Sending Joe the Plumber to Pick Up Grandma's Body

Even when the dead bodies Zachary Smeltz lifts for a living are hefty, he makes sure to handle even the burliest corpse in a gentle manner, masking any exertion. “Treat every case like that’s your mom that you’re transferring,” is the motto Mr. Smeltz imparts on the staff of the mortuary transport business he owns that sends him all over New Jersey and Pennsylvania and to other locales, picking up bodies.


This is how protectionist occupational licensing regimes emerge and are strengthened. Well-meaning outside observers write about something they don't really understand, in this case the "shadowy and sometimes controversial industry" of body transport companies, and then suggest that the answer to the hypothetical problems is more regulation.

"Others in the funeral industry contend the body transport business should be more strictly regulated," The New York Times reports.

“There are some states you don’t even have to be a funeral director,” said Scott M. Schmidt, the president of the New York State Association of County Coroners and Medical Examiners. “You just hang a shingle on a wall and you’re an undertaker all of a sudden.”

First of all, it is absurdly untrue to suggest that anyone can "hang a shingle" and become an undertaker anywhere in the United States. Second, yes, of course people within the industry want more regulation to restrict these activities to those within their industry. It is called economic protectionism.

"The purpose of New York’s stringent regulation, Mr. Schmidt said, is 'so you’re not sending out Joe the Plumber to pick up Grandma at the nursing home.'"

Because we all know what a problem THAT is...

Tanya Marsh

Internet Sales of Human Remains Persist Despite Questionable Legality

Conor Gearin recently wrote an article for The New Scientist entitled "Hundreds of mystery human skulls sold on eBay for up to $5500."

The article begins:

A morbid market. Staffers at the Louisiana Department of Justice in Baton Rouge tracked the sale of human skulls on eBay for seven months. During that period, 237 people listed 454 skulls for sale, with opening bids ranging from one cent to $5500.

Until last week, eBay’s official policy as stated on its website was that it doesn’t allow the sale of human remains, with two exceptions – “items containing human scalp hair, and skulls and skeletons intended for medical use”. However, sellers could say that skulls were for medical use without proving it, and still sell them as curiosities, says Tanya Marsh at Wake Forest University in Winston Salem, North Carolina.

Following the study’s publication, eBay recently changed its policy to ban sales of all human body parts except hair.

On average, the opening bids were about $650. Skulls described as pathological – coming from someone with a disease – went for similar prices as other skulls. Specimens cleaned and articulated for teaching started at about $50 more, though.

You can read the rest of the article here.

I checked eBay today and the policy appears to be working - no listings that appear to be for real human skeletons or skulls appear.  However, it is still pretty easy to purchase human remains online.

Skulls Unlimited currently lists 115 products in the category "Real Human Skulls & Skeletons" including 23 human skulls with most prices in the $1,250 - $1,850 range.  A full human skeleton is offered for $5,200.  Skulls Unlimited won't sell human remains to just anybody:

In order to honor the donors who have graciously made this material available to the educational community, Skulls Unlimited will only place these specimens with medical or educational professionals such as college professors, teachers, doctors, nurses, dentists, physical therapists, occupational therapists, respiratory therapists, dental assistants, optometrists, x-ray technicians, ultrasound technicians, crime scene investigators, and lawyers.

The Bone Room currently offers approximately 50 human skulls, including 15 skulls from fetuses, infants, and children under the age of 7.  You can buy a 4 year old child's skull for $3,500, FYI.  But don't worry, The Bone Room says that this is all perfectly legal:

Human Bone Laws & Information - In short, it is perfectly legal to posses and sell human bones in the United States. There are a few exceptions to this: a few states have banned import and export, and of course, all archaeological resources protected by the Native American Graves Protection and Repatriation Act.

Readers are urged to visit the site's "Bone FAQ" page, which offers additional information:

In short, there is no law at the U.S. Federal level prohibiting you from having a human bone in your possession. The fact that some people believe there is or believe there should be such a law is irrelevant.

