Difference between revisions of "Cremation"

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Courts in some jurisdictions have held that because a corpse is not "property," a [[will]] is not the place for a decedent to control the disposition of his body.<ref>''Enos v. Snyder'', 63 P. 170, 171 (Cal. 1900) ("It is quite well established ... that, in the absence of statutory provisions, there is no property in a dead body; that it is not part of the estate of the deceased person; and that a man cannot by will dispose of that which after his death will be his corpse.").</ref>  Even in the states that authorize a person to specify in his [[will]] how his body should be treated after death, the [[will]] may never be reviewed until it is too late.  Sometimes, as in the case of [[Ted Williams]], the statement in the [[will]] is overruled by contrary intentions of the next of kin as supported by less compelling evidence.<ref>''Cohen v. Guardianship of Cohen'', 896 So. 2d 950, 953 (Fla. Dist. Ct. App. 2005) (citing ''Kirksey v. Jernigan'', 45 So. 2d 188, 189 (Fla. 1950)), ''rev. denied'', 911 So. 2d 792 (Fla. 2005) (holding that the decedent's wishes as explained in his [[will]] were not conclusive, and that testimony from the decedent's family as to his desire was allowed to overrule it).</ref>
 
Courts in some jurisdictions have held that because a corpse is not "property," a [[will]] is not the place for a decedent to control the disposition of his body.<ref>''Enos v. Snyder'', 63 P. 170, 171 (Cal. 1900) ("It is quite well established ... that, in the absence of statutory provisions, there is no property in a dead body; that it is not part of the estate of the deceased person; and that a man cannot by will dispose of that which after his death will be his corpse.").</ref>  Even in the states that authorize a person to specify in his [[will]] how his body should be treated after death, the [[will]] may never be reviewed until it is too late.  Sometimes, as in the case of [[Ted Williams]], the statement in the [[will]] is overruled by contrary intentions of the next of kin as supported by less compelling evidence.<ref>''Cohen v. Guardianship of Cohen'', 896 So. 2d 950, 953 (Fla. Dist. Ct. App. 2005) (citing ''Kirksey v. Jernigan'', 45 So. 2d 188, 189 (Fla. 1950)), ''rev. denied'', 911 So. 2d 792 (Fla. 2005) (holding that the decedent's wishes as explained in his [[will]] were not conclusive, and that testimony from the decedent's family as to his desire was allowed to overrule it).</ref>
  
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The States of [[Delaware]] and [[Connecticut]] have two of the clearest and strongest statutes for empowering a person to control the disposition of his post-mortem body.
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The States of [[Delaware]] and [[Connecticut]] have two of the clearest and strongest statutes for empowering a person to control the disposition of his post-mortem body, which can be used to prevent cremation.
  
 
In [[Delaware]], 12 Del. C. § 262 (2007) ("Declaration of Disposition of Last Remains") dictates that:
 
In [[Delaware]], 12 Del. C. § 262 (2007) ("Declaration of Disposition of Last Remains") dictates that:

Revision as of 03:34, December 30, 2007

Cremation is the burning to ashes of a person's body after death, rather than burying the body or otherwise honoring it. Often the ashes of a cremated corpse are then dispersed over water or land.

Cremation has ancient pagan origins, and implicitly denies the resurrection of the body. In Western cultures, cremation is most favored by atheists. It has always been prohibited by Judaism and Islam and is still prohibited by the Eastern Orthodox Church. The Roman Catholic Church prohibited cremation until 1963, which it changed its policy to merely disfavoring cremation. Until 1997, the Roman Catholic Church did not allow cremation until after the funeral mass, but then it relaxed that rule if a local bishop approves of cremation prior to the funeral mass, and Catholic cremations have greatly increased partly for economic reasons.

The Nazis heavily used cremation.[1] The 1949 Geneva Convention, an international treaty governing wartime, prohibits cremation: "Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased."[2]

In 2006 in the United States, about one third of the 2.3 million persons who died were cremated. This fraction is expected to increase further.[3] Cremation rates are much higher in other countries: 75% in Japan and 70% in England.

Christian Opposition to Cremation

Christians have expressed several objections to cremation:

  • the body is in the image of God and should be respected
  • cremation is a pagan practice
  • the body is an integral part of the person, not simply a vehicle for the soul[4]
  • burial of a Christian should be in imitation of Christ's burial
  • cremation implicitly denies, and may interfere with, the resurrection of the body[5]

It is a theological issue whether cremation interferes with the ultimate resurrection of the body as accepted by virtually all Christians in the Nicene Creed. Minucius Felix's Octavius is cited by those favoring cremation, though his statements are not entirely persuasive.[6]

In the Middle Ages, cremation was only allowed when necessary, as in disposing of diseased bodies.

