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Burial and Cremation (Scotland) Act 2016

Pregnancy loss after 24 weeks

Section 69 – Arrangements on termination of pregnancy after 24 weeks

181.This section applies where a pregnancy is to be terminated after its 24th week under the Abortion Act 1976. The effect of the section is to allow decisions about burial or cremation to be made before the termination takes place. If a health body considers that it is in the woman’s best interests, it must give the woman the opportunity to decide whether she wishes to make arrangements for the burial or cremation of the remains herself or whether she wishes to authorise the health body to make the arrangements.

182.Where the woman authorises the health body to make the arrangements, subsection (2)(b) allows her to specify the method of disposal or she may choose to allow the health body to specify the method.

183.Subsection (2)(c) allows the woman to authorise the health body to make arrangements as soon as practicable after the termination or to wait 7 days. This is to allow the woman to change her decision about what she wishes to happen to the remains. Subsection (3) requires the health body to inform the woman if it is unable to dispose of the remains in a particular way. The effect of this is to ensure that only those methods which the health body can arrange are agreed.

184.Subsection (4) requires the health body to keep a record of information that is prescribed by the Scottish Ministers by regulations in relation to section 69.

185.Subsection (5) provides a definition of an “appropriate health body”. Where a woman is in the care of a Health Board in relation to the termination, “appropriate health body” means that Health Board. In turn, “health board” is defined as a Health Board constituted under section 2(1)(a) of the National Health Service (Scotland) Act 1978. If a woman is in the care of an independent health service in relation to the termination, “appropriate health body” means that independent health service. The meaning of “independent health service” is to be construed in accordance with section 10F of the National Health Service (Scotland) Act 1978.

Section 70Section 69: health body authorised to make arrangements

186.This section applies in relation to a post 24-week termination where a health body has been authorised under section 69(2)(b) to make arrangements for the remains to be buried or cremated. The health body may make arrangements for the disposal of the remains, and must do so in the way specified by the woman if she has specified a method under section 69(2)(b)(i). If authorisation was given by virtue of section 69 (2)(c)(i), subsection (3) of section 70 requires the health body to make the arrangements as soon as practicable after the termination has taken place. If authorisation was given by virtue of section 69(2)(c)(ii) and not withdrawn before the expiry of the 7-day period, the health body must not make arrangements for disposal until the expiry of the 7-day period. Subsection (4) sets out that the 7-day period means the 7 days from the day on which the pregnancy was terminated.

Section 71Section 69: no arrangements

187.Subsection (1) sets out a duty on a health authority following a post-24 week termination where it appears to the health authority that no arrangements for burial or cremation of the remains are being made by virtue of subsection 69(2). This may arise because the health body did not consider it to be in the woman’s best interests to give her the opportunity to decide what should happen before the loss occurred, as per section 69(2). It may also arise where the woman was given the opportunity under section 69(2) but did not indicate her decision.

188.Subsection (2) provides that the health authority must give the woman the opportunity to decide whether she wishes to make arrangements for the burial or cremation of the remains or whether she wishes to authorise the health authority to make arrangements in a way specified by the woman or in a way specified by the health authority. Where the woman authorises the health authority to make the arrangements in a way specified by her, subsection (3) requires the health authority to inform her if the way she has specified is not reasonably practicable.

189.By virtue of subsection (4), subsection (5) applies where a woman informs the health authority that she does not wish to make arrangements, is unable to make a decision or does not inform the health authority of a decision under subsection (2). In this case, subsection (5) allows the health authority to make arrangements for the remains to be buried or cremated. Subsection (6) requires the health authority to record information that is prescribed by the Scottish Ministers by regulations.

Section 72 – Duty of health body where still-birth likely to occur

190.This section sets out the procedure to be followed by a health body where it is known that a woman’s pregnancy will end in a stillbirth (but not as a consequence of a post-24 week termination). Subsection (2) provides that where a health body considers that it would be in the woman’s best interests to do so, it must give the woman the opportunity to decide whether she wishes to make arrangements for the burial or cremation of the remains, or whether she wishes to authorise the health body to make the arrangements in a way specified by the woman or in a way specified by the health body.

191.Where the woman wishes to authorise the health body to make the arrangements, she must indicate whether she wishes the arrangements to be made as soon as is practicable after the stillbirth occurs or whether the health body should wait 7 days after the stillbirth occurs before making arrangements. Where the woman authorises the health authority to make the arrangements in a way she specifies, subsection (3) requires the health authority to inform her if the way she has specified is not reasonably practicable.

192.Subsection (4) requires the health authority to keep a record of information prescribed by the Scottish Ministers by regulations in relation to section 72.

193.Subsection (5) provides definitions for the purposes of this Act.

Section 73Section 72: health body authorised to make arrangements

194.This section applies where a still-birth occurs other than as a consequence of the pregnancy being terminated, and where the appropriate health body is authorised by virtue of section 72(2)(b) to make arrangements for the remains of the fetus to be buried or cremated. Subsection (2) enables the health body to make arrangements for the disposal. If the woman has chosen a specific manner for disposal, the health body must use that method. Subsection (3)(a) requires the health body to make the arrangements as soon as practicable after the still-birth occurs; subsection (3)(b) requires the health body to wait 7 days after the still-birth occurs before making the arrangements. This is dependent on what the woman indicates she wishes to happen. Subsection (4) provides definitions for the purposes of this section.

Section 74 – Arrangements on still-birth

195.This section applies in respect of the arrangements to be made for burial or cremation following a still-birth (other than as a result of a post-24 week termination) and it appears to the health body that no other arrangements have been or are being made by virtue of section 72(2).

196.By virtue of subsection (2), the nearest relative of the still-born child may make arrangements for the disposal of the remains. Subsection (3) sets out a list of nearest relatives and the order of priority. The nearest relative is firstly the parent of the stillborn child. If neither parent is able (or wishes) to make a decision about the disposal the right then moves to the next nearest relative on the list. This process continues until someone exercises the right. As well as making the arrangements themselves, subsection (4)(a) enables the person making the decision to authorise the health body to make the arrangements in a manner chosen by the person or chosen by the health body. Subsection (4)(b) clarifies that the person making the decision is not permitted to authorise any other person to make arrangements.

197.Subsection (5) requires the health body to inform the nearest relative if a method of disposal they specify cannot be provided. Subsection (6) requires the health body to record information prescribed by the Scottish Ministers by regulations in relation to section 74. Subsections (7) to (9) set out the order of priority of nearest relative and make clear those who will be discounted, for example, if they are under 16 years of age. Subsection (10) provides definitions for the purposes of this section.

Section 75Section 74: power of appropriate health body

198.This section sets out what a health body must do when it is authorised to make arrangements for the burial or cremation of a stillborn child. Before making any arrangements, subsection (2) requires the health body to wait 7 days after being authorised. Subsection (3) provides that the 7-day period need not apply if the person who authorised the health body does not wish it to apply.

199.The health body will be required to record the decision in an appropriate form and must attempt to obtain the signature of the person who is making the decision.

Section 76Section 74: general power of appropriate health body

200.This section applies where it appears to the health body that no arrangements have been or are being made for the disposal of the remains following a still-birth. The health body may make arrangements for burial or cremation of the remains. This section ensures that arrangements can always be made for the burial or cremation of such remains.

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