United States Court of Appeals,
Sixth Circuit.
Deborah S. BROTHERTON; Deborah S. Brotherton, Individually and as
Administratrix of the Estate of Steven Brotherton; Deborah S. Brotherton, on
behalf of her minor children, Carrie Brotherton and Melissa Brotherton,
Plaintiffs-Appellants,
v.
Frank P. CLEVELAND, M.D.; Board of County Commissioners of Hamilton County,
Ohio; Joseph M. DeCourcy; Norman A. Murdock; Robert A. Taft, II; Eye Bank
Association of America; Cincinnati Eye Bank for Sight Restoration, Inc.; Ohio
Valley Organ Procurement Center; Bethesda North Hospital; Bethesda, Inc.,
Defendants-Appellees.
No. 89-3820.
Argued April 30, 1990.
Decided Jan. 18, 1991.
Rehearing and Rehearing En Banc
Denied April 3, 1991.
Widow and children brought civil rights action
arising out of county coroner's alleged
violation of equal protection and due process rights in permitting removal of
decedent's corneas and their use as anatomical gifts without widow's or
children's consent. The United States
District Court for the Southern District of Ohio, S. Arthur Spiegel, J., 733
F.Supp. 56, granted coroner's motion to dismiss
for failure to state a claim. Widow and
children appealed. The Court of Appeals, Boyce F. Martin, Jr., Circuit Judge,
held that: (1) widow had legitimate
claim of entitlement in husband's body, including his corneas, protected by due
process clause, and (2) removal of corneas was caused by established state
procedures which required predeprivation process.
Reversed and remanded.
Joiner, Senior District Judge, filed a
dissenting opinion and would grant rehearing.
West Headnotes
[1] Constitutional Law 
278(1)
Elements necessary to establish violation of
due process under Fourteenth Amendment are deprivation, of property, under
color of state law; however, the
elements alone are insufficient to establish a violation. U.S.C.A. Const.Amend.
14.
[2] Constitutional Law 277(1)
Widow's interest in her husband's corneas rose
to level of "legitimate claim of entitlement" protected by due
process clause; Ohio Uniform Anatomical
Gift Act governing gifts of organs and tissues for research or transplants
expressly granted widow right to control disposal of deceased spouse's
body. U.S.C.A.
Const.Amend. 14;
Ohio
R.C. § 2108.02(B).
[3] Constitutional Law 277(1)
Property interest protected by due process
clause must be more than abstract desires or attractions to a benefit. U.S.C.A.
Const.Amend. 14.
[4] Constitutional Law 252.5
Due process
clause only protects those interests to which one has legitimate claim of
entitlement. U.S.C.A.
Const.Amend. 14.
[5] Constitutional Law 274(2)
[5] Dead
Bodies 1
Policy and custom of county coroner's office
not to review medical records or paperwork pertaining to corpse prior to
removal of corneas, for purposes of determining whether consent has been given
for removal of anatomical parts, thereby allowing office to take corneas from
bodies of deceased persons without considering interest of any other parties as
long as office had no knowledge of any objection to such removal was an
established state procedure necessitating predeprivation process under due
process clause. Ohio
R.C. § 2108.60; U.S.C.A.
Const.Amend. 14.
*478
John H. Metz (argued), Cincinnati, Ohio, for
plaintiffs-appellants.
Philip L. Zorn, Jr. (argued), Stephen
A. Bailey, Lindhorst & Dreidame, Harry
J. Finke IV (argued), Graydon, Head &
Ritchey, Holly S. Doan (argued), John J. Cruze, Porter, Wright, Morris &
Arthur, Bruce
B. McIntosh (argued), McIntosh, McIntosh & Knabe, Cincinnati,
Ohio, for defendants-appellees.
Before MARTIN and BOGGS, Circuit Judges, and JOINER, Senior District Judge. [FN*]
FN* The Honorable
Charles W. Joiner, Senior United States District Judge for the Eastern District
of Michigan, sitting by designation.
BOYCE
F. MARTIN, Jr., Circuit Judge.
Deborah S. Brotherton, the wife of decedent
Steven Brotherton, appeals the dismissal of her section 1983 claim for wrongful
removal of her deceased husband's corneas.
Because we find that Deborah Brotherton has a protected property
interest in her husband's corneas and that the removal of those corneas was
caused by established state procedures, we reverse.
