Question

Amelia’s son told her that when he died he wanted his remains cremated and placed in a columbarium. They are Roman Catholic. The son died suddenly and was buried by Amelia in St. Mary’s Cemetery under the rules and canons of the Roman Catholic Church. These canons prohibited the following: cremation, except in cases of great emergency; removal of bodies from a cemetery for cremation; and removal of a body from the cemetery without consent of the Archbishop of the Archdiocese of San Francisco. Five years later, Amelia sought to remove her son’s body, claiming she made a mistake, was grief-stricken, and was under the influence of the Roman Catholic Church at the time of his death and by reasons thereof failed to observe his wisher. She further claimed the prohibitions of the church were never called to her attention. The Church refused to allow removal, claiming they had no knowledge of the son’s wishes, and that she agreed to the rules and canons at the time of the contracting for his burial. Please list the elements that must be proven for a lack of consent. Should the court allow the removal? Why or why not.

Answer 1

There are elements that mus be proven for lack of consent. So, the court must allow the removal of the body because the factors of lack of consent are psychologically defective-" stripped grief and under the control of the Roman Catholic Church and because of it unable to comply with her son's wishes "demonstrates this aspect. As well as Incapacity to consent- Amelia never committed to the rules and regulations prohibiting the removal of remains from the cemetery- "She also argued that the church's prohibitions were never called to her notice" better explains that aspect.

The court concluded from the evidence of the case that the body was being recovered and buried as per John's son's wishes.

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