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The Good, The Bad, and the Future of Death: Talking With Death Law Experts
Art by Landis Blair
2019 was a year, like all years – filled with death; some of the ways we confronted death were healthy and progressive, like increasing enthusiasm for green burials and more robust conversations about death positivity and end of life care. Others were painful, like our relentless gun violence problem, the epidemic of deaths of trans women, brutality at the border. One thing is clear amidst all of this; having a healthier, more progressive relationship with how we prepare for, talk about, and cope with death is to our benefit, both personal and political.
I spoke with our two resident death law experts – attorneys Tanya Marsh and Emily Albrecht about the good and bad of death in 2019, and what we have to look forward to in the new year.
Where are we with aquamation ?
Tanya Marsh (TM): According to the Cremation Association of North America (CANA), alkaline hydrolysis (or aquamation) has been legalized in about 20 states although it is not yet available in all of those states. The law permitting it in California, for example, does not go into effect until this summer.
Some opposition to aquamation comes from those whose economic interests are at stake. A bill to legalize aquamation in Indiana was unanimously passed out of committee but defeated on the floor of the Indiana House of Representatives following a speech by Rep. Dick Hamm, who just happens to own a casket company. Rep. Hamm compared the process to “flushing” a loved one. “We’re going to put [dead bodies] in acid and just let them dissolve away and then we’re going to let them run down the drain out into the sewers and whatever.”
Rep. Hamm inaccurately described the science behind aquamation. That disinformation spreads to those without a personal economic interest. For example, New Hampshire state Rep. John Cebrowski, arguing against the law in 2009, said “I don’t want to send a loved one … down the drain to a sewer treatment plant.”
In several states, the Catholic Church has testified in state legislatures against bills to legalize aquamation. In New Hampshire, the Church submitted testimony that said that aquamation “fails to provide … citizens with the reverence and respect they should receive at the end of their lives.”
Perhaps as a result of these oppositional forces, aquamation has been successfully legalized in the West and the Great Plains, and, perhaps surprisingly, the South, but remains illegal in states with a large Catholic population and in Midwestern states (like Indiana) where casket manufacturers are concentrated.
Image by Olson Kundig
Washington state because the first in the nation to legalize human composting as a form of green burial; how significant is that? Can we expect to see more from other states?
TM: I think it is incredibly significant that recomposition was legalized in Washington State this year, and a testament to Katrina Spade’s vision and commitment. This is the first fundamentally different method of disposition to be legalized in the United States since cremation a century ago. Recomposition will be introduced to the Colorado legislature this year, and there are a handful of other states that are likely promising candidates for legalization. Although it is too soon to anticipate where pushback will occur, it is likely that the casket manufacturers won’t be in favor of recomposition since it eliminates the need for a casket. Since recomposition is simply accelerated natural decomposition, much closer to “ashes to ashes, dust to dust” than either cremation or aquamation, it will be very interesting to see whether religious organizations such as the Catholic Church embrace it or oppose it.
Aimee Stephens’ case will be a landmark one for trans rights in the US; can you talk a little bit about the context of how her discrimination reflects on the funeral industry? Do you think her treatment is consistent with some of the norms upheld by the old guard of the industry?
TM: The funeral industry isn’t monolithic — there are many progressive funeral directors and funeral homes. But it is also a more conservative industry than the norm. There is a traditional image of a funeral director as a white guy in a black suit. Program director of the Worsham College of Mortuary Science Leili McMurrough told Memorial Business Journal in 2019 that “there was a time in the not-too-distant past when [she] said that the most frequent call she’d receive from funeral directors would be, ‘I need a guy,’ meaning they were looking for a Central Casting white male funeral director.”
But according to the American Board of Funeral Service Education (ABFSE), 65% of mortuary science graduates in 2018 were female; only 27% were white males. In 2018, 16.5% of mortuary science graduates were African American; African American women graduated at twice the rate as African American men. ABFSE does not publish statistics on the gender identity (other than male or female) or the sexual orientation of mortuary science graduates.
In other words, change is coming quickly to the funeral industry. How it will react to that change, and how employees will be impacted, remains to be seen.
What does the way we treat the murders of trans people — especially black trans women — tell us about how we need to improve the death care for trans people? Are there any laws or policies that either have been passed or that folks are trying to pass to address the death care needs of trans people?
