Is it legal to sell human remains?
- Written by Tanya D. Marsh, Professor of Law, Wake Forest University
Four individuals were charged with federal crimes[1] in June 2023 related to the “unlawful transport” across state lines of human remains taken from the Harvard Medical School morgue. This indictment was part of a larger effort by the Department of Justice to shut down a national network[2] of people trafficking in human remains.
Cedric Lodge, who had been the morgue manager until his firing in May[3], was accused of removing human remains that had been donated to the medical school. According to the indictment[4], he and his wife, Denise Lodge, shipped those remains to Katrina MacLean, the owner of a store called Kat’s Creepy Creations, and Joshua Taylor, an individual living in Pennsylvania. Taylor transferred nearly US$40,000 to the Lodges via PayPal, with memos that included “head number 7” and “braiiiiiins.”
As a scholar whose research is centered on the laws regarding the status, treatment and disposition of human remains[5], I am often asked about the legality and ethics of selling bodies[6], especially when stories like the Harvard morgue case[7] or a TikTok user selling human bones[8] begin to circulate.
My answers often surprise people.
State by state
It is not illegal to sell human remains under federal law. That’s why the defendants in the Harvard Medical School case were charged with interstate transport of stolen goods[9], rather than “trafficking human remains.”
There is actually very little federal law regarding the dead. The most significant is the Federal Trade Commission’s Funeral Rule[10], which requires funeral homes to provide certain disclosures to consumers.
Instead, the vast majority of law respecting the dead is state law, which varies significantly.
By my count, the sale of human remains is broadly and expressly illegal in only eight states: Florida[11], Georgia[12], Massachusetts[13], Missouri[14], New Hampshire[15], South Carolina[16], Texas[17] and Virginia[18].
Perhaps one reason the Harvard morgue case is being handled by the Department of Justice is that although selling human remains is illegal in Massachusetts and New Hampshire, it does not violate state law in Pennsylvania, where some of the activity took place.
In more than two dozen other states, it is illegal to sell human remains[19] only under certain circumstances. A number of these states make it expressly illegal to sell human remains or organs that were donated for anatomical study, transplantation or medical therapy.
Most commonly, it is illegal to sell human remains that have been unlawfully removed from a place of burial. For example, in North Carolina[20], it is a crime to “knowingly exhibit or sell any human skeletal remains from unmarked burials.” However, this specific phrasing means that the North Carolina law could not be applied to a situation like the Harvard case, where the body was obtained from a morgue. Nor could it be applied to the sale of body parts other than skeletal remains.
Up for sale
In fact, it is surprisingly easy to purchase human remains in the United States, even in states where such sales are expressly illegal. There are brick-and-mortar stores, like Kat’s Creepy Creations[21] in Massachusetts, which sell skeletal remains.
But increasingly, retail traffic in human remains takes place online[22]. The sales of human remains have been banned on Etsy and eBay since 2012[23] and 2016[24], respectively, but social networks like Facebook are rife with groups[25] where body parts are sold and traded. One of the defendants in the Harvard Medical School case advertised at least one skull on Instagram[26].
It is difficult to determine how human remains end up in the retail stream because most body parts for sale have been de-identified. In other words, the seller does not name the deceased person whose remains are being sold and usually does not reveal how the remains were obtained – and there is no law requiring them to do so.
There are a few explicitly illegal methods of obtaining human remains in the U.S. Grave robbery, for example, is specifically outlawed[28] in nearly every state. Digging up corpses was a significant problem[29] in the 1800s, when medical schools first began to teach students through anatomical dissection[30].
When a person dies in the U.S., there are limited legal options for the disposition of their body, which effectively prevents an individual from arranging to sell their own remains.
In every state, remains may be buried, entombed, cremated, donated to science or removed from the state or order to be lawfully disposed of elsewhere. More than half of states have legalized a process called alkaline hydrolysis[31], also known as aquamation or water cremation[32], which dissolves the body in a base solution. In seven states, remains may be disposed of via natural organic reduction[33], also called human composting[34].
Final gift
If an individual or their family donates remains to science, typically a nonprofit organization or university takes possession of the remains.
The use of those remains varies widely. A medical school like Harvard has an anatomical donation program[35] to obtain intact cadavers to be used in gross anatomy labs and other teaching settings.
