Specifically the dead body of a human being deprived of life but not yet entirely disintegrated. Must meet three conditions:
- Must be the body of a human being
- Without life
- Not entirely disintegrated
Dead Body (Corpse)
Occurs when life ceases, which takes place when the heart stops beating and respiration ends.
Death- 1950 Case Definition (Thomas v. Anderson)
For legal or medical purposes, an individual who has sustained irreversible cessation of all functioning of the brain, including the brain stem.
- Becomming the most widely used definition because a person's heart or lungs may continue to function through artificial means even though the person has no brain function.
Death- 1979 Definition (Lovats v. District Court)
Cremated remains, a disintegrated corpse or the bones of a skeleton do not constitute, in the eyes o the law, a:
For ____ years, the courts have struggled over whether a dead body does or does not constitute property.
In ___ ____ ___, it was established that the dead body was within the exclusive control of the Church. From this notion, courts developed the principal that no individual had property rights in the dead body. Thus, it was said that a dead body is the property of no one and there is no property in a dead body.
Early English Law
As the law became more secular, courts began to acknowledge that the ___ ____ and ___ __ ___ do have a right to take possession of the body to arrange its disposition. While they stopped short of declaring that a dead body was the "property" of the surviving family member, they recognized that survivors had quasi-property rights in the dead body.
Surviving Spouse and Next of Kin
Not property in the commercial sense, but the law does provide a bundle of rights to the next of kin in relation to that body. The survivor is given the right to:
- Take the body for purposes of disposition
- Allow body parts to be used within the confines of the law
- Exclude others from possession of the body
- Dispose of the body
It is well within the police powers of the government to require the orderly disposition of the dead in order to promote public health.
- Courts have regularly upheld criminal statutes requiring the proper disposition of the dead.
Necessity of Disposition
- Abandonment of the body
- Funeral directors who accept bodies but fail to see to their proper disposition (statutes that impose criminal penalties for the failure to bury or incinerate a corpse within a reasonable time after death).
- Crematory operators discarding bodies rather than cremating them.
Examples of Violations of Criminal Statutes Requring the Proper Disposition of the Dead
States have a valid interest in protecting survivors and insuring them sufficient privacy to carry out the disposition of their deceased family members in a respectful manner.
Respect for the Deceased and Survivors
Supreme courts held that, in respect to an individual's request, death scene photographs of a public official were protected from disclosure under an exemption to the ___ ____ _____ ____.
- Based its holdings on cultural traditions and common law protections.
- The court noted the respect that civilizations have provided to burial rights and their counterparts.
- Court then acknowledged the "well-established cultural tradition acknowledging a family's control over the body and death images of the deceased," as well as a survivor's right to privacy in protecting the memory of the deceased.
Freedom of Information Act (National Archives and Records Administration v. Favish)
The Sixth Circuit upheld an Ohio law which prohibited protests within 300 feet of a funeral or burial service.
- "Burial rights implicate the most basic and universal human expressions of the respect that a society shows for the deceased and for the surviving family members."
- The State had a vaild governmental interest in protecting the privacy of family members wishing to pay their final respects to the deceased.
Phelps-Roper v. Strickland
The most common lawful method of disposition of a dead body.
- On property dedicated as a public or private cemetery
- In some states, can be private property if the family dedicates it as a family cemetery.
- May be above ground where the body is placed in a mauseoleum.
- In rare cases, the body may be indefinitely preserved for viewing (Mao's tomb in China).
- Infrequently utilized in the US until the last 50 years.
- Provided that the crematory is properly licensed and in compliance with state and local laws, it is perfectly legal.
- Not technically a method of disposition, but actually one step in a mode of disposition.
- Cremains may be retained by the family, placed in a niche in a columbarium, entombed in a cemetery, or scattered.
- Usually confined to scattering gardens in cemeteries or at open sea.
- The government has restricted this in public places and some inland waterways.
- Doing this in the ocean may be made at a distance of three nautical miles from the shoreline.
- Reports must be filed with the Environmental Protection Agency.
Scattering of Cremated Remains
Legalized in seven states as of 2011. This procedure entails placing a body in a cylinder that is filled with water and strong alkaline chemicals. Through a mixture of heat, agitation, and/or pressure, the body's tissues are hydrolyzed. Depending upon the level of heat, the process takes three to twelve hours, leaving a calcified bone and sterile liquid of amino acids, peptides, sugar and soap. The solution, which may have to be pretreated to lower the temperature and pH level, can then be discharged into a sanitary sewer system.
Like cremation, is not technically final disposition since it merely reduces the body to bones that are pulverized and placed in an urn or container for final disposition involving burial, scattering, or retention by the family.
- No such burials are permitted on in-land waterways.
- May take place in the ocean at a distance of at least three nautical miles from the shoreline.
- In some designated areas, there are requirements on the depth of the water.
- The body must be property weighted in a special shroud to ensure that the remains sink to the bottom rapidly and permanently.
- Reports of such burials must be made to the Environmental Protection Agency.
Burial at Sea
- Required for medical study
- Each state in the country allows by statute for a decedent or a decendt's survivors to make a gift of decedent's body to medical science.
- The Uniform Anatomical Gift Act
Donation of the Body to Medical Science
- Donation of the body to medical science
- In-ground burial
- Alkaline hydrolysis
- Burial at sea
Lawful Methods of Disposition