Law’s Response to Death: Where Do We Put Our Dead and Where Do They Go?

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Mount Hope Cemetery

After a couple weeks off from blogging I am back.  No, they weren’t actually planned that way, these things do happen and I do my best to regard these occurrences as kairos!  The word “cemetery” has many different meanings and connotations.  The online Merriam Webster refers to its origins as coming from the Middle English cimitery (derived the from Anglo-French cimiterie).  Its Latin origin is coemeterium and from the Greek koimētērion  meaning sleeping chamber, burial place, from the verb koiman to put to sleep. It traces the word’s first known use to the fifteenth century, but it seems natural that this word being based on the Anglo-French would have had an earlier iteration.  Cemetery is translated in German as Friedhof, a court or place of peace.

Cemeteries are a kind of public park, perhaps before many communities had such a thing (except perhaps for grazing cattle).  In this country, one source has named 1831 as the year the first cemetery was founded, with the  construction of Mount Auburn Cemetery in Cambridge Massachusetts.  I have featured another picture from Mount Hope in Rochester, New York, which was founded in 1838.  You might be wondering what larger European cities have done with all their dead.  Perhaps you have visited “the catacombs.”  A catacomb is simply an underground cemetery, a place for putting away human remains that was first built by the (ancient) Romans.   Of course there were Romans in Paris, which was then called Lutece.  Some of the more famous catacombs are those of Paris which are comprised of more than two hundred miles of tunnels, some lined floor to ceiling with bones and skulls.  Here’s a link to a cool picture of that along with some fascinating history of the bones of between six and seven million persons.  Compared to the elaborate cemeteries that are found in so many cities, catacombs seem to be a great “equalizer” in terms of the anonymity of the dead.  In addition to the underground catacombs in many European cities there are numerous ossuaries, rooms into which the bones of the dead are place.

So how did communities historically dispose of their dead?  In many parts of the world, this remains a mystery because there often doesn’t appear to be any historical record or evidence of of really old cemeteries or burial grounds that are identified as such.    Back to the title of this post – so how did we move from charnel hill to churchyard or memorial park?  What began perhaps as a memorial park in some communities might have been overtaken from the natural place of rest and continuity, of perpetual home to a display of ornate stone and limited and managed natural surroundings, all neat and tidy perhaps with nature and its processes seemingly kept at bay.

In addition to the public health aspects of managing the dead and the dying, their dispostion is now well-regulated in all of our states.  This includes the move from what were once private arrangements taken care of by family members to the consumer-driven service industry of providers of mortuary and funerary services.

Part of the legal protections surrounding the dead has evolved along with how we  think of and how memorialize the dead.  There are international law protections relating to corpses which grew out of international law as reflected by our long history of warfare between nations and of course civil wars.   The legal status of a corpse is in most respects as that of property, but there are important distinctions to be made.  Here is a link to a 1997 article in the Whittier Law Review about necrophilia.  Jeffrey Dahmer is the most infamous modern sufferer from necrophilia.  Such laws relating to corpses, to the extent they exist and are enforced, uphold our moral compass and social respect for the dead and our treatment of the dead with dignity and respect.  Desecrating, plowing over or covering up graves is a criminal offense.  Hate crimes are often extended to a victim’s grave, often targeted for the victim’s race or religious affiliation.

Concerning the cemetery, many factors came together in different ways across cultures to allow for the placement of the dead within the community.  Perhaps in many ways cemeteries are places where the dead can be “kept” so as not to be free to wander about and disturb the living.  The final resting place should be one that is afforded respect so that there is no need for the dead to disturb the living.  It is essentially a segregation between the living and the dead.  In many religions there is the idea that the living and the dead will be reunited – I’m thinking about Mircea Eliade’s reference to the Lakota ghost dance in Death, Afterlife and Eschatology (1967: Harper & Row) at 85.  And lest we forget for those religions which have a messiah, the significance of the sealing of the Golden Gate in Jerusalem by the Ottoman Sultan Suleiman the Magnificent in 1541, in which it is said the Ottomans constructed a cemetery outside it so as to prevent the entrance of the Messiah.

So back to the cemetery and the angel depicted above.  In his work tracing the attitudinal changes of the western tradition’s approach to death and dying, Philip Aries describes in The Hour of Our Death (1981: Knopf) at chapter ten, entitled “The Age of the Beautiful Death,” a release from suffering and an end to toil at the end of a life.  In this chapter which has numerous references to literature of the period, including letters and journals from a French family, the writings of the Bronte sisters, the rise of spiritualism and other cultural phenomena from the 18th through the early part of the 19th century.  I will be continuing this post soon.

So, I couldn’t pass up this opportunity for a YouTube serenade, this one with Saint-Saens’ Danse Macabre . . . (Opus 40, first performed in 1875).

©Barbara Cashman  2014   www.DenverElderLaw.org

Whose Death is it Anyway?

