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“Since I Must Please Those Below”

Human Skeletal Remains Research and the Law

Published online by Cambridge University Press:  06 January 2021

Thomas D. Holland
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Abstract

The ethics of non-invasive scientific research on human skeletal remains are poorly articulated and lack a single, definitive analogue in western law. Laws governing invasive research on human fleshed remains, as well as bio-ethical principles established for research on living subjects, provide effective models for the establishment of ethical guidelines for non-invasive research on human skeletal remains. Specifically, non-invasive analysis of human remains is permissible provided that the analysis and collection of resulting data (1) are accomplished with respect for the dignity of the individual, (2) do not violate the last-known desire of the deceased, (3) do not adversely impact the right of the next of kin to perform a ceremonious and decent disposal of the remains, and (4) do not unduly or maliciously violate the privacy interests of the next of kin.

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Articles
Information
American Journal of Law & Medicine , Volume 41 , Issue 4 , November 2015 , pp. 617 - 655
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2015

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References

1 Sophocles, Antigone 16 (Paul Moliken & Elizabeth Osborne eds., J.E. Thomas trans., Prestwick House, Inc. 2005).

2 Thomas Francis Harrington, The Harvard Medical School 647 (James Gregory Mumford ed., 1905). Among other benefactions, Parkman donated the land to Harvard University on which the medical college was built. Id. at 639. Ironically, his cremated remains were recovered from the furnace and other areas in the same medical school building three years later. Id. at 640 (noting that a detailed search finally led to the discovery of Parkman's remains in the furnace and other parts of a laboratory on November 30, 1849).

3 See Commonwealth v. Webster, 5 Cush. 295, 313-14 (Mass. 1850) (examining evidence regarding “shape, size, height, and other particulars” of the discovered body parts and teeth in order to determine whether such parts and “burnt remains found in the furnace” are from the same body).

4 George Bemis, Report of the Case of John W. Webster, 88-98 (1850).

5 See Cattaneo, Cristina, Forensic Anthropology: Developments of a Classical Discipline in the New Millennium, 165 Forensic Sci. Int'l. 185, 185 (2007)CrossRefGoogle ScholarPubMed (explaining that recent years have seen the rise and development of forensic anthropology as a means of identifying human remains).

6 E.g., Budimlija, Zoran M. et al., World Trade Center Human Identification Project: Experiences with Individual Body Identification Cases, 44 Croat. Med. J. 259, 259 (2003)Google ScholarPubMed (“The World Trade Center (WTC) attack on September 11, 2001 … resulted in a so far unprecedented challenge in the field of victim identification after a mass catastrophe.”).

7 Zukanović, Amila et al., Bosnia and Herzegovina/Bosna i Hercegovina, in The Routledge Handbook of Archaeological Human Remains and Legislation 63, 66 (Márquez-Grant, Nicholas & Fibiger, Linda eds., Routledge Handbooks 2011).Google Scholar

8 Id.

9 Id. Similarly, the U.S. Department of Justice, in its compilation of “lessons learned” following the attacks of 9/11, focused on the use of DNA technology but also noted that DNA alone was not enough and specifically advised the use of forensic anthropology “in a mass fatality identification effort whenever possible.” Nat'l Inst. of Justice, U.S. Dep't of Justice, Lessons Learned From 9/11: DNA Identification in Mass Fatality Incidents 1 (2006), https://www.ncjrs.gov/pdffiles1/nij/214781.pdf [https://perma.cc/D2FX-SG7F].

10 Invasive, or destructive, analyses of bone, such as histological sectioning or sampling for isotopic testing, constitute a relatively minor component of most forensic anthropology analyses. These “invasive” procedures are not discussed in any detail here.

11 See, e.g., David R. Hunt, Terry Collection, Smithsonian Nat'l Museum Nat. Hist., http://anthropology.si.edu/cm/terry.htm [http://perma.cc/MFG6-NHDY] (“After the passage of the Willed Body Law of Missouri in 1955-6, it was required to have a signed release document from the individual or their immediate family to be able to use the body for scientific purposes. “); see also, infra note 24.

