4 Legal Issues Regarding Embalming

Embalming, as we know it today, is the art of temporarily preserving the remains of the deceased in order to slow the process of decomposition and prepare the body for viewing at a wake and/or funeral. One of the main purposes of embalming is to try to give the deceased a more life-like look so that viewing the remains will not be as emotionally upsetting to the mourners. Overall, embalming serves several purposes: temporary preservation, sanitization of the remains and restoration.

The Federal Trade Commission as part of “The Funeral Rule”has spelled out several important guidelines legal rules to govern funeral directors and embalmers in the practice of embalming. According to “The Funeral Rule:”

1. The funeral director must be forthright and disclose the fact that embalming is not a legal requirement. A trustworthy funeral director will always make sure that you know your options and are aware of any fees associated with embalming.

2. According to these legal guidelines, a funeral director may charge the grieving family a fee for embalming only when: Authorities or the law (either state or local) requires for some special reason embalming must be performed on particular remains. Reasons for this might be if the body is to be held for an unusually extended period of time or is in such a condition upon being found that, for health or legal reasons, the body must be preserved for further investigation into the death. In this rare instance, be aware that the funeral director is required to state clearly on an itemized bill that the embalming was performed because of a particular legal requirement.

3. Furthermore that itemized description must explain the reason that embalming had been necessary. This unusual circumstance is most frequently due to local or state guidelines and must be for a particular reason. Federal law still does not require embalming under any circumstances.

3.  The family of the deceased or the person planning the funeral has already given consent for the body to be embalmed. Unfortunately, “The Funeral Rule” does not stipulate which person is has the final say to give this consent. This is a family member and disputes become a matter to be governed by state or local law. In any event, the funeral director is obligated to obtain clear permission before undergoing the process of embalming. This approval must be expressly stated and cannot be simply implied.

4. In order to best and most clearly understand the family’s total consentin the decision to embalm, the funeral home must:

  • Ask specifically for their permission.
  • Not mislead the bereaved into thinking that embalming is required. While the family is making the funeral arrangements, the funeral director cannot tell a family that they’ll be charged for embalming regardless of the funeral that’s been planned. He cannot insist that embalming is a requirement nor can he simply assume that the family wants to have the remains embalmed.

It’s important to remember that simply because you’ve agreed to the funeral arrangements; it can’t be assumed that you’ve expressly consented to embalming. If the funeral director charges you for embalming without getting your express consent to the producer before it was performed, this is a violation of “The Funeral Rule” and should be brought to the attention of the Federal Trade Commission.