The Funeral Law Blog

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

Oswald's Coffin Belongs to His Brother, Not Funeral Home, a Judge Rules

 

Texas Judge Donald J. Cosby ruled that the wooden coffin that held the body of one of America’s most notorious killers – Lee Harvey Oswald- belongs to his brother and not to a Fort Worth funeral home. According to the ruling, the Baumgardner Funeral Home, owned by Allen S. Baumgardner Sr., engaged in “wrongful and wanton and malicious conduct.” This malicious conduct? Illegally concealing the existence of Oswald’s coffin from his brother Robert in order to sell the infamous killer’s coffin years later.

Lee Harvey Oswald, infamous for killing President John F. Kennedy on November 22, 1963, was buried in the coffin before it deteriorated so as to require a replacement. When the body was exhumed in 1981, and without Robert Oswald’s knowledge, the original coffin sans Oswald was transported to the Baumgardner Funeral Home, where it was intentionally concealed in the hopes of a large payout for the funeral home owners later on.

The original, however, was put up for sale in 2010 by the Baumgardner Funeral Home in Los Angeles and sold to an undisclosed bidder for $87,468. After Robert Oswald filed suit, the sale was halted and the coffin remained in storage at the Nate D. Sanders auction house.

Judge Cosby not only ordered the original coffin returned to Robert Oswald, but also ordered the funeral home and its owner to pay to Robert the sales price of the coffin, the auction house’s storage fees, and travel expenses as damages.

The brother of Lee Harvey Oswald, probably relieved to put the ordeal to rest, plans to destroy his brother’s original coffin as soon as possible, says his attorney, Gant Grimes. The ultimate concealment of the coffin caused emotional and economic loss to Robert Oswald that a Texas Judge has finally put to rest.

Amelia Lowe

Should Funeral Directors Take Selfies?

The selfie: the twenty-first century self-portrait born from the union of technology and vanity. Fortified by social media, what started as a teenage fad soon shattered generational barriers and grew into a global obsession that knows no bounds. If you have a smartphone and the dexterity to hold it just above your head at a forty-five-degree angle, you can take a selfie. With a few more taps, that selfie can be uploaded to Twitter, Facebook, or Instagram, ready for all the world to see and react.

But what happens when the digital and death collide? In September, a bereaved Rose Molina accused Texas funeral director David L. Jones of taking a selfie as her cousin’s casket was loaded into its hearse. Molina first noticed something was off when she saw Jones lift his phone into the selfie position. “You could see that he had it kind of angled, you know. You have it positioned in a certain way to catch the background.” Molina confronted Jones, who assured her he was just adjusting his tie. Molina wasn’t convinced.

With a little digital digging on Jones’ Facebook page, Molina disinterred a collection of selfies he had taken in front of caskets and hearses. In one selfie that shows Molina in a red bow tie standing in front of an empty hearse, a Facebook user commented: “Looking ready to take on the world and win!!!!” Juxtaposed against the hearse’s inherent indication of loss, the post is rich with callous irony.  

After the finding, Molina told a Houston TV station that the incident “tainted” her cousin’s funeral, and she intends to file a complaint with state officials. Kyle Smith, a staff attorney for the Texas Funeral Services Commission (TFSC), told the New York Post that Jones had been licensed as a funeral director since December 1, 2011, and had no previous complaints against him.

According to Smith, if TFCS were to find Jones guilty of unprofessional conduct, he could face a fine up to $5,000. TFCS will not launch an investigation until an official complaint is filed.

Is Jones' conduct unprofessional? Today, the answer is pretty clearly "yes." Taking selfies of a family's deceased relative's casket without the family's consent is an obvious "no-no" for funeral directors. But would Jones' conduct be unprofessional if it occurred one hundred years ago? In previous centuries, post-mortem photography was commonplace in American culture. Though undoubtedly insensitive to Molina and her grief-stricken relatives, Jones’ selfies evidence a level of comfort wholly antithetical to modern impressions of death. If the selfie obsession is capable of spreading acceptance of death, then perhaps these twenty-first century self-portraits have more to offer than appears at face value.   

Emily Lagan

Mandatory Funerals for Fetal Remains: "Politics and dealing with reality are two different things"

I've written about this topic before, particularly with respect to the Indiana law enacted in 2015 and amended in 2016.  That law gives women who have abortions "the right to determine the final disposition of the aborted fetus."  Ind. Code Section 16-34-3-2(a).  It also requires a woman to fill out a form prescribed by the state indicating her decision regarding "the final disposition of the aborted fetus before the aborted fetus may be discharged from the abortion clinic or the health care facility." Ind. Code Section 16-34-3-2(a).  The law also defines the disposition methods permitted by law for aborted or miscarried fetuses of less than 20 weeks gestation.

Ind. Code Ann. § 16-34-3-4 Cremation or interment of aborted fetus; permit; certificate of stillbirth

(a) An abortion clinic or health care facility having possession of an aborted fetus shall provide for the final disposition of the aborted fetus. The burial transit permit requirements of IC 16-37-3 apply to the final disposition of an aborted fetus, which must be interred or cremated. However:

(1) a person is not required to designate a name for the aborted fetus on the burial transit permit and the space for a name may remain blank; and

(2) any information submitted under this section that may be used to identify the pregnant woman is confidential and must be redacted from any public records maintained under IC 16-37-3.

