AGO 1956 No. 269 - May 16 1956
DEAD BODIES -- DISSECTION OF -- WHEN LAWFUL -- INDIGENT DECEDENTS -- CORNEAL TRANSPLANTATION (KERATOPLASTY)
Physicians and/or surgeons cannot legally remove the eyes of deceased welfare recipients for the purpose of transplanting the corneas of the eyes into the eyes of living persons unless the particular decedent is some manner directs or provides in his will that this be done.
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May 16, 1956
Honorable Tom A. Durham
Court House, 311 Grand Avenue
Bellingham, Washington Cite as: AGO 55-57 No. 269
We are in receipt of your letter requesting the opinion of this office on a certain question which we paraphrase as follows; to wit:
Is there any legal way for a doctor to remove the eyes of deceased welfare recipients immediately after death for the purpose of transplanting the corneas thereof into the eyes of living persons where the deceased has not directed by will or otherwise that this be done.
We answer your question in the negative.
The pertinent statutes are set forth as follows:
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RCW 68.08.100 (1953 Supp.)
"The right to dissect a dead body shall be limited to cases specially provided by statute or by the direction or will of the deceased; cases where a coroner is authorized to hold an inquest upon the body, and then only as he may authorize dissection; and cases where the spouse or next of kin charged by law with the duty of burial shall authorize dissection for the purpose of ascertaining the cause of death, and then only to the extent so authorized: Provided, That the coroner, in his discretion, may make or cause to be made by a competent pathologist, toxicologist, or physician, an autopsy or post mortem in all cases in which death occurred by violence, or suspicious circumstances, or where an inquest is to be held, or where death occurred in prison, jail or while serving a sentence, or where death occurred suddenly and without medical attendance, or from unnatural causes, or under circumstances indicating the possibility of death by the hand of the deceased or through the instrumentality of some other person. Every person who shall make, cause, or procure to be made any dissection of a body, except as above provided, shall be guilty of a gross misdemeanor."
RCW 68.08.070 (1953 Supp.)
"Any sheriff, coroner, keeper or superintendent of a county poorhouse, public hospital, county jail, or state institution shall surrender the dead bodies of persons required to be buried at the public expense, to any physician or surgeon, to be by him used for the advancement of anatomical science, preference being given to medical schools in this state, for their use in the instruction of medical students. If the deceased person during his last sickness requested to be buried, or if within thirty days after his death some person claiming to be a relative or a responsible officer of a church organization with which the deceased at the time of his death was affiliated (requires the [[Orig. Op. Page 3]] body to be buried,) his body shall be buried."
It will be observed that RCW 68.08.100 (1953 Supp.) limits the right to dissect dead bodies to cases specially provided by statute and to cases where the decedent provides in his will or otherwise directs that his body be dissected after his death. Therefore, unless a decedent in his will or in some other manner directs that his body be dissected after death, any dissection of his body at that time must be expressly authorized by statute or it is unlawful. We have been unable to discover any statute authorizing the particular dissection you have mentioned. Therefore, in absence of direction by the decedent, testamentary or otherwise, removal of the decedent's eye or eyes after his death is unlawful.
We have considered the provisions of RCW 68.08.070 (1953 Supp.). However we do not believe they constitute support for the legality of the operation in question. That statute authorizes dissections of persons required to be buried at public expense by physicians or surgeons but only for the purpose of "advancement of anatomical science." In our opinion the phrase "advancement of anatomical science," in the ordinary and usual meaning of the words used therein, refers to experimental research undertaken in the public interest for the purpose of furthering scientific knowledge of anatomy. At the present time the operation of transplanting corneas or keratoplasty may no longer be considered experimental. It is widely practiced and may be undertaken with as great a degree of confidence as other operations on the eyes.
We do not feel that this is an unduly restrictive interpretation of the phrase "advancement of anatomical science" or one completely without foundation in public policy. The legislature in its choice of this phrase was undoubtedly influenced by the strong policy of the common law that all dead bodies be decently and speedily interred according to custom. This policy is primarily based on the right of a living person to feel secure in his own mind that after death a decent and proper disposition will be made of his remains. It is natural that this is a subject upon which people have strong feelings and anxieties. This right is carefully guarded by the law. 15 Am.Jur 832, Dead Bodies, § 7; Jackson, Percival E. The Law of Cadavers, p. 30; 25 C.J.S. 1024, Dead Bodies, § 5. It may only be encroached upon where circumstances of extreme exigency demand. Thompson v. Deeds, 61 N.W. 842, 93 Iowa 228.
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This general policy is reflected in the language of RCW 68.08.100 (1953 Supp.) restricting the dissection of dead bodies to "cases specially provided by statute." In view of this language, we feel that any statute authorizing dissection should be strictly construed.
We are in complete sympathy with the type of operation which your doctors desire to perform and we have done exhaustive research in an endeavor to discover a method by which such operations may be legally accomplished. However, particularly in view of the very restrictive language of RCW 68.08.100 (1953 Supp.) we feel that legal authorization to perform such operations will have to be provided by our legislature.
We conclude that physicians and/or surgeons cannot legally remove the eyes of deceased welfare recipients for the purpose of transplanting the corneas of the eyes into the eyes of living persons, unless the particular decedent in some manner directs or provides in his will that this be done.
We hope the foregoing analysis will prove helpful to you.
Very truly yours,
DUANE S. RADLIFF
Assistant Attorney General