Posted: August 14th, 2015 | By: Lisa Snedeker
“Death is sometimes tragic, sometimes a blessing—always inevitable. Death transforms a living human being, a person with rights and autonomy, into … something else. Tissue and bone, once animated by life, converted into an object of fear, a focus for grief, and a medical and scientific resource.”
– “The Law of Human Remains”
A human cadaver is no longer a person, but neither is it an object to be easily discarded. As a result of this tenuous legal status, human remains occupy an uneasy position in U.S. law. Perhaps because of what anthropologist Ernest Becker called our “universal fear of death,” the law of human remains occupies a remarkably unexamined niche of U.S. law.
In her new book, “The Law of Human Remains,” Professor Tanya D. Marsh undertakes the ambitious task of collecting, organizing and stating the legal rules and principles regarding the status, treatment and disposition of human remains in the United States. The most recent comprehensive overview of the law was published in 1950. The Law of Human Remains builds on that work by creating detailed summaries of each individual state’s laws and regulations. This unprecedented resource allows readers to quickly identify the often fascinating differences that exist between states.
“Over the course of two years, this project required me to literally read every statute and regulation regarding the law of human remains in the United States,” Marsh said.
By defining and describing this neglected area of law, Marsh’s work simultaneously establishes the theoretical and doctrinal basis for the law of human remains and provides a framework so that attorneys and courts can more easily discover, understand, and use the law.
The first part of the book establishes the foundational principles of the common law of human remains in the United States and outlines major federal statutes on the subject. It then restates and explains legal doctrines in five categories:
(1) The Newly Dead (including legal recognition of death, presumption of death, obligations to report human remains, inquests and autopsies, and disposition of unclaimed remains);
(2) The Initial Disposition of Human Remains (including the decedent’s right to determine the place and manner of disposition, determining the rights and obligations to control disposition, the nature and scope of interment rights, and the obligation to pay funeral and disposition expenses);
(3) Disposition Options (including burial, cremation, and organ/cadaver donation);
(4) Regulation of the Funeral Industry; and
(5) Treatment of Human Remains (including abuse of corpse, disinterment, grave desecration, the possession and sale of human remains, and funeral protests).
The second part of the book includes detailed summaries of each state’s laws on each of the doctrines explained in Part I. Statutes and leading cases are cited and explained, providing a valuable resource for attorneys and courts.
“I have been studying the law of human remains for over five years,” Marsh said, “and I am very excited to finally see the culmination of that work in print. Although this area of law has been largely ignored for decades, I think that there is growing willingness to talk about death, and an increasing interest in challenging conventions of celebrating and memorializing the dead.
“Our collective efforts to innovate in deathcare, however, may be frustrated if we do not understand what is permitted, what is forbidden and, most importantly, why. I hope that this book will provide interesting reading for those who want to understand the law, a useful resource for those who need to know the law, and an inspiration for those who endeavor to change the law. I couldn’t have finished this work without the invaluable contributions of my students, research assistants, and the Wake Forest Professional Center Library.”
“The Law of Human Remains” is available for purchase at http://www.lawyersandjudges.com/productdetails.cfm?PC=1333.
Professor Marsh is a graduate of Indiana University and Harvard Law School. She joined the faculty at Wake Forest University School of Law in 2010, following 10 years of full-time practice in Indianapolis, Ind. Marsh teaches courses in property and real estate law, as well as the only course on Funeral and Cemetery Law in a U.S. law school. Marsh is a licensed Funeral Director in the State of California and a nationally recognized authority in the law of human remains.