Emily Albrecht (EA): Unfortunately, fatal violence disproportionately affects trans people – particularly transgender women of color – and too often these stories go unreported or misreported, many times with victims misgendered in local police statements and media reports. Trans people being misgendered after death is also an issue for the funeral industry, particularly when legal next of kin asks a funeral home to prepare a decedent in a way that is inconsistent with the individual’s wishes, which is most common when transgender people are estranged from relatives who were uncomfortable with their gender transition.
In 2014, California passed the Respect After Death Act that requires coroners and funeral directors to record a person’s gender identity rather than anatomical sex on the death certificate and, if there is a dispute, a driver’s license or passport will be sufficient legal documentation to trump family opinion. In other states, using a living will to express your wishes and make clear what name and pronouns should be used for you if you become incapacitated and specifying how you want to be dressed and groomed in a hospital, assisted-living facility or funeral home prevents any confusion and inhibits a family member from making a decision that is not in your best interest.
Let’s talk about the crisis on the border; the treatment of people crossing the border is such a stark illustration of who our country thinks deserves to live and die. Take for example the Scott Warren case; the man prosecuted for providing aid at the border. How does our treatment of undocumented people coming into the US reflect our attitudes about death and who deserves a good death?
EA: The current administration’s dehumanizing rhetoric and policies on immigration deprive human beings of the fundamental human right to a good death. All people, not just Americans, deserve a good death. Period. To suggest anything less is abhorrent.
TM: This is a huge question. In the United States, we have a long history of treating the remains of some people differently than the remains of others. In short, we have very rigid laws that prohibit disinterment or desecration of graves and require the respectful disposition of all remains, but we have long tolerated the destruction of unmarked graves (particularly in burial grounds populated by people of color and the poor) and if a person dies without means in the United States and their remains go unclaimed by family or friends, in most states those remains are handed over to medical schools for gross anatomy labs, but also a multitude of other uses, including for embalming practice in mortuary science programs.
This year we saw the Supreme Court uphold a fetal burial law ; can you talk about the implications of that for those who work with funeral homes? How do these laws work logistically for practitioners, and why are they effective in restricting access to abortion? What do you think fetal burial laws in general say about how the right has weaponized death phobia to restrict abortion?
TM: The laws that require fetal remains to be treated as human remains under existing disposition laws were transparently proposed by Americans United for Life as a way of increasing the costs and logistical challenges for abortion clinics. Regardless of one’s view on abortion, many of these new laws are completely unworkable. I honestly have no idea how funeral homes or hospitals in Indiana are expected to comply with the new requirements in any meaningful way. I can say that I had a friend who experienced a miscarriage in Indiana after the new law went into effect and the conversation that her doctor was required to have with her regarding the disposition options for her “baby” (which was a fetus in the first trimester) prior to her D&C was bizarre and upsetting for the parents.
EA: Logistically, these laws require medical facilities to find ways to hire funeral homes to carry out expensive burials and cremations, as well as find places to accept the material, and then presumably pass all those costs on to patients.
Fetal burial laws are effective in restricting access to abortion by imposing the political and moral views of some people on everybody, which puts undue emotional and practical burdens on women through forcing them to regard an embryo or fetus as a person, even if they consider it to be medical waste not deserving of any special treatment, and at a higher financial cost.
In a culture so profoundly afraid of death, society is often compelled to see any kind of death as unfortunate, violent and bad. Exploitation of this notion is prevalent in antiabortion rhetoric to demonize the woman who has an abortion as committing a murderous act rather than undergoing a medical procedure.
In 2018 Congress passed the Raise Family Care Act, which provides more robust support for family caregivers, like those who care for aging family members who need longterm care. How do you think better conversations about mortality have helped us recognize the importance of these kind of roles; how can we use death positivity to continue to improve conditions for caregivers?
EA: Embracing our own mortality and encouraging dialogue about the universal inevitability of the physical and mental decline that comes with aging helps us recognize the importance of caregivers and death positivity supports further consideration as a practical matter of what we will need, as caregivers ourselves, as well as the needs of our future caregivers.
Do you think a better understanding of death positivity can change public opinion on the death penalty; do you think a better understanding of death and death care intersects with a more progressive, widespread opposition to the practice?
EA: Death positivity has the potential to affect public opinion about the death penalty by embracing death as a mere inevitability of mortality rather than seeing it as a punishment.
