The history of care for the dead body in the United States can be divided into three distinct eras. In the pre-funeral industry era, spanning from the Revolutionary War to the American Civil War, “[f]unerary practices were of a communal, not a commercial, nature.” Prior to the Civil War, funerals were conducted at home, with family and friends preparing and burying the bodies of their loved ones. The family of the deceased relied only occasionally on an undertaker to build the casket or transport the body to the final resting place.
In our second era of the funeral industry, spanning from the post-Civil War era to the 1990s, a new profession—funeral directing—emerged, “dedicated to the disinfection of human remains and the facilitation of grief.” Embalming, performed by a licensed funeral director, became the central component of the offered funeral services. Historically, only men were funeral directors, while women were outright denied jobs or apprenticeships by male-dominated funeral homes. However, it is important to recognize that while this was true for funeral homes predominately serving white clientele, since the 1800s women have held “a valuable and visible role” in African American funeral homes.
Finally, we reach the era of Reform. Beginning in the 1990s and continuing into the present, we have seen the breakdown of a rigid central power structure in the funeral industry, coupled with the re-emergence of deregulated, deprofessionalized care for the dead body. This is evident in the rise of unlicensed, unregulated death practitioners, family-led death care, and a spate of new disposition options, including natural organic reduction and alkaline hydrolysis. Still, the regulatory and licensing structures of the funeral industry have been slow to adapt to these functional, on-the-ground changes. To put it bluntly, the way the funeral industry is regulated no longer matches the funeral industry we have today. We are in an entirely new era of funeral care, and the laws and structures that govern this care have not caught up.
Today, burdensome barriers to entry make it difficult to join the funeral industry without substantial financial backing or industry connections. At the same time, funeral homes are in desperate need of new living bodies to provide labor. Ineffective and obtuse state boards often restrict the industry further through anticompetitive practices and outdated licensing regimes, reflecting a past era when embalming was far more widespread. A lack of accountability throughout the funeral industry overall hurts consumers and is reflected in the pricing and quality of services. As a result of these issues, federal attempts to regulate discrepancies in pricing through the Funeral Rule are entirely inadequate in their current state.
This Essay proposes three reforms necessary to bring regulation up to date with conditions on the ground. Part I calls for a more relaxed licensing regime for persons providing death services, as well as lower barriers to entry. Part II calls for greater inspection of operating funeral homes. Part III explores the legalization of a variety of green—that is, environmentally friendly—death options across the United States. We conclude by proposing that future regulations should be geared toward securing a “good death” for more people, by which we mean an end of life, funeral, and disposition that are more sustainable, more accessible, and—importantly—legal for all.
