Indiana the first state to require all fetal remains be buried or cremated

Set to take effect July 1, the law considers all fetal tissue, no matter how small or early in its development, as human remains that should be properly buried or cremated.

Those who must carry out the mandate worry about the potential of thousands more burials and cremations due to the high number miscarriages in early pregnancy.

The law is vague, they contend, and likely to be broken, even if unintentionally.

“We’ve asked questions, and nobody seems to have the answers,” said Curtis Rostad, head of the Indiana Funeral Directors Association.

The treatment of fetal remains is a small piece of the law, which passed the General Assembly earlier this year and made Indiana only the second state to prohibit abortions because of fetal anomaly. The procedures are banned if prompted by prenatal tests that detect birth defects or disease.

The law also made Indiana the first state to require all fetal remains be buried or cremated.

Planned Parenthood and the American Civil Liberties Union are challenging the restrictions as unconstitutional. Indiana University has sued separately, saying the protection of fetal remains will make it a felony for scientists to conduct certain research.

Legislators behind the bill say its intent is clear.

State policies should restrict the practice of treating fetal tissue like any other medical waste, they argue. Currently, medical waste disposal companies may accept the remains.

"It's about furthering a sense of humanity," said Republican Rep. Casey Cox, a Fort Wayne attorney who carried a House version of the bill. "It's about changing our thinking with respect to these remains and what they mean to us as a society."

He and other co-authors worked with those affected by the law to mitigate unintended consequences, he said.

For example, some original language covered all miscarriages, including those that occurred at home. Casey said the final law covers only those miscarriages that happen in medical facilities – a distinction that others dispute.

Co-author Sen. Travis Holdman, R-Markle, said the bill expands on a law that now requires hospitals to offer burial or cremation choices to parents for the remains of miscarried or stillborn infants. The existing law covers fetuses that have developed 20 weeks or longer.

Since that law was adopted in 2014, hospitals and funeral homes have created policies to comply, typically as part of grief counseling offered to families who've suffered a loss.

“We’re extending the same dignity now being given to all fetal remains," Holdman said.

But that expansion raises some tricky, logistical questions.

Rostad said funeral homes and cemeteries are unsure how many requests they’ll receive for services, or how even to calculate the costs involved.

Up to 10 percent of all recognized pregnancies end in miscarriage, with most happening within the first trimester, according to the American Congress of Obstetricians and Gynecologists. Others suggest the number is far greater.

That's at least 9,000 miscarriages in Indiana per year, based on birth rates.

Rostad said the law will force uncomfortable decisions. For example, fetal remains lacks skeletal structure and may be so small that there are almost no ashes left to bury or return to a family.

Under the law, multiple remains may be cremated at once and ashes may be co-mingled – making it even harder to determine how the remains will be interred.

“It just raises some real questions about the practicality of this law,” Rostad said.

Handling the often tiny tissue from a miscarriage that happens within the early weeks of pregnancy is also among the concerns of hospitals administrators and doctors.

Tim Putnam, CEO of the Margaret Mary Community Hospital in Batesville, said hospitals, especially in small communities, need more guidance.

“We don’t want to put our staffs at risk of inadvertently violating the law,” he said.

But that much is inevitable, say critics of the law.

Tanya Marsh, an expert on burial law at Wake Forest University in Winston-Salem, N.C., called the Indiana bill an “outlier” in its treatment of fetal remains.

“It’s the most extensive and comprehensive legislation that I’ve seen,” she said.

She criticized the law as poorly written and conflicting. That may be due, in part, to how it was crafted – combining three abortion-related bills into one, sweeping law in the final days of the legislative session.

One section, for example, appears focused only on miscarriages that happen in a medical setting.

Elsewhere the law appears to apply to all fetuses, requiring a woman who experiences a spontaneous miscarriage at home to turn over the remains to a licensed funeral home director for burial or cremation.

“That’s the problem with this law,” Marsh said. “It tells you things you can’t do, then sets it up in such a vague way, it provides no guidance on how to accomplish those things.”