What The Texas Fetal Remains Ruling Really Means and How You Can Take Action

Last Monday, after the Texas State Department of Health Services announced the addition of the word ‘cremation’ to their list of approved methods of disposition for the remains of an abortion or miscarriage, headlines were quick to appear suggesting a forced linkage between certain women’s health services and those of the funeral industry. Still in the early days after the Trump/Pence election that has everyone on high alert for abuses of power and transgressions of civil rights, news of the ruling was predictably met with outrage from pro-choice supporters who envisioned a scenario in which the woman would be stuck paying for-or at least having to decide on-a perceived funeral service option after a procedure.

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– Sarah Wambold –

sarahw

Sarah is a writer and funeral director in Austin, TX.

You can follow her on social media @sah_raw

sarahwambold.com


Last Monday, after the Texas State Department of Health Services announced the addition of the word ‘cremation’ to their list of approved methods of disposition for the remains of an abortion or miscarriage, headlines were quick to appear suggesting a forced linkage between certain women’s health services and those of the funeral industry. Still in the early days after the Trump/Pence election that has everyone on high alert for abuses of power and transgressions of civil rights, news of the ruling was predictably met with outrage from pro-choice supporters who envisioned a scenario in which the woman would be stuck paying for-or at least having to decide on-a perceived funeral service option after a procedure.

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Photograph by Eric Gay/AP

As a woman and funeral director in Texas who works largely outside of the industry to create meaningful, low-cost alternatives to traditional funeral services, I was ready to use my role to potentially alleviate stress created by the new regulations. The proposed amendments appeared on my radar in the late summer, when the Funeral Consumer Alliance of Central Texas, a consumer advocacy group in Austin, TX, of which I am a member, wrote a letter to the health department demanding among other things that they clarify who would be paying for the services, which if passed on to the woman to handle with a funeral provider could amount to $96 million dollars of additional yearly revenue for the funeral industry. The group also expressed concern for the privacy of the women receiving services and derided the rules as creating a “narrower set of emotional and financial choices, with no added benefit.” In their final ruling, the health department addressed these concerns by stating that these amendments wouldn’t apply to abortions and miscarriages experienced at home, ensuring that “health care facilities — and not patients — will be responsible for the disposal of fetal remains and that related costs would be offset by the elimination of some current methods of disposition.” They also made the decision not to require fetal birth and death certificates be filed as a way of protecting the privacy of the woman.

Learning of these attempts to limit the financial and emotional impact on women, it became unclear as to whether or not a funeral home would have to be involved. In Texas, there is no requirement to work with a funeral director to complete a burial and it is already common-if not advertised- practice for many funeral homes and cemeteries to offer free or low-cost burial services for stillborns and infants. Yet the words interment and cremation still implied a mandated funeral, something that continued to be questioned throughout the week and received little in the way of answers from the funeral industry itself.

I spent much of last week digesting the ruling and reactions to it. Group conversations cropped up in my inbox and twitter feed between me, my online death positive community and local health care workers trying to determine what-if any-action could be taken to prevent this ruling from affecting a woman’s right to interpret if, how and when she mourns. To get there, I reached out to Tanya Marsh, a professor of law at Wake Forest University and licensed funeral director in California who’s written on the similar but much more restrictive law in Indiana (more on that later) for help interpreting the ruling.

While very aware of the harmful groundwork Texas appears to be laying for stricter legislation later, of the current ruling she was less concerned. “The popular understanding of the new Texas regulations is actually a bit wrong (and alarmist) and the rules don’t require what many fear that they do,” she said via email. “To say that the regulations require cremation or burial, any interaction with the funeral industry, or any action on the part of parents, is not correct.”

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Illustration by Jason Stout

This misreading, she pointed out in a memo further detailing the amendments, is because the regulations use “some of the same words as the Texas statutes dealing with the disposition of human remains. But that doesn’t mean that fetal remains are now required to be treated as human remains.” Because these options have already been available as incineration and interment, Marsh doesn’t anticipate health care facilities having to change their processes to include funeral homes.  “Since they have already had these options available to them, I doubt this will involve the funeral industry at all and will continue to be handled by the medical waste companies.”

