The Good, The Bad, and the Future of Death: Talking With Death Law Experts

The Order’s Caroline Reilly spoke with our two resident death law experts – attorneys Tanya Marsh and Emily Albrecht –  about the good and bad of death in 2019, and what we have to look forward to in the new year.

Art by Landis Blair

2019 was a year, like all years – filled with death; some of the ways we confronted death were healthy and progressive, like increasing enthusiasm for green burials and more robust conversations about death positivity and end of life care. Others were painful, like our relentless gun violence problem, the epidemic of deaths of trans women, brutality at the border. One thing is clear amidst all of this; having a healthier, more progressive relationship with how we prepare for, talk about, and cope with death is to our benefit, both personal and political.

I spoke with our two resident death law experts – attorneys Tanya Marsh and Emily Albrecht about the good and bad of death in 2019, and what we have to look forward to in the new year.

 

Where are we with aquamation?

Tanya Marsh (TM): According to the Cremation Association of North America (CANA), alkaline hydrolysis (or aquamation) has been legalized in about 20 states although it is not yet available in all of those states. The law permitting it in California, for example, does not go into effect until this summer.

Some opposition to aquamation comes from those whose economic interests are at stake.  A bill to legalize aquamation in Indiana was unanimously passed out of committee but defeated on the floor of the Indiana House of Representatives following a speech by Rep. Dick Hamm, who just happens to own a casket company. Rep. Hamm compared the process to “flushing” a loved one.  “We’re going to put [dead bodies] in acid and just let them dissolve away and then we’re going to let them run down the drain out into the sewers and whatever.”

Rep. Hamm inaccurately described the science behind aquamation.  That disinformation spreads to those without a personal economic interest.  For example, New Hampshire state Rep. John Cebrowski, arguing against the law in 2009, said “I don’t want to send a loved one … down the drain to a sewer treatment plant.”

In several states, the Catholic Church has testified in state legislatures against bills to legalize aquamation.  In New Hampshire, the Church submitted testimony that said that aquamation “fails to provide … citizens with the reverence and respect they should receive at the end of their lives.”

Perhaps as a result of these oppositional forces, aquamation has been successfully legalized in the West and the Great Plains, and, perhaps surprisingly, the South, but remains illegal in states with a large Catholic population and in Midwestern states (like Indiana) where casket manufacturers are concentrated.

Image by Olson Kundig

Washington state because the first in the nation to legalize human composting as a form of green burial; how significant is that? Can we expect to see more from other states? 

TM: I think it is incredibly significant that recomposition was legalized in Washington State this year, and a testament to Katrina Spade’s vision and commitment.  This is the first fundamentally different method of disposition to be legalized in the United States since cremation a century ago. Recomposition will be introduced to the Colorado legislature this year, and there are a handful of other states that are likely promising candidates for legalization.  Although it is too soon to anticipate where pushback will occur, it is likely that the casket manufacturers won’t be in favor of recomposition since it eliminates the need for a casket.  Since recomposition is simply accelerated natural decomposition, much closer to “ashes to ashes, dust to dust” than either cremation or aquamation, it will be very interesting to see whether religious organizations such as the Catholic Church embrace it or oppose it.

Aimee Stephens’ case will be a landmark one for trans rights in the US; can you talk a little bit about the context of how her discrimination reflects on the funeral industry? Do you think her treatment is consistent with some of the norms upheld by the old guard of the industry? 

TM: The funeral industry isn’t monolithic — there are many progressive funeral directors and funeral homes.  But it is also a more conservative industry than the norm.  There is a traditional image of a funeral director as a white guy in a black suit.  Program director of the Worsham College of Mortuary Science Leili McMurrough told Memorial Business Journal in 2019 that “there was a time in the not-too-distant past when [she] said that the most frequent call she’d receive from funeral directors would be, ‘I need a guy,’ meaning they were looking for a Central Casting white male funeral director.”

