Texas funeral directors anxious over state's new requirement to bury or cremate fetal remains

With Texas set to implement rules requiring the burial or cremation of fetal remains, it's not just health care providers who are anxious about the recently adopted requirements.

Funeral directors in the state are joining the chorus of medical professionals and reproductive rights activists who have raised concerns about the rules. Though it hasn't taken a formal position on the requirements, the Texas Funeral Directors Association says it’s concerned about how they’ll affect the families they serve and the costs associated with compliance.

Starting Dec. 19, Texas will require hospitals, abortion clinics and other health care facilities to ensure that fetal remains be cremated or buried — regardless of the period of gestation — and prohibit them from disposing of fetal remains in sanitary landfills, a common practice for medical waste.

State health officials have contended that the “minimum costs in complying with the rules” would total $450 a year per health care facility, arguing that those costs would be offset by the elimination of the cost of landfill disposition.

But Michael Land, a funeral home director and spokesman for the association, said that’s unrealistic and that the costs associated with compliance are likely a “higher dollar amount than what they’re projecting.”

Cremations through a third-party crematorium range from $75 to $100 per specimen. If individuals choose burials, the minimum cost of a small space in a cemetery is $500 and caskets of the appropriate size would likely cost $100, Land said.

If you add labor on the part of the funeral home, the fees could go into the thousands of dollars, he added.

Responding to those concerns, a spokeswoman for the Texas Health and Human Services Commission said the rules don’t require that “these processes” go through funeral homes. Health care providers can work directly with crematoriums or medical waste companies to comply with the rules, said spokeswoman Carrie Williams.

“[Funeral homes] don't have a mandatory role, and funerals are not required by these rules,” Williams said. “Incineration is still available as an option.”

But the rules indicate that incineration of fetal remains must be followed by interment. State health officials define interment as the "disposition of pathological waste using the process of cremation, entombment, burial, or placement in a niche or by using the process of cremation followed by placement of the ashes in a niche, grave, or scattering of ashes as authorized by law."

Among the few exceptions to the rule are miscarriages or abortions that occur at home. But fetal remains from miscarriages that occur at health care facilities will still require interment — even if the patient does not desire it.

For those in the funeral business, the increased demand for cremations could mean ending their practice of charitably cremating the tissue from a miscarriage for parents who wished to have a funeral.

“What had always been pretty much a charitable process is now going to become costing quite a bit of money,” Land said. It’s estimated that 10 to 20 percent of pregnancies end in miscarriage.

The funeral directors’ concerns underscore some of the uncertainty around the implementation of the new rules. Some providers indicated it’s still too soon to detail exactly how the new requirements will be implemented at individual health care facilities.

And there’s still the likelihood that the new rules will be challenged in court. Though they did not take immediate legal action when the rules were finalized on Monday, the Center for Reproductive Rights has warned that the requirements “will almost certainly trigger costly litigation."

Still, the Republican-controlled Legislature is moving forward with writing the rules into statute when it reconvenes in January.

Texas health officials adopted the new requirements with few changes despite months of public comment periods, two long hearings and more than 35,000 comments submitted to the state’s health commission. Those who voiced their opposition to the rules included doctors from across the state, reproductive rights activists who called the rules unnecessary and women who had experienced miscarriages or lost children in utero and questioned why the state would make their situation even more difficult.

Medical providers — including the Texas Medical Association and the Texas Hospital Association — also raised concerns about costs associated with the rules and the lack of exceptions in cases of miscarriages and ectopic pregnancies.

“We don’t think Gov. Abbott really thought things through, nor did he really take into account the 35,000 comments that he received in these two hearings,” Land said.

Representatives for the state’s funeral directors association in August met with representatives for Gov. Greg Abbott — who directed state health officials to propose the new rules — and expressed their concerns, but Land said the governor’s staff was not receptive to their worries and indicated the rules “would be pushed through either way.”

Abbott, who began fundraising off the requirements weeks after they were proposed, has said it is “imperative to establish higher standards that reflect our respect for the sanctity of life.”

His office did not respond to a request for comment.

BY ALEXA URA, THE TEXAS TRIBUNE