This is not to say that such laws do not exist in other countries, or at the local level. For example, three US states, New York, Georgia & Tennessee, all have independent State Laws prohibiting the import or export of human remains across their state lines. While we work hard to remain current, laws are passed worldwide faster that the human mind can track or comprehend, so you must be responsible to know your local laws before ordering.

We work within the framework of U.S. Federal, California State, and International Treaty Law. Within these jurisdictions, there are no prohibitions on the sale or possession of human bones.

The Bone Room's FAQ is somewhat correct—there are few laws in the United States that explicitly prohibit the possession and sale of human bones. But that is because the law doesn't distinguish between intact human remains and human bones.  The bigger problem that the sellers of human bones have (particularly since both Skulls Unlimited and The Bone Room have pages on their sites offering to purchase human bones) is that there is no way in the United States to legally transform intact human remains into human bones. 

When a person dies in the United States, the state must be informed and a death certificate issued.  Prior to final disposition of the remains, another certificate, usually called a burial and transit permit, must also be issued by the state. There are particular rules regarding the treatment and disposition of those remains.  For example, in no state is it permissible to transform intact human remains into a skeleton.  The Bone Room specifically references California law in its FAQ, presumably because it is located in California.  It may be interested in this California law:

“Except as authorized pursuant to [§§ 7054.6, 7116, 7117, and 103060], every person who deposits or disposes of any human remains in any place, except in a cemetery, is guilty of a misdemeanor.” Cal. Health & Safety Code § 7054.

I'm not their lawyer, but that statute doesn't seem consistent with the idea that it is "perfectly legal" for them to possess human remains in California. 

Tanya Marsh


FCA Petition calls for Revision of Outdated FTC Funeral Rule

The internet has transformed the way Americans shop from cradle to grave, the funeral industry has a little more catching up to do. A Federal Trade Commission (FTC) rule governing price disclosure for funeral homes was last updated in 1994, its language failing to predict our nation’s coming obsession with online commerce. A petition submitted to the FTC this July by the Consumer Federation of America and the Funeral Consumers Alliance seeks to update this rule to bring more funeral home pricing online and into the 21st century.

The FTC first adopted its “Funeral Rule” in 1984 and last revised it over 20 years ago – long before ubiquitous internet access and the cultural norm of online comparison shopping. The Funeral Rule attempts to provide protection to consumers by requiring funeral directors to provide a written, itemized general price list upon request and to inform consumers of their right to purchase services and products a la carte. In recognition of the vulnerability of funeral consumers in the wake of loss, such required disclosures enable the buyer to make informed decisions about the funeral services and products they purchase. However, as written today, the rule applies to requests for pricing either over the telephone or in person. Nothing in the rule contemplates the role the internet now plays in making purchasing decisions. As consumers have grown used to the transparency and ease of price comparison online, the Funeral Rule has been left untouched, and the funeral industry has been reluctant to change on its own. An October 2015 survey of funeral industry practices nationwide revealed that fewer than 25% of funeral homes with websites fully disclosed their prices online.

Of those funeral providers that do publish prices online, many only disclose their rates for all-inclusive packages without informing consumers of their right to purchase products and services a la carte. If these funeral homes failed to inform consumers of this right in a paper disclosure, it would directly violate the FTC Funeral Rule. However, as it stands today, it is completely legal for a funeral home with a website to publish limited, misleading, or even no pricing information online. Bereaved consumers visiting these websites are often met with slick targeted marketing, but denied crucial information about the costs associated with the images being sold.

The costs are not insignificant. In 2015, the median cost of a funeral with viewing and burial was just over $7000. However, a 2011 study cited by the petitioners found that approximately half of all American households would struggle with an unexpected expense of only $2,000. Few people would consider a funeral an optional expense, but many Americans have difficulty affording one in today’s market. When prices are kept out of public sight, the market lacks the competition necessary to lower costs.

The petition from the Consumer Federation of America and the Funeral Consumers Alliance calls for the FTC amend its Funeral Rule to include mandatory online price disclosures for funeral homes with websites. Proponents of the amendment argue that requiring online price disclosure would bring funeral homes into compliance with the spirit of the original Funeral Rule – that a consumer engaging in a sales interaction with a funeral home has the right to an itemized general price list, whether that interaction is in person, on the telephone, or through a screen. They also argue that increased availability of pricing information online will act to deflate the artificially high funeral industry prices through consumer access and choice.

