Issues with current NY State Funeral Law
(and other states: AL, CT, IL, IA, IN, LA, MI, NE, NJ)
Before you get into this, or perhaps after, you may wish to read:
For additional information, here is a link to the
National Funeral Consumers Alliance website:
to the National Home Funeral Alliance (NHFA):
and, to the Hudson-Mohawk group in New York State:
Current NYS law 'requires' for all deaths occurring in NYS that death certificates be filled out, signed and filed by a 'licensed funeral director'. This follows the issuance of said death certificate, filled in for cause of death and signed by the doctor, medical examiner, or other authority of the medical establishment as directed by law. The current law further stipulates that a 'licensed funeral director', at a minimum, attend many of the other functions that take place during the conduct of a funeral.
This places the people of NYS in the unwarranted position of having to pay a licensed funeral director to perform these services whether or not they would like to do these things for themselves. Since the funeral industry has this monopoly-by-statute, cost for these services is onerous to the point of legal robbery.
We are asking for legislative change that would allow people to do these things themselves. This would by no means require people to do this, but only give them the 'right' to do so if they wish. These rights would include the right to receive the lawfully signed death certificate from the attending doctor, coroner, or other appropriate medical authority, the right to fill in the required personal information about the deceased (this information always comes from family members or others close to the deceased in any case), the right to sign and file the death certificate, and the right to obtain transit permits and to transport the deceased to any destinations along the course to burial, cremation, or other lawful final disposition.
The benefit of this change would not fall just to those who might elect to do some or all of these things. By breaking the funeral industry monopoly the benefit should accrue to everyone in NYS in the form of lower prices.
Conferring these rights upon its citizens would not be an unusual act. Forty-two states already grant these rights. NYS is in the uncomfortable position of being one of the last eight holdouts.
HEALTH RISKS from the DEAD
This is often the first issue raised when there is a discussion
of removing requirements for a 'licensed funeral director'.
HEALTH RISK references:
Funeral Consumers Alliance
Funeral Consumers Alliance
CDR Review Vol 5 number 5 (1995)
Dead Bodies and Disease The Danger That Doesn't Exist.pdf
PHLS Funeral Workers Infection Risk 2001
April 28, 1995 issue of Communicable Disease Report, published by the British Public Health Laboratory Service, highlights the negligible risk of disease transmission to families who prepare their own dead.
"For the majority [of those who come in contact with corpses], living people with diseases are a far greater hazard to health than the dead." [page 61]
1995 Communicable Disease Report 5, [pages 61, 66-67]
In this country up to 70% of cadavers are embalmed…but it is not always appropriate, and if the next of kin so wish, the cadaver simply undergoes “hygienic preparation.” This involves washing the face and hands, dressing the cadaver, tidying the hair, and possibly trimming the nails and shaving. It seems unreasonable to restrict such activities unless an obvious hazard exists. The use of gloves and simple protective clothing by the funeral director’s staff and anyone else who handles the bodies should be an acceptable and effective safety measure. [pages 66-67]
In 2002 Dr. Marcella Fiero, Chief Medical Examiner of the State of Virginia was asked whether embalming was a necessary public health measure to protect the living from disease. She stated simply, “no.”
A staffer with the Centers for Disease Control and Prevention in Atlanta in 2003 was asked whether families who care for their own dead (when the person died of AIDS) were at risk of contracting the disease. She said, “HIV dies soon after the person does, and that even under laboratory conditions, HIV cannot survive beyond two hours outside the body.” She also said standard precautions — latex gloves, bleach, disinfection of working surfaces — when working in the presence of those with AIDS, were sufficient, and that the risk of transmission after death would decrease.
From the United States Center for Disease Control: “We have not at any point prescribed embalming as a method of protecting public health.” Source: Bernadette Burden, spokesperson for the Center for Disease Control and Prevention (CDC) - Atlanta, Georgia, as quoted in Mortuary Management magazine, October 2006.
Here is the Joyce Mitchell Utah Funeral Bill web site: www.utahfunerals.org
Manual entitled Management of Dead Bodies After Disasters
published by PANAM and WHO but distributed by the National Institutes of
Health under the US Department of Health and Human Services which confirms
that dead bodies are not hazardous to public health.
Read it in it's entirety online at
World Health Organization, Article: Disaster Myths That Just Won't Die,
Risk for Epidemics after Natural Disasters:
There is likely the assumption that if the obligation to collect and file such information is placed in the hands of people specifically licensed to do so, this will offer uniformity and reliability to the process.
That assumption would be wrong. These licensed individuals are not employees of the State whose state of employment is contingent upon the fulfillment of their statutory obligations. These licensed individuals are private businessmen whose only obligation is to the level of profit they can squeeze from their customers. They are not fearful, as are most businessmen, that their customers can choose not to use their services if prices go too high. These businessmen are fearful only of a change in the legislation that allows them to impose their outrageous prices.
I will grant, though I do not have statistics, that funeral directors file death certificates in a timely manner because I am sure their license depends upon it. At least, being generous, that is what I assumed.
