Fortunately, our members include Tanya Marsh, the country’s leading expert on funeral and cemetery law, and Sarah Wambold, a Texas funeral director that has been following the development of these regulations for months. They’ve helped me created a list of some truths (both good news and bad news) about the Texas regulations.
1. The Texas regulations DO NOT redefine fetal tissue as human remains.
This is important. In Texas, fetal tissue (from a medical abortion or miscarriage) is still defined as special, or medical waste.
The administrative agency that made these new regulations is the Texas Department of State Health Services. They don’t have the power to change the law or change the definition of medical waste. Only the legislature has that power. All the Department can do is create and amend regulations within the authority expressly given to them by the legislature. What they did here is very limited. They are moving in circles within their tiny administrative box.
2. The Texas regulations DO NOT require cremation or burial of the fetal tissue.
This is the main fear many of us had when we heard about the new regulations, especially given the news headlines. The worry that when abortions and miscarriages occur at healthcare facilities, the tissue would have to be treated as human remains or as a “baby,” going through disposal like any adult body would.
In reality, here are the new choices in Texas for the disposal of fetal tissue: cremation, incineration followed by interment, steam disinfection followed by interment, or interment.
What’s missing here? The list used to include a few more options for the fetal tissue to be disinfected and then go into sanitary landfill or sanitary sewer system, like other kinds of medical waste. Most hospitals and other healthcare companies hired licensed medical waste companies to come collect the tissue, disinfect it, and sent it to landfills.
Removing those options is the major change in how things will be handled In Texas.
But, that doesn’t mean the fetal tissue has to be buried in a grave at a cemetery or cremated by a funeral home.
3. The Texas regulations DO NOT require the participation of the funeral industry.
Let’s remember, in Texas, fetal tissue is still medical waste. The amended regulations haven’t changed that definition. Fetal tissue is not human remains. And funeral homes are only designed to dispose of human remains.
Ready for something to blow your mind? The amended regulations include “cremation” and “burial” of the fetal tissue, but since there is no connection to the Texas statutes regarding human remains, those words do not mean what you think they mean!
The regulations don’t define “burial,” which means that with regards to fetal tissue and medical waste, “burial” can just mean putting something in the ground. A cemetery is not required.
The regulations do define “cremation” but don’t link it to the statutes regarding human remains, so with regards to fetal tissue and medical waste, “cremation” can just mean reducing the tissue through extreme heat. This can just be done in a medical waste incinerator, no funeral home or crematory required.
And, it’s still legal to co-mingle what is leftover after incineration or cremation of fetal tissue. Nothing in the regulations requires individual incinerations, cremations, or burial plots.
4. The Texas regulations DO NOT require any action on the part of the woman.
Hospitals and medical clinics handled medical waste before, and they still handle it now. The women are not involved.
5. Indiana’s law is much worse.
Here’s where the news gets bad. Everything that people are afraid Texas did, Indiana actually did earlier this year.
In Indiana, we’re not dealing with a regulation, we’re dealing with a law, passed by the legislature. (And pushed through by your new vice president elect, Mike Pence.) Indiana did actually take fetal tissue and changed its category to “human remains.” This is transparently an anti-abortion statute although the law in Indiana applies to both “aborted fetuses” and “miscarried fetuses.”
The problem with that change is that we have the same definition (“human remains”) for a “fetus” of one-week gestation as we do for a 200 pound, 65 year old adult.
By the new Indiana law, within 24 hours, the healthcare center has to give the woman a written form saying she has the right to take the remains to a funeral home. Planned Parenthood filed a federal lawsuit and got a temporary restraining order with respect to the part of the law that has to do with “aborted fetuses.” But the law regarding “miscarried fetuses” went into effect on July 1st. Indiana hospitals are currently requiring women who suffered a miscarriage before 20 weeks to sign a form that refers to “my baby’s body” multiple times. Nurses have been obviously horrified to give out this new form to woman, but the law requires them to do so. As Tanya said, the Indiana law is “impractical, absurd, and paternalistic.”
If the woman does not want the “remains,” the healthcare centers have to have them buried or cremated. They are allowed to co-mingle, but they do have to deal directly with a cemetery and/or funeral home which is more expensive than dealing with a medical waste company.
It’s worth noting that Georgia also has very bad laws in this category. Worse than Texas, but not as bad as Indiana. Nobody comes close to how bad Indiana is.
6. Texas still isn’t a good sign.
Texas regulations are just regulations, but this is not to say Texas won’t come back to the legislature and try to follow Indiana’s example, and that’s what we have to watch for.
Americans United for Life (a pro-life law firm and advocacy group) has drafted model legislation called the “Unborn Infants Dignity Act” and is pushing it to the state legislatures. Alabama and Idaho passed the Act this year. Portions of the Act were introduced in another 12 states. The language contained in the Act is awful, but still not as bad as Indiana (are you sensing a pattern here?) The proposed laws says that “deceased unborn infants deserve the same respect and dignity as other human beings.” We can look forward to some states proposing laws and constitutional amendments stating that personhood begins at conception and therefore all fetal remains are human remains. Case in point: the Ohio legislature unexpectedly passed a law this week outlawing abortions after a fetal heartbeat can be detected. The main proponent of the bill (which two federal courts have already said is unconstitutional) explained that they pushed for the law because “it’s a brand-new day with a Trump-appointed Supreme Court.”
We don’t want more states to re-define fetal tissue and medical waste as human remains. This is a dangerous slippery slope, essentially stating that human life begins at conception and we are going to start treating cells that could potentially develop into humans like humans, involving funeral homes where they should not be, and restricting a woman’s right to choose.
We will be working on having more resources available to you soon, such as a state-by-state breakdown of these laws.
Until then, some excellent final words from Sarah: “Take care of yourself. The biggest weapon Texas is currently wielding is psychological. By using language to prime us to think of medical waste as human and sanitary landfills as disrespectful, they are banking on the emotions of citizens to push through more harmful laws. It is imperative going forward that you practice radical death acceptance. Meditate on the process by which remains are disposed of and accept that even though it may not appear pleasant, that does not make it wrong, harmful or disrespectful.