Never required by law
Embalming is a process that temporarily preserves the body, and many people will request it while funeral planning. This preservation, through the use of chemicals such as formaldehyde, is aided by perfumes and other agents. Embalming isn't required by any state law, however, it is almost unanimously practiced in traditional funerals since the body is held for several days before its final burial.
Embalming is practiced for some cremations, although it's not legally necessary. Any time a body is held for several days, it's appropriate to embalm.
The FTC and Embalming
The following information is provided by the FTC, outlining legal provisions of The Funeral Rule as they apply to funeral directors and embalming. In essence, a funeral director must be upfront about the fact that embalming is not a legal requirement. If they're very fair, they'll inform you about options concerning embalming.
The Funeral Rule
A funeral home can charge a fee for embalming only in one of these circumstances:
- State or local law requires embalming under the particular circumstances regardless of any wishes the family might have. If this is the case, the funeral home must note on the itemized Statement of Funeral Goods and Services Selected that embalming was performed due to legal requirement, and briefly explain that requirement. While state and local law can vary, federal law doesn't require embalming under any circumstances.
- The funeral home has obtained prior approval for embalming from a family member or other authorized person. The Rule does not address the issue of who is considered 'authorized' to give such approval. That's a matter of state or local law. The funeral home must get express permission to embalm, however; it can't be implied. For example, if a family states that they want a viewing before burial and asks the funeral home to 'prepare' the deceased, the funeral home must specifically ask the family for permission to embalm and must receive their permission before they embalm the body.
In order to obtain the family's express consent to embalm, the funeral home must: a) specifically ask for and obtain their permission, and b) not misrepresent when embalming is required. For example, if while making funeral arrangements, the funeral director tells a family that they'll be charged for embalming no matter what type of funeral arrangements they choose, the family's agreement to the funeral arrangements in general doesn't constitute express consent to embalm. In addition, if the funeral director charges a family for embalming in this situation, they would be charging a second non-declinable fee, which violates the Funeral Rule.
When an individual makes pre-need funeral arrangements and gives express approval for embalming at that time, the funeral director doesn't need to get any additional approval to embalm at the time of death.
The Funeral Rule doesn't require the funeral provider to get permission to embalm in writing, as long as it's express approval. Some states, however, may require written authorization.
On the Statement of Funeral Goods and Services Selected, the funeral director must explain the reason that he or she charged a fee for embalming. The reason may be that the family requested this service. However, if the funeral provider tells a consumer that embalming is required for a specific reason (e.g., viewing or legal requirement) then the funeral director should list this specific reason on the Statement. Simply noting 'family consent' for embalming does not convey the reason for embalming, only that the family has consented. This requirement protects families who may feel they've been misinformed by the funeral director.
All of the following must be noted on the Statement:
- The funeral director is unable to contact a family member or other authorized person after exercising due diligence. In trying to contact the family, the funeral director must exhaust all means known, given the time constraints. If refrigeration is available, the funeral director may be required to take more steps to contact the family and to obtain embalming authorization than if no refrigeration is available.
- The funeral director has no reason to believe that the family doesn't want embalming performed.
- After embalming the body, the funeral director obtains subsequent approval. In seeking approval, the funeral director must tell the family that if they select a funeral where embalming would be required (such as a funeral with formal viewing), they will be charged a fee, but that the funeral director will not charge a fee if they select a funeral where embalming would not be necessary (such as a direct cremation with a memorial service). If the family then expressly approves embalming or chooses a funeral where embalming is required, the funeral director may charge them for the embalming. But, if the family chooses a funeral where no embalming would be required, the funeral director cannot charge for the embalming.
The required disclosure regarding embalming on the itemized Statement will let consumers know that they don't have to pay for embalming if the funeral director didn't get their prior approval.