The Funeral Law Blog

The Ultimate November Blue Playlist (2002-2016)

Attention Funeral Law Blog readers, this post has absolutely nothing to do with funeral and cemetery law. 

Fellow Avett Brothers fans, I think that the evolution of November Blue perfectly illustrates the evolution of this band from 2002 - 2016.  "Ultimate" is in no way "complete."  There are lots of videos out there.  I tried to pick representative samples from each year.  I couldn't find any videos from 2003-2005, so if you have links or audio files, or other suggestions for good versions, please comment.  Unbelievable thanks for all of those who recorded shows and posted them for us to enjoy, especially SundayRehab, Cincynorsefan, and DCRANGERFAN.

Studio version: Country Was (2002) (link to the official video)

 

Fort Wayne (Indiana) to Have One Stop Shop for Catholic Funerals

The Catholic Cemetery Association in Fort Wayne, Indiana announced that a Catholic Cemetery is to be the new site for the Divine Mercy Funeral Home. The facility will have two visitation rooms, with personal family rooms as well as a crematorium and embalming facility. Bishop Kevin C. Rhoades of the Fort Wayne-South Bend Diocese views the timing as ideal since Pope Francis has deemed this past year (Dec 8th, 2015-Nov. 20, 2016), a Holy year of Divine Mercy. Bishop Rhoades pointed out that upon this past year’s focus of Divine Mercy many Christians have studied and acted on the Corporal Works of Mercy. There are seven Corporal Works of Mercy: (1) feed the hungry (2) give drink to the thirsty (3) shelter the homeless (4) visit the sick (5) visit the imprisoned (6) bury the dead (7) give alms to the poor. These works are found in Jesus’s direct teachings in the Gospel of Matthew 25: 31-45 and in terms of death fall central to the funeral ritual of Catholics. The Bishop expressed excitement to have the Church’s involvement in the entire death and burial process.

In some ways, it is a wonder that more Catholic cemeteries have not expanded in this way before now. Many funeral homes adapt to the religious views of their patrons-- as one would expect. Funeral directors are professionals that learn and polish their skills in vital areas—but when a Catholic funeral is so intertwined and fundamental to those practicing it makes sense to have full service facilities. Is this the beginning of a trend? It could go either way, because this industry is highly regulated it wouldn’t be a surprise to see some legal trouble. One example is New Jersey’s new law that took effect this past April banning monument sales by religious cemeteries. The Archdiocese has filed suit to fight back since it does not seem just that the government can ban harmless commerce just to protect industry insiders. Is there a possibility that enough business will leave the private funeral homes to cause a problem in Fort Wayne? Maybe-- the facilities also include a crematorium a very interesting addition considering the Church’s preference for burial and recent decree requiring cremains to be kept on holy ground. While the demand for cremation continues to rise, it seems likely Catholics that do choose cremation will naturally want to have it done in the Catholic crematorium. However, religious cemeteries enjoy many exemptions under state laws and attract a very specific crowd. So, as with anything else, it comes down to the money. If enough Catholics begin relying on Catholic funeral homes and crematories the private institutions will feel the effects and that is when law makers will be asked to weigh in.

Brandy Nickoloff

Reef Balls: An "Environmental" Option for the "Hippie" Generation?

“An Eternal Reef combines a cremation urn, ash scattering, and burial at sea into one meaningful, permanent environmental tribute to life”, states the Eternal Reef’s website; one of several companies that manufacture and deliver reef balls containing human remains into the ocean. Whilst being buried at sea has never seemed like an enjoyable or desirable disposition option, these companies are making the idea seem more and more appealing. Eternal Reef describes a four-day process of “casting” the remains into the concrete reef ball, followed by a day of setting and preparing the ball, with the viewing held on day three and the placement and dedication on day four. Families and friends are highly encouraged to participate, by placing handprints and handwritten messages on the reef ball itself, and attending the dedication on a boat provided by the company (for a fee per person, of course). This industry bills itself as an environmentally-friendly option to help rebuild underwater ecosystems in coastal areas such as Florida and the Gulf. The Reef Ball Foundation is a nonprofit set up to promote and implement these artificial reefs, although they do not involve themselves in the human remains aspect of the industry. Their website shows pictures of large concrete structures with holes placed in the concrete to allow for fish and other animals to form homes within them.