But according to the American Board of Funeral Service Education (ABFSE), 65% of mortuary science graduates in 2018 were female; only 27% were white males.  In 2018, 16.5% of mortuary science graduates were African American; African American women graduated at twice the rate as African American men.  ABFSE does not publish statistics on the gender identity (other than male or female) or the sexual orientation of mortuary science graduates.

In other words, change is coming quickly to the funeral industry.  How it will react to that change, and how employees will be impacted, remains to be seen.

What does the way we treat the murders of trans people — especially black trans women — tell us about how we need to improve the death care for trans people? Are there any laws or policies that either have been passed or that folks are trying to pass to address the death care needs of trans people?

Emily Albrecht (EA): Unfortunately, fatal violence disproportionately affects trans people – particularly transgender women of color – and too often these stories go unreported or misreported, many times with victims misgendered in local police statements and media reports. Trans people being misgendered after death is also an issue for the funeral industry, particularly when legal next of kin asks a funeral home to prepare a decedent in a way that is inconsistent with the individual’s wishes, which is most common when transgender people are estranged from relatives who were uncomfortable with their gender transition.

In 2014, California passed the Respect After Death Act that requires coroners and funeral directors to record a person’s gender identity rather than anatomical sex on the death certificate and, if there is a dispute, a driver’s license or passport will be sufficient legal documentation to trump family opinion. In other states, using a living will to express your wishes and make clear what name and pronouns should be used for you if you become incapacitated and specifying how you want to be dressed and groomed in a hospital, assisted-living facility or funeral home prevents any confusion and inhibits a family member from making a decision that is not in your best interest.

Let’s talk about the crisis on the border; the treatment of people crossing the border is such a stark illustration of who our country thinks deserves to live and die. Take for example the Scott Warren case; the man prosecuted for providing aid at the border. How does our treatment of undocumented people coming into the US reflect our attitudes about death and who deserves a good death?

EA: The current administration’s dehumanizing rhetoric and policies on immigration deprive human beings of the fundamental human right to a good death. All people, not just Americans, deserve a good death. Period. To suggest anything less is abhorrent.

TM: This is a huge question.  In the United States, we have a long history of treating the remains of some people differently than the remains of others.  In short, we have very rigid laws that prohibit disinterment or desecration of graves and require the respectful disposition of all remains, but we have long tolerated the destruction of unmarked graves (particularly in burial grounds populated by people of color and the poor) and if a person dies without means in the United States and their remains go unclaimed by family or friends, in most states those remains are handed over to medical schools for gross anatomy labs, but also a multitude of other uses, including for embalming practice in mortuary science programs.

This year we saw the Supreme Court uphold a fetal burial law; can you talk about the implications of that for those who work with funeral homes? How do these laws work logistically for practitioners, and why are they effective in restricting access to abortion? What do you think fetal burial laws in general say about how the right has weaponized death phobia to restrict abortion?

TM: The laws that require fetal remains to be treated as human remains under existing disposition laws were transparently proposed by Americans United for Life as a way of increasing the costs and logistical challenges for abortion clinics. Regardless of one’s view on abortion, many of these new laws are completely unworkable. I honestly have no idea how funeral homes or hospitals in Indiana are expected to comply with the new requirements in any meaningful way.  I can say that I had a friend who experienced a miscarriage in Indiana after the new law went into effect and the conversation that her doctor was required to have with her regarding the disposition options for her “baby” (which was a fetus in the first trimester) prior to her D&C was bizarre and upsetting for the parents.

EA: Logistically, these laws require medical facilities to find ways to hire funeral homes to carry out expensive burials and cremations, as well as find places to accept the material, and then presumably pass all those costs on to patients.

Fetal burial laws are effective in restricting access to abortion by imposing the political and moral views of some people on everybody, which puts undue emotional and practical burdens on women through forcing them to regard an embryo or fetus as a person, even if they consider it to be medical waste not deserving of any special treatment, and at a higher financial cost.

