The Law of Human Remains

Abstract

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.

The Law of Human Remains is an ambitious effort to collect, organize and state 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 (Percival Jackson's The Law of Cadavers). 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.

By defining and describing this neglected area of law, The Law of Human Remains 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.

Note: An excerpt containing the book introduction and Chapter 4 -- The Initial Disposition of Human Remains have been submitted to SSRN. The entire book is available from the publisher or via Amazon.

Keywords: cemetery, human remains, funeral, legal history, estate planning

JEL Classification: k11