12 See, e.g., Code of Ethics and Conduct, Sci. Working Group for Forensic Anthropology (May 1, 2013), http://swganth.startlogic.com/Ethics%20Rev1.pdf [http://perma.cc/QTG5-C4PX]; ICOM Code of Ethics for Museums, Int'l Council Museums (2013), http://icom.museum/fileadmin/user_upload/pdf/Codes/code_ethics2013_eng.pdf [http://perma.cc/7FYS-4PTT]; Policies and Procedures, Code of Ethics and Conduct, Am. Board Forensic Anthropology, http://www.theabfa.org/policies%20with%20button.html [http://perma.cc/L8T8-HB6Z].

13 An early notable exception is the widely cited, though seldom read article by Wilton Marion Krogman, entitled A Guide to the Identification of Human Skeletal Material. Krogman, Wilton Marion, A Guide to the Identification of Human Skeletal Material, 8 Fed. Bureau Investigaton L. Enforcement Bull. 3, 3 (1939)Google Scholar (“This study points to many facts that can be obtained from the proper type of examination of bones, which will often reveal facts of great value and assistance to the investigation.”).

14 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597-98 (1993).

15 Slightly more than half of the states have adopted the Daubert standard in toto. Lustre, Alice B., Annotation, Post–Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R. 5th 453, 454 (2001)Google Scholar. Others have retained the Frye test, employ a Daubert hybrid, or use a state standard. Id. at 454-55. The Frye test, also known as the “general acceptance” test, stemmed from the first, albeit unsuccessful, attempt to introduce the “systolic blood pressure deception test”—a precursor of the polygraph—into evidence. Frye v. United States, 293 F. 1013, 1013 (D.C. Cir. 1923). The attempt failed because the court did not find that the technique had achieved “general acceptance” within the scientific community. Id. at 1014.

16 The Daubert ruling was a major factor behind Congress directing the National Academies of Science to undertake a comprehensive review of forensic science in the United States. See generally Nat'l Research Council, Nat'l Acad. of Sci., Strengthening Forensic Science in the United States 90-98 (2009) (discussing the ramifications of the Daubert decision).

17 Thomas Dwight, The Identification of the Human Skeleton: A Medico-Legal Study (1878). Ironically, Dwight held the Parkman Professorship of Anatomy at Harvard University, named for the same Parkman whose murder and dismemberment by John Webster was the subject of Commonwealth v. Webster. Thomas Dwight, Center for the History of Medicine, http://collections.countway.harvard.edu/onview/exhibits/show/the-nature-of-every-member--an/thomas-dwight [http://perma.cc/J2TC-HEEC].

18 Sci. Working Grp. for Forensic Anthropology, http://swganth.org/index.html [http://perma.cc/YT77-JUHQ] (last updated November 26, 2013).

19 T.D. Stewart, Essentials of Forensic Anthropology ix (1979).

20 See Nat'l Research Council, supra note 16, at 32 (“Good forensic science and medical examiner practices are of clear value from a homeland security perspective, because of their roles in bringing criminals to justice and in dealing with the effects of natural and human-made mass disasters.”).

21 Pima Cty. Office of the Med. Exam'r, Annual Report 2014, at 29 (2014), available at http://webcms.pima.gov/UserFiles/Servers/Server_6/File/Government/Medical%20Examiner/Resources/Annual-Report-2014.pdf [http://perma.cc/5PR6-6XEM].

22 Id.

23 See id. (stating that, since 2001, the remains of 2300 “suspected UBCs [Undocumented Border Crossers]” have been “received” by the Pima County Office of the Medical Examiner). The number of individuals in the desert awaiting discovery remains unknown).

24 The Robert J. Terry Anatomical Skeletal Collection consists of 1728 skeletons collected by anatomy professors Robert J. Terry and Mildred Trotter at Washington University Medical School in St. Louis from the 1920s until 1967. Hunt, supra noe 11. The collection is now on permanent loan to the Smithson Institution in Washington, D.C. Id. The Cleveland Museum of Natural History's Hamann-Todd Osteological Collection consists of over 3000 skeletons collected by anatomy professor Thomas Wingate Todd at Case Western Reserve University (then called Western Reserve University) from 1912 until his death in 1938. Physical Anthropology Collections, Cleveland Museum Nat. Hist., https://www.cmnh.org/discover/science/phys-anthro/collections [https://perma.cc/A8BL-SWMS?type=source]. Together, these two collections arguably are the most-widely studied skeletal populations in the world.

