Texas Fetal Burial Rule: Costs and Implementation Remain Murky Weeks From Possible Start Date

Women who have abortions or miscarriages in a medical setting are affected.

ByABC News
December 15, 2016, 5:27 PM

— -- A new rule in Texas could have far-reaching effects on women who have abortions or miscarriages while at a hospital or clinic in the state.

Last month the Texas Health and Human Services Department finalized a rule that will require medical providers, including hospitals and abortion-providing clinics, to ensure fetal or embryonic material is buried or otherwise interred if a woman has an abortion or miscarriage in a medical setting. Women who have a miscarriage or abortion at home are exempt from the rule.

But the rule was blocked by a federal judge today, according to The Associated Press. U.S. District Judge Sam Sparks granted a temporary restraining order delaying the rule from taking effect until Jan. 6, the day he is expected to rule on whether or not it can be implemented, according to the AP. A lawsuit filed on Monday by the Center for Reproductive Rights on behalf of multiple abortion providers called the rule “unconstitutional.”

Experts say many medical providers will have to turn to either funeral homes or medical waste facilities if the rule is implemented.

The new rule requires fetal material to be interred either through burial, entombment or other methods. It cannot be put in a sanitary landfill even after cremation. Currently, medical providers like hospitals or clinics often use medical waste facilities to dispose of fetal material, which is generally incinerated or put through another disinfecting process before it goes to sanitary landfills.

But relying on medical waste facilities or funeral homes to take on this added task of interment may be difficult, according to experts.

Medical Waste Facilities Largely Unequipped to Bury Fetal Material

Officials for the National Waste & Recycling Association, a trade association that represents private-sector U.S. waste and recycling companies, said that after seeing the wording of the final rule, they had thought medical providers would turn to directly to funeral homes or crematoriums rather than medical waste facilities to dispose of most embryonic and fetal material, as they do now.

“The way our members were looking at it, we didn't think we'd be handling the material anymore,” Anne Germain, director of waste and recycling technology at the National Waste & Recycling Association, told ABC News.

Germain pointed out that medical waste facilities have virtually no ability to parse out items in medical waste bags they pick up from clinics or hospitals. Additionally remains from incinerators or other disinfectant centers cannot be easily interred or buried.

Additionally, she said that medical waste facilities who are members of the National Waste & Recycling Association usually partner with a crematorium or funeral home if they currently have to bury or inter remains from medical waste.

“Our expectation was it wasn't practical to follow any sort of treatment [such as incineration] with interment,” Germain said. She said they believed that task of burial and interment would mean involving the “death care” industry, such as funeral homes.

Two local medical waste facilities in Texas contacted by ABC News said their current incinerators don’t allow them to inter material. Instead, they said when material needs to be buried or interred they work with a funeral home or other crematorium.

“You can’t go to a normal incinerator, which is not set up to collect the ashes for interment,” an owner of a medical waste processing facility in Texas told ABC News. “There are incinerators right now that don’t take the ashes out of that and bury them. You now have to get a crematorium -- so there will be an increased cost.” The owner said he did not want to be identified due to the sensitive nature of the rule.

Joe Kappil, general manager at Gamma Waste Systems in Houston, said his company always partners with funeral homes, which often have their own crematoriums, if any material needs to be interred.

Regulations Unclear for Funeral Homes

However, it's not as easy as assuming the funeral industry will take over the role of medical waste facilities in disposing of fetal tissue, particularly given current state regulations, according to industry experts.

Current regulations state that funeral homes in Texas will assist with the burial or cremation of fetuses after 20 weeks' gestation or if they reached the weight of 350 grams, when a fetal death certificate is issued.

But prior to 20 weeks' gestation, the regulations are murky, offering no guidance, said Michael Land, spokesman for the Texas Funeral Directors Association.

In the past, Land said funeral directors often provided their services at no charge for a fetal death post 20 weeks' gestation or over 350 grams. But given the new rule, Land said funeral directors are concerned about the number of cases they will need take on and said they will likely not be able to offer discounted rates for these cremations or burials.

“It's almost going to have to go into effect to let us figure it out as things progress,” Land said of the new rule.

Jim Bates, the director of Funeral Consumer Alliance of Texas, said he is concerned that current state regulations are not clear enough to include fetal material at all and argued that funeral directors should avoid disposing of that material until the regulations are clarified especially for fetal material prior to 20 weeks' gestation.

Bates said if funeral directors start to dispose of fetal material on a larger scale once the rule is implemented, he will consider filing a complaint either with the Texas Funeral Service Commission, which licenses funeral homes and investigates to ensure compliance, or another state regulatory body.

The regulations “do not apply to fetuses, period,” he said. Instead, he thinks they only apply to people with a birth and death certificate.

The Texas Funeral Service Commission responded to ABC News on Friday that it had not yet had a meeting to discuss the possible repercussions of the rule or if it would affect the commission's enforcement. A spokesman said the commission is currently relying on Texas Administrative Code to define fetal death. That code requires a death certificate be issued for any fetus if it is past 20 weeks' gestation or weighs more than 350 grams. It does not mention fetal or embryonic material from an earlier gestation or lower weight.

Costs Could Soar

The estimated costs medical providers will face to bury or inter this tissue are also difficult to estimate.

In the preamble to the rule, the Texas Health and Human Services Commission wrote that it believes the cost increase to health care facilities to be “minimal” and that if these facilities were not already cremating and burying the remains, the cost of burial would be offset by elimination of the cost of using a landfill. Overall, it “determined that the annual cost per facility would be approximately $450.”

But calls to medical waste facilities and funeral homes put estimated costs far higher.

“I believe it could it range from $450 upward to $1000 [per cremation or burial] depending on the funeral institution,” Land said.

Kappil said that the price could vary greatly depending on the city.

“If I had to estimate how much more it would cost to inter remains after incineration, would estimate $500 per [medical waste bag,]” Kappil said for the increased cost in Houston specifically.

David Brown, senior staff attorney for the Center for Reproductive Rights, said if these increased cost estimates are accurate, the rule will likely result in patients bearing the brunt of these increased costs as medical facilities charge more for treatment, despite the fact that the preamble also states that "there should ... be no undue [financial] burden placed on a woman seeking an abortion."

“Health insurance doesn't cover funeral expenses and most abortion care isn't even covered by insurance,” Brown said. “Abortion care in any event is provided by nonprofits. ... There's no fat to cut. It's all going to be passed on to patients.”

When asked for comment regarding the costs, the Texas Health and Human Services Department referred ABC News to its preamble, as paraphrased above.

The department did not respond when asked if it anticipated whether funeral homes or medical waste facilities would be primarily dealing with fetal material.

Dr. Nina Suresh and Dr. Gillian Morris contributed to this story. Dr. Gillian Morris is a resident physician in pediatrics at New York Presbyterian Weill Cornell Medical Center. Morris is a family medicine resident physician at Brown University/Memorial Hospital of Rhode Island in Pawtucket, Rhode Island. Both are residents in the ABC News Medical Unit.