Will All of Him Be at the Funeral?

Article excerpt

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. …