AGO 1960 No. 98 - Jan 26 1960
FUNERAL DIRECTORS - AUTHORITY TO FURNISH BLOOD SPECIMENS OF BODIES TO LAW ENFORCEMENT AGENCIES.
A funeral director has no legal authority to furnish blood specimens of bodies prior to embalming to law enforcement agencies upon their request.
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January 26, 1960
Honorable Eric D. Braun
State Representative, 12th District
216 Elberta Street
Cashmere, Washington Cite as: AGO 59-60 No. 98
By letter previously acknowledged you requested an opinion of this office concerning a question which we paraphrase as follows:
Does a funeral director have the legal authority to furnish to law enforcement agencies, upon request, blood specimens of bodies prior to embalming without either the consent of the next of kin, or a court order, or (where the remains are subject to the control of the coroner) a request from the coroner?
We answer this question in the negative.
We find no statutory authority which specifically allows or prohibits such action by a funeral director. There are, however, certain statutory provisions which cover the subject matter of the question involved and they provide as follows:
"The right to control the disposition of the remains of a deceased person, unless other directions have been given by the decedent,vests in, and the duty of interment and the liability for the reasonable cost of interment of such remains devolves upon the following in the order named:
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"(1) The surviving spouse.
"(2) The surviving children of the decedent.
"(3) The surviving parents of the decedent.
"The liability for the reasonable cost of interment devolves jointly and severally upon all kin of the decedent hereinbefore mentioned in the same degree of kindred and upon the estate of the decedent." (Emphasis supplied)
"The jurisdiction of bodies of all deceased persons who come to their death suddenly without medical attendance, or where the circumstances of death indicate death was caused by unnatural or unlawful means, or suspicious circumstances, or bodies upon which a coroner's autopsy or post mortem or coroner's inquest is to be held,or dead bodies not claimed by relatives or friends, is hereby vested in the county coroner, which bodies may be placed in the morgue under such rules as are adopted by him with the approval of the county commissioners, having jurisdiction, providing therein how the bodies shall be brought to and cared for at the morgue and held for the proper identification where necessary." (Emphasis supplied)
"In any case in which an autopsy or post mortem is performed, the coroner, upon his own authority or upon the request of the prosecuting attorney or other law enforcement agency having jurisdiction, may make or cause to be made an analysis of the stomach contents,blood, or organs, or tissues of a deceased person and secure professional opinions thereon and retain any specimens or organs of the deceased which in his discretion are desirable or needful for anatomic, bacteriological, chemical or toxicological examination or upon lawful request are needed or desired for evidence to be presented in court. Costs shall be borne by the county." (Emphasis supplied)
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Thus, the legislature has expressly provided that the control over the remains of a deceased person shall vest in the next of kin. It is also provided that the county coroner shall have this control where the body is not claimed by friends or relatives or where the death results from unnatural causes or under suspicious circumstances. The further provision, where an autopsy is performed, gives the coroner the authority himself, or when requested by a law enforcement agency, to take a blood specimen and have it analyzed. Thus, it would be only with the consent or request of the next of kin or the consent or request of the coroner if an autopsy or post mortem were involved that the funeral director could supply such a blood specimen or, of course, upon a proper court order.
The courts generally speak of the relationship between one entrusted with the burial of a deceased person and the deceased's next of kin, as a trust relationship. In the case ofSouthern Life and Health Ins. Co. v. Morgan, 21 Ala. App. 5, 11, 105 So. 161 (1925) the court stated that:
". . . the person having charge of a dead body for burial is in the exercise of a sacred trust for all who may, from family ties or friendship, have an interest in the remains; . . ."
In 25 C.J.S. 1025, Dead Bodies, § 6, it is stated that:
"An action will lie for the breach of a contract as to the care and burial of a dead body. Accordingly, where a person agrees to bury a corpse properly, a right of action lies if he negligently allows the body to be taken from his custody, or suffers indignities to be offered it while in his possession, or gives it an improper burial."
See also an annotation in 17 A.L.R. (2d) 770, entitled "Civil liability of undertaker for acts or omissions relating to corpse." Our supreme court has also allowed recovery in certain cases involving intentional wrongful acts on the part of an undertaker. See,Wright v. Beardsley, 46 Wash. 16, 89 Pac. 172 (1907);Kneass v. Cremation Society of Washington, 103 Wash. 521, 175 Pac. 172 (1918); andGadbury v. Bleitz, 133 Wash. 134, 233 Pac. 299 (1925.)
Therefore, it is our considered opinion, under the statutes and decided cases, that it would be unlawful for a funeral director to furnish blood specimens to law enforcement agencies without the consent of the next of kin, or if the remains are subject to the control of the coroner and involved an autopsy or post mortem, his request, or pursuant to a proper court order.
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We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
RICHARD M. MONTECUCCO
Assistant Attorney General