Although the Funeral Rule is slated for review in 2019, consumer advocates are adamant that now is the time for revision. In a press release from the Consumer Federation of America, Josh Slocum, Executive Director of the Funeral Consumers Alliance, remarked, “We hope that the FTC acts promptly upon our request. … Grieving families don’t have time to wait.” The petition was submitted on’s “Prime Day” to underscore our culture’s firm entrenchment in its online shopping habits.

Erin McKee, JD, MFA

Powerpoint & Handouts from Funeral Consumers Alliance Presentation

I recently gave a presentation at the Funeral Consumers Alliance Biennial Conference in Atlanta.  Awesome conference! 

The lighting in the room was a little hazy and I ran out of handouts (I thought 40 would be enough!), so I promised that I would share the files here.  Even if you didn't attend the conference, you may find them interesting.

Download Marsh FCA Presentation Powerpoint

Download ABA PP v030n02 When Dirt and Death Collide

Download In the Matter of the Estate of Mary Florence Whalen

Tanya Marsh

The Avett Brothers: Unofficial House Band of the #DeathPositive Movement

The Avett Brothers released their 9th studio album, "True Sadness," on June 28th.  Their fourth studio effort produced by Rick Rubin, the album features arrangements that have challenged the expectations of long-time fans.  The subject matter of the songs on the album, however, are quite typical of The Avett Brothers — love, loss, self-doubt, hard work, and death.  I open my book, The Law of Human Remains, with a line from their 2012 song "Life" — "We are not of this world for long."  (I'm also currently wearing, as I always do, a silver ring inscribed with those words.)

The Avett Brothers played a song (sometimes called "Another Youngster" and sometimes "A Dream Appointed") live from 2007 to 2011 before they abandoned it without recording it.  Scott Avett sings lead:

I was lost somewhere out on the road
This old man told me he had no place he had to go
He said his life on earth was limited, you know
He said he had no need to hurry

I thought of your voice and what lay ahead of you
And if I had it all again, what would I do?
My life now more than half of it through
Am I obsessed with dying?

Maybe, Scott, maybe.  But that's okay, because when The Avett Brothers sing about death, they do so with the clear eyes of young men whose awareness of their mortality helps enrich their lives.  Consider "No Hard Feelings" from "True Sadness," this time with Seth Avett on lead:

When my body won't hold me anymore
And it finally lets me free
Will I be ready?
When my feet won't walk another mile
And my lips give their last kiss goodbye
Will my hands be steady?

When I lay down my fears
My hopes and my doubts
The rings on my fingers
And the keys to my house
With no hard feelings

When the sun hangs low in the west
And the light in my chest
Won't be kept held at bay any longer
When the jealousy fades away
And it's ash and dust for cash and lust
And it's just hallelujah
And love in thoughts and love in the words
Love in the songs they sing in the church
And no hard feelings

Lord they knows they haven't done
Much good for anyone
Kept me afraid and cold
With so much to have and hold

When my body won't hold me anymore
And it finally lets me free
Where will I go?
Will the trade winds take me south
Through Georgia grain or tropical rain
Or snow from the heavens?

Will I join with the ocean blue
Or run into the savior true
And shake hands laughing
And walk through the night
Straight to the light
Holding the love I've known in my life
And no hard feelings

Lord they knows they haven't done
Much good for anyone
Kept me afraid and cold
With so much to have and hold
Under the curving sky
I'm finally learning why
It matters for me and you
To say it and mean it to
For life and its loveliness
And all of its ugliness
Good as its been to me
I have no enemies (repeat 4x)

On their 2012 album "The Carpenter," the brothers harmonize on "Through My Prayers":

Hard to believe I won't see you again
We were just fighting when winter began
The coldness of our words competing with the wind from the north.


My dream of all dreams and my hope of all hopes
Is only to tell you and make sure you know
How much I love you and how much I always did.


