“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,” said British statesman Sir William Ewart Gladstone.

This standard doesn't cast Americans in a very tender or loyal light, nor does it imply strong respect for the laws.

Three legal issues especially highlight the troubling manner in which our nation cares for its dead. New York's lawyers have the ability to address each of them.

Funeral Expenses

The recently bereaved, whose grief is often complicated by the time constraints of funeral planning, are a “particularly vulnerable group” of consumers. Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir. 2004). To protect this group, in 1982 the FTC imposed regulations in the form of the “Funeral Rule” (16 CFR Part 453). These include mandatory written price disclosures and a prohibition on embalming without family authorization, and require à la carte products and services instead of only “bundled” packages with services a family may not want.

Further protections vary by state.

For example, 40 states do not insist that a grieving family hire a funeral director. But, providing a state-sanctioned subsidy of the funeral industry by mourners who may not need these services, New York does (PHL 3400[d], 3420[1]).

Optional funeral expenses also vary widely, but the most readily available are also the priciest.

The average “traditional” funeral—embalming, purchasing a casket and burial vault, and the funeral service—costs over $10,000. But cremation generally costs between $500-$3,000. In New York's green cemeteries, a body can be buried in a less expensive, biodegradable container which may cost less than $200, such as a pine box or shroud. And New York, like all states, also allows home funerals.

Options are thus available across the price spectrum, but options alone do not keep funerals affordable.

One recent study found that in states with the lowest incomes and levels of education, families spent the most on expenses when their loved ones died. In Mississippi, which ranked 50th nationwide in median income and 48th in education levels, 79.2 percent of body disposals were by burial and 19.1 percent by cremation.

Conversely, states with the highest levels of income and education spent the least on funeral expenses. Massachusetts ranked first academically and fifth in median income; 45 percent of its disposals were cremations and 48.1 percent were burials.

(New York had the 16th highest income and 17th highest level of education; its cremation rate was 41 percent and burial rate was 51 percent.)

Lobbyists on behalf of the funeral industry ensure that the status quo is in good hands, as exemplified in cases that consider whether a state may restrict the sale of funeral merchandise (e.g., caskets) to licensed funeral directors. These cases highlight a split among circuits' willingness to recognize private economic interests as a legitimate state interest subject to deference under rational-basis review. St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013); Powers v. Harris, 379 F.3d 1208, 1224 (10th Cir. 2004); Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002); Roman Catholic Archdiocese of Newark v. Christie, 2018 WL 1041036, Civ. Case No. 15-5647 (MAS) (LHG) (D.N.J. 2018); Casket Royale v. Mississippi, 124 F. Supp. 2d 434 (S.D. Miss. 2000).

The Supreme Court has yet to weigh in on the issue. Meanwhile, the imbalance of power before legislatures continues to impair meaningful consumer choice.

Body Brokers

A 2017 Reuters investigation explored the grim industry of body brokers, or “non-transplant tissue banks.” These companies obtain the rights to possess and dispose of a dead body and thereafter sell its separate parts for “research,” which the broker implies will be for such worthy causes as fighting cancer or other diseases. In exchange for this donation, the family is promised an inexpensive disposal, usually cremation of “part” of the body.

The brokers do not disclose the body's commercial use. Neither the estate nor the family profits from this donation, or expects that a profit will exist at all.

The reality is closer to grave robbery than to the families' expectation. It often entails sale for commercial research of parts including eyes, knees, shoulders, and heads, as well as whole bodies sold (not donated) to medical schools. It may also entail violent uses which the families did not intend or expect. Decedents can specifically reject the use of their bodies in Army experiments, but Reuters found that one brokerage company provided at least 20 objectors' bodies for this exact use.

This system relies on families at an economic disadvantage. Reuters reported that the “vast majority” of donors to one brokerage company were from regions with a median income below the state average; 78 percent had not graduated from college.

Hart Island

Justice also intersects with the dead on Hart Island, the potters' field of New York City where over a million unclaimed bodies lie. Perhaps their inhabitants lost contact with anyone who knew them, due to rejection or mental illness or outliving their loved ones. Some families may be too poor to bury their dead, or end-of-life plans could have been lost as a dying person was shuttled between nursing homes and hospitals.

Hart Island gives rise to several concerns of fairness and justice.

One is the short period for notification. PHL 4211 allows only 48 hours for relatives to claim a body before it is released to a medical facility for study—whence it will often be sent to the potters' field. (PHL 4211[3][c] prohibits release if the decedent had a relative whose location was ascertainable after “reasonable and diligent inquiry,” but hospitals may fall short of even this amorphous standard, as in Melfi v. Mt. Sinai Hosp., 2009 NY Slip Op 03404 (1st Dept. 2009).)

Another is court appointment of apathetic guardians on behalf of the dying, who perceive no benefit to keeping their wards out of a potters' field.

A third arises from families' inability to access their loved ones' resting places on Hart Island. Under the jurisdiction of the Department of Corrections, the island is accessible only once numerous bureaucratic hurdles have been cleared. Even then, visitors are subject to a plethora of restrictions.

The emotional cost of the circumstances on Hart Island is, once again, highest for the families of souls on society's margins.

Opportunities for New Yorkers

Practices affecting the dead inflict their greatest harm in the dark, but once in a while they're brought into the light. The Funeral Rule, for instance, resulted from 52 days of hearings on funeral practices and nearly 40,000 pages of evidence. Harry & Bryant Co. v. F.T.C., 726 F.2d 993, 996 (4th Cir. 1984). Likewise, New York's lawmakers have barred out-of-state organ procurement organizations from operating unless they meet New York licensing requirements (see, e.g., PHL 4364). And advocates, especially those at the Hart Island Project, are keeping attention both on the City's indigent dead and their families' right to mourn in ways many of us take for granted.

But these promising efforts must go further.

For example, Joshua L. Slocum, the executive director of the Funeral Consumers Alliance, suggests requiring funeral homes to post General Price Lists (which they must already furnish in hard copy) on their websites. This would provide knowledge and control of funeral costs when it matters most. And New Yorkers who do not need a funeral director's services should not be forced to hire one.

Protecting decedents and their families from predatory body brokers could be ensured still further with notification requirements regarding the precise nature of for-profit body disposal. New York could 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).

Finally, two bills before the New York City Council, introduced by Councilman Ydanis A. Rodriguez, would help dismantle barriers to public access of Hart Island (Int 0906-2018 and Int 0909-2018). One of these bills, 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.

Even as social justice concerns have filtered through other areas of life, the poor and marginalized continue to be vulnerable in matters concerning the dead. Without advocacy we will never see the changes that help the nation better care for its dead.

Dana E. Heitz is an appellate attorney at Heitz Legal, P.C. She can be reached at [email protected].