Rethinking Laws Permitting the Sales of Human Remains

How do we explain the difference between these commonly accepted social and legal norms regarding the decent treatment of remains, and legal permissiveness toward the seemingly cavalier commercial treatment of certain remains?
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Etsy, the online marketplace for handcrafted items, updated its "prohibited items" policy last week to ban the listing of human remains or body parts, including skulls, bones, articulated skeletons, bodily fluids, preserved tissues and organs. (Hair and teeth are still allowed to be sold on Etsy.) A few online news outlets picked up the story, and the resulting chatter focused on several questions. "You can buy human remains on the Internet?" And even more fundamentally: "You can buy human remains?"

Perhaps surprisingly, the answer to both questions is "yes." The only federal law which restricts the sale of human remains is the 1990 Native American Graves Protection and Repatriation Act, which generally attempts to protect the burial sites of Native Americans by prohibiting the possession and trade of Native American funerary objects and human remains. No federal law prohibits the disturbance of the burial sites of non-Native Americans, or the possession and trade of funerary objects and human remains. Instead, the laws regarding the disposition, possession, and trade of human remains and the disturbance of graves is handled by the states. Only three states currently restrict the trade in human remains.

A few Google searches reveal a surprising trade in human remains online. Ebay's "Human Remains and Body Parts Policy" prohibits the sale of Native American grave-related items and "humans, the human body, or any human body parts" but expressly permits "clean, articulated (jointed), non-Native American skulls and skeletons used for medical research." To comply with the policy, the seller must list that the remains are to be used for medical research, but there is no requirement that the buyer actually demonstrate that they will be used for that purpose. Interested buyers can currently pick up a set of human ribs for $14.50, an articulated hand for $135, a complete spine with pelvis bone for $300, a skull for $1300, or an entire human skeleton (including a display case) for the "Buy It Now" price of $1900.

A website called "The Bone Room," which describes itself as a natural history store, sells a wide range of items including fossils, mounted butterflies, animal bones, and human bones. The website explains that prices for human bones have risen in recent years because the major sources were India (which banned their export in 1987) and China (which banned their export shortly before the 2008 Beijing Olympics). The Bone Room sells standard articulated human skeletons for around $5,000 and standard adult skulls from $800 to $1700.

The sale of human remains is not limited to the Internet. On the April 27, 2011 episode of Storage Wars, entitled "Skullduggery," Dave Hester purchased a storage locker that included a human skull and collection of bones. He sold it at a local store and made a profit on the locker. Many antique stores and flea markets sell human remains and funerary objects.

Few laws restrict the possession and trade in non-Native American human remains in the United States, but the commercialization of human remains is dramatically inconsistent with the respect that by law and custom we generally provide to deceased human beings. American courts have long assumed a universal human concern with the disposition of our mortal remains. Seventeen states have laws that forbid "abuse of a corpse," which generally means that it is a criminal offense to "treat a corpse in a way that [a person] knows would outrage ordinary family sensibilities." Americans of varied backgrounds treat the disposition of their deceased loved ones with reverence. More tellingly, we treat the disposition of strangers with respect. Cars pull over the side of the road to allow a funeral procession to pass. When anonymous bodies are found, particularly when those bodies are of children, strangers often donate to provide for a funeral and decent burial. When stories are published concerning the mistreatment of corpses, or the mishandling of cremated remains, the predominant response is disgust and anger.

How do we explain the difference between these commonly accepted social and legal norms regarding the decent treatment of remains, and legal permissiveness toward the seemingly cavalier commercial treatment of certain remains? I think that the failure of the law to prevent the commercialization of human remains is consistent with the neglect of the American law of the dead by legal scholars, policy makers, and the public. This disregard is symptomatic of a broader disconnect between the living and the dead in American society. Thinking about how we feel about death and about how we want to treat human remains is an uncomfortable topic that we'd rather avoid.

But that neglect has consequences. In 2011, a Craigslist seller in Phoenix advertised the skull of a 12- to 14-year-old child that he had purchased at a garage sale. Both of those sales were perfectly legal. It is valid to argue that we should make human remains available for medical or anthropological research. It is much harder to justify that we should be allowed to display the skull of a dead child as an object of curiosity, or to profit from the sale of that child's body. But if we remain unwilling to have a public discussion about the trade of human remains, the lines will continue to be drawn by private entities like Etsy and Ebay, and the choices they make may not reflect society's values.

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