25 See, e.g., Hunt, supra note 24 (“The early part of the collection is predominantly composed of people of lower incomes, but the latter component of the collection comes from middle or upper middle incomes.”).

26 Fed. R. Evid. 702(c).

27 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594 (1993).

28 E.g., Schaefer, Maureen C. & Black, Sue M., Comparison of Ages of Epiphyseal Union in North American and Bosnian Skeletal Material, 50 J. Forensic Sci. 777, 783 (2005)CrossRefGoogle ScholarPubMed (illustrating that population-specific data improves accuracy and reliability of studies).

29 See id. (“However, should statistical methods be applied that calculate age probability, prior knowledge of the Bosnian's maturational profile will produce more accurate results. This technique is most applicable when trying to discern the identity of siblings that are of similar age. Therefore, it is recommended that population specific standards are developed on Bosnian sub-adults and applied when possible.”).

30 See George J. Annas & Michael A. Grodin, Introduction to The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation 3, 3 (George J. Annas & Michael A. Grodin eds., 1992).

31 See Shuster, Evelyne, Fifty Years Later: The Significance of the Nuremberg Code, 337 New Eng. J. Med. 1436, 1437 (1997)CrossRefGoogle ScholarPubMed (calling “[t]he main trial at Nuremberg after World War II” the “first-of-its-kind international trial”).

32 Though generally referred to as the Subsequent Nuremberg Trials, the official name of the proceedings was “Trials of War Criminals Before the Nuernberg [sic] Military Tribunals Under Control Council Law No. 10.” Int'l Military Tribunal, Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law NO. 10 (1950).

33 Id. at 61 (“The prosecution, in addition to arguing that voluntary participation by the subject of experimentation was a prerequisite of legal experiments, argued that the experiments turned out to be entirely useless for medical science and human progress, and that in some cases it was doubtful if considerations of medical science played any controlling role in the decision to conduct the experiments.”); see also Shuster, supra note 31, at 1437 (“The first of these trials, the Doctors' Trial, involved 23 defendants, all but 3 of whom were physicians accused of murder and torture in the conduct of medical experiments on concentration-camp inmates”).

34 Int'l Military Tribunal, supra note 32, at 298-300.

35 Id. at 181. The “Doctors' Trial” is sometimes also called the “Medical Case.” Id. at III. It was officially recorded as, United States of America v. Karl Brandt, et al. Brandt, as the personal physician for Adolph Hitler, received the dubious honor of having his name listed first. Id. at 326, 328.

36 Michael A. Grodin, Historical Origins of the Nuremberg Code, in The Nazi Doctors and the Nuremberg Code 121, 121-22 (George Annas & Michael Grodin eds., 1992).

37 See Shuster, supra note 31, at 1436.

38 Leonard H. Glantz, The Influence of the Nuremberg Code on U.S. Statutes and Regulations, in The Nazi Doctors and the Nuremberg Code 183, 185 (George Annas & Michael Grodin eds., 1992).

39 See Grodin, supra note 36, at 121.

40 See Glantz, supra note 38, at 183.

41 George J. Annas, The Nuremberg Code in U.S. Courts: Ethics Versus Expediency, in The Nazi Doctors and the Nuremberg Code 201, 201 (George Annas & Michael Grodin eds., 1992). Walter Beals, presiding judge, was a justice on the Supreme Court of Washington; Harold Sebring was a justice on the Supreme Court of Florida; and Johnson Crawford was a former justice of the Oklahoma District Court. The alternate member was Victor Swearingen, former assistant attorney general for the state of Michigan. Annas & Grodin, supra note 30, at 4.

42 But cf. Mulford, Robert D., Experimentation on Human Beings, 20 Stan. L. Rev. 99, 102-03 (1967)CrossRefGoogle Scholar (“[W]hile the code does not have the authority of an American statute, decisions of the United States Military Tribunal based upon it should be considered the primary American articulation of standards governing human experimentation.”).