Down in my mind where I don't care to go
The pain of a lesson is letting me know
If you have love in your heart let it show while you can

Yes now I understand
But now my only chance
To talk to you is through my prayers.
I only wanted to tell you I cared.


In 2012, Seth talked about theme of death reflected in "The Carpenter:"

“I’m almost 32,” says Seth. “Scott’s 36. Bob’s 40. Pretty much, at that age, if you haven’t lost family members, if you haven’t had family members or close friends that have had cancer, you’re an incredibly lucky and rare person. Without getting too much into the details, we’ve all had other family members—older, of course, than Bob’s daughter—that had battled cancer. Some that died because of it, and close friends that have dealt with that and other sicknesses. You know, just the whole thing—love, breakup, divorces, family and friends. The normal stuff of life that we experience and can’t help but let those things become part of our fiber, and consequently become a part of our songs.”

Death is, as Seth says, "the normal stuff of life."  Being "death positive" doesn't mean you're pro-death.  (Who is pro-death??)  It means that you don't ignore or deny that "we are not of this world for long." Being death positive means being life positive — people who are aware of and have accepted death recognize that "hard feelings ... haven't done much good for anyone."  They don't let fights with loved ones linger until it is too late to tell them "how much I love you and how much I always did."  They think about the road ahead and ask why they're in such a hurry.

The Avett Brothers — unofficial house band of the #DeathPositive movement.

Tanya Marsh


Consumers Stand to Lose in Battle Between Pennsylvania Funeral Directors and Cemeteries

A “turf battle” between funeral directors and StoneMor Partners, a public company that has a 60-year deal with the Archdiocese of Philadelphia to manage 13 Catholic cemeteries in the Philadelphia area, threatens to impose restrictions on cemeteries throughout Pennsylvania that will reduce consumer choice and raise prices. The Pennsylvania Funeral Directors Association supports Senate Bill 874, co-sponsored by Senator Robert Tomlinson (R), owner of Tomlinson Funeral Home in Bensalem, Pennsylvania.

The bill proposes several changes to the Pennsylvania Cemetery and Funeral Merchandise Trust Fund Law.  If a person purchases funeral or cemetery goods and services on a preneed basis in Pennsylvania, current law requires that the funeral home or cemetery deposit 70% of the retail sales price of the goods or services in a merchandise trust fund established with a Pennsylvania bank. Customers can pay for a preneed contract in one lump sum, or in payments over time. The law currently states that the funeral home or cemetery must make the deposit to the merchandise trust fund within 30 days after the final payment is made. So, if a customer is paying over, say, 60 months, the seller isn’t required to make the 70% deposit into the merchandise trust fund for five years. SB 874 proposes that the 70% deposit must be made each month that the seller receives payments on the preneed contract.

SB 874 also provides that “there shall be no delivery of merchandise or product, except for mausoleums, cremation gardens, markers and lawn crypts, prior to the death of the person for whose benefit the contract was made.” This change eliminates “constructive delivery” of caskets and vaults in Pennsylvania. Under the current law, a customer could enter into a preneed contract and the seller could immediately take their funds and purchase the casket or vault and then “warehouse” them until the time of need. Cemeteries “warehouse” vaults by installing them into the ground, sometimes years before they are actually used.

The changes regarding the timing of deposits to the merchandise trust fund and the end of constructive delivery are pro-consumer changes. But consumer protection isn’t the goal of SB 874. That is clear in the bill’s failure to change one of the most anti-consumer aspects of the Cemetery and Funeral Merchandise Trust Fund Law—the liquidated damages provision.

Under current Pennsylvania law, if a customer defaults on a single payment under a preneed contract (even the final payment), the funeral home or cemetery is permitted to retain 30% of the contract price (not the payments to date, but the total contract price) as liquidated damages. So, let’s say I enter into a preneed contract with a funeral home today for $10,000 worth of funeral goods and services, with a plan to make $1,000 payment each year for the next ten years. The funeral home will collect my payments and deposit 70% in the merchandise trust fund with the remaining 30% in their own special account. If I default at any time during that ten-year period, the funeral home is permitted to keep $3,000 of my payments as liquidated damages and terminate our preneed contract. Keep in mind that the funeral home hasn’t actually spent any money on goods and services to benefit me—they have just been collecting payments and waiting for me to die.

