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Just after Thanksgiving, Texas joined Indiana in requiring aborted fetuses to be cremated or buried, regardless of gestational age. The new rule, championed by Governor Greg Abbott and promulgated by the state’s Health and Human Services Commission, bars disposal of fetal remains in sanitary landfills.

After receiving considerable pushback, the commission clarified that the rules do not apply to abortions or miscarriages that occur at home, and do not require birth or death certificates to be filed. Still, opposition to the new measures is sizeable. Activists argue that requiring burial or cremation is expensive and that such costs will necessarily be passed on to patients. As such, opponents allege, the requirements are nothing more than a thinly veiled attempt to restrict women’s access to abortions statewide.

These issues are complicated, for they implicate the perilous nexus between strongly held religious and cultural beliefs, on the one hand, and the law, on the other. At what point does a fetus stop being simply a mother’s tissue and become a living thing with all the requisite rights accorded to it? And, if the fetus is not yet anything more than tissue, what control may a woman exercise over it? Unfortunately, the law provides does little to resolve these uncertainties.

The issue is further complicated in that neither human tissue nor human remains are considered property in the typical sense of the word. If not property, what are they? Can they be owned? If so, by whom? The law, again, is of little guidance. As Professor Tanya Marsh noted, “[t]he question of what we own of ourselves – what is the legal status of biological material that’s been removed from us – there’s very little law about that, except to say that it’s not ours.”

Thus, it appears as exists no definite solution to the controversy in Texas. For if there exists presently unresolved legal ambiguities, what hope is there for reconciling associated religious and cultural tensions?

Mickey Herman

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