Professor Tanya Marsh discusses legal status of biological remains in Social Epistemology Review and Reply Collective

Photo of Wake Forest Law Professor Tanya Marsh posing in the Worell Professional Center

Tanya Marsh, Associate Professor of Law

Professor Tanya Marsh was featured in Philip R. Olson’s paper, “Refining and Extending Necro-Waste,” published on Social Epistemology Review and Reply Collective, the digital extension of the journal Social Espistemology, on Aug. 5, 2016.  Professor Marsh discusses the legal status of biological material in regards to Indiana’s law on aborted fetal remains.  The paper, which follows, also lists her book, “The Law of Human Remains,” as a reference.

I am grateful to John Troyer for the work he has done to push the study of necro-waste further than I was able in “Knowing ‘Necro-Waste’”(Olson 2016a). Identifying finer fissures within the broad category of necro-waste, Troyer organizes necro-waste into more than ten sub-categories, noting that his list of categories is “a partial and hardly exhaustive list of what those necro-waste categories could be and the kinds of waste products that each category might contain” (61). I thank Troyer, too, for expanding the discussion of necro-waste to include medicalwaste, which I largely ignored in my article. In this reply I will elaborate on two of Troyer’s contributions to the idea of necro-waste, each of which pushes the study of necro-waste in a different direction. First, in addition to sharing out necro-waste into a great variety of specific kinds, Troyer’s working catalogue also makes visible a greater number of categorical shifts and intersections than could my coarse distinction between waste and non-waste. Second, Troyer’s discussion of medical necro-waste draws attention to general continuities that traverse the cultural divide between health care and death care.

Refinement

Like the boundary between waste and non-waste, the boundaries described by Troyer’s sub-categories are porous, impermanent, and largely teleological (in that these boundaries are contoured by practical intents). There is movement amongst the categories of waste, and this movement is non-arbitrary. Similarly, just as “things can simultaneously be and not be waste” (Hird 2012, 454), things can at once belong to multiple sub-categories of waste.

Consider, for example, the status of aborted fetuses in the state of Indiana. In March 2016, the state of Indiana passed a now-defunct law[1] requiring that all aborted fetuses be buried or cremated. (Funerary alkaline hydrolysis is not legal in Indiana.) All aborted fetuses: that includes early pregnancy fetuses that are “smaller than a peapod.”[2] Size doesn’t matter. Indiana declared it unlawful to dispose of aborted fetal material as medical waste. One of the aims of the Indiana law was to foster recognition of the dignity that aborted fetal remains possess on account of their ostensive status as human remains. As Wake Forest University Law Professor Tanya Marsh states, “[t]he most important impact of this law is taking another step toward recognizing fetuses as humans.”[3] Curiously, while “Indiana may not legally be able to declare fetuses human in life . . . in death, apparently, it can”[4]—a de jure validation of the philosophical thesis that a living body and its respective corpse are ontologically distinct objects.[5]

Troyer has good reason to classify human fetal remains as “Political Necro-Waste (62); and of course human fetal remains are much more than tokens of this one type. The state of Indiana sought to reclassify human fetal remains: to categorize them no longer as cases of Medical Necro-Waste, but rather as instances of “Dignified Necro-Waste,” within which category Troyer includes “properly disposed of human remains through cremation, burial, alkaline hydrolysis, etc.” (62). Given the political and religious significance of Indiana’s now-dead law, it is not difficult to see why human fetal remains belong also to the category “Anxiety Producing Necro-Waste,” along with other “politicized dead bodies” (62).

The anxiety produced by human fetal remains stems partly from seemingly irreconcilable conceptions of the status of these remains. For some, and for certain purposes, human fetal remains are sacred or dignified, and therefore demand the same culturally sanctioned forms of disposition as non-fetal human bodies. For others, fetal remains no more demand to be buried or cremated than do hair and fingernail clippings, tumors, moles, or other bodily growths. For still others, and for still different purposes, human fetal remains are less like a whole body or parts of a human body (amputated or excised), and more like instances of “Solid Human Necro-Waste,” such as “Metal Implants that remain after cremation (hips, knees, etc.) [or] “Fillings in teeth” (62)—items that are frequently referred to as “foreign matter” in post-mortem contexts, but which may become identity-constitutive parts of a person’s body through, for example, self-identification with such matter.