Jewish Opposition to Cremation

Orthodox and Conservative Judaism has always prohibited cremation. This respects their belief in bodily resurrection. In modern times, the memory of the use of crematoria during the Holocaust has reinforced the Jewish opposition to cremation.

Catholic Position on Cremation

The Catholic position for two millennia was that cremation did not treat the body with the respect warranted for God's image. The respect for life also required a respect for the body in death.

The Church relaxed its prohibition on cremation in 1963. "In 1963, the Catholic Church lifted its prohibition forbidding Catholics to choose cremation. Canon 1176 of the 1983 Code of Canon Law states, 'The Church earnestly recommends the pious custom of burying the bodies of the dead be observed, it does not however, forbid cremation unless it has been chosen for reasons which are contrary to Christian teaching.'"[7]

Hindu Position on Cremation

Since at least 1900 B.C. Hinduism has supported use of a funeral pyre to burn a body after death.

Laws Concerning Burial or Cremation

The common law generally honored statements in wills, or in writing other than in wills, or orally, by a living person concerning the post-mortem burial or cremation of his own body.[8]

Some persons have attempted to exert control over the disposition of their body after death, to the point of even successfully suing the state to allow non-traditional approaches.[9]

Courts in some jurisdictions have held that because a corpse is not "property," a will is not the place for a decedent to control the disposition of his body.[10] Even in the states that authorize a person to specify in his will how his body should be treated after death, the will may never be reviewed until it is too late. Sometimes, as in the case of Ted Williams, the statement in the will is overruled by contrary intentions of the next of kin as supported by less compelling evidence.[11]

The States of Delaware and Connecticut have two of the clearest and strongest statutes for empowering a person to control the disposition of his post-mortem body, which can be used to prevent cremation.

In Delaware, 12 Del. C. § 262 (2007) ("Declaration of Disposition of Last Remains") dictates that:

The declarant may specify, in a declaration instrument, any 1 or more of the following:

(1) The disposition to be made of the declarant's last remains;
(2) Who may direct the disposition of the declarant's last remains;
(3) The ceremonial arrangements to be performed after the declarant's death;
(4) Who may direct the ceremonial arrangement after the declarant's death; or
(5) The rights, limitations, immunities, and other terms of third parties dealing with the declaration instrument.

In Connecticut, Conn. Gen. Stat. § 45a-318 (2007) (Formerly Sec. 45-253), Document directing or designating individual to have custody and control of disposition of deceased person's body. Funeral director's reliance on document. Individuals entitled to custody and control of disposition. Revocation. Form. Petition to court of probate, mandates that:

