Who Owns Your Dead Son’s Brain?
Over on The Volokh Conspiracy, Jonathan H. Adler writes:
Do parents have a constitutionally protected property interest in the dead body of their child, including all organs? Not necessarily is the answer given by the U.S. Court of Appeals for the Sixth Circuit in Albrecht v. Treon, at least under Ohio law as interpreted by the Ohio Supreme Court.
The Albrechts brought a Section 1983 suit against the county coroner, among others, alleging that they were deprived of a protected property interest without due process of law when the coroner removed and retained their dead son’s brain without notice. According to the state, the brain was needed for additional study to aid in a criminal investigation. The question was certified to the Ohio Supreme Court, which held that under Ohio law the parents have no constitutionally protected interest in their child’s human remains that are retained for criminal investigation purposes, prompting a judgment for the state in district court. Today, the Sixth Circuit affirmed, distinguishing Circuit precedent that recognized constitutionally protected property interests in a family member’s body parts retained for donation purposes.
There is something disturbing to me about treating body parts as property, and I wonder if that is really the only viable legal analysis or approach. Our society seems to understand the emotional need of families to bury even fragments of their dead and to have that solace or comfort, and yet decisions about whether states have to notify family members of parts removed or offer them the opportunity to make their own arrangements for burial or disposal after any forensic examinations are completed is seemingly left to the states as a matter of property law.
A legal analysis of the case written back in 2007 provides some background and discussion of the issues.