Texas will require hospitals, clinics to bury or cremate fetal remains

Rules take effect Dec. 19

Texas health officials on Monday announced that rules requiring the cremation or burial of fetal remains—rather than disposing of the remains in a sanitary landfill—will take effect on Dec. 19.

Indiana and Louisiana passed similar measures earlier this year, although the proposals have not gone into effect due to legal challenges.

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The Texas rules were first proposed in July by the state health department. The rules state that fetal tissue must be treated "using the process of cremation, entombment, burial, or placement in a niche or by using the process of cremation followed by placement of the ashes in a niche, grave, or scattering of ashes as authorized by law." The rules would apply to aborted fetal tissue regardless of the gestation period.

The remains could either be buried immediately after an abortion or buried or scattered after being incinerated, according to the New York Times. The remains could be steam disinfected prior to being buried, the rules state.

Stakeholders weigh in

Stakeholders responded to the proposal with more than 35,000 comments.

Several stakeholders, including the Center for Reproductive Rights (CRR), said that the proposed rules were unconstitutional and would result in a legal challenge. In addition, representatives from Planned Parenthood and NARAL Pro-Choice Texas said the state has not submitted evidence that existing protocol for fetal tissue disposal is not optimal for public health and safety, or any less safe than the proposed revision.

The Texas Hospital Association and Texas Medical Association in August expressed concern that the proposal would mandate that women who have a miscarriage at home bring fetal remains to health facilities, which would arrange for the remains to be buried. The groups last month in a letter also said the rules would "present regulatory intrusion" into the "unique relationship" between patients and physicians.

Meanwhile, Texas Gov. Greg Abbott, who pushed for the rules, touted the rules earlier this year in a fundraising email. He said, "I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life. This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains."

Latest developments

In the rules finalized Monday, state officials clarified that the requirements would not apply to miscarriages or abortions that take place at home. In addition, in response to concerns about privacy, officials said the rules would not require the submission of birth or death certificates.

According to the Texas Tribune, the rules will likely be challenged in court (Stack, New York Times, 11/30; Ura, Texas Tribune, 11/28; Ura, Texas Tribune, 9/22; Ura, Texas Tribune, 8/4; Ura, Texas Tribune, 7/6).

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