On February 15, 1988, Steven Brotherton was
found "pulseless" in an automobile and was taken to Bethesda North
Hospital in Cincinnati, Ohio. He was
pronounced dead on arrival. The
hospital asked Deborah Brotherton to consider making an anatomical gift; she declined, based on her husband's aversion
to such a gift, and her refusal was documented in the hospital's "Report of
Death."
Because Steven Brotherton's death was
considered a possible suicide, his body was taken to the Hamilton County
coroner's office. An autopsy of Steven
Brotherton's body was performed on February 16, 1988; after the autopsy, the coroner permitted
Steven Brotherton's corneas to be removed and used as anatomical gifts. The coroner's office had called the
Cincinnati Eye Bank, which sent the technician who removed the corneas. Deborah Brotherton did not learn that her
husband's corneas had been removed until she read the autopsy report.
Bethesda North Hospital made no attempt to
inform the coroner's office of Deborah Brotherton's objection to making an
anatomical gift, and the coroner's office did not inquire into whether there
was an objection. Ohio
Rev.Code § 2108.60 permits a coroner to remove the corneas of autopsy
subjects without consent, provided that the coroner has no knowledge of an
objection by the decedent, the decedent's spouse, or, if there is no spouse,
the next of kin, the guardian, or the person authorized to dispose of the
body. The custom and policy of the
Hamilton County coroner's office is not to obtain a next of kin's consent or to
inspect the medical records or hospital documents before removing corneas.
Deborah Brotherton, on her own behalf and on
behalf of her children, as well as a purported class of similarly situated
plaintiffs, filed this case under 42
U.S.C. § 1983, alleging that her husband's corneas were *479 removed without
due process of law and in violation of the equal protection clause. She also
asserted pendent state law claims for emotional distress.
The district court dismissed the complaint,
holding that Brotherton failed to state a cognizable claim under section
1983. 733
F.Supp. 56.
First, the court determined that Ohio does not give a surviving
custodian a property interest in the body of a decedent; thus, Brotherton's due process claim was
precluded because she lacked a property interest in her husband's dead body.
Second, the district court rejected Brotherton's equal protection claim, which alleged
that Ohio
Rev.Code § 2108.60 creates an unconstitutional classification because it
allows the removal of corneas only from those bodies which have been autopsied
by Ohio county coroners. Finding that
there was no fundamental right or suspect class at issue, the court determined
that the legislative classification need be only rationally related to a
legitimate state interest. City
of New Orleans v. Dukes,
427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). The district
court held that the statute was rationally related to Ohio's legitimate
interest in performing autopsies and in implementing an organ donation
program. Lastly, the district court
dismissed the pendent state claims because it had dismissed the federal claims
before trial. United
Mine Workers v. Gibbs,
383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
To
state a cognizable claim under 42
U.S.C. § 1983, Brotherton must allege that she was deprived of a right secured by the
Constitution or the laws of the United States and that the deprivation occurred
under color of state law. Parratt
v. Taylor,
451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Nishiyama
v. Dickson County, Tenn.,
814 F.2d 277, 279 (6th Cir.1987) (en banc). The latter requirement, under color of state
law, is easily satisfied in this case: Ohio
Rev.Code § 2108.60 permitted the coroner, an employee of Hamilton County, to
have a technician remove Steven Brotherton's corneas without regard to anyone's
consent; the coroner's office took
advantage of this statute by customarily removing corneas before inspecting
records or receiving consent. In
contrast, the first requirement, deprivation of a right secured by the
Constitution or laws of the United States, presents a formidable challenge to
Brotherton. She asserts she was
deprived of her right to due process of law under the fourteenth amendment,
which states, in pertinent part:
"nor shall any state deprive any person of life, liberty, or
property without due process of law...."
[1][2] There are three prerequisites Brotherton must satisfy to
assert a valid due process claim: (1)
deprivation, (2) of property, (3) under color of state law. Parratt,
451 U.S. at 536-537, 101 S.Ct. at 1913-14. These three elements are necessary to
establish a violation of due process under the fourteenth amendment; however, they alone are insufficient. Id.
at 537, 101
S.Ct. at 1914.