Actor Luke Perry opted for a green burial this year when he died suddenly from a stroke; Steve Buscemi’s wife, Jo Andres, also chose one . What do you see as the impact of those with a public profile choosing these burial methods? To that point, how can we better incorporate green burial and the adverse environmental impact of traditional burial into our climate change activism?
EA: The funerals of famous people have long been a topic of public interest. When celebrities elect green burial methods, it certainly raises awareness about environmental concerns with traditional types of disposition and sparks interest in these alternative options. Folks in the public eye (and/or their loved ones) can utilize their platform to advocate for environmentally friendly practices, while encouraging death positivity and acceptance in pop culture.
TM: I think that the key to expanding access to “new” methods of disposition and funeral practices, from home funerals to recomposition and green burial, depends upon demystifying those options and increasing public comfort. Whenever a celebrity chooses one of these options, it is impactful in terms of changing public views. I think that the best thing that all of us can do is talk about green burial and similar options as much as possible and contribute to normalizing conversation on these topics.
Photo by By Suzette Sherman, SevenPonds.
Finally, what do you think comes next in the intersection of death positivity and politics? Both legally, and as a matter of social change? How can people get involved?
TM: I’m focused on the legal structures of the funeral industry and the cemetery industry, and how those laws permit or constrain our behavior. My goal is for everyone in the United States to be able to have access (legal and financial) to the death care options that they desire. State legislatures control that access and they are responsive to political pressure. Political pressure is only brought to bear by the public if it is comfortable discussing death and knowledgeable about its options. So, I think an increase in death positivity has a direct and meaningful impact on the development of funeral and cemetery law. We can all get involved by combating our own death illiteracy and doing our best to education our family, friends, and neighbors. Changing public opinion and the law can be a slow process, but we have to stick with it. We’ve made a lot of progress and I’m optimistic about the future!
EA: Hard to say until we figure out what comes next with the politics part. In the meantime, folks can get involved by participating in Death Cafés, learning more about death positivity on The Order of the Good Death and Death and the Maiden interacting with the death positive community on social media, getting involved with organizations like Human Rights Campaign or Transgender Law Center to find ways to help protect trans rights and reaching out to state legislators to encourage advocacy for legalizing alternative methods of disposition.
Caroline Reilly is a Boston-based reproductive justice advocate, recent law school graduate, and macabre maiden. She regularly contributes to a number of publications including Teen Vogue, the Washington Post, Bitch Media, and Rewire.News, writing about abortion access for young people, medical misogyny, sexual violence, and more. When she isn’t working she can be found watching British procedurals and parenting her neurotic Italian Greyhound, Rocko. Find her on Twitter @ms_creilly.
If you enjoyed this article, please consider supporting our work. Your contribution goes directly toward running The Order, including resources, research, paying our writers and staff, and funding more frequent content. We’d love to keep pushing the funerary envelope in 2020. Visit our Support Us page, for a variety of easy ways to contribute.
The Good, The Bad, and the Future of Death: Talking With Death Law Experts
December 18, 2019
December 10, 2019
December 3, 2019
How Death Positive Women Kickstarted A Civil War
A statue of “Maria da Fonte”, a revolutionary death positive woman who may or may not have existed by that name, stands in the Garden Teófilo Braga, Lisbon. [Image: Wikimedia Commons]
When elderly Custódia Teresa died in 1846, in the Portuguese village of Fontarcada, her neighbors rioted. The upheaval had very little to do with the fact that Teresa, specifically, had died, and everything to do with the fact that she’d chosen a terrible, terrible time to go about it.Up until the early 19th century, dying in rural Portugal has been a relatively straightforward process: people died, the family prepared them as best they could, the priest said mass in the local church, and the bodies were buried under the church floor. Villagers got to spend their deaths as they’d spent their lives: near their neighbors, and near the Catholic church. There was a logical, comforting circularity to the whole thing, to the point where the exact location where one was buried reflected the social inequalities they’d struggled with (or benefited from) throughout their life. Those of less means often ended up buried in the churchyard, rather than inside the church itself, but such a short distance from the house of God was still considered appropriate to keep the dead protected. Medieval Christians had practiced burial ad sanctos, or close to the tombs of the martyrs, as a form of spiritual networking: since it was believed that the saints could intercede in favor of believers, it couldn’t possibly hurt to be buried beside them. In 1800s Portugal, the practice wasn’t taken quite as literally (nor could it be, as local martyrs were few and far between), but there was still a certain feeling of security to be derived from being buried in or around the church, the social and spiritual center of the community.