Marsh explained other ways that facilities might side-step the funeral industry: “Cremation and incineration may be the same process, but there is no requirement in the Texas regulations that cremation of fetal tissue must occur in a licensed crematory establishment.” Her memo also reveals holes in the amended regulations around the required burial of the remains, “Where must interment of fetal tissue take place?  The Texas regulations don’t say.”

This may have been strategic. The removing from the regulations two disposal methods, in a sanitary landfill and in the sanitary sewer system, defends the roundly challenged message given in the initial rule filing, comments from the health commissioner leading up to the ruling and alluded to in Texas Governor Greg Abbott’s supporting email: “The rules will protect the public by preventing the spread of disease while also preserving the dignity of the unborn in a manner consistent with Texas laws.”

Using similarly inexplicable logic, the right to choose was maliciously upended earlier this summer when VP-elect Mike Pence pushed through one of the toughest fetal remains acts in Indiana. The act requires all facilities to inform women after an abortion or miscarriage of “their right to determine the final disposition of the remains” by filling out a form forcing them to confront the issue of planning a funeral for a human life, even for a blighted ovum. Planned Parenthood of Indiana was effective in temporarily stopping legislation from being enforced on abortions, however “women experiencing” miscarriages are still subject “to the form”. As 10-20% of known pregnancies end in miscarriage, the amount of unknown pregnancies that result in this type of loss is possibly greater. Learning of a pregnancy while at the same time being made to make funeral arrangements for the result feels especially cruel and support for these women has drawn much less attention.

Protesters hold signs in front of the U.S. Supreme Court in Washington

We have to be much more aware of our blind spots. Two men are entering the White House with dangerous ideas about a woman’s health, body and what respecting that means. In Texas, we may not be forced into unwanted funerals yet but the legal assertion of public health being jeopardized and dignities not being upheld are also very familiar marketing methods in the funeral industry, which is invested in a public afraid of death.

This all speaks to the necessity of strengthening relationships between self-identifying women who work in health and death care. There is no a better time than now to open lines of communication up even further with offers of support, education and activism. For those who are in search of ways to take action, here are some suggestions:

One not insignificant right still implicitly upheld in the Texas regulations is the ability for women to choose to donate fetal tissue to medical research. This as it stands, happens to be their only option for choice under the amended regulations. If in the position to, consider enacting this right. For women who suffer the loss of a planned pregnancy, the amendments do not otherwise grant them the right to decide the method of disposition as continues that to be deferred to the health care facility.

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Two Young Girls or the Beautiful Rosine, Antoine Wirtz, 1847

Educate yourself on how legislation works. Texas ALCU is hosting a webinar this Thursday, Dec 8th that breaks down the process to help you better understand new proposals. Read up on the funeral laws in your state and the service options available in your area. If tougher legislation comes down requiring interaction with this industry, it will be to your benefit to understand what your rights as a forced funeral consumer are.

Take care of yourself. The biggest weapon Texas is wielding currently is psychological. By using language to prime us to think of medical waste as human and sanitary landfills as disrespectful, they are banking on the emotions of citizens to push through more harmful laws. It is imperative going forward that you practice radical death acceptance. Meditate on the process by which remains are disposed of and accept that even though it may not appear pleasant, that does not make it wrong, harmful or disrespectful. Detach from the historic meaning of the words burial, cremation and funeral which imply something institutionalized and realize you are strong enough to face those words with curiosity and fearlessness and make them your own. Check back here for more ways women in the funeral industry and outside it are supporting each other to reaffirm their choices.

2 thoughts on “What The Texas Fetal Remains Ruling Really Means and How You Can Take Action

  1. Pingback: Faces of Death: Sarah Wambold – Stephania Hatchett News

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