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Author Atty. Stephanie Anne V. Oracion  

The coronavirus disease 2019, most commonly known as COVID-19, is a respiratory illness caused by the SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2) and has infected about 940,000 people worldwide as of April 2, 2020.

In the Philippines, there are 2,633 confirmed cases of COVID-19 infections, with the number of deceased individuals totaling 107.[1] In response to the rising number of COVID-19 positive individuals and subsequent deaths, the Department of Health issued on 7 February 2020 Department Memorandum No. 2020-0067 detailing the guidelines in the proper disposal of the remains of confirmed cases of COVID-19. On 27 March 2020, the Department of the Interior and Local Government (“DILG”) followed suit and introduced its own guidelines on the management of human remains of confirmed COVID-19 patients and including therein patients under investigation (“PUI”) in coordination with the Local Government Units (“LGU”).[2]

This article discusses posthumous rights, the new reality brought about by COVID-19, with stories we hear of dead loved ones separated and cremated with just one or no family members at all present, and the DILG Guidelines that laid out the precautions to be taken in the proper handling of the remains of COVID-19 patients and PUIs.   

Posthumous Rights

While an individual’s wishes should be given the highest respect, the variables may differ, depending on the stakeholders, i.e., the government and the community. The problem lies in striking a balance between the private interest and the interests of the State.

International law dictates that the dead must be treated and buried in a dignified manner. The United Nations Commission on Human Rights adopted a resolution in 2005 underlining the importance of handling human remains in a dignified manner and respecting the needs of the families.[3] In the Philippines, these international law principles have long been recognized, with the law recognizing the family’s duty and right to make arrangements for the funeral of a relative,[4] and directing that the funeral be in keeping with the social position of the deceased,[5] as well as in accordance with his expressed wishes, and, in the absence of such, in accordance to his religious beliefs or affiliation.[6]

Due to the rifeness of this disease, however, many will lose the chance to show their last respects to the dead, who, more often than not, will die alone without the comforting presence of even the healthcare workers.

New Reality Brought About by COVID-19

There is abundant information about how to handle infected cadavers, how to disinfect surfaces, how to transport dead bodies and how to bury them. Not much is being done, however, to address the concerns of those who are left behind. In Italy, where an unparalleled number of deaths occurred due to COVID-19, the finest clothes of the dead are simply laid on top of the bodies to give a semblance of dignity and
to cover the disease-ridden hospital gowns in which they died.[7]

In the Philippines, little is known about whether posthumous rights are being respected. Indeed, it has only been 2 weeks since the start of the quarantine period and it is more than likely that the government has not had time to consider these issues against the pressing need to “flatten the curve.” The situation dictates that State interests overshadow posthumous rights.

The Government’s Response

On March 8, 2020, the President declared a State of Public Health Emergency throughout the Philippines due to COVID-19, urging citizens to “act within the bounds of the law and comply with the lawful directives of the appropriate government agencies.” On March 24, 2020, the President signed into law the Bayanihan Act of 2020 which granted him limited emergency powers to address the alarming spread of the disease, giving imprimatur to the various LGUs to make sure that the spirit of the law is followed through the exercise of police power.

The concept of police power, which has no exact definition, is the plenary power of the State to address emergent situations such as health emergencies, and has been described as the most “essential, insistent and the least limitable of powers, extending as it does to all the great public needs.”[8] This is otherwise known as the general welfare under the Local Government Code, which is the delegated power by the state “necessary, appropriate, or incidental for the efficient and effective governance.” In the context of the current pandemic, police power is used ideally to promote public health, morals or safety and the general well-being of the citizenry.

The case of White Light Corporation v. City of Manila,[9] et. al. is instructive as to the extent of police power vis-à-vis individual rights. The eminent Justice Tinga concluded that,

“We reiterate that individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens.”

Where the balance lies between the exercise of police power in these trying times and the need to uphold the inherent rights of those living and dead is a moral issue that government needs to deal with. After all, no human wants to die in isolation and be treated as an infectious disease carrier even as he is buried six feet underground. And yet, the pervasiveness of the disease dictates that, for the welfare of the people, tradition and culture be subservient to the powers of the State.

