Does Texas Really Require Funerals for Fetuses?

The short answer is: no.

A few months ago, a reporter for The Atlantic called me to discuss recent legislative efforts to treat the remains of aborted fetuses as human remains rather than medical waste. I confess that when she first called, I was unfamiliar with the rapidly shifting laws. Calls from reporters at The Nation, Harper’s Magazine, and other national publications soon followed.  It was clear that something important was going on and as the only legal scholar focused on U.S. funeral and cemetery law, it was equally clear that I had to get up to speed quickly.

I've been working on it (there are a lot of laws!) but last week, Texas announced changes to its regulations regarding the disposition of fetal remains. I spent last week on the phone responding to calls from funeral directors, health care providers, and citizens panicked by news articles asserting that Texas now requires burial or cremation for aborted and miscarried fetuses, placing significant burdens on health care providers and women. Thankfully, I have concluded that the prevailing characterization of the Texas regulations is incorrect.

The amended regulations are found in “Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities” (Tex. Admin. Code tit. 25, §§1.132 - 1.137). These regulations define what we commonly think of as “medical waste” and dictate how health care-related facilities must treat and dispose of different categories of medical waste.

Despite the headlines, fetal remains are still treated as medical waste in Texas. While it is true that several previously available methods of disposing of fetal tissue are no longer permitted—particularly disposition in a sanitary landfill and disposition in the sanitary sewer system—it is not true that the Texas regulations now require burial in a cemetery, or cremation in a licensed crematory establishment, or involvement with the funeral industry in any manner. Fetal tissue may continue to be incinerated (cremated) as long as it is segregated from other pathological waste and not disposed of in a sanitary landfill or sanitary sewer system.

One of the confusing aspects of the new Texas regulations is that they use some of the same words as the Texas statutes dealing with the disposition of human remains. But that doesn’t mean that fetal remains are now required to be treated as human remains. For example, cremation appears to be essentially the same concept as ‘incineration,’ another approved method of treatment of fetal remains. Unlike with human remains, there is no requirement in the Texas regulations that cremation of fetal tissue must occur in a licensed crematory establishment. Significantly, this means that there appears to be nothing in the Texas regulations that would require health care-related facilities to use a funeral director in connection with the disposition of fetal tissue.

The amendments to the Texas regulations, in sum, are fairly modest. None of these changes will directly impact patients. Decisions regarding the method of disposition for special waste is made by the health care-related facilities, not the patients. Increased costs may be passed on to patients, but it is not clear whether or not the reduction in available disposition options will significantly raise costs.

Stay tuned for more...

Tanya Marsh