However, people sometimes donate to a non-transplant tissue bank, often called “body brokers.” Given the high costs of funeral arrangements in the U.S., some families donate a loved one’s remains to body brokers, who dispose of remains without cost to the family.
Bluntly speaking, body brokers carve up human remains and distribute them to be used in medical therapy or research, with little regulation – the subject of a 2017 Reuters investigation[36]. They do charge for processing and transporting human remains, and one such company, Science Care, generated $27 million in revenue in 2017[37].
Body brokers are more controversial[38] than university anatomical donation programs, but in both cases, remains are used for medical education or research. The ultimate disposition of remains donated to science is typically cremation.
Human remains donated to science are meant to be disposed of with respect.
Team Static/fStop via Getty Images[39]
Seeking justice
If bodies donated to science are not treated with the respect and dignity[40] that the donors were promised by the recipient institution, as in the Harvard Medical School case, there are several possible legal options.
First, there could be federal or state criminal charges in the small number of states that broadly outlaw the sale of human remains.
Second, 30 states outlaw the mistreatment or mutilation of human remains. These criminal laws are generally referred to as “abuse of corpse” statutes[41].
Finally, the families of the donors may have a private cause of action against the recipient institution or against people who took the remains without permission. There are two possible tort claims[42] that families could bring: interference with the family’s right to respectfully dispose of the remains, known formally as “interference with the right of sepulcher,” and infliction of emotional harm based on mistreatment of human remains.
I have yet to encounter a person who is not horrified by the treatment of the bodies donated to Harvard Medical School and then diverted into curiosity shops and private collections, especially when I explain that such activities are not clearly illegal in every state.
Respectful treatment of human remains, and of the loved ones they leave behind, appears to be a universal value. Yet there is a clear mismatch between these social norms and the law – for now.
References
- ^ charged with federal crimes (media.wbur.org)
- ^ shut down a national network (www.justice.gov)
- ^ until his firing in May (hms.harvard.edu)
- ^ the indictment (media.wbur.org)
- ^ laws regarding the status, treatment and disposition of human remains (law.wfu.edu)
- ^ selling bodies (www.huffpost.com)
- ^ Harvard morgue case (www.boston.com)
- ^ a TikTok user selling human bones (abcnews.go.com)
- ^ charged with interstate transport of stolen goods (www.justice.gov)
- ^ Funeral Rule (www.ftc.gov)
- ^ Florida (www.leg.state.fl.us)
- ^ Georgia (codes.findlaw.com)
- ^ Massachusetts (malegislature.gov)
- ^ Missouri (www.revisor.mo.gov)
- ^ New Hampshire (www.revisor.mo.gov)
- ^ South Carolina (www.scstatehouse.gov)
- ^ Texas (casetext.com)
- ^ Virginia (law.lis.virginia.gov)
- ^ it is illegal to sell human remains (www.lawyersandjudges.com)
- ^ North Carolina (www.ncleg.gov)
- ^ Kat’s Creepy Creations (www.cbsnews.com)
- ^ takes place online (doi.org)
- ^ since 2012 (money.cnn.com)
- ^ and 2016 (www.buzzfeednews.com)
- ^ rife with groups (www.livescience.com)
- ^ advertised at least one skull on Instagram (www.newsweek.com)
- ^ Katherine Frey/The The Washington Post via Getty Images (www.gettyimages.com)
- ^ is specifically outlawed (www.lawyersandjudges.com)
- ^ significant problem (www.smithsonianmag.com)
- ^ to teach students through anatomical dissection (theconversation.com)
- ^ alkaline hydrolysis (www.cremationassociation.org)
- ^ aquamation or water cremation (www.cremationassociation.org)
- ^ natural organic reduction (connectingdirectors.com)
- ^ human composting (www.popsci.com)
- ^ anatomical donation program (meded.hms.harvard.edu)
- ^ 2017 Reuters investigation (www.reuters.com)
- ^ generated $27 million in revenue in 2017 (www.reuters.com)
- ^ more controversial (nfda.org)
- ^ Team Static/fStop via Getty Images (www.gettyimages.com)
- ^ treated with the respect and dignity (nfda.org)
- ^ abuse of corpse” statutes (funerallaw.typepad.com)
- ^ two possible tort claims (www.ali.org)
Authors: Tanya D. Marsh, Professor of Law, Wake Forest University
Read more https://theconversation.com/is-it-legal-to-sell-human-remains-171192