If Brotherton proves these elements, she must also show either (1) the
conduct was caused by "established state procedure rather than random and
unauthorized action," Hudson
v. Palmer,
468 U.S. 517, 532, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984), or (2) the means of redress for property deprivations
provided by the state of Ohio fail to satisfy the requirements of procedural
due process. Parratt,
451 U.S. at 537, 101 S.Ct. at 1914; see Wilson
v. Beebe,
770 F.2d 578, 583 (6th Cir.1985) (en banc). We
noted the under color of state law requirement is easily met in this case; so
is the deprivation requirement. Cf. Daniels
v. Williams,
474 U.S. 327, 334, 106 S.Ct. 662, 666, 88 L.Ed.2d 662 ("the difference between one end of the
spectrum--negligence--and the other--intent--is abundantly clear."). Under the established policy of the
coroner's office, Steven Brotherton's corneas were intentionally taken from his
body. His wife did not learn of this
until she read the autopsy report. The
viability of Deborah Brotherton's section
1983 claim, therefore, is dependent upon her
having a constitutionally protected property interest in her husband's corneas.
[3][4] *480 Property interests protected by the due
process clause must be more than abstract desires or attractions to a
benefit. Board
of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The due process
clause only protects those interests to which one has a "legitimate claim
of entitlement." Id.
at 577, 92 S.Ct. at 2709. This has
been defined to include " 'any significant property interests,' Boddie
v. Connecticut,
401 U.S., [371] at 379 [91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) ], including statutory entitlements. See Bell
v. Burson,
402 U.S. [535] at 539 [91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971) ]; Goldberg
v. Kelly,
397 U.S. [254] at 262 [90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970) ]." Fuentes
v. Shevin,
407 U.S. 67, 86, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972).
To determine whether Deborah Brotherton's
interest in her husband's corneas rises to the level of a "legitimate
claim of entitlement" protected by the due process clause, we must examine
the laws of the state of Ohio. Memphis
Light, Gas & Water Div. v. Craft,
436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978). In Roth, the Supreme Court stated that property interests protected
by the due process clause "are created and their dimensions defined by
existing rules or understandings that stem from an independent source such as
state law...." 408
U.S. at 577, 92 S.Ct. at 2709. State supreme court decisions are the
controlling authority for such determinations.
Clutter
v. Johns-Manville Sales Corp.,
646 F.2d 1151, 1153 (6th Cir.1981). However, the Ohio Supreme Court has not
ruled upon the precise issue before this Court; thus, we must look to "other indicia of
state law...." Kveragas
v. Scottish Inns, Inc.,
733 F.2d 409, 412 (6th Cir.1984). This "indicia" includes state
appellate court decisions, unless there is
persuasive data that the Supreme Court of Ohio would decide otherwise. Clutter,
646 F.2d at 1153.
A majority of the courts confronted with the
issue of whether a property interest can exist in a dead body have found that a
property right of some kind does exist and often refer to it as a
"quasi-property right." In
re Estate of Moyer,
577 P.2d 108, 110 n. 5 (Utah 1978); see,
e.g., Arnaud v. Odom,
870 F.2d 304, 308 (5th Cir.1989), cert. denied
sub nom. Tolliver v. Odom, --- U.S. ----, 110
S.Ct. 159, 107 L.Ed.2d 117 (1989)
("Louisiana has indeed established a 'quasi-property' right of survivors
in the remains of their deceased relatives."); Fuller
v. Marx,
724 F.2d 717, 719 (8th Cir.1984) ("Under
Arkansas law, the next of kin does have a quasi-property right in a dead
body."). However, two Ohio
appellate courts which have been confronted with determining the nature of the
right have avoided characterizing it in this manner. See
Carney v. Knollwood Cemetery Ass'n,
33 Ohio App.3d 31, 35-37, 514 N.E.2d 430, 434-35 (1986); Everman
v. Davis,
54 Ohio App.3d 119, 561 N.E.2d 547, appeal
dismissed, 43
Ohio St.3d 702, 539 N.E.2d 163 (1989).
In Carney, an appellate court ruled on who has standing to bring a
claim for mishandling a dead body. The
court stated that calling the right to control the dead body of a relative a
"quasi-property right" would create a legal fiction and concluded:
This court rejects the theory that a surviving custodian
has quasi-property rights in the body of the deceased, and acknowledges the
cause of action for mishandling of a dead body as a subspecies of the tort of
infliction of emotional distress.