These liquidated damages are justified by the industry based on the seller’s need to be compensated for their time and effort in securing the preneed contract. But that logic is undermined by the very different treatment of customers who make their payment without default and then move out of state after the final payment. In that situation, the customer can cancel the contract and receive a refund of the entire prepayment. The seller, however, gets to keep the interest earned.

The real purpose of the bill is made clear with the seemingly innocuous provision that “a [preneed] seller must … adhere to the Federal Trade Commission’s Funeral Industry Practices Revised Rules regarding the sale of the merchandise.” This reference is to the FTC’s so-called “Funeral Rule,” which requires “funeral providers” (which are sellers of both funeral goods and services, i.e. funeral homes) to give customers detailed price lists and to make certain disclosures. The FTC Funeral Rule does not apply to cemeteries because they do not sell “funeral services.” Many of the disclosures required by the Funeral Rule make little sense if they are imposed on cemeteries. For example, the Funeral Rule requires funeral providers to include the following disclosure on their outer burial container (vault) price list: “In most areas of the country, state or local law does not require that you buy a container to surround the casket in the grave. However, many cemeteries require that you have such a container so that the grave will not sink in. Either a grave liner or a burial vault will satisfy these requirements.” If a cemetery is required to publish an outer burial container price list with this disclosure, consumers would be understandably confused.

Cemetery customers in Pennsylvania, prepare to be confused. SB 874 proposes to extend the FTC Funeral Rule to cemeteries in Pennsylvania. In a comment letter dated October 20, 2015, the FTC’s Office of Policy Planning and Bureau of Economics, Competition, and Consumer Protection urged the Pennsylvania legislature not to extend the Funeral Rule to cemeteries. The FTC noted that in its 2008 review of the Funeral Rule, it chose not to extend it to cemeteries because “there is insufficient evidence that commercial cemeteries, crematories, and third-party sellers of funeral goods are engaged in widespread unfair or deceptive acts or practices.” The FTC also noted that extending the Funeral Rule to cemeteries would lead to consumer confusion because the FTC Act is not applicable to most non-profit entities. Approximately 70% of the active cemeteries in the United States are owned by non-profit entities such as municipalities and religious organizations.

In its comment letter, the FTC also argued against ending constructive delivery, at least with respect to vaults, noting that it may be much more cost effective for a cemetery to install vaults in bulk rather than one by one. The FTC noted that consumer demand for pre-need funeral goods and services was growing, but the cumulative effect of the changes proposed by SB 874 would make it less attractive for cemeteries to engage in pre-need sales. SB 874 would “lessen competition, resulting in potentially higher prices and fewer options for consumers, without countervailing benefits to consumers.” Now, let’s see, if consumers continue to demand pre-need funeral goods and services yet the rules make it less attractive for cemeteries to offer those goods and services, where will consumers go? Oh right, the funeral homes.

In fact, the Pennsylvania Cemetery, Cremation and Funeral Association (PCCFA) argues that SB 874 is a thinly veiled attempt by the state to protect funeral homes from competition from StoneMor Partners. Before StoneMor Partners took over management of the Philadelphia-area Catholic cemeteries in 2013, funeral directors in and around Philadelphia had a monopoly on selling caskets and vaults in the Catholic cemeteries. PCCFA, which represents cemeteries across the state, is understandably upset that a “classic turf war over who can sell caskets and vaults” in the Philadelphia Catholic cemeteries threatens cemeteries and consumers across the state.

Former Pennsylvania Cemetery, Cremation and Funeral Association President Guy Saxton summed up the response of the Pennsylvania cemetery industry in testimony on the legislation. Directing his comments to Senator Tomlinson, the funeral director who co-sponsored SB 874, Saxton said: “I know you don’t like StoneMor, but I’m not StoneMor. And this bill puts me out of business. And everything I’ve heard today tells me that this bill is not in good faith. It’s not trying to help the consumer, it’s attempting to put StoneMor out of business, and we’re collateral damage.”

