Metropolitan News-Enterprise


Tuesday, November 19, 2002


Page 1


High Court Allows Suit Over Cornea Removals to Proceed


From Staff and Wire Service Reports


The U.S. Supreme Court yesterday declined to review a ruling that allows parents whose dead children’s corneas were removed without consent to bring a class action against the Los Angeles County Coroner’s Office.

Without comment, the court let stand an April ruling by a divided panel of the Ninth U.S. Circuit Court of Appeals. The court 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, but the county argued that allowing the class action to proceed would jeopardize “lifesaving and life-enhancing benefits from organ and tissue donation.”

Senior 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. But Judge Raymond Fisher and Senior Judge James Browning of the Ninth Circuit disagreed.

Fisher, writing for the pair, said 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.

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.”

Senior Judge Ferdinand F. Fernandez dissented, arguing that the parents’ statutory interest was “asthenic”—weak—and should not be converted by the court into a “puissant”—powerful—“giant for federal constitutional purposes.”


Copyright 2002, Metropolitan News Company