Chapter 11
A unique market for services

Public interests and policy objectives

11.5As discussed in chapter 5, there is a public interest in ensuring that everyone has access to a proper funeral, which has long been recognised. This interest captures concerns about public health, and respect and propriety towards the dead.

11.6The current law and administrative practice acknowledges that someone must bear responsibility for dignified disposal. Therefore, if the deceased’s own loved ones are absent or lack the resources, this task falls to society at large – administered by either central government, as through the means tested funeral grant available from Work and Income New Zealand, or by local government through the provision of burial space or cremation facilities.463  These measures affirm the continued societal importance of ensuring the dead are disposed of promptly and respectfully, and the bereaved are able to access a dignified funeral for their loved ones without being subject to financial distress.
11.7In times gone by, dead bodies were often viewed as a potential threat and a source of contamination. It is now known that the organic process of bodily decay poses few health risks provided basic hygiene precautions are taken.464  There are, however, particular risks arising when the deceased had an infectious disease. The extent of these risks and the appropriate mitigation measures will depend on the nature of the disease, including whether it is transmissible by body fluids or by airborne pathogens.465  There is clearly a public interest in ensuring that dead bodies are handled in such a way that any health risks are minimised. There is also an interest in avoiding offence occasioned by the inevitable effects of bodily decay and minimising or limiting further family trauma.

11.8As discussed in chapter 1, ensuring that the deceased is treated in a culturally appropriate manner, and that the family of the deceased are able to perform any necessary religious or other rituals, is in the general public interest. For example, most Māori and Pākehā New Zealanders are embalmed so that the body can be laid out at a marae or private home for a longer period of time without beginning to decay, and to allow for an open casket. This is a particularly common feature of the tangihanga, of which the display of the tūpāpaku for a final farewell is an integral part. In contrast, the religious laws of Islam, Hinduism, Judaism, and Sikhism all consider embalming to be disrespectful and fundamentally inconstant with ritual requirements. As New Zealand becomes increasingly multicultural and pluralistic, we expect different sectors of the community will have increasingly diverse views about what constitutes respectful handling of the dead. It is important that the legal framework provides for these different approaches.

11.9The public interest in a dignified funeral requires us to consider standards of service, affordability, and the position of the consumer. The person or people purchasing funeral services will almost always be the family or close friends of the deceased. Decisions about funerals are usually made in times of high stress, and often without any prior experience. These factors may suggest that the consumer protection interest is higher in relation to funeral services than many other services, an issue that we discuss further in the next section.

463Discussed above in ch 5 at [5.9].
464O Morgan “Infectious disease risks from dead bodies following natural disasters” (2004) 15 Revista Panamericana de Salud Pública 307.
465KS Creely Infection risks and embalming (Institute of Occupational Medicine, 2004); and Susan Salter Davidson and William H Benjamin “Risk of infection and tracking or work-related infectious diseases in the funeral industry” (2006) 34 AJIC 655.