(a) Any person eighteen years of age or older, and of sound mind, may execute in advance of such person's death a written document, subscribed by such person and attested by two witnesses, either: (1) Directing the disposition of such person's body upon the death of such person, which document may also designate an individual to have custody and control of such person's body and to act as agent to carry out such directions; or (2) if there are no directions for disposition, designating an individual to have custody and control of the disposition of such person's body upon the death of such person. Such disposition shall include, but not be limited to, cremation, incineration, disposition of cremains, burial, method of interment and cryogenic preservation. Any such document may designate an alternate to an individual designated under subdivision (1) or (2) of this subsection.
(b) No person may challenge a funeral director's decision to carry out the directions for disposition contained in a document executed for the purposes of subsection (a) of this section if the funeral director's decision and conduct in carrying out such directions for disposition in reliance on such document was reasonable and warranted under the circumstances.
(c) In the absence of a written designation of an individual pursuant to subsection (a) of this section, or in the event that an individual and any alternate designated pursuant to subsection (a) of this section decline to act or cannot be located within forty-eight hours after the time of death or the discovery of the body, the following individuals, in the priority listed, shall have the right to custody and control of the disposition of a person's body upon the death of such person, subject to any directions for disposition made by such person pursuant to subdivision (1) of subsection (a) of this section:
(1) The deceased person's spouse, unless such spouse abandoned the deceased person prior to the deceased person's death or has been adjudged incapable by a court of competent jurisdiction;
(2) The deceased person's surviving adult children;
(3) The deceased person's surviving parents;
(4) The deceased person's surviving siblings;
(5) Any adult person in the next degree of kinship in the order named by law to inherit the deceased person's estate, provided such adult person shall be of the third degree of kinship or higher;
(6) Such adult person as the Probate Court shall determine.
(d) A document executed by a person for the purposes of subsection (a) of this section shall revoke any document previously executed by such person for the purposes of said subsection or any prior cremation authorization or other authorization for the disposition of remains executed by such person and may be in substantially the following form, but the use of such form shall not preclude the use of any other form:
DISPOSITION OF REMAINS ANDAPPOINTMENT OF AGENT
I, ...., of ...., being of sound mind, make known that upon my death my body shall be disposed of in the following manner:(Insert desired disposition directions)
I appoint ...., having an address and telephone number of ...., to have custody and control of my body to act as my agent to carry out the disposition directions expressed in this document, and in the absence of disposition directions, to have custody and control of my body and to determine the disposition of my body. If ... shall decline to act or cannot be located within forty-eight hours of my death or the discovery of my body, then ...., having an address and telephone number of ...., shall act in that person's place and stead.
Executed at (insert location of execution), Connecticut on (insert date of execution).....(Signature)
Signed in our presence by ... who, at the time of the execution of this document, appeared to be of sound mind and over eighteen years old.
... of ...
...
(Signature of witness)
... of ...
...
(Signature of witness)
(e) The court of probate for the district of the domicile or residence of a deceased person shall have jurisdiction to hear and decide any issue regarding the custody, control or disposition of the deceased person's body, upon the petition of any individual designated by the deceased person pursuant to subsection (a) of this section, the individual entitled to custody and control under subsection (c) of this section if no designation is made pursuant to subsection (a) of this section, the first selectman, chief executive officer or director of health of the town in which the deceased person's body is being held, or the funeral director or any other person or institution holding the deceased person's body, and upon such notice to interested parties as the court shall determine.
(f) This section shall not (1) apply to the disposition of the body of a deceased person under the provisions of sections 19a-270 and 54-102, (2) affect the powers and duties of the Chief Medical Examiner under the provisions of sections 19a-406 to 19a-408, inclusive, or (3) affect the making of anatomical gifts under the provisions of sections 19a-279a to 19a-279l, inclusive.

NOTE THAT THE ABOVE STATUTES APPLY ONLY IN THEIR RESPECTIVE STATES.

References

  1. ↑ JEAN PICTET, COMMENTARY, GENEVA CONVENTION I, GWS, at 178-79 (1952).
  2. ↑ Article 17, second paragraph.
  3. ↑ http://www.thetimesnews.com/news/one_8366___article.html/simpson_caskets.html
  4. ↑ St. Thomas Aquinas rejected the view that a person is a soul trapped in a body, observing that a soul by itself would not be a human. Robert Pasnau's introduction to his translation of Summa Theologiae explains that Aquinas is "quite clear in rejecting the sort of substance dualism proposed by Plato [...] which goes so far as to identify human beings with their souls alone, as if the body were a kind of clothing that we put on." See Aquinas, St. Thomas (2002). Summa Theologiae 1a, 75-89, trans. Pasnau, Hackett Publishing. ISBN 0-872-206-130. 
  5. ↑ Christian acceptance of the resurrection of the body has been a central doctrine since at least Paul. [1]
  6. ↑ Felix stated, "Every body, whether it is dried up into dust, or is dissolved into moisture, or is compressed into ashes, or is attenuated into smoke, is withdrawn from us, but it is reserved for God in the custody of the elements. Nor, as you believe, do we fear any loss from sepulture, but we adopt the ancient and better custom of burying in the earth." full text of Octavius.
  7. ↑ http://www.cathcemchgo.org/cremation.htm
  8. ↑ See 7 A.L.R. 3d 747, 749-50 (1966); 54 A.L.R. 3d 1037 (1973).
  9. ↑ Alcor Life Extension Found. v. Mitchell, 9 Cal. Rptr. 2d 572 (1992) (allowing post-mortem cryonic suspension with a firm not recognized by the State of California).
  10. ↑ Enos v. Snyder, 63 P. 170, 171 (Cal. 1900) ("It is quite well established ... that, in the absence of statutory provisions, there is no property in a dead body; that it is not part of the estate of the deceased person; and that a man cannot by will dispose of that which after his death will be his corpse.").
  11. ↑ Cohen v. Guardianship of Cohen, 896 So. 2d 950, 953 (Fla. Dist. Ct. App. 2005) (citing Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950)), rev. denied, 911 So. 2d 792 (Fla. 2005) (holding that the decedent's wishes as explained in his will were not conclusive, and that testimony from the decedent's family as to his desire was allowed to overrule it).

Sources

  • Tracie M. Kester, NOTE: UNIFORM ACTS - Can the Dead Hand Control the Dead Body? The Case for a Uniform Bodily Remains Law, 29 W. New Eng. L. Rev. 571 (2007).
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