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Disposal of Dead Bodies

Disposal of dead body is the practice and process of dealing with the remains of a deceased human being.  Several methods for disposal are practiced.  In many cases, the manner of disposal is dominated by spiritual concerns and a desire to show respect for the dead, and may be highly ritualized.  This event may be part of a larger funeral ritual.  In other circumstances, such as war or natural disaster, practical concerns may be forefront.  Many religions as well as legal jurisdictions have set rules regarding the disposal of corpses.  Since the experience of death is universal to all humans, practices regarding corpse disposal are a part of nearly every culture.

The most common methods of disposal are:

  • Burial of the entire body in the earth, often within a coffin
  • Cremation, which burns soft tissue and renders much of the skeleton to ash.  The remains, known as “cremains” may contain larger pieces of bone which are ground in a machine to the consistency of ash.  The ashes may be stored in an urn or scattered on land or water.

Many jurisdictions have enacted regulations relating to the disposal of human bodies. Although it may be entirely legal to bury a deceased family member, the law may restrict the locations in which this activity is allowed, in some cases expressly limiting burials to property controlled by specific, licensed institutions. Furthermore, in many places, failure to properly dispose of a body is a crime.  In some places, it is also a crime to fail to report a death, and to fail to report the disposition of the body.

Although common law did not regard dead bodies as property, our courts, through the centuries, have treated them in a quasi-property context.  The right to the remains of one’s deceased kin for the purpose of providing proper burial has long been recognized as a legal right.  The surviving next of kin have a right to the immediate possession of a decedent’s body for preservation and burial and that damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body. This right, characterized as the right of sepulcher under common law, continues to be recognized by the courts notwithstanding the passage of many hundreds of years[i].

The State has a recognized legitimate governmental interest in the provision of burial services in that the disposition of the dead is so involved in the public interest, including the public’s health, safety and welfare, that it is subject to control by law instead of being subject entirely to the desire, whim or caprice of individuals.  In the exercise of its police power, the state may adopt reasonable regulations as to burials or other means of disposing of dead bodies.  There is no question of the power of the legislature to exercise complete control of burials so far as is necessary for the protection of the public health and the promotion of the public safety[ii].

Federal statutes authorize the payment of expenses for the burial or disposal of the remains of certain persons in federal custody, persons dying on or in federally owned property or facilities, and certain federal employees who die in the line of duty.  Also, federal statutes authorize payment of interment of employees of the Immigration and Naturalization Service who die while in a foreign country in the line of duty.  Federal provisions also make specific provision as to the payment of expenses for the transportation of dead bodies of particular individuals. For example, 10 USCS § 1483 provides that, “the Secretary concerned may provide for the care and disposition of the remains of prisoners of war and interned enemy aliens who die while in his custody and, incident thereto, pay the necessary expenses of–

(1) notification to the next of kin or other appropriate person;
(2) preparation of the remains for burial, including cremation;
(3) furnishing of clothing;
(4) furnishing of a casket or urn, or both, with outside box;
(5) transportation of the remains to the cemetery or other place selected by the Secretary; and
(6) interment of the remains.”

Further, 16 USCS § 17e provides that, “the Secretary of the Interior is hereby authorized, in his discretion, to provide, out of moneys appropriated for the general expenses of the several national parks, for the temporary care and removal from the park of indigents, and in case of death to provide for their burial, in those national parks not under local jurisdiction for these purposes, this section in no case to authorize transportation of such indigent or dead for a distance of more than fifty miles from the national park.”

[i] Correa v. Maimonides Medical Ctr., 165 Misc. 2d 614 (N.Y. Sup. Ct. 1995)

[ii] Thruston v. Little River County, 310 Ark. 188 (Ark. 1992)

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