If a Hospital says they Only Release Bodies to Funeral Homes

Dear Hospital Leadership,

 

I am concerned about the position communicated by _______________ that a deceased person may be released only to a funeral home business. This issue warrants review by hospital leadership because 

 

Utah Code § 58-9-602 establishes who have the right and duty to control the disposition of a deceased person and that a funeral service director does not have to be retained.

 

Utah Code § 26B-8-114(4)(a) provides that “a custodial funeral service director or, if a funeral service director is not retained, a dispositioner shall sign the certificate of death.”

 

Utah Code § 26B-8-101 defines a “dispositioner” to include qualifying next of kin who voluntarily assume that responsibility when no person with higher statutory authority is acting.

 

Utah Code § 58-9-305 further provides an exemption from funeral-service licensure for the transportation of a dead human body in accordance with other applicable state and federal laws.

 

The Utah Department of Health and Human Services also provides current public instructions on it's website for families who choose not to retain a funeral director, stating “Utah law allows families to care for their dead without the services of a licensed funeral director.”.  You may review it at https://vitalrecords.utah.gov/death#filedeathrecord Scroll down to "Information to File a Death Record" for general guidelines and a death record processing form for the family to fill out and bring to the County Vital Records office to obtain the Death Certificate and burial Transit Permit that are required before removing remains from a hospital, nursing home, residence, or other place of death.

 

Release of remains by hospitals and other institutions:

Utah Code § 26B-8-126 requires an institution to maintain a record identifying the person to whom the deceased is released. More significantly, § 26B-8-126(4) provides that a person or institution that, in good faith, releases a deceased person to either a funeral service director or a dispositioner is immune from civil liability connected directly or indirectly with that release.

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Utah Code § 26B-8-120(7) further provides that Utah's vital-statistics laws are “to avoid interference, to the fullest extent possible, with the ceremonies, customs, rites, or beliefs of the decedent and the decedent's next of kin” in connection with disposition of the deceased.​ This provision is particularly important for Native American families and other whose cultural, religious, traditional practices or personal finances require family-directed care of their deceased.

 

We recognize that a hospital may establish reasonable procedures concerning identification, authorization, documentation and the safe release of remains. Hospital policies, however, must operate consistently with applicable Utah law. A blanket policy requiring release only to a licensed funeral home is inconsistent with Utah's statutory recognition of a dispositioner and its' protection provided to institutions releasing remains to a dispositioner, as well as the Utah Health Departments' own published instructions for family-directed disposition.

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Proper authorization is what the hospital should be looking for and not a cultural purity test such as employment by a funeral home. What makes funeral homes so sacrosanct? We can provide many news headlines of ways funeral homes have violated the decency of deceased persons and the trust of the people who hired them. There is no instances of families who have acquired proper documents being charged with any impropriety.

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Antitrust and Unfair Competition Laws 

Furthermore under Utah contract law, agreements entered into under improper pressure or coercion are legally unenforceable:

• Duress: Withholding a family member's body unless the family hires a third-party commercial entity constitutes economic and emotional duress, rendering any resulting third-party contract voidable (Andreini v. Hultgren).

• Utah Antitrust Act (Utah Code § 76-16-510): Prohibits illegal restraints of trade, monopolistic acts, and illegal "tying arrangements."

• A tying arrangement occurs when a business conditions the provision of a primary service (e.g., hospital care or release of remains) upon the customer purchasing a separate product or service from a preferred or third-party provider (e.g., a private funeral home). Conditioning the release of remains on hiring a funeral home restrains free trade and unlawfully restricts consumer choice.​​​

 

It is important that Native American and other families wishing to observe their own cultural, religious, or traditional practices, or simply wanting to act frugally are afforded the protections contemplated by Utah law.

 

Thank you for your attention to this important matter.

 

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