This photograph of a Portuguese church, taken during a restoration process in the 1930s, shows the site of multiple burials under the floor.
Everything changed, as they say, when the cholera attacked. No sooner had the epidemic arrived in Portugal, in the 1830s, than it called for the construction of five temporary cemeteries in the city of Lisbon alone. As cholera-infected bodies piled up and anxieties regarding the perceived effects of miasma (aka the “bad air” emitted by decomposing corpses) grew in both tone and influence, the Portuguese government issued two decrees that forbade burial inside church buildings. Instead, the decrees suggested, every village and town should build its own public cemetery according to a series of pre-established, scientifically approved specs. Paramount among them was the issue of location: in the name of health and hygiene, these novel cemeteries should be established as far as possible from the center of the communities they supposedly served.
By severing the link between the living and the dead, which up until that point had been so intimate as to be considered repugnant by many enlightened literati, the government hoped to put an end to two separate problems. First, the transmission of infectious diseases such as cholera; second, the perpetuation of a backwards form of religiosity, where devout Catholics were forced to worship in fetid churches teeming with dead bodies beneath the flagstones. The modern cemetery would be a place of metaphorical, rather than literal death; a place of respectful conviviality where mourners could gather to honor (but hopefully not smell) their fallen ancestors.
For the urban elite who discussed death and dying in sophisticated urban soirées, the idea was grand: finally, ‘civilization’ had arrived in the land of the dead! For the regular patrons of these foul-smelling churches, however… it was the greatest of affronts. In Northern Portugal, especially, where “backwards” Catholicism was really just normal Catholicism, moving the dead to these new, impersonal public cemeteries was to deprive them of the protection conferred by the consecrated ground of the churchyard. It was to exile the dead from the community, and what had poor grandma ever done to deserve such an offense?
The new public cemeteries were considered to be too isolated to actually benefit the populations. [Image: “Ruínas do Cemitério de São Miguel do Mato – Portugal” by Vitor Oliveira.
The people took to the streets. All through the 1830s and 1840s, there were countless cemetery riots and “tumultuous burials” (a charming expression borrowed from the Maria da Fonte Interpretive Center, which studies such riots). In the first trimester of 1846 alone, there were half a dozen incidents, most of which boiled down to a literal match of tug-of-war where locals and authorities both tried to bury the same corpse in different locations.Custódia Teresa, the poor woman with the terrible timing, the patient zero for the incoming civil war, was the most distinguished of these corpses. She died on the first day of spring of 1846, in the northern village of Fontarcada, and her death was a hands-on affair for the entire neighborhood.
First, the neighboring women rushed to Teresa’s bedside and pronounced her dead, very dead, definitely dead. While that was, technically, the medical examiner’s job, our heroines knew very well what a corpse looked like and didn’t feel like waiting for a second opinion. It was the 1840s, and death was still firmly women’s business. (Partly because churchgoing was women’s business, and churchgoing was intrinsically connected to the cult of the dead; and partly because funeral arranging was really just a final act of domestic management.)
Once the prep was over and done with, there was the whole matter of actually burying the body. The public cemetery had yet to be built, which could have complicated things had the women intended to abide by the law—but they didn’t. Instead, they hauled the casket containing Teresa’s body to the nearby church of the monastery of Fontarcada, forced their way past the men guarding the double doors, and buried the unsuspecting woman under the flagstones.
It was far from a tidy, graceful effort, but it was effective: Teresa’s body got to rest in peace, and the impromptu band of all-female funeral arrangers got to celebrate a victory against a tyrannical government that did not represent them, their dead, or their traditions.
Unfortunately, for every death-positive action, there is an equal and opposite reaction. The following day, the civil administrator at Póvoa de Lanhoso, the nearest town, issued an arrest warrant for the riotous women of Fontarcada, whom he believed to be exceedingly dangerous because of their physical confrontation with the guards outside the church. A second order was issued for the exhumation of Teresa’s body, and its consequent re-burial in the location of the soon-to-be public cemetery.
Against the tyranny of their government, the people of Fontarcada rioted against the new burial laws. [Image: “Revolta da Maria da Fonte – 1846”, etching by M. M. Bordalo Pinheiro for “A Ilustração” (1846), via Biblioteca Nacional].
