HARRY HUGHES, Governor

265

Chapter 330, Acts of 1980, resolved the situation by
(1) reenacting Art. 43, § 359(a) which prohibits the
practice of the unified occupation without a license, (2)
permitting holders of certain current funeral director
licenses to renew those licenses, and (3) defining the
limited scope of practice that is authorized by the funeral
director license.

The revision uses a single term "mortician" for the
primary practitioner licensed under this title, and the term
"practice mortuary science" to designate the primary
practice that is regulated.

Common Law Rights.

At English common law, a decedent and certain surviving
relatives and friends of a decedent had various rights
associated with the care and custody of a dead human body
and the manner of its final disposition. Although this is
an area that is seldom litigated, it is clear that at least
some of the common law is still the law in this State. See
Unterstitzung Verein v. Posner, 176 Md. 332 (1939); Painter
v. United States Fidelity & Guaranty Co., 123 Md. 301
(1914); Snyder v. Holy Cross Hospital, 30 Md. App. 317
(1976). See also P. Jackson, The Law of Cadavers (2d ed.
1950).

These common law rights, because they include broad
discretion as to the manner of disposition of a body, appear
to include the right to arrange and carry out final
disposition of a dead human body without the assistance of a
licensed mortician, if disposition otherwise is made in
accordance with the law. There is no statutory law in this
State that appears to prohibit this possibility. The
question at present is unresolved partly because the present
laws do not define the term "funeral directing".

Several other health occupations involve the practice
of acts that also may be done by unlicensed individuals. In

those titles, the "practice of _____" is defined to mean

doing the specified acts for compensation. This language
allows individuals who traditionally have done these acts
without a license to continue to do so, yet requires that
individuals who do the same acts as a business be licensed
and, therefore, regulated by this State. See present Art.
43, § 860(c) regarding "social workers" and present Art. 43,
§ 604(b)(1) regarding "physical therapists".

Because there are common law rights for certain
individuals to choose the manner for burying their dead, and
because the present law that relates to "funeral directing"
does not define that practice but does refer repeatedly to
the "business" or "occupation" of funeral directing, the
Commission to Revise the Annotated Code concluded that the
General Assembly intended to regulate only individuals who
dispose of dead human bodies for compensation. Therefore,
the Commission included that phrase in the new definition of