NYLJ Preview: Death and Social Justice

My first New York Law Journal piece was recently published. Here’s a summary:

According to the standard set by British Prime Minister Sir William Ewart Gladstone (1), the manner in which Americans treat their dead implies much about their tenderness, loyalty, and respect for the laws.

Most of these implications are not good.

Funeral costs, the body broker industry, and the plight of those relegated to burial on Hart Island illustrate how the manner in which we care for our dead, especially in New York, exemplifies the vulnerability of people on the margins of society.

First, funeral services—disposal of the body e.g. by burial or cremation, a vessel such as a casket or urn, the service, and possibly embalming—are available across a wide price spectrum. But the priciest options are often chosen by those who can least afford them. This is largely due to two factors: a lack of transparency, and lobbyists working on behalf of the funeral industry. Requiring funeral homes to disclose prices on their websites would be one step toward informing consumers. And New York is one of only 10 states which requires a family to hire a funeral director. This unnecessary expenditure should be eliminated.

Second, lawmakers should regulate the body broker industry. According to a 2017 Reuters investigation, body brokers (a.k.a. “non-transplant tissue banks”) obtain the rights to possess and dispose of a dead body and thereafter sell its separate parts, including eyes, knees, shoulders, and heads, for “research.” The brokers tell the families nothing about the bodies' commercial use, instead implying that the donation will go to causes like fighting cancer—but the reality may include not only sale but also unauthorized violent uses, such as Army experiments.

This system, which promises families an inexpensive disposal in return for their gift, relies on the economically disadvantaged. To ensure transparency, New York should adapt the Funeral Rule's provision on comprehension of disclosures (16 CFR § 453.7) as it adapted the Funeral Rule's price list (see 10 NYCRR 79.4).

Third and last, New York’s potters’ field on Hart Island offers opportunities to improve the manner in which we treat the dead. Where families must overcome numerous bureaucratic obstacles before they can visit their loved ones' resting places there, two bills before the New York City Council (Int 0906-2018 and Int 0909-2018) would help dismantle the barriers. Int 0906-2018, to transfer jurisdiction over Hart Island from the Department of Corrections to the Department of Parks and Recreation, is currently awaiting a hearing before the Committee on Governmental Operations. Public pressure will help these bills move forward.

Whatever the issue, improving the manner in which our nation cares for its dead will have immeasurable benefits in improving how we also care for the living.

1 “Show me the manner in which a nation cares for its dead and I will measure with mathematical exactness the tender mercies of its people, their respect for the laws of the land, and their loyalty to high ideals.”