However, Joyce Mitchell who was instrumental in the passage of the new, uncompromised Utah Funeral Bill has told me that I should check NY State Vital Records. In Utah they admitted that some border funeral homes took, as ridiculous as this sounds, WEEKS and sometimes MONTHS to file!!Though unlicensed, family, or any other person who has undertaken the responsibility to carry out this end of life duty would have far greater incentive to file the death certificate in a timely manner. Upon filing, the certificate is certified as having been filed by the local governing entity and the certified certificate is required for a great many things those surviving the deceased need to do. A certified death certificate is needed to obtain a transport permit to allow one to move the body. It is needed for cremation or burial. A certified death certificate is needed to obtain beneficiary benefits and to gain access to the estate of the deceased. I have come across no evidence that the 42 states in the US that allow this have found it to be a problem.
The other issue with the filing of the death certificate is the matter of correct information. All of the information on a death certificate with the exception of 'cause of death' comes from a 'knowledgeable informant' who is in most cases a family member or close friend. NONE of this information comes from the funeral director. Funeral directors simply become another link in the chain of data transcription and thus another chance for error.
Is this a problem or does a funeral director's involvement actually help to insure the collection of correct data? I have had direct experience with two deaths in my family for which I was the knowledgeable informant. My mother died in Vermont where I filed the death certificate myself and obtained the transport permit so that I, along with my father and brother could transport her body to the crematorium. The filing was a quick and easy matter, and I assure you there were no factual errors. Last year my father died in NYS. The funeral director managed a number of errors on the names of my grandparents while casually talking to my brother as I was away answering the phone. This caused a several day delay in obtaining a corrected death certificate. Discussing this with the President of our Memorial Society, he related the instance of a friend. In that death, the funeral director managed to get the decedent's social security number wrong. Once again this involved significant delay for that family gaining access to bank accounts and other assets. So I must conclude that if this limited knowledge of the details of two deaths, both of which encountered funeral director error, were extended to the process across the nation, even if these experiences are unusual this would account for a great deal of error.
I have heard the following statement in defense of the current NYS statute:
Excessive costs for using the services of a Licensed Funeral Director have
been mentioned above but here I shall underscore this issue quantitatively.
-Funeral Home accidentally switches grandma’s body with a different one:
-Funeral Home stores bodies in utility room for over a year:
-Funeral Home body parts scam where tissue was illegally harvested and sold:
Funeral Ethics Organization
87 Upper Access Road
Hinesburg, VT 05461-4431
Funeral Ethics Organization
MA Funeral Law - Lisa Carlson
NY Funeral Law - Lisa Carlson
* Cite constitutional issue earlier with reference to court case in NY
From Lisa Carlson's book, 'Caring for the Dead: Your Final Act of Love', Chapter 8:
Rewriting the NY State Funeral Law:
Any suggested changes to the law would certainly not interfere in any way with the State's right to protect public health in the case of a death where the body does in actual fact present a clear and present danger to the public. This is currently handled by the medical establishment prior to either a funeral director or any other person taking possession of the remains. This would not change.
Keep in mind, there is always a medical presence at the end of life before a family proceeds with a funeral whether it be the County Coroner or in more usual circumstances, a member of the medical establishment that was in attendance at or prior to the death. This would be the agency charged with meeting any requirements for dealing with the body in the case of diseases such as anthrax, etc.
Aside from embalming, for which there is no need except in cases where there may be prolonged periods during which refrigeration is not practical or desired AND where this will be followed by viewing, and even then only at the request of family or designated agent, there should be no requirement to use the services of a funeral director. Funeral directors often require embalming for any disposition other than direct cremation, and of course, charge for it.
I heard a comment to the effect that most folks would likely choose to use the services of a funeral director regardless of whether or not the law became more permissive. To underscore that point, this was followed by the statement that moving the body of a 200 pound man down a narrow stairway from a three-story walk-up would not be something most family's would care to tackle.
This does not appear to be a very strong argument for imposing the services of a funeral director. There would be nothing in any proposed change to the law that would require anyone to do this on their own, but any reasonable law should allow one to do so on their own if they so wish. Of course, such a law would allow them to make any other arrangement such as hiring a moving company, or even a funeral director. There should certainly be no law forcing them to hire a funeral director any more than there should be a State statute requiring you to hire the ACME Moving Company if you need to move a couch up or down from your three-story walk-up. You may be happier doing so, but that should be up to you.
The vast majority of states do NOT have laws that create a funeral industry monopoly. There are no good reasons for such laws. The only likely reason for such laws in those few states that have them is unethical, and likely unconstitutional, pandering to the funeral industry.
The information in the lists below was taken from the book "Final Rights: Reclaiming the American Way of Death" by Joshua Slocum and Lisa Carlson, 512 pages, Upper Access Publishing, Hinesburg, VT 05461. This book may be purchased directly from the Funeral Consumers Alliance (FCA) at 802-865-8300 or www.funerals.org for $22.50 which includes shipping. If you go to the website you can read the first chapter FREE. As the FCA states on their website, "Every American who plans to die (that's you) needs to read this book. Final Rights belongs on the bookshelf of every hospice worker, nurse, social worker, and elder-law attorney. Curious? Read the first chapter, Circling the Hearses, free." This book is also available from national booksellers.