Carney,
33 Ohio App.3d at 37, 514 N.E.2d 430. Despite such a categorization, the Carney court did grant some interest in the undisturbed condition
of the deceased: "We hold that all
four appellees as direct blood descendants ... had standing to press their
claim for outrageous disturbance of her remains." Id.
at 37, 514 N.E.2d 430.
In Everman, an appellate court rejected the argument that a husband's
right to possession of his deceased wife's body for purposes of preparation,
mourning, and burial is protected against unreasonable search or seizure. In so ruling, the court stated:
There is no issue in this case of the possessory right of a
spouse or other appropriate member of the family of a *481 deceased for
the purposes of preparation, mourning and burial. This right is recognized by law and by the
decisions. R.C.
313.14.
This is not the say that a person has a property right in the body of
another, living or dead, or that a corpse may not be temporarily held for
investigation as to the true cause of death.
Everman,
54 Ohio App.3d at 122, 561 N.E.2d 547. Evading the question of whether to call the
spouse's interest "property," the Everman Court recognized that
Ohio does grant that right which resides at the very core of a property
interest: the right to possess.
The concept of "property" in the law
is extremely broad and abstract. The
legal definition of "property" most often refers not to a particular
physical object, but rather to the legal bundle of rights recognized in that
object. Thus, "property" is often conceptualized as a "bundle of
rights." See, e.g., Loretto
v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419, 435, 102 S.Ct. 3164, 3176, 73 L.Ed.2d 868 (1982). The "bundle
of rights" which have been associated with property include the rights to
possess, to use, to exclude, to profit, and to dispose.
The earliest decisions involving property
rights in dead bodies were concerned with whether decedents could control the
disposition of their remains by will. The English common law held that there
was no property right in a dead body, and, therefore, it could not be disposed
of by will. See, e.g., Williams v.
Williams, 20 Ch.D. 659, 665 (1882).
Legal scholars have criticized the English common-law rule, noting that
the primary reason for the rule was the historical anomaly that all matters
concerning dead bodies were under the jurisdiction of the ecclesiastical courts
and, thus, were not subject to common-law analysis. See Note, "She's
Got Bette Davis['s] Eyes":
Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings
and Due Process Clauses,
90 COLUM.L.REV. 528, 550, n. 106 (1990); Note, Toward the Right of Commerciality:
Recognizing Property Rights in the Commercial Value of Human Tissue,
34
UCLA L.REV. 207, 226 (1986).
Though some early American cases adopted the
English common-law rule that there was no property right in a dead body, other
cases held that the rule was unsound in light of the rights of next of kin with
regard to burial. See, e.g., Renihan
v. Wright,
125 Ind. 536, 25 N.E. 822 (1890). The tendency to classify the bundle of
rights granted by states as a property interest of some type was a direct
function of the increased significance of those underlying rights. The prevailing view of both English and
American courts eventually became that next of kin have a
"quasi-property" right in the decedent's body for purposes of burial
or other lawful disposition. See Spiegel
v. Evergreen Cemetery Co.,
117 N.J.L. 90, 93, 186 A. 585, 586 (1936)
("it is now the prevailing rule in England as well as in this country,
that the right to bury the dead and preserve the remains is a quasi-right in
property....").
The importance of establishing rights in a
dead body has been, and will continue to be, magnified by scientific
advancements. The recent explosion of
research and information concerning biotechnology has created a market place in
which human tissues are routinely sold to and by scientists, physicians and
others. Note, Toward the Right of
Commerciality, UCLA L.REV. 207, 219 (1986).
The human body is a valuable resource.
See Moore
v. Regents of the University of California,
51 Cal.3d 120, 271 Cal.Rptr. 146, 793 P.2d 479 (1990) (physician used patient's cells in potentially lucrative
medical research without his permission).
As biotechnology continues to develop, so will the capacity to cultivate
the resources in a dead body. A future
in which hearts, kidneys, and other valuable organs could be maintained for
expanded periods outside a live body is far from inconceivable.
Thankfully, we do not need to determine
whether the Supreme Court of Ohio would categorize the interest in the dead
body granted to the spouse as property, quasi-property or not property. Although the existence of an interest may be
a matter of state law, whether that interest rises to the level of a
"legitimate claim of entitlement" protected by the due process clause
is determined *482 by federal law.
