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W Ho Controls the Dead?

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W Ho Controls the Dead? W ho Controls the Dead? The Right to Make Funeral and Disposition Decisions By Tanya D. Marsh Jae Rhim Lee’s eco-friendly Infinity body of English common law that burial shroud and suit are infused with existed as of the Revolution. The law of Death is a transformative event fungi that hasten decomposition while human remains was almost exclusively with profound consequences for neutralizing toxins. Capsula Mundi is common law until the turn of the 20th the individual and her community. developing a biodegradable egg-shaped century. At that time, state legislatures Promptly following this emotionally pod that will encapsulate human began to enact laws to regulate funeral significant moment, decisions regarding remains, serving as a metaphorical directors and embalmers. Those the disposition of the corpse must be “seed” for a memorial tree planted above occupational licensing statutes make up made. In a basic sense, the process of the pod. Jevon Truesdale and Qico the bulk of the statutory law of human disposing of human remains is simply promote an environmentally friendly, remains. Funeral directors are very the solution to a practical problem. But sustainable, water-based alternative concerned about clear rules regarding the manner in which we dispose of to fire cremation known as alkaline who has the authority to make funeral remains matters, to many people, quite hydrolysis. Progressive funeral directors and disposition decisions. State statutes a bit. A human cadaver is no longer a like Amy Cunningham and Caitlin are therefore primarily concerned with person, but neither is it an item devoid Doughty are providing education and creating that certainty, even at the of meaning. Anthropologists tell us services to allow families to take back expense of the interests of decedents that one of the key differences between as much control over remains as they and their families. There is very little humans and other animals is that we feel comfortable with, subject to legal federal law on these topics other do not easily discard the remains of our limitations. than the Federal Trade Commission’s species. Instead, we attach profound Funeral Rule, which mandates certain spiritual and emotional significance to Of course, these new frontiers in disclosures and presentation of pricing their treatment and ultimate disposition. death care are controversial. In some information. American communities, cremation is Americans, pushing back against the still controversial. As a result, there may commercialized “American way of be tension between what disposition The Rights of the Dead death,” are exploring their options in methods individuals might choose death care to an unprecedented degree. for themselves, and what choices At common law, the dead have rights. The most significant evidence of this their families and communities may Strong and longstanding social and legal is the rising popularity of cremation. be willing to support. The law limits norms permit broad freedom to direct Before the mid-1980s, the US cremation choices in various ways and provides the the disposition of our property after rate was in single digits. In 2015, for framework to mediate those disputes. death and promote respect for dying the first time, more Americans were wishes. With respect to the disposition cremated than buried. The growing of human remains, the common law interest in cremation is driven by The American Law of Human grants two rights to the deceased: (1) concerns about cost, the environmental the right to a “decent burial,” and (2) the impact of embalming and ground burial, Remains right to direct the disposition of their and a desire for a closer connection remains. between the living and the dead. These The American legal system includes same concerns contribute to a growing two kinds of law—common law and Although the common law promises interest in home funerals, alkaline statutory law. Statutory law is the decedents that their wishes will be hydrolysis, and green burial. collection of acts adopted by state honored, it does not provide a specific legislatures and Congress. The common mechanism for decedents to leave Socially conscious entrepreneurs, law is a framework of legal principles evidence of their disposition preferences. responding to these concerns, are derived from custom and judicial Many courts have honored the oral pushing the accepted boundaries of precedent. It is sometimes known as expression of dying wishes. The use death care. Katrina Spade and the “judge-made law.” Recognizing that of a will is more common, although it Urban Death Project are working to elected legislatures cannot possibly remains legally controversial. In some create a community compost-based address every kind of legal dispute, states, a decedent may not dispose of renewal system where human remains the common law fills in the gaps in his remains in a will because human are transformed into life-giving soil. statutory law. American common law remains are not property. In other states, is based upon and incorporates the courts have held that a decedent may 20 | VOLUME 4 NUMBER 2 | www.naturaltransitions.org leave binding disposition instructions in entered into by decedents before writing. Other states require a particular a will. death. Indeed, in four states (Georgia, form set forth in the statute. A few states Idaho, Mississippi, and Rhode Island), require a notarized declaration. Many Given the lack of clarity in the common a decedent’s wishes will be respected states require the written instrument law, and the need of funeral directors only if he or she purchased a pre-need to be witnessed by one or two people. for certainty, it is not surprising that funeral contract. Three states (Kentucky, Several provide alternative methods, the state legislatures have intervened. New Mexico, and South Carolina) permit including setting forth preferences in a Thirty-one states and the District of individuals to pre-authorize their own will, a health care power of attorney, or Columbia have statutes that provide cremations, but not to identify any other pre-need contract. that the decedent has the general right to personal preferences. express a personal preference regarding If a person does not leave instructions the disposition of his remains. I call A key corollary in state statutory law regarding the disposition of their these rules personal preference statutes. to the personal preference statutes is remains, or if the relevant state law does There is significant variety among the absolution of liability for those not permit them to, the law establishes the personal preference statutes. One who rely upon documents that a framework to determine who may important difference is the theoretical comply with the statutory process for control the remains and make decisions basis for the statutes. Only three states memorializing preference. Although regarding disposition. (Florida, Oklahoma, and South Dakota) some states generously forgive all expressly grant decedents a statutory persons from liability for following the right to determine the disposition of written instructions of the decedent, The Rights of Next of Kin their own remains and then provide most statutes are clearly intended to Since the early 1850s the general rule a mechanism for executing that relieve only funeral professionals from in the United States has been that the right. The remaining states do not liability. Other statutes primarily aim next of kin have the right to possess expressly establish a statutory right, to give the funeral director clear legal and control remains after death, subject but implicitly assume a common law authority to resolve inconsistencies only to the wishes of the decedent. In the right by specifying a mechanism for a between a decedent’s written highly influential 1904 case of Pettigrew person to declare how they would like instructions and the contrary wishes v. Pettigrew, the Supreme Court of their remains disposed of after death. of survivors. The combination of Pennsylvania attempted to establish a At first glance, the failure to establish a release of liability for funeral directors process for sorting out conflicts among statutory right seems inconsequential. for following directives that comply surviving kin: After all, what is the purpose of the with the statutory requirements, and statutory process if not to effectuate an the emphasis of the statutes on the The result of a full examination of the express common law right or an implicit selection and prepayment of funeral subject is that there is no universal statutory or constitutional right? But goods and services are clear signals rule applicable alike to all cases, but the formulation and placement of these that the personal preference statutes each must be considered in equity statutes in their respective state codes were heavily influenced by the funeral on its own merits, having due regard strongly suggests that the point of the services industry. The result is that in to the interests of the public, the process statutes was to make it more many states, commercial consumer wishes of the decedent, and the rights difficult for survivors and estates to preferences are easier to enforce than and feelings of those entitled to be invalidate contracts for funeral goods non-commercial preferences. If, for heard by reason of relationship or and services (i.e., pre-need contracts) example, a person in Wisconsin desired association. Subject to this general to have his body prepared by result, it may be laid down: First, his religious congregation and that the paramount right is in the buried in a shroud in a (legally- surviving husband or widow, and, if permissible) backyard cemetery, the parties were living in the normal a choice that would not require relations of marriage, it will require the services of a funeral director, a very strong case to justify a court crematory authority, or cemetery in interfering with the wish of the authority, the law would say that survivor.
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