Episode 2: "What Happens to Human Remains in the U.S.?"

by Tanya D. Marsh | Death, et seq.

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Partial Transcript

Whenever people ask me what I do, and I tell them that I research, teach, and write about the law of human remains, their first response is to say “uuuh.”  And their second is to say “I’ve always wondered…”  America is a uniquely death denying culture, which is perhaps why we know so little about what follows death.  Not in the spiritual sense…but in the physical sense.  What happens to human remains after death in the United States?

Death is sometimes tragic, sometimes a blessing — always inevitable. Death transforms a living human being, a person with rights and autonomy, into … something else. Tissue and bone, once animated by life, converted into an object of fear, a focus for grief, and a medical and scientific resource. A human cadaver is no longer a person, but neither is it an object to be easily discarded.

Human remains occupy an uneasy position in U.S. law, and their existence raises three fundamental questions. The first question compels our behavior and requires us to act: what, if anything, must be done with human remains? The second question circumscribes our behavior and discourages action: what cannot be done with human remains? The third question seeks to set normative expectations for our behavior: what should be done with human remains?

These are questions that we will address in this podcast, not only in terms of what the law IS, but in terms of what we think the law OUGHT to be.  This means that we have to think about a lot of things that most of us don’t really want to think about.  But I promise it gets easier.  Confronting the reality of human remains and the social norms and laws surrounding them is both a unromantic practical exercise and a deeply spiritual one.  I promise that it’ll be worth it.

I want to start out the podcast the same way I start each new semester of my funeral and cemetery law class at Wake Forest — by talking about a series of real life cases that which I think raise some of the fundamental issues that we’ll be tackling throughout the podcast.  And I thought it would be more interesting if my 17 year old son Liam Sherman helped me out by giving his initial impressions of each case.


The Funeral of Flo Whalen

In April 2012, Mary Florence “Flo” Whalen was dying.  She wrote the following letter to Michael Whalen (her estranged husband), her sister (the executor of her estate), and her ten children:

I am writing this letter to all of you to let you know what I wish done with my earthly remains after my soul has gone hopefully upwards.

I wish to be buried in Billings, Montana which I considered my home when on earth. I spent 51 years of my life in Billings and with the help of my dear husband, raised 10 beautiful children there. I bought a plot many years ago in Holy Cross Cemetery in Billings, in which to be buried and have paid for the opening and closing of my grave. I also have bought a casket made by the [Trappist] Monks in Peosta, Iowa, and they will ship it wherever they are asked at the time they are informed to do so.

I know that you all love me and want to honor my final requests, and that is why I am writing this to you. I just want all of you to know that this is very important to me and because you all love and respect me I know that you will see that my wishes are carried out.

When Flo died in Anamosa, Iowa a few months later, her sister instructed the local funeral home to transfer the remains to Montana in accordance with Flo’s wishes as expressed in the letter and her will.  Michael Whalen instructed the funeral home to bury Flo in the local Anamosa cemetery.  The funeral director told both of them that he would hold Flo’s remains until he received a court order resolving the conflict.

[For more information: I discuss the Whalen case in some detail in a paper that can be downloaded here.  This case will be the topic of a future episode of Death, et seq.]

Sherman Hemsley’s long lost brother

Sherman Hemsley, best known for his role as George Jefferson on the sitcom “The Jeffersons,” died on July 24, 2012 at the age of 74.  Mr. Hemsley left a will that named his sole beneficiary and executor as Flora Enchinton, identified in the will as his “beloved partner.”   After his death, a man named Richard Thornton claimed that he was Mr. Hemsley’s half-brother and asserted the right to make burial arrangements.  Enchinton opposed Thornton, saying that her close friend and business partner never mentioned having a brother.  DNA evidence produced during the trial proved that Thornton was indeed Hemsley’s half-brother, but Thornton testified that Hemsley was the secret product of their father’s extramarital affair and that the brothers did not call each other or exchange Christmas cards.  Mr. Hemsley’s corpse remained in a funeral home for 3.5 months pending resolution of the lawsuit.

[For more information]

The Freeloading Brother

Frank McKibben, a widower and father of seven children, died at the home of his daughter Madeline Golker.  Six of his seven children coordinated to make arrangements for their father’s funeral and burial.  The seventh, Robert McKibben, refused to contribute.  Madeline filed a lawsuit to compel Robert to contribute his pro rata share.

[For more information: McKibben vs. McKibben]

Should evil people be buried too?

When Tamerlan Tsarnaev (one of the alleged Boston Marathon bombers) died in a confrontation with police near Boston, his uncle took custody of the body and a funeral home in Worcester, Massachusetts agreed to prepare the remains for burial.  The uncle and funeral home both complained to the media that no cemetery in Massachusetts was willing to bury Tsarnaev’s remains.  The government of Cambridge, Massachusetts, where Tsarnaev resided, issued a statement that Tsarnaev could not be buried in the public cemetery.  Protestors outside the funeral home called for him to be “returned to Russia” or “fed to the sharks.”  Eventually, a cemetery in Virginia agreed to accept his remains, and Tsarnaev’s remains were removed from Massachusetts in the middle of the night.

[For more information: Burying Mass Murderers: The Problem of Tamerlan Tsarnaev (Huffington Post); Bombing Suspect’s Body Interred at Undisclosed Location (NY Times) ]

Rest in peace?

A mysterious figure known only as “Leather Man” roamed through New York and Connecticut in the 1860s-1880s.  Leather Man did not speak, but his travels adhered to a strict pattern.  No one knew his real name or where he came from.  Some speculated that he was French, others that he was autistic.  When Leather Man died in 1889, he was buried in the pauper section of the Sparta Cemetery in Ossining, New York.  Into the 21st century, Leather Man’s story remained a focus of local interest and tourism.  In 2011, the local historical society sought to learn more about Leather Man’s identity and petitioned a New York state court to disinter Leather Man:

for the purposes of expanding the historical record, testing including and limited to (a) forensic gross morphological evaluation of the biological life history of Decedent, to be performed within the cemetery without the destruction of remains, after which testing the remains will be reburied; (b) a CT scan of the skull for the purposes of three-dimensional imaging of the cranio-facial features for a reconstruction of the Decedent’s face, without the destruction of the skull, after which testing the remains will be reburied; and (c) DNA testing of a molar and/or fragment of large bone, preferable [sic] from the femur and weighing approximately 4 grams, which will involve the destruction of such dental and/or bone tissue submitted for testing, so as to determine the Decedent’s ancestry; and (d) stable carbon isotope and trace element analysis to determine the diet of the Decedent which will involve the destruction of such dental and/or bone tissue submitted for testing.

[For more information: Leave the Leatherman alone]

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