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Winter Statue in Berlin

When I was putting together the outline for this post, I thought of the title “a death of one’s own” and so I tried googling that.  I found a video on vimeo from Bill Moyers from 2000.  It struck me that very little in the conversation about assisted dying or euthanasia has really not progressed much.  I attribute this to the long reaching effects of the death taboo.

The Moyers video is about three different persons facing the end of their lives as the result of terminal illness, I mention the first two in this post.  The first person featured was a veterinarian and rancher, Jim Witcher, who was diagnosed with rapid progression ALS.  This brave man allowed Moyers to come into his daily life to film his life as it progressed with ALS.  There was some discussion about his previous “fight” against the disease in its early stages and  he candidly speaks about the progressive and further loss of control he faces with the disease.  Still able to speak, Witcher explained that his ability to speak was already being affected and he explained that his ability to feed himself would be a milestone for some action, but that event passes unmarked by any decision and his illness moved into the next phase.

What is the distinction and where is the line on either side of dying – gradually, in our lives, in whichever way or on whatever terms our life presents itself?  This a theme of the video “A Death of One’s Own.”  Losing control over our lives, our bodies do not respond in ways that our brains and our experience have intended.

His wife explains her challenges in caring for him as the disease marches on. Respirators and feeding tubes offer a means of life extension as Witcher describes it, and those options are ruled out by him.  He states that he wants physician assisted death to hasten the demise, but that is not an option for him in Louisiana.  He notes that he has probably already lost the ability to take drugs that would end his life, to which he may have had access because he was a veterinarian.

When is it that you say “no more?”  Witcher identifies that as total paralysis.  He marks more milestones now, when I can’t do ___ anymore, then I know it will be time to “finish.”  Interesting that this comment is made, is the height of an autonomous choice which ironically involves the assistance of others to honor and to effectuate.  Witcher’s wife and adult children struggle with his stated desire to control his end of life choices.  This goes beyond the refusal of life support.   Euthanasia, according to Witcher’s daughter-in-law, is simply not discussed in their faith community.  The issues are simply not discussed.

Next Moyers goes to Portland, Oregon to visit a 56 year old woman who was diagnosed with a metastatic aggressive cancer.  She tried the chemotherapy which had little effect and she is in hospice care when her story begins.  She describes to the camera her desire to avail herself of physician assisted death, and Moyers notes that she could ask her doctor for such a prescription now.  Both of Kitty’s daughters support her decision regarding PAD.

What I found interesting about the woman who died in Oregon, intending to avail herself of physician assisted death, is that when she asked for the doctor to deliver the life ending medication, one of her children intervened and asked her to wait until her mother’s sibling arrived within several hours. By that time she was no longer able to swallow the barbiturate mixture which was the life-ending medication. Instead, she died within a short time with her family members surrounding her. When asked about whether her mother had the death she wanted, the daughter who asked her to wait responded that she wasn’t sure and there was seemed to be some guilt associated with that response.  Perhaps she felt that her interference with her mother’s wish had diminished her choice over her demise, potentially making it an unpleasant death for her mother.

Of course we never know about these things until we’re put in that circumstance – all the more reason to start thinking about these issues because they will surely face a greater number of people as we baby boomers age.  What I find most troubling about the discussion in the Moyers video is that so much of the discussion is focused almost exclusively on autonomy and control, it is as if no one thinks about control until its lack presents itself as an adversary, when the disease process threatens the human personality’s need for control, or at least the ability to maintain the illusion of it.  In that context, a terminal disease’s biggest threat – other than to the person’s life – is to the sense of control.  What does control have to do with dignity?  That is another question!

This makes me think of Viktor Frankl’s classic work “Man’s Search for Meaning.”  I think this quote is especially instructive here:

“When we are no longer able to change a situation, we are challenged to change ourselves.” 

The Colorado legislature is currently looking at a bill entitled “Terminally Ill Individuals End-of-Life Decision,” about which you can read more here.  Note it is not called “death with dignity” as the Colorado hospice and palliative care community strenuously objects to the notion that the only “death with dignity” is one achieved through lethal medications.  I agree with that observation, and it is interesting to note that the relevant term here for those persons wanting to avail themselves of physician-assisted death is “life ending process.”

Stay tuned for a continuation of this topic and more about Colorado’s proposed legislation.

©Barbara Cashman  2014   www.DenverElderLaw.org

The Expression of Grief as an Essential Human Activity

Mount Hope in Rochester, New York

Mount Hope in Rochester, New York

Say what?! Grief, Barb – isn’t that suffering that we all want to avoid?  Well, not so fast. Yes, I am working my way up to some more posts about euthanasia, and grief and grieving is the middle ground for this passage.  Sadly, I have been unsuccessful in locating any old SNL clips on the internet which feature Gilda Radner as Emily Litella, I’m thinking of her piece about “Youth in Asia.”  I’m an optimist, so I’ll continue to search . . .

