HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, January 24, 2008

Ownership of the Body

The Ohio Supreme Court heard arguments yesterday in the case, Albrecht v. Treon, involving the issue of whether an individual has a legal right to a relative’s body parts and organs. In May 2006, after an autoposy to determine how and why Chrisopher Albrecht and his car ended up in a pond.  The county coroner's office failed to inform the family that it had removed his brain and not replaced it.  The parents are now suing.  The case has attracted lots of attention.  Here is a good overview of the legal background and the Cincinnati Enquirer reports on some of the factual issues as well as the interesting differences in litigation strategies,

During an autopsy to determine why Christopher Albrecht had suddenly plunged his vehicle into a pond and drowned, the Hamilton County coroner removed Albrecht's brain and never put it back.  Though the practice is standard for coroners, Albrecht's parents didn't know for years that they had buried their son without his brain.  When they found out, they filed a lawsuit that raises sweeping ethical, moral and religious questions.

The case, to be argued Wednesday before the Ohio Supreme Court, has drawn international attention for its ramifications to coroners, crime investigators, EMTs, funeral directors and followers of religions that espouse the importance of burying the whole body.  The lawsuit is a class action against coroners and commissioners in 87 of Ohio's 88 counties covering cases dating to 1991.  Under Ohio law, brains, hearts and other body parts and fluids removed during an autopsy are classified as medical waste, which generally means they are incinerated.

"What this case really comes down to is, for the convenience of the government, are we Ohioans, we humans, supposed to give up our most basic rights to the human remains of our loved ones?" said John Metz, an attorney who brought the Albrechts' suit. "I am absolutely amazed to have to be standing in front of the highest court in our state to defend against such a socialist view."

Defenders of the coroners, including the Ohio State Coroners Association, Ohio State Medical Association and the National Association of Medical Examiners, contend that establishing property rights for families to the organs, tissue, blood and other fluids extracted during an autopsy could jeopardize timely autopsies and risk the resulting criminal evidence. . . .

Mason anticipates an onslaught of litigation against counties if the Albrechts prevail, as relatives - often upset by an autopsy in the first place - negotiate what to do about body parts that have been removed, perhaps disagree and communicate conflicting directions to coroners.

Metz and co-counsel Patrick Perotti have been taken to task before the court for making a legal question too emotional. Perotti's briefs contain references to Achilles' slaying of Hector in "The Iliad," the drowning of Shakespeare's Ophelia and poet Walt Whitman's "I Sing The Body Electric."  Lawyers for the coroners at one point tried and failed to get one particularly verbose submission - which traced the history of death from ancient to modern times - stricken from the record.  "We don't dispute that it is a cultural norm for us to accord that kind of respect for our dead," Mason said. "But that doesn't mean that when they went out to get Hector's body back, they scraped up every drop of blood to make sure they got everything."

Pathologists and others fighting the Albrechts argue that what happens in an autopsy is common knowledge because of television if nothing else, and families must know that bodies that have undergone an autopsy are not returned entirely intact.  In its brief, the Medical Examiners Association said biologic material from a dead body can't help but be lost. Bodies lose fluids at accident scenes and parts of some bodies are never found, the group said.It argued that material taken by coroners is being singled out unfairly in this case.

Metz said there is evidence to suggest that people care deeply about retrieving such items, including the expense and effort taken by the U.S. military to identify and return remains to the loved ones of fallen soldiers.  Hamilton County, the one county not named in the suit, began calling families after autopsies as part of a court settlement, Metz said, and has encountered few problems with the new system. Franklin County took similar steps voluntarily - in part in an unsuccessful attempt to be removed from the lawsuit - with little negative impact, he said. . . .

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