Kansas Attorney General Opinion 2019-009

November 26, 2019
ATTORNEY GENERAL OPINION NO. 2019- 9
The Honorable David A. Benson
State Representative, 48th District
13901 Hemlock St.
Overland Park, Kansas 66223
Re: 	Public Health—Regulation of Embalmers and Funeral Directors; Funeral
Establishments—General Provisions—Definitions—Cremation
Synopsis: 	A proposed process for the disposition of a dead human body that
includes cryogenically freezing the body, applying vibration to shatter the
frozen body into particles, and freeze-drying the particles does not meet
the definition of "cremation" set out in statute and regulations. Cited
herein: K.S.A. 65-1760 and regulations adopted thereunder.
* 	* 	*
Dear Representative Benson:
As State Representative for the 48 th District, you request our opinion on whether the
disposition of dead human bodies by a proposed process involving cryogenic freezing
is permissible under Kansas law, specifically, K.S.A. 65-1760(e) and K.A.R. 63-7-1(k)
and (l). This opinion addresses only whether the process described in your request
letter meets the requirements of "cremation" as set forth in K.S.A. 65-1760(e) and
regulations adopted thereunder; it does not address whether the proposed process
described in the request letter would be permissible under other Kansas laws and
regulations concerning public health and safety in the handling of dead human bodies. 1
Such determinations fall squarely within the purview of the Kansas State Board of
Mortuary Arts.
1 	See, e.g., K.A.R. 63-3-10 (stating requirements for handling of the bodies of persons who died from
infectious or contagious diseases).

The Honorable David A. Benson
Page 2
Before analyzing whether the disposition of dead human bodies by cryogenic means
is "cremation" under Kansas law, we must first have an understanding of the proposed
process. 2 The request does not indicate that this method has been used or approved
in the United States or elsewhere, and the only information we have concerning the
process is the animated YouTube video cited in the request letter.3 A slide in that video
lists six steps that would occur in the proposed process of disposing of a dead human
body by cryogenic means. Those steps are:
(1) "Coffin separation" (removal of the dead human body from the coffin);
(2) "Cryogenic freezing" (by exposing the body to liquid nitrogen);
(3) "Vibration" (to reduce the body to particles);
(4) "Freeze-drying" (to remove water);
(5) "Metal separation" (and removal of "up to 50 kinds of foreign
substance[s]"); and
(6) "Filling and burial" (of a biodegradable container).
Our analysis begins with the statutory definition of cremation. The Kansas Supreme
Court has stated that in interpreting statutes, the primary goal is to ascertain the intent
of the Legislature. 4 To do so, we follow the approach of the courts, giving the words in
the statute their ordinary, everyday meanings.5
The statute defining cremation, K.S.A. 65-1760, states:
"'Cremation' means the mechanical and/or other dissolution process that
reduces human remains to bone fragments. Cremation includes the
2 	The term "proposed process" is used because the request letter does not indicate that disposition of
dead human bodies by cryogenic means has been performed anywhere in the world, and our
research has not revealed any instances of use of the process or the existence of the machinery
needed to perform the process. The website of Promessa, the Swedish company that appears to be
the only marketer of the proposed process, uses the word "concept" in describing the process. See
http://www.promessa.se/united-states-getting-the-fifth-us-promessa-representative/
(last visited Sept. 16, 2019). See also Cremation Process, Cremation Society of North America,
https://www.cremationassociation.org/page/CremationProcess (last visited Nov. 14, 2019) (stating
that, although "[a]dditional processes may be in development," only flame-based cremation and
alkaline hydrolysis are in use in the United States and Canada).
3 	https://www.youtube.com/watch?v=4HD5Gt80H6s&sns=em 	(last 	accessed 	Sept. 	16, 	2019)
(hereinafter, "the animated video" or "the video").
4 	State v. Pulliam, 308 Kan. 1354, 1364 (2018).
5 	Id.

