The Body in Question

[James Maule]

>>> "Vance R. Koven" <vrkoven at WORLD.STD.COM> 10/05 10:06 AM >>>
writes, asking some questions and perhaps unintentionally giving me some exam
question ideas for Decedents. (Thanks)

>>Subsidiary questions: what are B's actual rights in A's body? Is it
>>property that positive state law grants to specified persons? can A award
>>his own body by will? is it an asset of A's estate that the executor, as
>>fiduciary for, say, a group of heirs, has to "manage" for maximum return?

A decedent has the right to "will" a body to science, to direct burial or cremation, and to authorize the executor to expend funds for a cemetery plot. (As a practical matter, these instructions ought to be in a separate document because they are needed much sooner than the will can be probated.) Most states provide for organ donation provisions on driver licenses and some other documents. (There is a Uniform Act on the matter).

Clearly there are instances in which compelling government interests intervene. In the 1918 flu epidemic, Philadelphia health officials ordered burial in mass graves because the medical examiner's office was overwhelmed with bodies. They announced that bodies would be tagged so that relatives who wanted to do a burial in a private cemetery could do so when the mass graves were re-opened.

Could a government stop an organ donation? Certainly, on account of disease, or its interference with a criminal investigation, though usually the medical community and coroners' offices manage to handle most of these situations fairly expeditiously and often manage to accommodate both purposes.

Can a government COMPEL an organ donation? For lifetime situations (kidney donation, bone marrow, blood), I think the answer is no and I think there may be some dicta somewhere to that effect. Is it on account of the "takings" clause? Only if the body is property. Back in the 1980s a law librarian taking my Decedents class, after hearing my hypotheticals on related matters, notified me that a book, "The Body as Property" had been published. I remember reading it and returning it, and I do not remember if these issues were discussed. But even if the body is not property as such, it seems to me that the analysis is the same as for the after death compelled donations (see below), compounded by the fact that any donation (even the simple giving of blood) involves a risk to the donor (cf. kidney with bone marrow donation) that cannot be justified even on the grounds that lack of voluntary donation means the death of many "waiting for organ" patients (as is currently the case).

As for the after death compelled donations, I suppose two major arguments for objecting can be raised. One is the religious one. Many denominations attach theological significance to death and the rituals of dealing with death and the decedent's body. Any government intrusion into these matters would raise significant FE violations. The other rest on the premise that government actions that "are so fundamentally intrusive as to offend sensibilities" (or something close to that) ought not be permitted. That language comes from other areas (e.g., compelled sterilization, or the instances of persons being delberately infected with a disease, etc) but its underlying concept ought to apply in these instances.

Vance then asks:

Follow-up questions: if the government can trump the next of kin on a
showing of "compelling interest," how far can it go? Can it establish
national priority lists that could countervail testamentary dispositions or
state organ donation laws? Can a state do all this as well as the Feds?

The questions themselves suggest why the if clause ought to remain a hypo, but assuming that there can be such trumping by the government, what basis would there be to distinguish the federal government from a state government? I would think a state government would have a stronger claim and a case to argue against preemption. If there is compelling interest, then presumably it would permit  the ignoring of state laws, though presumably any such federal law would rest on existing state controls over the medical procedures involved in organ donation.

Vance also asks:

Does RFRA affect the outcome, at either level? If all this becomes a Fifth
Amendment question, do the parties have to come to terms on the price (or
conclude a condemnation proceeding) before the organ can be used?

Wouldn't RFRA and its pending successors/state alternatives pretty much bar any such government interference if either the deceased or the family had religious based objections to organ donations?

There is a market in donated organs, but it is a very grey one. Blood has a value for movement among hospitals, but I think it is illegal for you or I to buy or sell blood on a general retail market. (It IS legal to sell blood for purposes of extracting certain substances if the sale is to a qualified medical facility. There are so few people who qualify --- four in the case of one substance --- that the market may be a legitimate arms' length market. See Margaret Cramer Green v. Comr, and US v Garber for tax considerations to the sale of blood products by individuals). As for other organs (notwithstanding the "wake up in ice in a bathtub" urban legend) the only markets are underground ones. Hence the term "donation" and not sale.

The IRS claims blood is not property but a service. (A weird result it did not need to reach in order to foreclose charitable contribution deductions for blood donation; the issue of determining value hence has not been reached ).

I apologize for the disorganization of my thoughts. There are a lot of factors at work here but I hope this is helpful in giving Vance an idea of what sorts of things to pursue and places to do some researching.

Jim


Jim Maule
Villanova University School of Law
Villanova, PA 19085
(610) 519-7135
maule at law.vill.edu