Aborted fetuses may be cremated by simultaneous cremation.

(b) The local health officer shall issue a permit for the disposition of the aborted fetus to the person in charge of interment for the interment of the aborted fetus. A certificate of stillbirth is not required to be issued for an aborted fetus with a gestational age of less than twenty (20) weeks of age.

(c) IC 23-14-31-26, IC 23-14-55-2, IC 25-15-9-18, and IC 29-2-19-17 concerning the authorization of disposition of human remains apply to this section.

Several reporters have examined Indiana's law in the past few months, putting it into the context of a national movement to change state laws regarding the disposition of human remains and to expand them to include all products of concepts, regardless of gestational age.  Traditionally, states have treated fetuses of greater than 20 weeks gestation as if they had been born alive for purposes of disposition—they receive a special kind of death certificate and are then treated the same as any other human remains.  States have traditionally been silent about the disposition of fetuses of less than 20 weeks gestation.  Two groups have objected to that bifurcation—women who suffered an early miscarriage and wanted to control the disposition of the fetal remains, and pro life groups who believe that life begins at conception and the 20 week gestation line deprived fetal remains of a dignified disposition.

Does the Law Limit What You Can Do with Human Remains? Yes! Understanding Abuse of Corpse Laws

Although we haven't discussed abuse of corpse statutes in Funeral and Cemetery Law yet this semester, this week five students have written posts about the treatment of human remains and analyze whether that constitutes abuse of corpse in various states.

Section 250.10 of the Model Penal Code is entitled "Abuse of Corpse."  It provides that "[e]xcept as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor."  About a dozen states follow the Model Penal Code approach, but more states have more detailed statutes. Sometimes, but surprisingly, not always, abuse of corpse statutes specifically reference and prohibit necrophilia.

Brittany Colton discusses the unauthorized removal of the corpse of Julie Mott from a Texas funeral home in August and concludes that the removal violates Texas Penal Code § 42.08(a) which is triggered if a person "carries away, or treats in an offensive manner a human corpse."

Sabrina Huffman examines the discovery of 11 decomposing bodies in a Toledo, Ohio funeral home and the decision to charge the funeral director, Robert Tate, with abuse of corpse under Ohio Revised Code 2927.01. Unlike the Texas statute, Ohio follows the Model Penal Code approach to abuse of corpse, which simply refers to treatment that would "outrage reasonable community sensibilities" or "reasonable family sensibilities."

Katie McAbee discusses the same Ohio statute, this time in the context of an Ohio man who murdered his girlfriend and then stashed her remains in a closet before interring her in a shallow grave. McAbee and Huffman both refer to Ohio court decisions that conclude that the Ohio statute is not unconstitutionally vague, but McAbee questions those holdings and advocates for Ohio to abandon the Model Penal Code approach and adopt a more concrete statute like New Jersey's, which is triggered if a person "unlawfully disturbs, moves, or conceals human remains."

Katie Ott also discusses the Ohio abuse of corpse statute (seriously, what's going on in Ohio??) in the context of a funeral home which misplaced a body and then displayed the wrong set of remains at a viewing. The family has sued and Ott asks whether the funeral home's actions also violate the abuse of corpse statute.

Finally, Shawn Briggs-Seward illustrates how difficult it may be to determine "reasonable" community or family sensibilities as she examines two reported cases involving the cremated remains (cremains) of Keith Richards' father and Tupac Shakur. These cases are particularly interesting because they both death with cremains, not intact human remains. Briggs-Seward asks whether abuse of corpse statutes should apply in such cases.

These five blog posts demonstrate the continuing relevance of the little-known abuse of corpse statutes in American law. They also demonstrate the uncertainty regarding the application and enforcement of these statutes. All of the different formulations of the crime speak to the same idea—human remains should be treated with respect. But states vary significantly in terms of what that means.

Tanya Marsh

"Body Snatching" in Texas

In August 2015, the remains of Julie Mott were removed by an unknown person or persons from a Texas funeral home shortly after the funeral concluded.  The article notes that “body snatching,” which was more common in the past, is the “technical term for a body stolen from a grave.”  It also asserts that bodies are frequently stolen for allografts, as an act of political protest, or for sex.  However, “body snatching” is the improper term to describe the situation here because body snatching is “the act or practice of robbing a grave to obtain a cadaver for dissection.” Although it is unknown whether the corpse will be dissected, the body was stolen from a funeral home, not from a grave, so it is technically not considered “body snatching.”   

Under Texas law, the individual who removed the corpse from the funeral home without authorization would likely be charged under Texas Penal Code § 42.08(a) "abuse of a corpse."  This statute provides that a:

person commits an offense if the person, without legal authority, knowingly: (1) disinters, disturbs, damages, dissects, in whole or in part, carries away, or treats in an offensive manner a human corpse; (2) conceals a human corpse knowing it to be illegally disinterred; (3) sells or buys a human corpse or in any way traffics in a human corpse; (4) transmits or conveys, or procures to be transmitted or conveyed, a human corpse to a place outside the state; or (5) vandalizes, damages, or treats in an offensive manner the space in which a human corpse has been interred or otherwise permanently laid to rest.

Here, the individual who removed the corpse from the funeral home did not have legal authority and knowingly carried away the corpse.  Thus, the individual would likely be charged under Texas Penal Code § 42.08(a)(1). 

Brittany Colton