Memphis
Light,
436 U.S. at 9, 98 S.Ct. at 1560. This determination does not rest on the
label attached to a right granted by the state but rather on the substance of
that right. See Mathews
v. Eldridge,
424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976); Goldberg
v. Kelly,
397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
Ohio
Rev.Code § 2108.02(B), as part of the Uniform Anatomical Gift Act governing
gifts of organs and tissues for research or transplants, expressly grants a
right to Deborah Brotherton to control the disposal of Steven Brotherton's
body. Everman expresses the recognition that Deborah Brotherton has a
possessory right to his body. 54
Ohio App.3d at 121, 561 N.E.2d
547. Carney allows a claim for disturbance of his body. 33
Ohio App.3d at 37, 514 N.E.2d 430. Although extremely regulated, in sum, these
rights form a substantial interest in the dead body, regardless of Ohio's
classification of that interest. We
hold the aggregate of rights granted by the state of Ohio to Deborah Brotherton
rises to the level of a "legitimate claim of entitlement" in Steven
Brotherton's body, including his corneas, protected by the due process clause
of the fourteenth amendment.
[5] We also hold the removal of Steven Brotherton's corneas
were caused by established state procedures and that Ohio failed to provide the
necessary predeprivation process. Hudson,
468 U.S. at 532, 104 S.Ct. at 3203. The Supreme Court has often reiterated that
a property interest may not be destroyed without a hearing. See, e.g., Logan
v. Zimmerman Brush Co.,
455 U.S. 422, 434, 102 S.Ct. 1148, 1157, 71 L.Ed.2d 265 (1982). In Logan, the Supreme Court ruled that the timing of a hearing
depends upon the accommodation of competing interests involved, which
include: the importance of the private
interests, the length and finality of deprivation, and the magnitude of
governmental interest. Id.
at 434, 102 S.Ct. at 1157. The Court added that deprivation of property
resulting from an established state procedure can only satisfy due process if
there is a predeprivation hearing. Id.
at 436, 102 S.Ct. at 1158. This circuit has stated, " 'established
state procedure' ... refers to the mechanism that effects a deprivation or contributes to cause a deprivation [and] the
relevant inquiry in this context is whether predeprivation process is
feasible...." Vinson
v. Campbell County Fiscal Court,
820 F.2d 194, 199 (6th Cir.1987) (quoting Rittenhouse
v. DeKalb County,
764 F.2d 1451, 1456 n. 5 (11th Cir.1985)). We have called a mechanism for which
predeprivation process was necessary but not implemented "an egregious
abuse of governmental power." Id.
at 199.
It is the policy and custom of the Hamilton
County coroner's office not to review medical records or paperwork pertaining
to a corpse prior to the removal of corneas.
This intentional ignorance is induced by Ohio
Rev.Code § 2108.60 which allows the office to take corneas from the bodies of
deceased without considering the interest of any other parties, as long as they
have no knowledge of any objection to such a removal. After the cornea is removed, it is not
returned and the corpse is permanently diminished. The only governmental interest enhanced by
the removal of the corneas is the interest in implementing the organ/tissue
donation program; this interest is not
substantial enough to allow the state to consciously disregard those property
rights which it has granted. Moreover,
predeprivation process undertaken by the state would be a minimal burden to
this interest. This Court does not at
this time need to establish the type or extent of predeprivation process
required by the due process clause; we
merely hold that the policy and custom of the Hamilton County coroner's office
is an established state procedure necessitating
predeprivation process.
Therefore, we reverse the district court's
dismissal of Deborah Brotherton's due process claim and remand this case to the
district court. Such other issues
raised in this appeal will not be addressed now; they may be considered by the district court
as it may deem appropriate.
JOINER, Senior District Judge, dissenting.
I dissent and suggest that the district court
should be affirmed.
*483 I part company with the majority
on the issue of whether the actions of the coroner, in removing the corneas
from the eyes of the decedent in accordance with procedures established by Ohio
law for the purpose of helping others to see, constitutes a taking of property
of the decedent's wife protected by the provisions of 42
U.S.C. § 1983.
Ohio law has made it very clear that there is
no property right in a dead person's body.
