The Case For a Uniform Bodily Remains Law

Tracie M Kester has published her Note, Uniform Acts–Canthe Dead Hand Control the Dead Body? The Case For a Uniform Bodily Remains Law, in 29 W. New Eng. L. Rev. 571 (2007).  ThisNote was the winner of the 2006 William J. Pierce Writing Contest, which wassponsored by the National Conference of Commissioners on Uniform State Laws.

Here is her introduction:

Did former Red Sox slugger TedWilliams really want to be decapitated and cryonically frozen so that hisbodily remains would spend eternity encapsulated in a building in the Arizonadesert, much like items in a warehouse?  Although his will stated that he wanted to becremated, and that his remains should be scattered in the ocean off of Florida,two of the great baseball player’s children maintained that he had signed adocument agreeing to cryonic freezing of his remains. The document, however, isno more than a small, stained piece of paper, signed by Ted, his son JohnHenry, and his daughter Claudia, stating that they “agree to be put intobio-stasis” after they die, so that they may “be together in the future, evenif it is only a chance.” The signatures are not witnessed; however, a “familyattorney” claimed it was signed while Ted was in the hospital prior to surgery.

Baseball fans were outraged whenthey discovered what had happened to the Hall of Famer’s bodily remains. Awebsite is devoted to the cause of having Ted’s body defrosted and cremated, asdirected in his will. The broader problem is how this situation ever occurred.That is, many legal practitioners would think that a decedent’s cremationdirective, when set forth in a will, would be upheld and only revocable by alater document executed with testamentary formalities.  As this Note will show, however, a review ofactual cases suggests otherwise.

The case involving Ted Williams’sbodily remains is one of many situations evidencing the need for more directionfrom legislatures for both citizens and the courts as to the best way anindividual may go about directing the disposition of his body. Many states havebeen unclear with respect to who has the right to make decisions regarding thedisposition of a person’s bodily remains. Furthermore, even in those stateswith statutes that do provide a mechanism allowing individuals to direct whatwill happen post-mortem, the laws are not always clear or complete and can varysubstantially from state to state. Moreover, because the law is notwell-settled, many courts allow evidence beyond what would normally beacceptable in an attempt to interpret a deceased’s wishes. This sends a messageto those who are concerned about their bodily remains that there is almost noway to ensure a disposition according to their wishes.

The first Part of this Notediscusses the evolution of the common law in the United States with respect tothe disposition of bodily remains, as well as those statutes that have codifiedthe common law. The second Part of this Note outlines problems with the commonlaw and those statutes that codify the common law without any further clarification.This Part also suggests that state legislatures should enact bodily remainsstatutes that go beyond the common law. The second Part also shows thedifferences among the various state statutes that have been enacted, and positthat a uniform law is needed to resolve these differences. The final Part ofthis Note discusses the considerations involved in drafting a uniform law andproposes a sample uniform disposition of bodily remains act.