protective system without the system having to identify fault or violation.
The CCL cited the examples of two single university students who had to go to court, after the department repeatedly obstructed their efforts to make their babies available for adoption.
The judge in that case found the department’s actions showed prejudice against mothers and was a “deliberate strategy to discriminate against them and punish them” because they wanted to give up their babies for adoption.
Those mothers used the only mechanism the law provided.
The CCL cited a range of rights for mothers and children that are affected by the loophole in the law. The center argued that it supports the applicants’ request that the court declare that the law does not criminalize the safe surrender of a child.
The CCL further asked the court to declare the law unconstitutional to the extent that it fails to provide a legal route for the safe relinquishment of a child, and that parliament rectify the defect within 24 months.
The Center for Human Rights (CHR), represented by Lawyers for Human Rights, was also admitted as amicus curiae. The center argues that the law must make a clear distinction between unsafe abandonment and safe relinquishment. Where someone takes steps to ensure a child’s safety, the law must also recognize that act for what it is – not a crime, but the protection of a life.
Criminalization runs the risk that caregivers, fearing arrest and prosecution, will turn to unsafe options that put the baby’s life at risk.
In its written submissions, the third amicus, the Women’s Legal Center Trust, said it was clear from the affidavits that women and young girls were being criminalised, while men were not being held accountable. Although the provision does not explicitly refer to women, “the real impact is borne almost exclusively by them”.
This is indirect discrimination.
It also punishes women for the state’s own failure to provide adequate social services and turns systemic problems into individual blame.
Minister says baby closets are ‘absurd’
The High Court in Pretoria. (Photo: Ashraf Hendricks/GroundUp)
The minister’s legal representatives argued in their written argument: “Although this is not a morality forum, the temptation cannot be resisted to say that what Baby Savers wants is immoral, because it facilitates and promotes the rejection of babies in unguarded boxes in the hope that every baby will be found alive.
“This is illegal and cannot under any circumstances be considered the best solution for babies, their mothers and the public interest in terms of the Constitution. There is no basis to say that the public interest benefits from the rejection of babies.
“A court order in this regard will send shock waves throughout the country, because the Constitution cannot allow such an absurd situation.”
The minister argues that a mother has the right to notify the authorities in advance that she wants to surrender her baby in a hospital, after which the child protection system takes over. That this has not happened in certain cases is no reason to change the law.
They asked that the application be dismissed with costs.
The case was heard this week before judges Ronel Tolmay, Brenda Neukircher and Nkosigiphile Mazibuko.
Judgment is reserved.
- This post originally appeared on GroundUp and is used with permission.