43 George Annas notes that U.S. courts' failure to cite the Nuremberg Code is a “paradox” given that it was developed by U.S. prosecutors and judges. Annas, supra note 41, at 201.

44 Int'l Military Tribunal, supra note 32, at 181-84.

45 Sharon Perley et al., The Nuremberg Code: An International Overview, in The Nazi Doctors and the Nuremberg Code 149, 149, 158 (George Annas & Michael Grodin eds., 1992).

46 Int'l Military Tribunal, supra note 32, at 181 (finding that “certain basic principles must be observed” in all “human experimentation … in order to satisfy moral, ethical, and legal concepts”).

47 Id. at 181-84.

48 Id. at 181-82. The other four principles are: “(3) The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.”; “(5) No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.”; “(7) Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.”; “(8) The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.” Id. at 182.

49 Jay Katz, The Consent Principle of the Nuremberg Code: Its Significance Then and Now, in The Nazi Doctors and the Nuremberg Code 227, 227 (George Annas & Michael Grodin eds., 1992).

50 Shuster, supra note 31, at 1439.

51 Drug Amendments of 1962, Pub. L. No. 87-781, 76 Stat. 780 (1962).

52 Albert R. Jonsen, The Birth of Bioethics 141 (1998).

53 Id.

54 Annas, supra note 41, at 205.

55 World Medical Association, Human Experimentation: Code of Ethics of the World Medical Association, 2(5402) Brit. Med. J. 177 (1964).CrossRefGoogle Scholar The DoH has been amended nine times since 1964, the last of which occurred in 2013. See WMA Declaration of Helsinki—Ethical Principles for Medical Research Involving Human Subjects, World Med. Ass'n, http://www.wma.net/en/30publications/10policies/b3/ [http://perma.cc/UQY9-BPCF].

56 World Medical Association, supra note 55, at 177.

57 Id.

58 Id.

59 Williams, John R., The Declaration of Helsinki and Public Health, 86 Bull. World Health Org. 650, 650 (2008).CrossRefGoogle ScholarPubMed

60 National Research Act of 1974, Pub L. No. 93-348, 88 Stat 342. The law created the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, a panel of eleven lawyers, scientists, ethicists, and theologians. Id. The Commission's recommendations were submitted to the Secretary of Health, Education, and Welfare for implementation. See Jonsen, supra note 52, at 151.

61 How Tuskegee Changed Research Practices, Ctr. for Disease Control & Prevention, http://www.cdc.gov/tuskegee/after.htm [http://perma.cc/CUT6-ASJ7] (last updated Sept. 24, 2013) (“After the Tuskegee Study, the government changed its research practices to prevent a repeat of the mistakes made in Tuskegee.”). The study was officially known as the “Tuskegee Study of Untreated Syphilis in the Negro Male.” The Tuskegee Timeline, Ctr. for Disease Control & Prevention, http://www.cdc.gov/tuskegee/timeline.htm [http://perma.cc/Q6H9-J557] (last updated Sept. 24, 2013). It involved the tracking of 399 syphilitic males by the U.S. Public Health Service over a forty-year period. Id. Despite the advent of penicillin, none of the men were treated for their disease. Id.

62 The Nat'l Comm'n for the Prot. of Human Subjects of Biomedical & Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research, U.S. Dep't Health & Hum. Servs. (Apr. 18, 1979), http://www.hhs.gov/ohrp/policy/belmont.html [http://perma.cc/XNG9-TUPL].

63 Id. (explaining that the February 1976 meeting was “supplemented by the monthly deliberations of the Commission that were held over a period of nearly four years”).

64 The Tuskegee Timeline, supra note 61.

65 See supra Part III.A.2.

66 See supra Part III.A.1.

67 Jonsen, supra note 52, at 152.

68 The Nat'l Comm'n for the Prot. of Human Subjects of Biomedical & Behavioral Research, supra note 62, at Part A: Boundaries Between Practice & Research.