         

However, there have been debates about just how environmentally-beneficial these reef balls may be. A Hawaiian neighborhood board recently voted against supporting a reef ball project, due to statements by scientists from the University of Hawaii that there would be no benefit to the ecosystem. These reef balls may just be another way for us to feel superficially “good” about ourselves; we damaged the environment during our lifetime, but that will be okay because we will help it in death! The commercialization of philanthropy has been a growing business practice (“buy a pair of shoes from us and our company will donate a pair to a poor child”), but this is one of the first ways it has reached the death industry. This form of memorialization doesn’t come cheaply, either. The body must still be cremated first (which has serious negative environmental impacts in itself), then the reef balls can run from $3,000 to $7,500. The dedication ceremony involves serious travel expense, which the company can facilitate for an additional fee. If the environmental impacts do turn out to be as beneficial as the companies claim: fantastic. However, if they fall short, reef balls may just be another method for the death industry to play into the hands of consumers who want to be conscious, and are willing to spend a lot of money to do so.

Charley Connor

Life and Death in Outer Space

Astronomy World recently posed the following hypothetical, “could an astronaut’s corpse bring new life to another world?”  The answer to this question turns out to be yes; there are apparently several different ways in which the death of an astronaut in space could lead to the development of extra-planetary life.  

There are two proposed ways in which an astronaut, through dying in space, could bring life to other planets.  First, an astronaut could deliver microbes from earth onto another planet, and given certain conditions, those microbes could survive the journey and begin life anew on another planet.  Second, even if no microbes survived the trip to another planet, the landing of a human corpse on an alien planet could potentially spur the creation of totally new microorganisms. 

Astronaut Corpse as Microbe Delivery System. It may seem impossible for microorganisms to survive the harsh conditions of space, but scientists have already documented microorganisms surviving incredibly hostile conditions on earth.  As Gary King, a microbial biologist at Louisiana State University, stated, “We’ve pulled microbes out of permafrost, and there we’re talking about organisms surviving around one million years in suspended animation.  Especially if the trip is somewhere close, like to Mars, bacterial spores in the human body will survive for sure.”  That being said, space is still not an ideal environment for even the toughest of microbial lifeforms.  Factors that would limit microbes’ ability to survive space flight on the corpse of an astronaut include the corpse’s container, its storage environment, and its flight time.  Flight time would probably be the most important factor – the longer a microbe floats through space, the more ambient cosmic radiation it is absorbing.  While many microbes are far more resilient to radiation exposure than human beings, at a certain point, there is a level at which radiation exposure becomes far too great for any lifeform to withstand.

Astronaut Corpse as Spark of Life.  Therefore, an astronaut’s corpse could possibly reach an alien planet with no surviving microbes remaining.  But this is not necessarily the end of the story.  An astronaut corpse landing on an alien planet could still possibly serve as the “spark” to new life.  Given certain environmental conditions, an astronaut’s corpse could serve “‘as a sort of starter-pack of chemistry to bootstrap the [genesis] of new life.’”  Such a scenario is not likely, but is possible, says Lee Cronin of the University of Glasgow.   The ideal situation, according to Cronin, would not be a single astronaut corpse falling to a planet, but instead “an entire doomed crew.”  More corpses would mean greater availability of certain organic molecules, considered to be the building blocks of life.

George Kennedy

Death by Headstone: Should Cemeteries Do More to Protect Their Visitors?

