Will all of him be at the funeral?

WHEN A HOSPITALIZED individual dies, family members usually have too much on their minds to ever think of asking whether the remains of the deceased will be returned intact for the funeral. Yet in every state of the United States, survivors who consent to an autopsy implicitly surrender certain rights: the right to know in advance which body parts the hospital may retain for further study, the right to arrange for timely return of those parts for funereal purposes, and the right to be apprised of the final disposition of retained organs or tissues.

Even if a family expressly disapproves, medical authorities--knowing there are no laws prohibiting it--may decide to keep body parts anyway. For instance, in 1998 a Minnesota appeals court affirmed the Mayo Clinic's side in the case Rahman v. Mayo Clinic, citing absence of statutory authority against retention. Here, despite the family's stated wishes, a portion of the decedent's lower pelvis was retained in an institutional collection called the "museum."

Presently no state restricts nonconsensual postmortem organ retention. While many have laws prohibiting "crimes against the dead" or "mutilation of a corpse" definitions of these offenses don't apply to retention of body parts after autopsy. In fact, statutes in several states--including Louisiana, Minnesota, and Washington--expressly authorize indefinite retention of organs for examination and study.

Only in Mississippi is a limit imposed on the absolute authority of physicians to retain body parts. That state's law, however, doesn't require survivors' consent to retention; rather, it requires survivors to apply in advance to prevent retention.

But even if informed consent were statutorily required, hospitals could contract around the requirement. The American Medical Associations model autopsy consent form includes the provision: "I/we authorize the removal and retention or use for diagnostic [or] scientific ... purposes such organs, tissues and parts as ... physicians and surgeons may deem proper." Moreover, consent may be secured by telephone and survivors may not know all the conditions to which they are consenting. Even if they have a chance to read the consent form, they may not dwell on the purport of a retention clause. Alternatively, they may assume it refers to small tissue samples secured to prepare slides and paraffin blocks, not entire organs.

Writing on the legalities of consent for autopsy, Angela Holder, Duke University's acting director of the Center for the Study of Medical Ethics and the Humanities, notes that "as the science of pathology has progressed, it has become more and more a customary practice for segments or whole organs to be retained in the laboratory for further study." Modern pathology's methods, in fact, require certain organs to be treated for lengthy periods in preparation for dissection. For instance, a brain must be fixed in a formalin solution for at least two weeks before examination. And it may be kept preserved for months before examiners find leisure to dissect it.

Usually, by that time, the survivors have claimed the remains furnished to them and have held the funeral, unaware that parts have been retained, while investigators either dispose of the parts after further examination or decide to retain them indefinitely. Families usually never find out. But in cases where, by chance, some survivors have discovered the truth, explosive sorrow and outrage have been in some instances the reactions.

For example, an Australian family, whose case was reported in the New South Wales Legislative Assembly in 2003, consented to a relative's autopsy unaware that his brain might be withheld, only to learn the truth weeks later from the autopsy report. The survivors then had to consult with elected officials in order to secure the organ's release for a second funeral.

One unfortunate American family was unable to obtain an accounting of missing body parts, let alone recover the remains, after their child's autopsy by government doctors. Their child died in military housing overseas and was autopsied in a U.S. military hospital. His internal organs were never found and were presumed incinerated. Ruling in the case Benoit v. United States in 2000, the Federal Court of Claims could only offer the survivors monetary damages to compensate for what the court termed "wrongful retention of remains" and "tortious [sic] interference with their right to bury their son." The court couldn't invoke statutory authority in defining the offense because there is none.

In the United States and, until recently, in other English-speaking countries, legislation has failed to adequately regulate postmortem organ retention. Consequently, aggrieved survivors have only one option for redress: to sue under the common law. But the common law on survivors' rights regarding family members' remains is hopelessly outdated. It derives from a period when most deaths occurred outside medical facilities and most bodies were never scientifically autopsied. Originating in seventeenth-century England, the traditional common law recognizes no "property" right in a human body or its parts. The no-property rule prevented survivors from sustaining a cause of action if, for instance, a body wasn't prepared for funereal purposes in the manner anticipated.