Needless to say the village resisted both of these orders, although they were once again more successful at protecting the dead than the living. Custódia Teresa was kept safely entombed in the local church by a small army of women (now joined by some men) yielding rocks and pitchforks in lieu of actual weapons. Unable to exhume the object of the “tumultuous burial”, the authorities doubled down on the rioters instead, eventually managing to arrest three of their so-called leaders. The Maria da Fonte Interpretive Center records their names as Joaquina Carneiro, Maria Vidas, and Custódia Maria Buceta.Rather than dampen the rioters’ spirits, the arrests served only to spur their indignation. Shortly after the arrests, on the day a judge was supposed to visit the detained women for their first hearing, the people of Fontarcada rang the church bells in an improvised battle cry. Armed once again with the only weapons they could legitimately wield (i.e. their pitchforks and their vocal chords), over three hundred women marched on the local jail to break out their sisters-in-arms.
Some accounts single out a woman in red, considered by many to be one of the leaders of the revolution. [Image: “Revolution of Maria da Fonte”, painting by Roque Gameiro (1917), via Wikimedia Commons.]
A young woman in red stood out from this horde of libertarians. Some accounts describe her leading the charge with an axe and striking the first blow to the doors of the jail, while others single her out for supposedly carrying the only firearm in the crowd. It was by her hand (or by the hand of another boisterous woman just like her who simply didn’t think to wear a conspicuous red skirt) that the prisoners were freed, and peace was very, very briefly restored to the village of Fontarcada.While the revolutionaries rejoiced (and Custódia Teresa decomposed quietly beneath the flagstones of the local church), word of the successful riot began to spread. In a time of seemingly endless oppression, the knowledge that a band of peasant women from the middle of nowhere had a) faced down a troop of guards, b) buried a body inside a church, c) frustrated an attempted exhumation, and d) executed a successful prison break was nothing short of extraordinary. It was also, of course, highly incendiary.
The government, sensing a shift in popular opinion, tried to discredit the episode as rural women’s hysterical fanaticism—and while it wasn’t a mistake, per se, to call it a women’s revolt, it certainly was a mistake to minimize it. The fact that rural women had chosen to bear arms for the right to provide their loved ones with what they believed to be a good death wasn’t a bug in the system: it was a feature. In a time and place that tasked women with the near-sacred duty of nurturing and protecting entire communities, it’s hardly surprising that so many would take it upon themselves to see the job through from cradle to casket. That, in a way, is the purest expression of death positivity.
Elsewhere in Portugal, other women (as well as others) followed their example. Soon the riots had spread to nearby towns, and then engulfed the entire Northern region. No longer protesting just a couple of burial laws, people were also speaking up against over-taxation and government corruption. A revolution was well underway, but it was no longer just a picaresque little skirmish started by an old women’s corpse and her friends from church; it was a seemingly anarchic mass uprising that showed no signs of slowing down. By April, barely a month after Custódia Teresa’s death, the army was marching on the north in order to quell, arrest, and punish the troublemakers. By October, two governments had been deposed and the country was neck-deep in a civil war.
And all because an old woman had chosen a terrible time to die.
Custódia Teresa’s tumultuous burial and consequent riot went down in history as the revolution of Maria da Fonte (Maria being a common female name, and Fonte standing in for either “fountain” or an abbreviation of Fontarcada). It’s unclear whether the name honors an individual, identifiable woman, or an anonymous mass of revolutionaries whom history has chosen to remember as “Maria”. Either way, the name is a testament to the power of popular sovereignty in life as well as death. Funeral customs can and do change, but as potential mourners and future corpses, it’s in our best interest to fight for the changes that serve us—and to resist those that do not.
In our endless quest for a good death, we are all Maria da Fonte.
Rafaela Ferraz is a writer of short stories, essays, and a variety of articles on strange, slightly macabre, and often overlooked chapters of Portuguese history. She blogs at rafaelaferraz.com, conducts research on the collection and display of human remains on Patreon, and tweets @RafaelaWrites
If you enjoyed this piece, please consider supporting our work. Your contribution goes directly toward running The Order, including resources, research, paying our writers and staff, and funding more frequent content. We’d love to keep pushing the funerary envelope in 2018. Visit our Support Us page, for a variety of easy ways to contribute.
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