In Jackson v. Jackson (979 N.Y.S.2d 477), a 2013 case in front of Judge W. Dennis Duggan of the New York Supreme Court in Albany County, a mother and father asked the court to determine custody of their child. The problem was, the child had passed away as a fetus and was cremated while the parents were still married. The parents divorced prior to disposing of the child’s ashes, and the mother filed a petition with the New York courts to establish her ownership over the ashes.
The court undertakes its analysis by addressing the definition of a fetus, the responsibility of impregnation and its resultant commingling of property, and whether the remains are “marital” or “separate” property. Eventually the court rules that the mother should have sole possession of the remains. However, the court’s analysis rests on a faulty premise: that the ashes of the fetus are property at all. The court breezes past this concept, simply stating that “[t]he ashes are clearly property by any plain meaning of the word,” without citing any authority whatsoever. As a result, the court states, that property must be “owned” by someone—the mother, the father, or both of them. Compounding the error, the court inexplicably states that a fetus certainly would not be considered property, but “fetal remains, once expelled . . . from the mother’s body, would be.”
First and foremost, is has been established New York law for almost a century that no property rights exist in human remains. Buchanan v. Buchanan, 59 N.Y.S. 810, 811 (1899). As a result, the analysis that the court undertakes to determine the type of property that the ashes represented was wholly inappropriate. Rather than property, New York courts simply recognize the ownership of remains as a “legal right” that arises out of the duty of the next-of-kin to bury the body. Id.
Additionally, New York courts have refused to create a distinction in the rights associated with a stillborn child and one that had been born healthy, Correa v. Maimonides Medical Center, 629 N.Y.S.2d 673, 676 (1995), rendering moot Judge Duggan’s distinction between the existence of property rights in the stillborn child before and after birth. Statutorily, New York considers a fetal death a “birth and a death.” As such, the responsibility under the law for the remains should be determined exactly as any other type of human remains.
So the question remains: What analysis should the court have undertaken? New York law provides a very specific hierarchy for who has responsibility for the disposition of human remains. The law gives the “right to control the disposition of the remains” to either of the parents of the child. However, there is also a caveat—if one of the individuals designated to serve (in Jackson’s case, either of the parents), then the person of the next succeeding priority has the right to control the disposition of the remains. This provision provided an “out” for Judge Duggan, and would have preempted his complicated marital property analysis. The father of the cremated fetus had previously threatened to flush the ashes down the toilet, and had, on a separate occasion, taken the ashes from the custody of the mother without her permission. The court could have used the father’s brash actions to determine under the statute that the father was not competent of the disposition of the cremated remains, and limited possession of the ashes to the mother. However, the courts premature and incorrect leap declaring the cremated remains as “property” not only created dangerous precedent for future cases regarding the disposition of remains of a child when the parents have since divorced, but also forced to court to undertake a complicated and faulty analysis of the legal character of the ashes.