Tanya D. Marsh

Arizona Pretends to Reduce but Instead Significantly Raises Barriers to Entry for Cremationists

Arizona House Bill 2613,  approved by the House Commerce Committee last week, proposes to eliminate state licensing requirements for occupations such as fruit packers. Yes, you read that correctly. Under current Arizona law, you may not pack citrus fruit without a license from the state, which will cost you $200 per year. Packing citrus fruit without a license will earn you a $500 fine. HB2613 also removes questionable licensing requirements for occupations including yoga instructor, landscape architect, and geologist. The bill is consistent with one of Republican Governor Doug Ducey’s top priorities—to reduce the regulatory burden on businesses and consumers. One of Governor Ducey’s policy advisors explained that “[occupational] licensing should be the last option, not the first. … reducing regulations means more money for hardworking Arizonans.”

That sounds great, but HB2613 doesn’t uniformly reduce barriers to entry. In at least one case, it significantly raises them. For at least 300 hardworking cremationists in Arizona, this regulation “reduction” will mean far less money because they will suddenly become unqualified to do their job. Under current Arizona law, only a person licensed as a cremationist can operate a crematory retort and perform the cremation of human remains. HB2613 eliminates the cremationist license, but not the requirement that a licensed person operate a crematory retort and perform cremations—it grants the ability to perform those tasks to another licensed group: funeral directors. HB2613 does so by redefining “funeral directing” to include “operating a crematory retort and performing the actual cremation of human remains.” Arizona law already provides that no one may perform “funeral directing” without a funeral director’s license.

Under current Arizona law, in order to receive a cremationist license, a person must complete a crematory operator’s certificate course, submit a fingerprint card for a background check, have a good moral character, and pay an annual fee of $85 to the Arizona Board of Funeral Directors & Embalmers.  

To become a licensed funeral director in Arizona, an applicant must pass the funeral service arts section of the national board examination or the state equivalent examination, pass an examination on funeral director state laws and rules, be of good moral character, pay an annual fee of $85 to the Board and, oh yes, have held an active license as an embalmer for at least one year and have assisted in arranging and directing at least 25 funerals.

To become a licensed embalmer in Arizona, an applicant must pass the funeral service science section of the national board examination or the state equivalent examination, pass an examination on embalmer state laws, have been licensed as an intern for at least one year, have successfully completed an internship program that included assisting in the embalming of at least 25 human bodies, and pay an annual fee of $85 to the Board.

To become a licensed intern in Arizona, an applicant must be a high school graduate, be a graduate of an accredited school of mortuary science, be of good moral character, and pay an annual fee of $85 to the Board.

So, to recap, HB2613, which is designed to implement Governor Ducey’s plan to reduce needless occupational licensing in the State of Arizona, proposes to replace the requirement that people who operate the crematory retort must first take a course on crematory operations with a requirement that people who operate a crematory retort must: (1) graduate from a two-year mortuary school program, (2) complete a one year internship where they must embalm at least 25 bodies, (3) pass the national board examination in funeral service arts and funeral service science, (4) pass two examinations on the laws that apply to funeral directors and embalmers, (5) work as a licensed embalmer for at least one year, and (6) assist in arranging and directing at least 25 funerals. Oh, and we can’t forget that they must continue to pay an annual fee of $85 to the Board.

Unfortunately, Arizona is not alone in its overly aggressive approach to occupational regulation. Nearly 1/3 of U.S. workers must obtain a license from the state to engage in their occupation. In 1950, less than 1/20 of U.S. workers needed a license. It has been estimated that over 1,100 occupations are licensed in at least one state, but fewer than 60 are regulated in all 50 states—clearly the states disagree quite a bit on what occupations require licensing and which do not. It is easy to understand why states may use occupational licensing to protect the public from unqualified doctors and lawyers, but it is a bit harder to understand how state legislatures rationalize requiring a license for hair braiders and florists.