Everyone knows that the upkeep of cemeteries varies drastically across the country. Some are pristine  with the grounds well kept, while others are run down, seemingly abandoned. However, there are two things almost all cemeteries have in common despite their conditions; headstones and visitors. 

In May 2016,  a young boy was killed while playing with friends when a headstone fell on top of him in a cemetery in Glasgow, Scotland. According to the eight year old's friends, another child jumped on a gravestone to get onto a wall, causing it to topple over on top of the boy. The death lead to a full on inspection, with 500 to 900 headstones being laid flat due to safety concerns. 

The situation is certainly tragic. But it also begs the question, was it avoidable? Does a cemetery have a responsibility to prevent accidents like this from happening? There is no doubt that there are certain measures that could be taken to prevent an accident like this. For example, gates to prevent children from entering the cemetery at unsupervised times or ensuring the structural integrity of headstones  by implementing certain requirements for placement. BUT, some of the measures available would be impractical based on cost and time required to implement. Not to mention that the ownership of cemeteries ranges from public cemeteries to church ownership, one reason the maintenance of cemeteries doesn't seem uniform. 

There is also the issue of reinforcing old headstones that seem to be unstable. Should a cemetery owner be required to contact the owner of the grave site before taking action to ensure its safety? There are limitless questions regarding the issue.

Currently there is no easy solution for the safety concerns headstones pose to visitors of cemeteries. But one thing is for sure, it is an issue that both the owners of the cemeteries as well as visitors with children should keep in the forefront of their mind. 

Alston Merritt

A Free Farewell: Providing Funeral Services to the Unclaimed, Unknown, or Indigent

What happens when a person passes with no family, no funds, or no known name?

In 2015, the Warren County Coroner’s office provided for 51 burials of such persons. In that county, it is the responsibility of the county coroner’s office to take physical control of any dead persons until either the bodies are claimed by a relation or friend or the bodies are left unclaimed.

Kevin Kirby, the Warren County Coroner, has overseen 32 of such burials in this year alone, three of which were considered unclaimed bodies. Coroner Kirby waits about two weeks before burying the bodies of any of the unclaimed or indigent persons, preserving the remains in the meantime. Because Kentucky law does not allow for Kirby to cremate the remains of unclaimed bodies without a family member’s consent, he instead must keep the unclaimed bodies preserved as-is until burial, which is more expensive than cremation.

Besides being responsible for county-assisted burials through his position in the coroner’s office, Kirby also runs a funeral home in the county, J.C. Kirby & Son, through which he is able to provide the “pauper” funeral service. Each county-assisted burial consists of a simple wooden casket for the remains and a graveside burial service, for which Kirby’s office receives a $475 reimbursement from the Bowling Green-Warren County Welfare Board; in addition, Kirby pays the city of Bowling Green $100 to dig the grave.

For the less common occurrence of unclaimed bodies or unknown persons, Kirby says that his office attempts to use all possible means to either identify the person or the deceased’s relatives before burial. For the increasingly more common indigent deceased, the county-assisted funeral and burial service provides the deceased and the deceased’s family members with a funeral rite that the deceased may have otherwise not been able to afford.

Giving each of these unclaimed, unknown, or indigent persons a traditional funeral and burial service seems to be sort of a ritualistic nod to the life of the deceased. According to Kirby, “[i]t’s sad that somebody has lived a life that nobody cares or we can’t find someone. . . . It’s somebody’s son or daughter. They belong to somebody somewhere.” While it is merely the responsibility of the Warren County Coroner to provide for the simple burial of the deceased, Kirby, as well as some others, seem to have extended the traditional funeral service to those deceased who either have no family attending or would not otherwise be able to afford a funeral service.

Sometimes, despite all the economic or legal burdens, the best way to honor the lived of the unknown or unclaimed is to keep tradition alive.

