Perinatal bereavement – Belgium: towards the possibility of burial for all stillborn foetuses, regardless of gestational age?

The Belgian Committee's reflections are part of a legal and societal context marked by a significant change in attitudes towards perinatal bereavement. In recent years, the issue of symbolic and social recognition of children who die before birth has attracted increased attention from families, healthcare professionals and public authorities alike. The opinion aims to answer specific questions: what should be done with foetal remains from early miscarriages or induced abortions ? What legal status should be given to them? What weight should be given to the parents' wishes? 

Current situation 

In terms of civil status, the Belgian (federal) legal framework currently provides for three scenarios: 

• foetuses born dead after 180 days (post-conception): in this case, a “stillbirth certificate” must be drawn up by the registrar, if necessary with the first name and surname of the child; 

• foetuses who die between 140 and 179 days after conception: a certificate of stillbirth may be drawn up at the request of the mother, father or co-parent, if applicable with the mention of the child's first name only (and not their surname); 

• foetuses who die before the 140-day threshold cannot be registered with the civil registry. 

With regard to funerals and burials, these are mandatory in Belgium for foetuses that are stillborn after 180 days. For foetuses whose death occurs before this period, the current situation varies according to the different federal entities: 

• Brussels and Wallonia provide for the possibility of burial, at the request of one or both parents (or even grandparents), for foetuses born dead between 106 and 180 days 

• Flanders and the German-speaking Community provide for the possibility of burial, also at the request of the family, regardless of the age at which the foetus was stillborn. 

In cases where burial is not provided for by law or where neither parent wishes to arrange for their stillborn child to be buried, the destination of the foetus's remains depends on the procedure put in place by the hospital (where the foetus died). Formally, the remains fall into the category of ‘anatomical parts’, as ‘waste’ of human origin, the treatment of which is regulated. 

Opinion No. 90 acknowledges the discomfort that this classification may cause for some parents faced with an early loss: the gap between the subjective experience of grief and administrative categorisation can indeed be a source of suffering. 

Burial at any gestational age, but not in the garden 

On the specific question raised by the hospital that referred the matter to the Committee, the latter replied that it is in no way appropriate to allow parents to bury their stillborn child in their own garden. Taking into account various ethical criteria (parental autonomy, dignity of the stillborn child, general interest, solicitude, etc.), it is considered preferable to ‘preserve the public monopoly on burial sites’ in order to guarantee ‘decent and equal treatment of the remains’. 

However, the Committee makes several recommendations aimed at improving the current framework: 

First and foremost, it believes that the overall support and information provided to parents ‘facing early pregnancy loss’ should be improved, going beyond simple medical support. This includes, in particular, providing professional support that allows parents to choose the destination of their foetus's remains. 

In addition, the Committee recommends harmonising regional regulations so that the framework provided for in Flanders is extended to the whole country, thus granting parents the right to bury or cremate their foetus without any minimum age requirement. 

A variable consideration of the foetus 

Beyond these practical recommendations, the opinion is part of a more fundamental anthropological and ethical reflection. By recognising the need for respectful treatment of foetuses born lifeless at an early stage, the Committee acknowledges that they are not simply ‘waste’, but human remains with a special significance. 

However, the removal of a minimum gestational age recommended by the Committee for the authorisation of funerals and burials would coincide with the lack of recognition of the foetus in civil status records before 140 days of conception. 

Opinion No. 90 reveals a profound tension between two logics: on the one hand, a logic of recognising the inherent dignity of every human being, even at the embryonic or foetal stage; on the other hand, a functionalist and relational logic, in which the value of the foetus depends largely on the parental project surrounding it. In practice, the possibility of an individualised funeral is closely linked to the parents' wishes: the foetus will be treated as a “child” if it is wanted and mourned as such. 

In its introduction, the Committee specifies that “in the context of this specific opinion, it in no way undermines the legislation on voluntary termination of pregnancy” and that it “does not take any position in the debate on the status of the embryo”. 

This point highlights a central paradox. Belgian law regulates abortion from a perspective that prioritises women's autonomy and does not recognise the foetus as a legal entity before birth. However, in the context of perinatal bereavement, the same foetus may be the subject of strong symbolic recognition, a funeral ritual, or even a name registration. The value accorded to the foetus thus appears to be conditioned by parental intention: if desired, it becomes a child (albeit stillborn); if unwanted, it remains legally a “product of conception” comparable to hospital waste. 

The risk of “à la carte” human dignity 

Such an approach raises the question of ethical consistency. If the respect due to foetal remains is based on their belonging to the human species, this respect should not vary according to the subjective circumstances of conception or pregnancy. Conversely, if the moral status of the foetus depends exclusively on the relationship that the parents have with it, this leads to a conditional conception of human dignity, which departs from the idea of a dignity recognised in every human being in an ontological and intrinsic way. Human dignity would then depend on the view that we are willing to take of it. 

Ultimately, Opinion No. 90 of the Bioethics Advisory Committee represents a step forward in terms of consideration and support for parents facing the early loss of a child in utero. However, it highlights, perhaps unwittingly, the conceptual weaknesses of the contemporary bioethical framework. A more fundamental reflection on the anthropological status of the foetus and on the consistency of the standards applicable to it appears necessary. This is the price that must be paid to avoid a growing dissociation between legitimate compassion for bereaved parents and the more radical question of the intrinsic value of all human life in its early stages.