Critics across the ideological spectrum argue that occupational licensing regimes do little to protect consumers from incompetent practitioners and instead raise costs for consumers by stifling competition and imposing barriers to entry. In July 2015, the White House issued a report prepared by the Department of Treasury Office of Economic Policy, the Council of Economic Advisers, and the Department of Labor calling for state policymakers to adopt a more “tailored approach” to occupational regulation. For example, the report recommends that states target occupational regulations to closely tie the substantive requirements (like education and experience) with public health and safety concerns. The Institute for Justice has found that occupational licensing regimes “can pose substantial barriers” for those seeking even low and moderate income jobs, particularly for “minorities, those of lesser means and those with less education.” Cremationist seems like a prime example of this phenomenon. Under the guise of reducing regulation, Arizona has transformed a fairly low paying occupation with low barriers to entry into a job that requires a significant investment of time and money to acquire. It is unclear how requiring cremationists to master the art of embalming and graduate from mortuary college (which typically includes no training on operating a crematory retort) protects Arizonans.

Arizona’s cremation rate is among the highest in the country—approximately 70%. Cremation is an attractive option for many people because it is lower in cost and perceived to be more environmentally friendly. Many crematories in Arizona are independent of funeral homes and not owned or managed by funeral directors. (Economists have shown that independent crematories typically charge less than crematories run by funeral directors.) If HB2613 passes in its current form, the future of the independent crematories is uncertain. Governor Ducey’s first official action in January 2015 was to implement a moratorium on new regulatory rulemaking by state agencies. His office’s press release promised that “Governor Ducey’s order will promote and propel job growth by preventing burdensome, antiquated and unnecessary government rules and regulations on private sector employers.” I’m sure that’ll make the soon-to-be-unemployed Arizonan cremationists feel much better.

Tanya D. Marsh

Home Funerals, Rent-Seeking, and Religious Liberty

The death of a family member triggers a flurry of decisions, all of which must be made in a time of great emotional stress. At the center of the decisions is a single question—how should the dead be mourned and memorialized? The “right” answer can vary significantly based on religious beliefs, family politics, social norms, and the economic capacity of the family.

Many families are relieved to be able to hire a funeral director to take care of all of the practical details, but there is a growing interest in “home funerals,” in which human remains are prepared for disposition in the home, rather than at the funeral parlor. As described in a recent New York Times article, remains may be washed and dressed by family, members of a religious community, or a funeral director. Surrendering control of the corpse to a funeral director immediately after death, allowing it to be embalmed, and displaying it in an open casket is often referred to as the “traditional” American funeral, but in fact that has only been the “tradition” for a little over a century. Until the end of the 19th century, most American funerals were home funerals.

Families may choose home funerals for many reasons. For some, ritually preparing human remains for burial has significant religious implications. For others, it is a last meaningful act of love.  For too many, the “traditional” American funeral, which averages $8,500 plus the cost of the burial plot, is simply beyond their means.

Throughout the world, home funerals are routine and accepted. In the United States, a country that prides itself on religious liberty and the freedom of self-expression, the growing interest in home funerals represents a challenge to the commercial funeral industry. That industry has responded as economics expect, by engaging in classic “rent seeking” behavior and lobbying state legislatures to enact restrictive laws that insulate it from competition. In the case of home funerals, the competition comes from families themselves.

Sixteen states require that human remains be embalmed or refrigerated within a particular time period after death (usually 24-48 hours). (Those states are: Arizona, Arkansas, Colorado, Delaware, Florida, Hawaii, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Nevada, New Mexico, North Dakota, Texas, and Virginia.) Four of those states (Arkansas, Louisiana, New Mexico, Texas) require that human remains be refrigerated below a particular temperature (typically 35-40 degrees). Virginia already requires that human remains be embalmed or refrigerated within 48 hours after death. Virginia State Senator Kenneth Alexander, a funeral director, has proposed Senate Bill 595 to specify that the remains must be refrigerated at a temperature of no more than 40 degrees. This bill has been received with appropriate outrage by funeral consumer advocates and some funeral directors.