Nina Banfield

Orchestra Pit at the Met Showered with More Than Just Cheers

Spooky things usually tend to happen around Halloween. Well, for some opera fans, Halloween was certainly in the air during an afternoon performance of Rossini's "Guillaume Tell" at New York's Metropolitan Opera on Saturday, October 29, 2016.

A 52- year-old man, who was seated in the first row, decided to sprinkle a powdery substance into the orchestra pit during the second intermission. According to John Miller, the New York Police Department's deputy commissioner in charge of intelligence and counterterrorism, the man, who has now been identified and is from Dallas, told other members of the audience that he was there to sprinkle the ashes of his mentor, a fellow opera lover, during the performance. 

Met officials were forced to cancel the rest of the "Guillaume Tell" performance on Saturday, as well as an evening performance of "L'Italiana in Algeri," so that the police could investigate the scene. Audience members were left in the dark, having originally been told that there was a technical issue during the intermission, as the Met officials decided how to proceed once the powder substance was found. Ultimately, nearly 4,000 spectators were told to leave, but as they exited, they noticed the counterterrorism unit entering the building, which was a bit alarming for some of the opera enthusiasts. Other audience members were disappointed that they did not get to experience the final Act, especially considering the fact that this opera had not been performed at the Met in more than 80 years before this season. The Met is offering refunds to the audience members that were forced to evacuate from the performance and is supposed to be open as of Monday, October 31. 

The police are still in the process of actually testing the powder that was found in the orchestra pit to determine if the powder is in fact human remains. Miller was quoted saying that while the disposal of ashes at an opera house may violate city codes, he doesn't "believe at this point that we see any criminal intent here." The Met General Manager said that this was the first time he has seen this happen in eleven years. But, Miller said in his experience, they have seen this in many public places, including monuments, stadiums and other venues, in attempts to honor their loved ones.

For an opera lover, the chance to have their ashes sprinkled at the New York Metropolitan Opera seems like the opportunity of a lifetime, or rather the after-lifetime, but obviously this poses some public health concerns, which is why the Met does not condone the continuing of this practice, as much as they appreciate those who love their performances and art. 

Alexa Gaudioso

Buying A Used Final Resting Place

Not interested in designing or building your forever home?  There is a niche market that will help you locate and bid on a slightly used final resting place. Are you desiring top-quality granite exterior, marble interior, high ceiling, and custom-made windows?  Then you may be interested in Rev. Norman Vincent Peale's mausoleum at Woodlawn Cemetery in New York City that has been vacant since the 1950s.  This modest mausoleum sleeps eight and is selling for $750,000 with the option of personalizing the entrance with your last name.

In New York, where the city revolves around real estate, it stands to reason that big-money prices and maxims like “location, location, location” figure in death as well. Mausoleums change hands just like apartments and townhouses.  And with cemeteries running short on space, cemetery officials have been known to call descendants who own long-empty grave-sites or mausoleums, and suggest a sale. 

Several mausoleums at Woodlawn Cemetery have been home to famous poets, musicians, and business tycoons.  These mausoleums can often raise their asking price due to their attached reputations and legacies.  William B. Leeds, a tin and railroad tycoon, had his mausoleum designed by famous architect in the early 1900s; Woodlawn Cemetery is asking for $4.2 million.  However, Woodlawn offers smaller mausoleums for a nominal $534,000.

Susan Olsen, the cemetery historian, has found letter records that show the "change of hands" of mausoleums at Woodlawn Cemetery throughout its existence.  These letters show the intent of future residents to build or buy mausoleums on the cemetery grounds.  There is also a history of transition of bodies from "receiving tombs," temporary resting areas while mausoleums are being built, to there years in the mausoleum, to the family deciding on a new resting destination for their dearly departed.

Treating burial spots as a recycling business is a new perspective on cemeteries.  It will be interesting to see if this trend continues to spread to other states as the competition for burial locations exponentially increases

Rivver Cox

Texas' New Fetal Remains Rules Implicate Legal, Religious, and Cultural Tensions

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

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