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Long Island, New York

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Jim Forde
Jim Forde
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The Right to Bury One’s Dead: The Letter and Spirit of the Law

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For centuries, the right to bury one’s dead without interference has been jealously guarded by humankind. Indeed, in Homer’s Iliad, one of the most moving passages in ancient literature can be found, involving the legendary grief and despair of King Priam. The King was despondent over being deprived of the corpse of his young warrior son Hector, freshly killed by the vengeful Achilles. Eventually, King Priam received his son’s body for a proper ceremonial burial. The parents described below were not so fortunate.

On December 15, 2008, RGGL will argue an appeal before the State of New York Appellate Division, Second Department, concerning parental "loss of sepulcher"—–the right to bury the remains of a child.

The premature child expired shortly after birth, and the mother specifically told the nurse on duty that she wished to make burial arrangements. She named the little girl "Destiny." In addition to being devout Catholics, the girl’s father was a Chief of the Ibo tribe in his native Africa. According to their tribal custom and belief, clippings of the infant’s hair and fingernails were required to be interred at their tribal burial ground, or their daughter’s spirit would be doomed to wander the Earth forever—-never at peace.

Nonetheless, the hospital callously disposed of the child’s remains, purportedly relying upon their own internal hospital "rules" regarding a fetus with low birth weight. To this date, the parents have no idea whether their daughter’s remains were used for medical research or disposed of in some other fashion.

After a trial before Justice Hutcherson in Supreme Court, Kings County, a jury awarded the parents the total sum of $2 million dollars for their emotional harm based upon the violation of their right to bury their child. After the trial, the hospital tried to have the Court throw out the verdict on the grounds that New York statutes and legislation do not specifically grant relatives the "right to bury their dead." The hospital also questioned whether the amount of damages awarded was excessive.

The Court ruled that while there may not be any statute, regulation, or law creating a right to sue for "loss of sepulcher," that such a right had been created by centuries of court decisions allowing family members to recover damages when a corpse is lost, damaged or mistreated. In addition, the Court ruled that in light of the unique type of emotional harm sustained by these parents, the amount of the jury’s verdict was not excessive.

The hospital has taken an appeal from the verdict and the court’s findings. We look forward to proving them wrong again.

UPDATE:

The Appellate Division, Second Department has affirmed this case on the law, but directed that the total damage award should be reduced to $300,000.