With advancing technology this rule has grown ever more antiquated. It is also being superseded through statute. For instance, modern anatomical gift statutes permit testamentary donation of one's organs. And although nonconsensual donation of certain human tissues--such as corneas--is authorized in some states, medical authorities' prerogatives in the area of tissue harvesting for transplant are usually statutorily limited by the survivors' right to object.

Moreover, the last fifteen years have seen the enactment of social legislation empowering certain communities in longstanding disputes over interests in human remains. An example is the Native American Graves Protection and Repatriation Act of 1990. NAGPRA imposes criminal penalties for disturbance and unauthorized retention of remains and relics from burials of protected Native American communities.

Modern courts, uncomfortable with the traditional common law, have increasingly recognized what is sometimes termed a "quasi-property" right of family members to claim a loved one's remains for funereal disposition. To some legal commentators, it is this right that courts have recognized in Benoit and other federal cases, as well as similar state court cases. But of course there is no such thing as a "quasi-property" right to parts of corpses. The cases merely demonstrate that, to modern jurisprudential sensibilities, a rethinking of the old no-property rule seems in order.

Anthropology, one of the youngest of the social sciences, has played a role in these developments. It has established that human communities universally recognize the family's exclusive obligation and privilege of putting to rest a member's remains. But the modern trend is to die not at home but in a hospital. This trend has pitted universal human interests against the interests of professionals.

Whereas, typically, relatives see the protection and disposition of remains as a sacred duty, medical investigators undertake a mission to scientifically clarify the mechanisms of death and disease. In this mission they are bound by professional standards. Extra-professional limitations on their medico-scientific inquiry, which are seen as potentially undermining the objectives of the investigation, are resisted. Left unregulated, medical authorities may push their prerogatives. This has been confirmed by recent experience in the English-speaking world outside the United States.

In the United Kingdom, a research protocol in effect between 1970 and 1999 encouraged public hospitals to harvest brains from patients who expired in-house--secretly, efficiently, and, under the regulations of the time, completely legally. An audit performed as part of a government investigation revealed that throughout the United Kingdom 21,000 human brains were collected. The 2003 government report on the matter is called the Isaacs Report after an individual whose brain was discovered by survivors in a university research collection thirteen years after his death. This discovery led to parliamentary action. In December 2003 the House of Commons passed the Human Tissue Bill. Once adopted by the House of Lords, the new legislation will supersede existing laves regulating postmortem practices.

Similarly in New South Wales, Australia, laws that once permitted nonconsensual organ retention were abrogated in 2003 by adoption of the Human Tissue and Anatomy Legislation Amendment Bill. Legislative assembly debates that preceded adoption of the bill were extensive and often emotional. One legislator who had lost a niece spoke in the bill's favor with particular knowledge based on her relatives' experience:

      After Tina's death the lack of empowerment
   that Tina's family had in relation to Tina's
   body parts was a shock.... [T]he Coroner
   bluntly said that he had the right, if he wished,
   to remove body parts. The end result was that
   the funeral was delayed and Tina's family
   must live with the terrible stress that they still
   do not know for sure whether Tina was put to
   rest whole.

Does the lack of similar legislation in the United States indicate that Americans are less caring? U.S. court cases in which survivors have battled medical authorities over the issue suggest they are probably no different in their sensibilities from people elsewhere--although, for Americans, the road to justice may be more tortuous. But they shouldn't have to individually file petitions, argue with authorities, and ultimately go to court to redress every occurrence.

Each U.S. state should adopt legislation to regulate postmortem organ retention. What is more, federal authorities should act by using established laws that govern every U.S. healthcare organization. Congress should amend Medicare and Medicaid regulations to institute penalties against hospitals and hospital practitioners who, by retaining human remains without consent, deprive the survivors of their natural interests in caring for the dead.

M. H. Klaiman, M.D., is a 2005 graduate of the University of Arizona College of Law. This previously unpublished essay won third prize in the 2005 law student writing competition of the journal Legal Affairs. Her expanded essay, "Whose Brain Is It Anyway?" will appear in the December 2005 issue of The Journal of Legal Medicine.