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Ohio Southern District Court's "body parts" controversy

By Chuck Kallendorf

The Ohio Supreme Court is going to be hearing another case that?s generated international attention for its ramifications for medical examiners, EMTs, funeral directors, and others. (Article)

At issue, and filed as a class action naming the county commissioners offices of 87 of Ohio?s 88 counties, and all coroners, is whether an individual has a legal right to his/her relative?s or next-of-kin?s body parts and organs. Originating in Clermont County back in May 2006, the parents of a dead boy buried their son with his brain missing after the county coroner?s office had removed it for forensic examination, but had then failed to notify the family either of that fact or that they had retained the organ. (Complaint)

In 1991, the Sixth Circuit Court of Appeals had held that the wife of a dead man had, in fact, a ?property interest? in the dead body of her husband. (See Brotherton v. Cleveland,M.D. ) There are similarities in that in both cases there were body parts removed without next-of-kin?s knowledge or permission, but in Brotherton the issue was the decedent?s corneas which had been permitted to be removed and used by an eye bank. That controversy centered around §2108.02(B) of the Revised Code, as part of the Uniform Anatomical Gift Act governing gifts of organs and body tissue for research or transplants.

It is not now being disputed whether next-of-kin have a protected right to the ?bodies? of their relatives, but a matter of a recently enacted Ohio statute which reads that ?retained tissues, organs, blood, other bodily fluids, gases, or any specimens from an autopsy are medical waste and shall be disposed of in accordance with applicable federal and state laws.? [ See ORC § 313.123 (B)(2) ]

Section 313.123, contains an exception, though, that when ?the coroner has reason to believe that the autopsy is contrary to the deceased person?s religious beliefs?(he) shall return those specimens, as soon as possible, to the person who has the right to the deposition of the body.? Southern Ohio District Court Judge Susan Dlott, in ordering the case a certification of state question to the Supreme Court, said, ?Arguably, if the legislature recognized a protected right in a decedent?s tissues and organs removed & retained by a coroner for forensic examination, the statute wouldn?t confine the return of specimens to a religious decedent?s next of kin alone. It thus appears that the enactment of Revised Code §313.123 may limit the rights of persons in the intact remains of their loved ones.?

Dlott stayed the case pending the Supreme Court?s decision., which was appealed but denied by the Sixth Circuit.

Full post as published by Cincinnati Law Library Blog on January 23, 2008 (boomark / email).