The Honorable David A. Benson
Page 3
processing 	and 	usually 	includes 	the 	pulverization 	of 	the 	bone
fragments."6
Regulations interpreting the statute define "processing" as "the reduction of identifiable
bone fragments after the completion of the cremation process to unidentifiable bone
fragments by manual or mechanical means" 7 and define "pulverization" as "the
reduction of identifiable bone fragments after the completion of the cremation and
processing to granulated particles by manual or mechanical means."8
K.S.A. 65-1760(e) and its interpreting regulations require that cremation result in bone
fragments that are initially identifiable as such and are then made unidentifiable by
further processing. 9 Logically, the reduction of human remains, which consist of both
flesh and bones, to bone fragments requires the elimination of flesh. We conclude that
the separation of flesh from bone by the destruction of the flesh is a necessary element
for a process to be a cremation process under Kansas law.10
The animated video shows that the proposed process would not destroy or eliminate
flesh or produce identifiable bone fragments. Rather, the video touts the idea that the
proposed process would convert the entire body into "crystallized body particles" with
"no change in composition whatsoever." 11 Thus, as described, the proposed process
would yield particles of both flesh and bone, in a commingled state. Because the
proposed process for the disposition of a dead human body by cryogenic means would
not destroy or eliminate flesh to leave bone fragments, we conclude that it does not
meet the definition of cremation in K.S.A. 65-1760(e).
This conclusion is bolstered by the legislative history of the statute. In 2010, the
Legislature amended K.S.A. 65-1760(e) to broaden the definition of cremation beyond
traditional flame-based cremation. 12 It struck the requirement that cremation "reduce[]
6 	K.S.A. 65-1760(e).
7 	K.A.R. 63-7-1(k).
8 	K.A.R. 63-7-1(l).
9 	K.A.R. 63-7-1(k), (l).
10 In traditional cremation, the tissue of a dead human body combusts into gases and the bone
fragments 	remain. 	The 	Technical 	Details, 	Cremation 	Association 	of 	North 	America,
https://www.cremationassociation.org/page/CremationProcess (last visited Nov. 14, 2019). The
other process that is recognized as legal in Kansas is alkaline hydrolysis. This method "dissolv[es]
the flesh off the[] bones." Devin Powell, Dissolve the Dead? Controversy Swirls around Liquid
Cremation 	(Sept. 	7, 	2017), 	https://www.scientificamerican.com/article/dissolve-the-dead-
controversy-swirls-around-liquid-cremation/ (last visited Nov. 14, 2019); see also Alkaline Hydrolysis,
Cremation 	Association 	of 	North 	America,
https://www.cremationassociation.org/page/alkalinehydrolysis (last visited Nov. 14, 2019) (stating
that "there is no tissue … left after the process" and that the resulting bone fragments are dried and
pulverized).
11 According to the video, the proposed process would, though, remove water and minerals from the
remains.
12 L. 2010, Ch. 131, § 8(e). The Legislature removed the requirement that cremation be done by
"intense heat and flame" and replaced it with the current language, that cremation is "the
mechanical and/or other dissolution process that reduces human remains to bone fragments."

The Honorable David A. Benson
Page 4
a dead human body to essential elements" and substituted the requirement that
cremation "reduce[] human remains to bone fragments."13 Because the proposed
cryogenic disposition would not reduce a body to "bone fragments" but would instead
result in commingled "crystallized body particles" of flesh and bone, we conclude that
it does not meet the definition of cremation in K.S.A. 65-1760(e).
From the limited information before us—the description of a concept for the disposition
of a dead human body that includes removing the body from a coffin, cryogenically
freezing the body, applying vibration to shatter the frozen body into particles, and
freeze-drying the particles—we conclude that such a proposed process would not meet
the requirements of a cremation process as set forth in K.S.A. 65-1760 and regulations
adopted thereunder.
Sincerely,
Derek Schmidt
Kansas Attorney General
AnnLouise Fitzgerald
Assistant Attorney General
DS:AEA:AF:sb
13 This phrase comes from the model definition published by the Cremation Association of North
America. Cremation Model Law, Cremation Association of North America (Rev. Dec. 2009).The
Legislature was urged to adopt the model definition in its entirety, but the amendment omitted
"thermal" dissolution processes. Minutes, Senate Comm. on Public Health and Welfare, Feb. 16,
2010, attachments 7, 7-3.