Everman
v. Davis,
54 Ohio App.3d 119, 561 N.E.2d 547, appeal
dismissed, 43
Ohio St.3d 702, 539 N.E.2d 163 (1989) (the
possessory right in a body for the purpose of preparation, mourning, and burial
does not constitute a property right in the body of another); Carney
v. Knollwood Cemetery Ass'n,
33 Ohio App.3d 31, 514 N.E.2d 430, 435 (1986)
(rejecting the theory that surviving relatives have a quasi-property right in
the body of the deceased, which right, if
recognized, would include a right to the custody of the body in the condition
it was left without mutilation); Hayhurst
v. Hayhurst,
4 Ohio L.Abs. 375 (C.P. Hamilton County 1926)
(there can be no property in a dead body);
Hadsell
v. Hadsell,
3 Ohio C.C. Dec. 725, 726 (Cir.Ct. Dec. 1893) (a
dead body is not property, and it does not belong to surviving relatives in the
order of inheritance as other property of the estate). Courts in other states which have examined
this question have reached a similar conclusion. See State
v. Powell,
497 So.2d 1188, 1191 (Fla.1986), cert. denied,
481
U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 856 (1987); Georgia
Lions Eye Bank, Inc. v. Lavant,
255 Ga. 60, 335 S.E.2d 127, 128 (1985), cert.
denied sub nom. Lavant
v. St. Joseph's Hosp.,
475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 721 (1986). These cases are clearly
correct, as it is hard to envision a "property" right in another
person's remains.
Plaintiff attempts to create a property right
by pointing to Ohio statutes which plaintiff asserts give a decedent's next of
kin certain rights relating to that body for the purpose of organ
donation. Ohio
Rev.Code § § 2108.02(B), 2108.60. This argument is
not persuasive for several reasons. The alleged rights do not constitute a
property right. Section
2108.02(B) of the statute gives designated
persons limited rights to donate body parts of a deceased and it places certain
duties on the coroner. Section
2108.60 gives
rights to a coroner to remove corneas in described situations and imposes
certain duties on him. Neither statute
speaks in terms of giving property rights to a surviving relative. As the district court recognized, basically
all plaintiffs have under that statute is a right to consent, and that is not
enough. See Restatement
(Second) of Torts § 868 comment a (1979) (the right of control over a dead body
does not fit well into the category of property because a body cannot
ordinarily be sold or transferred, has no utility, and can be used only for the
purpose of interment or cremation).
The Uniform Anatomical Gift Act has been
enacted in every state in the Union. The
Ohio act involved here is designed to encourage the use of corneas from the dead
to bring sight to the living by permitting their removal by the coroner during
autopsy. These acts are designed to use
new scientific knowledge to enable body parts of a deceased to bring sight and
health to the living disabled, and thus to society as a whole. These statutes make no effort to reexamine
underlying property rights in the body of the decedent. They state a straightforward policy in favor
of helping those who live and they provide a procedure for making use of a
decedent's body. Specifically, in this
case, they provide a procedure for the taking of corneas from a dead body, in
which no one has a property right, to help the living.
The procedural provisions of the statutes are
very explicit and the rights granted by the
procedural provisions are very limited:
(1) they allow a decedent to give a body part upon his or her
death; (2) they allow specific survivors
to give body parts upon the decedent's death;
(3) they allow the coroner who performs an autopsy and certain other
persons to remove corneas if the coroner has no knowledge of an objection; and (4) lastly, as if to emphasize that there
was no intention of disturbing the rule of law that there is no property right
in dead *484 bodies, the statute states that a person who acts in good
faith, without knowledge of an objection, is not criminally or civilly liable
for removal.
Thus, the court is wrong in its holding that
the procedural requisites for dealing with non-property can rise to become
property and be protected by the fourteenth amendment. Nor can the grant of procedures to enhance
the health and wellbeing of others in society and the imposition of duties on
persons (coroners or hospitals) grant property rights protected by the fourteenth
amendment in favor of the decedent's relatives.
The statute does not give the plaintiff any
rights. It gives rights to the coroner
(and through that person, the whole of mankind benefits from the use of
corneas) to take corneas in the absence of knowledge of an objection. The statute
is trying to encourage the use of the corneas and does not place any burden on
the coroner to make inquiry. Simply
stated, the "bundle of rights" in
the plaintiff, in light of the common law history and the express purpose of
the two statutes, is virtually nonexistent.
923 F.2d 477, 59 USLW 2457
END OF
DOCUMENT