What might the present discussion offer us in the way of a response to Troyer’s guiding concern about who owns necro-waste? Does the abortion of a live fetus from a woman’s body annul her ‘ownership’ of the fetal material in the same way that the removal of a brain from a body (say, Christopher Albrecht’s brain from Christopher Albrecht’s body) annuls ‘ownership’ of the brain (Troyer 2016, 60)? Wake Forest University Law Professor Tanya Marsh traces The [U.S.] Law of Human Remains (2016) to its roots in Roman law, under which human corpses were considered “divine property” and thus “no longer available for human sale, gift, or even ownership” (Riggsby 2010, 206).[6] “The question of what we own of ourselves—what is the legal status of biological material that’s been removed from us—“ says Marsh, “there’s very little law about that except to say that it’s not ours.”[7]

Is Christopher Albrecht’s body whole without ‘its’ brain? Would Albrecht’s body be any more wholly itself with the brain but without the blood and viscera that might be removed during embalming? What principles or interests govern the variety of logics by which certain body matters are deemed more identity-constitutive than other body matters? The fact of the matter is that various stakeholders’ interests in the logic of wholes and parts as it applies to the human corpse are not advanced in some airy intellectual or legal space. Interests are advanced materially upon a field of dead flesh. It is to this material dimension of ‘necro-politics’—if we may include the study of necro-waste as a part of the same broad topic identified by Achille Mbembe (2003)—that the study of necro-waste seeks to draw attention. The porousness, instability, and inexclusivity of categories of necro-waste, as well as the shifting tides of stakeholders’ claims to power over dead matter, helps to explain the difficulty of trying to answer the question, ‘Who owns necro-waste?’

Extension

In “‘Owning’ Necro-Waste,” Troyer does more than refine the analysis of necro-waste; he also productively enlarges the scope of the analysis beyond industrial funeral waste to include also medical waste. By broadening the range of subject matters to be included under the heading “necro-waste,” Troyer draws attention to general continuities between funerary and medical contexts—continuities that extend well beyond the narrow scope of necro-waste.

Continuities across the divide between health care and death care have been rendered non-obvious by design. For over 150 years, physicians and morticians have sought to carve out distinct social spaces for themselves, and to claim exclusive authority over those different spaces. The development of physicans’ and morticians’ respective social and professional identities has required careful management. The Styx that separates the professional and technical worlds of physician and mortician is less like a naturally occurring river than a carefully constructed canal. Indeed, the social and professional significance of the boundary between the jurisdictions of the physician and the mortician partly explains why “[m]edical examiners”— discomfiting ferrypersons who span these shores—“are low in the medical hierarchy. In the eyes of their clinical colleagues, their daily experience has little resemblance to the work of clinicians” (Timmermans 2006, 180).

Medical examiners are not our only reminders of the violability of the boundary between medical and funerary contexts. Turning again to fetal remains, Indiana’s legislation reveals the instability of the distinction between medical and funereal necro-waste. Moreover, it reveals the instability of the jurisdictional divide between health care and death care institutions. Had Indiana’s law gone into effect, hospitals would have provided “not only medical advice, but tools for memorializing loss.”[8] We must for now remain uncertain about how medical professionals and medical institutions would have responded to the idea of incorporating ostensibly funereal services into a hospital’s resources. Yet, when French State Counselor J. Aubert suggested in 1980 “the possibility of hospitals including embalming in their health care offer” (Trompette and Lemonnier 2009, 17), he discovered opposition from some hospital workers, and observed that “hospitals maintain a distinction between care for the living and care for the dead in an often very dogmatic manner” (Aubert 1981, 34).[9]

The jurisdictions of the physician and the mortician became separated precisely because the work of health care and the work of death care were subject to the same broad cultural trends that were shaping American life as a whole. Industrialization, professionalization, urbanization, immigration, racism, and sexism are among the sweeping social forces that facilitated the medicalization, surveillance, discipline, and control of the human body from conception to committal. Cultural and technical continuities between the creation and performance of medical science and mortuary science, professional health care and professional death care, the medicalization of the living body and the funeralization of the corpse become visible not only when we attend to necro-waste, but also when we consider similarities between countercultural responses to both childbirth and death care.

For example, participants in the growing, international “home funeral movement” are now challenging morticians’ authority over the corpse in much the same way that advocates of natural childbirth challenged physicians’ authority over the birthing body: both reconceptualize the body (whether birthing or dead) as a natural and normal body; and through this reconceptualization of the body advocates of home births and home funerals dispute the authority of the techno-scientific knowledges that grounds physicians’ and morticians’ claims to expertise (2016b). More work needs to be done to track continuities across health care and death care cultures, to make these continuities visible and articulate, to demonstrate how these cultures diverge, and to explain what further findings tell us about the meanings that our bodies have for us.

By drawing attention to the continuities across medical and funerary contexts, Troyer’s “’Owning’ Necro-Waste” indicates that funereal death care deserves more attention from scholars engaged with the sociology of medicine, medical anthropology, biomedical ethics, and other areas of inquiry that engage with the techno-scientific treatment of the human body.