A few days ago in the city of Huancayo, the cremation of a lady who had tested negative for COVID – 19 occurred due to a biosecurity issue, when the family was planning to give her a regular burial. In this article we will not debate whether it was negligence or no; , however, several questions arise from this case. Is it legal to disregard the decision of the family members or what would happen if the deceased left in writing his will against cremation?
To this end, the Peruvian Ministry of Health informed on March 16 about the measures to be taken in the event of coronavirus deaths. At the conference, the former Minister of Health, Elizabeth Hinostroza, declared that “patients who die from COVID-19 will have to be cremated”.
Before answering to this question, it should be mentioned that article 4 of the General Law of Donation and Transplantation of Human Organs and/or Tissues mentions the following: “Upon death, the mortal remains of the human person become an object of law, are preserved and respected in accordance with the provisions of the current regulations (…)”.
What does it mean that the mortal remains are an object of right? Simply, that it will receive the treatment as if it were a material good over which the legal power of the persons falls. By virtue of this, the person can decide on the last resting place of his remains by means of his will, in which case his family must comply with the last will of the testator.
Otherwise, if there is no will, our Civil Code regulates in Article 13 the following: “In the absence of a declaration during life, it is up to the spouse of the deceased, his descendants, ascendants or siblings, excluding and in that order, to decide on the necropsy, cremation and burial, without prejudice to the relevant rules of public order”.
Notwithstanding the recognition and protection made by our legal system regarding the will of a person to decide about his remains, The General Health Law in its article 112 mentions that “any corpse that makes possible the spread of diseases will be cremated (…)”.
In this sense, the cremation of the corpse is a disposition issued to take care of the common good of society and that is imposed on the will of the people. That is why, in the situation of COVID – 19, despite the fact that it was left by will or that the will of the family is different, it cannot be taken into account since the only purpose of the rule is to prevent the spread of the virus.
The problem is even more complex. What would happen if my religion forbids cremation? Before this we must remember what our Constitution says, specifically in clause 3 of article 2 it mentions that everyone has the right to freedom of religion, however it also states that: “(…) the public exercise of all confessions is free, as long as it does not offend morals or alter public order”.
Certainly the same article tells us that no one should interfere in the religious freedom of each person, but this same freedom has its limitations, which is also endorsed by the highest interpreter of the Constitution, the Constitutional Court, which mentions that, “(…) It also constitutes a limit the need for its exercise to be carried out in harmony with public order (…). Likewise, it is limited by public morality and health” (Exp. STC N° 0256-2003-HC/TC).
Finally, what about the cities in Peru that do not have crematoriums? The answer is in the protocol issued by the Ministry of Health and being this an exceptional case to the rule can be buried in a cemetery with the prevention measures issued by the state.
Unfortunately, as of the date of this article, the relatives of people who die from COVID-19 and who are not insured by EsSalud are the ones who pay the expenses. However, for those who have insurance, the State will be responsible for the cremation expenses.
The same Ministry of Health regulations also tell us that any death suspected of COVID-19 will be handled as a confirmed case.
While it is true that the last will of the deceased (and his or her family) or freedom of religion must always be respected, this only applies in normal circumstances; however, we are currently living in a health emergency. That is why cremation was chosen as a necessary measure, but in normal circumstances it will always be the decision of the individual or the family.
In conclusion, the State is in charge of ensuring the safety of its citizens, which is why it decrees rules in which the benefit of all is paramount and that, although it is true that each person can decide on their final resting place or the manner of disposal of their remains, in health emergencies they are decided under international protocols.
2 Sanitary Directive No. 087 – 2020 – DIGESA/MINSA, Sanitary Directive for the management of dead bodies by Covid 19