Let’s begin this one with a question – What is grief?  My web search turned up a wide variety of things including: keen mental suffering or distress over affliction or loss; sharp sorrow; painful regret; a strong, sometimes overwhelming emotion for people, regardless of whether their sadness stems from the loss of a loved one or from a terminal diagnosis they or someone they love have received; and it seems that grief can be both a cause as well as a result.  This is demonstrated by the verb “grieve” which is the activity of feeling, experiencing grief.  One source noted that the definition of grief depends on things like who we are grieving and when we are grieving and also why. I find it strikingly odd that in the sentence following such broadly appropriate subjective factors, the accepted “stages” of grief are identified.  I am certain that Dr. Kubler-Ross did not intend her “stages” to become the accepted norm for what passes for grief and grieving in this country, but that is what has happened. The reference to these stages  is invariably accompanied by a disclaimer like “while there is no one ‘right’ way to grieve. . . “  but there most certainly is a correct way because we have quantified and objectified this most personal and subjective of human activities!

The fact is, we have precious few recognizable rituals around the expression of grief, and because we lump it under that generic heading of “suffering” we insist that people get through their own stages as quickly as possible so that they can “move on” with their lives.  Odd way of minimizing this feeling that can arise over most any loss, in fact it can be argued that the small losses and how we handle those are good practice for the larger ones that invariably lie ahead.  This is one of the reasons I always insisted on pet funerals when my kids were young.  If you don’t start somewhere by practicing, you just don’t have any life experience on which to draw when you may really need a bit in reserve.

So, why am I criticizing the focus on the stages of grief?  I do not mean this in any way as a criticism of Dr. Kubler-Ross’s groundbreaking work, but rather as an observation that grief has now come to be objectified and quantified such that there are acceptable parameters identifiable by the medical and psychological community.

Sometimes this thinking about feeling can simply go too far.  What comes to mind here is the lost sense of balance.  I am going waaay back here, to the ancient Egyptians and the symbol that has become known as the eye of Horus (as personified by the goddess Wadjet and no, not the video game by the same name. . . . ). You might recognize it, it looks like this:

 

[thank you Wikipedia – you can make a donation to their cause here]

 

So the components of the eye of Horus consist of several constituent senses and also correspond to measurements. Forr my purposes here I am concerned with its association with the six senses: smell, sight, thought, hearing, taste and touch.  Yes, thinking is listed as one of the senses – it is one of our faculties after all.  In our mainstream culture that is so focused on quantifying things, identifying objective reality of a material universe, thinking gets elevated far above its historical position in a more traditional pantheon of human attributes.

I refer to the eye of Horus for purposes of asking ourselves about the place where we find ourselves in this culture with all of our thinking, our information and our never-ending thirst for more.  We have become estranged from uncertainty and questions about which thinking does not provide suitable answers.  We have forgotten how to ask the philosophical questions and how to be with the mysteries. I am not diminishing in any way the information which we now know, I am merely wondering about its proper context.

Death, the end of life and the end result of feeling the loss of another or a part of ourselves – these are  mysteries in many ways that thinking can help us with but thinking is only part of the response, the activity required.  Our over-reliance on thinking has caused us to forget how we honored death and the end of life in previous times. I do not believe this is progress and I find this aspect of the death taboo very troubling – that we cannot even comfortably talk about that about which we cannot really “know” from a thinking sense.  This doesn’t mean we are not equipped to talk about this topic from other perspectives – it just means we are much less likely to be comfortable in doing so.

So, I will end this post with a poem penned by a friend about mystery.

It was written by Richard Wehrman, a co-retreatant with me at a seminar in Rochester, New York last September.  The topic of the retreat was “The Angel of Memory.”  Thankfully, Richard willingly shares his beautiful poetry.  This one is entitled “Visits From the Dead.”

This morning the Dead visit me on

the veranda. We drink strong coffee and

watch the wind raise white waves on the sea.

The Dead do not like to be called the dead.

“That is a word the so-called Living use,” they say.

“We are the ones alive, the ones who are real.”

The sun shines through my companions. I cast

a shadow; they do not. “We are so much clearer than you,

like pure water, like crystal.” If I blur my eyes they

are there, I can only see them with my heart.

They are complete like a jewel, like a chakra,

a whole life from beginning to end.

Later we go exploring together, up and down

the sandy paths by the sea. “We are beings

as you are—as are the trees, the animals, the clouds

in the sky.” And where do you live,

I ask them? “We live here, in this World,”

they say, “where else could we be?”

In the evening I gaze over the palms and orchids,

over a glistening vibrant sea. Everywhere I turn,

living beings look back like raindrops, sands

cast up by the sea. Their vibration is endless, like

looking through rippled glass. We are one

multiplicity, innumberable, inseparable.

 

What if the dead – not our children – are our future?  So, dear reader – here’s to life and being alive and conscious of it!

 ©Barbara Cashman  2014   www.DenverElderLaw.org