Did a South Carolina coroner need to handle cremation of a potentially viable fetus under the permit law?

Plain-English summary

A Spartanburg County coroner asked whether the cremation-permit statute applied to a fetus described as more than twenty weeks old. The May 2001 AG letter reasoned that a viable fetus counted as a person for the statute, drawing on then-existing South Carolina case law. It advised the coroner to apply the criteria normally used for a cremation permit.

The letter said viability was a medical question, rather than deciding that every fetus of the stated age was viable. Its conclusion concerned the coroner’s handling of the particular request and the legal understanding the office applied in 2001.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Coroners and medical examiners

The AG advised using the same permit criteria applied to cremation of another dead person, while acknowledging that fetal viability required a medical determination.

Funeral directors and families

The opinion treated the permit process as applicable to the described potentially viable fetus. It did not determine viability from gestational age alone.

Common questions

Did the AG say age alone settled viability?
A: No. The letter called viability a question of medical fact.

What did the AG advise the coroner to do?
A: Apply the usual criteria for issuing a cremation permit in the described circumstances.

What legal premise did the letter rely on?
A: It relied on then-existing South Carolina case law treating a viable fetus as a person in the contexts discussed by the court.

Background and statutory framework

The letter quoted SC Code Ann. § 17-5-310, the permit provision for cremating the body of a dead person. It cited Whitner v. State for the legal status of a viable fetus as understood by the office at the time.

Citations and references

• SC Code Ann. § 17-5-310: cremation-permit statute quoted in the letter.
• Whitner v. State: case the AG used for its personhood analysis.

Official title

Concerning the application of S.C. Code Ann. § 17-5-310 to a “20-plus week old fetus.” Specifically, the opinion addresses the need to secure a permit for cremation.

Requester

The Honorable Jim Burnett, Coroner, Spartanburg County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-4-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01may-4-burnett.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

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May4, 2001

The Honorable Jim Burnett
Coroner, Spartanburg County
366 N. Church Street
Spartanburg, South Carolina 29303

I.'

Re:

Your Letter of May 3, 2001
Cremation of a Viable Fetus

Dear Coroner Burnett:
In your above-referenced letter, you request an opinion from this Office concerning the application of SC Code Ann. § 17-5-310 to a "20-plus week old fetus." Section 17-5-310 provides as follows: When the body of any dead person who died in the county is to be cremated, whoever required the cremation shall secure a permit for the cremation from the county medical examiner or the medical examiner's deputy or the coroner or the deputy coroner, and a person who wilfully fails to secure a permit for cremation is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty dollars and not more than five hundred dollars. A permit for cremation promptly must be acted upon by the county medical examiner or the examiner's deputy or the coroner. South Carolina has long recognized that viable fetuses are persons holding certain legal rights and privileges. In fact our Supreme Court has held a viable fetus to be a person in all contexts in which the issue has been considered including civil law, criminal law and the Children's Code. Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997). In describing a viable fetus' status as a person the Court in Whitner stated in broad and certain terms: Our [previous holdings] that a viable fetus is a person rested primarily on the plain meaning of the word "person" in light of existing medical knowledge concerning fetal development. We do not believe that the plain and ordinary meaning of the word "person" has changed in any way that would now deny viable fetuses status as persons.
~EN~~

POST OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

The Honorable Jim Burnett
Page 2
May 4, 2001

Just as the Whitner Court found in the context of the Children's Code, this Office does "not see any rational basis for finding a viable fetus is not a 'person' in the present context." This is particularly true in light of the general tenet of law that the Legislature has knowledge of judicial decisions interpreting acts of legislation. See Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993). Accordingly, had the Legislature intended that the word "person" used in Section 17-5-310 not include viable fetuses, it should have specifically stated so. The question of viability is one of medical fact. However, the United States Supreme Court has upheld medical testing of a fetus beginning at 20 weeks of gestation. The Court in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) found that there is up to a four week margin of error in determining gestation age. Moreover, in the present state of medical technology, the fetus may become viable as early as 20 weeks into the pregnancy. Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 466 (7th Cir. 1998) Finally, there could be the possibility of liability for the destruction of a human body without following the procedures required under State law. Accordingly, this Office would advise you and all others to err on the side of life. As Coroner, the law requires you to treat this situation as the death of a human being, not as the disposition of a blob of tissue. This means you should satisfy yourself, using the criteria which you typically apply concerning the issuance of a cremation permit with respect to the death of any other human being.

Attorney General
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