Metropolitan News-Enterprise


Wednesday, April 17, 2002


Page 1


Ninth Circuit Rules:

Coroner’s Removal of Corneas Without Consent Violated Rights


By a MetNews Staff Writer


The Los Angeles County Coroner’s Office violated the constitutional rights of parents whose dead children’s corneas were removed without consent, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel found that Robert Newman and Barbara Obarski, who each had a child who died in October 1997, have a right to bring a 42 U.S.C. Sec. 1983 suit alleging deprivation of their property without due process.

The coroner’s department claimed it acted lawfully under Government Code Sec. 27491.47(a), which at the time permitted it to “remove and release or authorize the removal and release of corneal eye tissue...if [it] has no knowledge of objection to the removal.”

The law has since been amended. The coroner now may remove the tissue only if a consent form was executed by the donor, or if written or telephonic consent has been obtained from the next of kin.

U.S. District Judge J. Spencer Letts dismissed the suit, agreeing with the county that California law did not create a federally protected property right with respect to body parts. Judge Raymond Fisher, writing for the Ninth Circuit majority, disagreed.

California infringed the dignity of the bodies of the children when it extracted the corneas from those bodies without the consent of the parents,” Fisher wrote.

Common Law

“Under traditional common law principles, serving a duty to protect the dignity of the human body in its final disposition that is deeply rooted in our legal history and social traditions, the parents had exclusive and legitimate claims of entitlement to possess, control, dispose and prevent the violations of the corneas and other parts of the bodies of their deceased children.”

Newman and Obarski alleged in their complaint they became aware of the coroner’s actions in September 1999.

At issue was California’s adoption of the 1968 Uniform Anatomical Gift Act.

The uniform act grants next of kin the right to transfer the parts of bodies in their possession to others for medical or research purposes. But the California version bars any person from “knowingly, for valuable consideration, purchasing or selling a part for transplantation, therapy or reconditioning, if removal of the part is intended to occur after the death of the decedent.”

In the 1970s and 1980s, however, medical science improvements and the related demand for transplant organs prompted governments to search for new ways to increase the supply of organs for donations.

Many found a hindrance the rule implicit in the Uniform Anatomical Gift Act that donations cannot be effected unless consent from the decedent or next of kin is obtained.

Thus, California passed its “presumed consent” law that allowed the taking and transfer of body parts by a coroner without consent of next of kin as long as no objection to the removal is known.

Property Interests

But Fisher said that law “did not extinguish California’s legal recognition of the property interests of the parents to the corneas of their deceased children” and “allowed the removal of corneas only if ‘the coroner has no knowledge of objection,’ a provision that implicitly acknowledges the ongoing property interest of next of kin.”

Fisher went on to reject the county’s contention that the plaintiffs had an adequate post-deprivation remedy as a matter of law, saying it was up to the district court to determine “what process the parents were due” and to subject “the government’s justification for its deprivation of parents interests” to appropriate scrutiny.

Senior Judge James Browning concurred in the opinion, but Judge Ferdinand F. Fernandez dissented.

“I dissent because I do not believe that the asthenic [weak] legal interest in a decedent’s body, which California confers upon relatives and others, should be treated as a puissant [powerful] giant for federal constitutional purposes,” the dissenting jurist argued.

He cited a 1900 California Supreme Court case, in which the justices held “there is no property in a dead body.” State law grants certain rights to the family of the decedent, he argued, for the limited purpose of having the remains “disposed of in an appropriate way,” and “does not confer a property right upon anyone.”

The case is Newman v. Sathyavaglswaran, 00-55504.


Copyright 2002, Metropolitan News Company