Legal requirements that human remains must be embalmed or refrigerated after death are classic examples of industry rent-seeking.  By requiring “refrigeration,” particularly at a specific temperature, rather than simply permitting cooling via dry ice or other means, these states place heavy burdens on families and religious communities that want to care for remains at home.

On the surface, these requirements seem reasonable. Aren’t human remains a health hazard? Don’t these laws prevent public health nightmares? Actually, it turns out, unembalmed and unrefrigerated human remains don’t pose significant public health risks. The Centers for Disease Control (CDC) reports that “[t]here is no direct risk of contagion or infectious disease from being near human remains for people who are not directly involved … handling dead bodies.”  The CDC further advises that those directly handling human remains can protect themselves from potential bacteria and viruses by wearing gloves and washing their hands. “The sight and smell of decay are unpleasant,” the CDC advises, “but they do not create a public health hazard.” The World Health Organization (WHO) agrees. “The widespread belief that corpses pose a major health risk is inaccurate. Especially if death resulted from trauma, bodies are very unlikely to cause outbreaks of diseases…”  The WHO also advises that “[d]ead or decayed human bodies do not generally create a serious health hazard, unless they are polluting sources of drinking-water…” The Association Française d'Information Funéraire advises that there are three methods for preserving human remains before final disposition: dry ice, refrigeration, and embalming. The use of dry ice is the “common traditional technique for preservation at home,” the Association reports, and “[i]t gives perfect results in 95% of the cases.”

In a 2009 article, author Max Alexander contrasted the home funeral of his father-in-law and the “traditional” funeral of his father. “Home after-death care is not for everyone or every situation,” Alexander acknowledged, “[but it] occurred to me that if more Americans spent more time with their dead … they would come away with a new respect for life.” In the United States, of all places on earth, families should be able to make the choice of how to care for their own dead without the interference of laws designed to protect no one but a for-profit industry.

Tanya D. Marsh

BONES: When Do People Lose Their Identity After Death?

In modern American culture, death and human remains are not typically discussed.  Despite this, Fox’s very successful television series Bones, just began its eleventh season.  This show follows the cases of a forensic anthropologist and FBI agent who identify human remains and determine what happened to the person. 

The show’s main protagonist, Dr. Temperance Brennan (also known as “Bones”), is a world renowned forensic anthropologist who is often criticized for her logical, rational, and unemotional demeanor in addressing human remains.  However, Dr. Brennan devotes her life to identifying the deceased and telling the story of the individual’s life and death based upon his or her bones.  She also recognizes the importance of identifying all human remains.  In Dr. Brennan’s eyes, it doesn’t matter if it is someone who died last week or hundreds of years ago, all bones are human remains that have an identity and a story to be told.  Her job is to tell their stories for them.

The show frequently points on the juxtaposition of society’s distaste for talking about human remains in such an objective, scientific manner, which is devoid of identity or personality, with the commonplace practice of forgetting that all human remains were once people with identities. Specifically, the juxtaposition between Dr. Brennan and the others on her team highlights the societal disconnect between human remains and individual’s with identities.  

For example, in Season 1, Episode 9, Brennan’s team members want to attend the work Christmas party and do not see the importance of rushing to identify human remains, which had been sealed up in a fall-out shelter for fifty years.  Everyone, other than Brennan, seemed to think that the age of the bones meant the person was not entitled to the careful attention of his story being told like someone who was recently murdered.  However, Dr. Brennan was insistent that she wanted to determine his identity, even if it meant missing the party.  Interestingly, after the others had learned more about his life – by opening up the suitcase that was found with the remains, which offered clues to the story of his life and who he left behind – the others on the team became increasingly interested in not only identifying the remains, but in determining what happened and informing the surviving relatives. This reaction highlights people’s tendency to dissociate bones from the person they once were. society’s tendency to dissociate human remains and one’s identity.

Even though on the surface it seems that Dr. Brennan confronts death in a sterile, scientific way, she actually treats human remains with more reverence than most people. Because unlike society who devalues human lives if they do not recognize the person, Dr. Brennan always recognizes that bones are never just bones, but instead represent an individual with a story to be told. 

Katilin Price