The Funeral Law Blog

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.

via www.nytimes.com

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 21^st 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 Amazon.com’s “Prime Day” to underscore our culture’s firm entrenchment in its online shopping habits.

Erin McKee, JD, MFA