Covid-19: Stop indiscriminate cremations By Dr M. Haris Z Deen

Cremation or burial? The debate is likely to go on for a long time because the government of Sri Lanka is determined to maintain its stance of indiscriminately cremating all those who are believed to have died of Covid-19. The danger of such a discriminatory action has been clearly exposed in the case of the Muslim woman who was forcibly cremated though she had died of natural causes. Covid-19 test results are not accurate in some cases. Once such a mistake is done, it is permanent and cannot be rectified thereafter. In the case of the woman, she would not have consented to cremation.

Even when this case was pronounced an insult to human dignity, the government of had no remorse and did not have the decency even to apologise to the next of kin of the innocent victim, for its mistake. This is not only disgraceful but also amounts to gross disregard for human rights. It is clearly discriminatory.

Common law recognises the right of a person to a decent burial. However, in ordinary circumstances the right to possession of a dead human body for the purpose of burial is in the spouse or the next of kin (Sherman v. Sherman, 330 NJ, Super. 638 (Ch. Div. 1999). However, except for a last will or deposition, an unrestricted property right does not exist in a dead body. It is nevertheless, recognised that the matter of disposal of a dead body is so involved in the public interest, including the public health, safety and welfare, that is subject to control by law instead of being subject entirely to the desires, whim or caprice of individuals. (Wolf v. Rose Hill Cemetery Ass’n, 832 P.2d 1007 (Colo. Ct. App. 1991). This is the basic law as far as it is concerned. However, any overriding legislation, like the COVID-19 deceased body disposals as in the case of Sri Lanka, should take into account possible alternatives to comply with human rights and faith issues. This right, characterized as the right of sepulcher under common law, continues to be recognized by the courts notwithstanding the passage of many hundreds of years. {Correa v. Maimonides Medical Ctr., 165 Misc. 2d 614 (N.Y. Sup. Ct. 1995). For those who are not familiar with the phrase “right of sepulcher”, it is the right to choose and control the final disposition of a dead human body.

The preference of the deceased concerning the disposition of his or her body is a right that is usually strictly enforced. Some states confer this right, considering a decedent’s wishes as of foremost importance. Under the present conditions the UK Coronavirus legislation require that the “deceased are treated with sensitivity, dignity and respect, and provides guidelines for the preparation of bodies for disposal in the manner of burial or cremation. It would therefore, appear that that the Sri Lankan legislation has been drafted without any consideration of the sensitivities of religious beliefs and taking into account available alternatives to cremation. Furthermore, there is the danger of deaths of people other than from COVID-19 being mistakenly cremated like the case I have highlighted in the foregoing paragraphs. There is also the danger of people who might actually suffering Coronavirus infection failing to report to hospital, accepting the inevitable end and isolating themselves in their own homes rather die in peace and wish for a dignified burial than being cremated. This is a real danger – If they are going to die in any case they might hide the fact that they are COVID-19 patients and die at home.

The authorities should take note of these dangers and make appropriate alternative arrangements which are obviously available as observed by all other countries in the world.