The DILG Guidelines

Consistent with the President’s declaration of a State of Public Health Emergency throughout the Philippines due to COVID-19, and as part of the government’s response, the DILG issued the Guidelines on the proper handling of the remains of COVID-19 patients and PUIs.  The DILG Guidelines includes biosafety and infection control practices which shall be implemented by all local chief executives, DILG regional directors, the Philippine National Police, Bureau of Fire Protection and other local officials.

The Guidelines principally recommend the utilization of standard and transmission-based precautions such as frequent hand washing and donning of personal protective equipment (“PPE”), as well as certain prohibitions unique to the current pandemic have been provided. One salient provision is the commissioning of “reputable funeral parlors and crematoriums” to handle the remains of COVID-19 positive individuals and PUIs. Aside from the burial or cremation of the deceased,  these funeral parlors and crematoriums will also handle the transportation of the human remains in case the individuals die outside medical facilities.

The specific provisions of the Guidelines are discussed below.

i)          Standard Precautions

All health workers and all personnel coming into contact with the deceased are encouraged to have complete vaccination. i.e. Pneumococcal, Influenza, Hepatitis-B and Tetanus Toxoid prior to contact with the remains. In handling dead bodies, all persons are directed to avoid contact with any body fluids, and are expected to use PPEs, such as, but not limited to double gloves, water resistant gowns, surgical masks and face shields. The Guidelines likewise provides the formula for the standard decontamination solution.

ii)         Disposal

In case the body is transported from another facility or from the home of the deceased, it must be initially wrapped in leak-proof plastic and placed in a leak-proof cadaver bag. It is required that the outside portion of the cadaver bag be disinfected with hypochlorite solution and air dried with the attached biohazard tag (indicating the words “SUSPECTED” or “POSITIVE” Covid-19, HANDLE WITH CARE) before it is handed over to transport personnel. If the remains will be transported from the home, the next of kin or the LGU shall be responsible for the transportation, taking care to disinfect the vehicle after the remains are removed. Hygienic preparation and embalming of the body is strictly prohibited and only adult members of the family are allowed to attend the burial. The body shall be placed in a closed casket and public assembly or viewing of the remains is strictly prohibited.

iii)        Burial/Cremation

The burial or cremation of the human remains is mandated to be done within 12 hours after death with due consideration to the deceased person’s preferences, if any. In relation thereto, healthcare facilities are directed to release the remains of the deceased, regardless of any unpaid hospital bills.

The death certificate shall be issued by the attending physician if the deceased died in-hospital, or, by the Local Health Officer if the death occurred in the home. The death must be reported to the City or Municipal Health Officer within 12 hours after death and forwarded to the Local Civil Registrar within 30 days for registration. It is noted that a burial or cremation is not allowed if no valid death certificate is presented. The burial site, which shall be designated by the LGU,  must be 25 meters away from any residential area, at least 1.5 meters deep, and shall not be buried where the water table is less than 2 meters deep from the natural ground surface.

If the deceased was a Muslim foreign national, the remains will be buried in the Philippines following Islamic burial rites, while still observing standard precautions as necessary.

iv)        Shipment from outside the Philippines.

If the human remains should come from outside the Philippines, a Transfer Permit is required which shall be obtained by the Department of Foreign Affairs and Bureau of International Health Cooperation and will be issued by the Bureau of Quarantine.

v)         General Prohibitions

The identity of the deceased shall be kept strictly confidential unless it is with written consent of the deceased while he/she was alive, to facilitate contact tracing, or if the deceased was a social or political figure which required him to disclose the status of his health to the public. It is considered unlawful for any photo or video of the deceased to be uploaded or shared in any media platform, or any act that will blacken the image of the deceased. The Guidelines likewise prohibit the use of the remains for medical or scientific studies.

The Challenge to GovernmentThe DILG Guidelines, without question, is necessary for a whole picture response to the COVID-19 situation.  The challenge now, however, is finding the middle ground—can a dignified death be respected and upheld while making sure that the community is safe from the harms of a highly contagious disease? One might immediately think that it is better to sacrifice one for the good of the whole. The question though remains, is there a way to protect public health and welfare but at the same time respect posthumous rights?.

A fully informed, yet cautious compromise, is morally valuable because it shows respect for and recognition of other human beings’ needs, and humanity. The challenge, therefore, may be something worth exploring.