In a culture so profoundly afraid of death, society is often compelled to see any kind of death as unfortunate, violent and bad. Exploitation of this notion is prevalent in antiabortion rhetoric to demonize the woman who has an abortion as committing a murderous act rather than undergoing a medical procedure.

In 2018 Congress passed the Raise Family Care Act, which provides more robust support for family caregivers, like those who care for aging family members who need longterm care. How do you think better conversations about mortality have helped us recognize the importance of these kind of roles; how can we use death positivity to continue to improve conditions for caregivers?

EA: Embracing our own mortality and encouraging dialogue about the universal inevitability of the physical and mental decline that comes with aging helps us recognize the importance of caregivers and death positivity supports further consideration as a practical matter of what we will need, as caregivers ourselves, as well as the needs of our future caregivers.

Do you think a better understanding of death positivity can change public opinion on the death penalty; do you think a better understanding of death and death care intersects with a more progressive, widespread opposition to the practice? 

 EA: Death positivity has the potential to affect public opinion about the death penalty by embracing death as a mere inevitability of mortality rather than seeing it as a punishment.

Actor Luke Perry opted for a green burial this year when he died suddenly from a stroke; Steve Buscemi’s wife, Jo Andres, had a home funeral with a willow casket, What do you see as the impact of those with a public profile choosing these burial methods? To that point, how can we better incorporate green burial and the adverse environmental impact of traditional burial into our climate change activism?

EA: The funerals of famous people have long been a topic of public interest. When celebrities elect green burial methods, it certainly raises awareness about environmental concerns with traditional types of disposition and sparks interest in these alternative options. Folks in the public eye (and/or their loved ones) can utilize their platform to advocate for environmentally friendly practices, while encouraging death positivity and acceptance in pop culture.

TM: I think that the key to expanding access to “new” methods of disposition and funeral practices, from home funerals to recomposition and green burial, depends upon demystifying those options and increasing public comfort.  Whenever a celebrity chooses one of these options, it is impactful in terms of changing public views.  I think that the best thing that all of us can do is talk about green burial and similar options as much as possible and contribute to normalizing conversation on these topics.

Photo by By Suzette Sherman, SevenPonds.

Finally, what do you think comes next in the intersection of death positivity and politics? Both legally, and as a matter of social change? How can people get involved? 

TM: I’m focused on the legal structures of the funeral industry and the cemetery industry, and how those laws permit or constrain our behavior.  My goal is for everyone in the United States to be able to have access (legal and financial) to the death care options that they desire.  State legislatures control that access and they are responsive to political pressure.  Political pressure is only brought to bear by the public if it is comfortable discussing death and knowledgeable about its options.  So, I think an increase in death positivity has a direct and meaningful impact on the development of funeral and cemetery law.  We can all get involved by combating our own death illiteracy and doing our best to education our family, friends, and neighbors.  Changing public opinion and the law can be a slow process, but we have to stick with it.  We’ve made a lot of progress and I’m optimistic about the future!

EA: Hard to say until we figure out what comes next with the politics part. In the meantime, folks can get involved by participating in Death Cafés, learning more about death positivity on The Order of the Good Death and Death and the Maiden interacting with the death positive community on social media, getting involved with organizations like Human Rights Campaign or Transgender Law Center to find ways to help protect trans rights and reaching out to state legislators to encourage advocacy for legalizing alternative methods of disposition.

 

 

Caroline Reilly is a Boston-based reproductive justice advocate, recent law school graduate, and macabre maiden. She regularly contributes to a number of publications including Teen Vogue, the Washington Post, Bitch Media, and Rewire.News, writing about abortion access for young people, medical misogyny, sexual violence, and more. When she isn’t working she can be found watching British procedurals and parenting her neurotic Italian Greyhound, Rocko. Find her on Twitter @ms_creilly.

 

 

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