69 Id. at Part B: Basic Ethical Principles.

70 Id. at Part B.1: Respect for Persons.

71 Id. at Part B.2: Beneficence.

72 Id.

73 The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, author of the Belmont Report, expired in 1980. Jonsen, supra note 52, at 107-09. It was somewhat replaced by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Id. The President's Commission “never formulated a general statement of its principle that matched The Belmont Report” though it did extend its authority beyond the Department of Health, Education, and Welfare. Id. at 109.

74 Protection of Human Subjects, 45 C.F.R. § 46 (2005).

75 Protection of Human Subjects, 21 C.F.R. § 50 (1989).

76 Each department and agency maintains its own guideline. Three other departments—the Central Intelligence Agency, the Department of Homeland Security, and the Social Security Administration—have not issued their own guidelines but comply with all subparts of the Health and Human Services guideline. Federal Policy for the Protection of Human Subjects (‘Common Rule’), U.S. Dep't Health & Hum. Servs., http://www.hhs.gov/ohrp/humansubjects/commonrule/ [http://perma.cc/EM6R-BD7D].

77 Protection of Human Subjects 45 C.F.R. § 46.101(a) (2005).

78 See discussion infra Part III.B.1.c.

79 Litteral v. Litteral, 111 S.W. 872, 873 (Mo. Ct. App. 1908). The more-common spelling “sepulcher” is used throughout this discussion except when a different form is required for quotation purposes (as is the case for this current cited quotation).

80 Id.

81 See Hardiman, Roy, Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue, 34 Ucla L. Rev. 207, 224 (1986)Google ScholarPubMed; see also Boulier, William, Sperm, Spleens, and Other Valuables: The Need to Recognize Property Rights in Human Body Parts, 23 Hofstra L. Rev. 693, 724 (1995)Google Scholar (finding, inter alia, that “commercialization of the sale of human body parts” and “concern over [such] commercialization is focused on the sale of tissue for transplant”); Ghosh, Samantak, The Taking of Human Biological Products, 102 Calif. L. Rev. 511, 528 (2014)Google Scholar (“Commodification is always a concern when there is a possibility of using the human body for a nontraditional purpose in return for economic benefits … [such as] [s]urrogacy.”).

82 Kuzenski, Walter F., Property in Dead Bodies, 9 Marq. L. Rev. 17, 17 (1924).Google Scholar

83 Larson v. Chase, 50 N.W. 238, 238 (Minn. 1891).

84 Id.

85 Property—Rights with Respect to Dead Bodies, 30 Yale L.J. 635, 635 (1921).

86 Blackstone, William, Commentaries on the Laws of England 429 (U. Chi. Press 1979) (1766).Google Scholar

87 See, e.g., Corven's case, 12 Co. Rep. 105, 1382 (undated) (“[A]nd after her death, the heir to the deceased shall also have his action, because that … they were hanged there for the honour of his ancestor, and therefore they are in the nature of heir-looms, which by the common law belong to the heir, as being the principal of the family: the like law of a grave-stone, tomb, and the like ….”); Haynes's Case, 12 Co. Rep. 113, 1389 (undated) (“[T]he property of the sheets remain in the owners, that is, in him who had property therein, when the dead body was wrapped therewith; for the dead body is not capable of it …. ”); The King v. Lynn, 2 T. R. 733, 733-34 (1788) (discussing the property rights of dead human remains in the context of dissemination and removal from burial grounds).

88 Meagher v. Driscoll, 99 Mass. 281, 284 (1868) (citation omitted); see also Griffith v. Charlotte, C. & A.R. Co., 23 S.C. 25, 27-28 (1885) (posing the rhetorical question: “But what interest has the [estate] administrator in a dead body? It is not assets to pay debts, not an estate to be distributed, it can never come into his possession for any purpose whatsoever, because before he can take out his letters of administration it will be rotting in the grave, food for worms”).

89 Louisville & N.R. Co. v. Wilson, 51 S.E. 24, 25 (Ga. 1905).

90 Galvin v. McGilley Mem'l Chapels, 746 S.W.2d 588, 591 (Mo. Ct. App. 1987). The Court's finding was subsequently codified in law as “the right to choose and control the burial, cremation, or other final disposition of a dead human body.” Mo. Ann. Stat. § 194.119 (West 2014).

91 See, e.g., Welford, J. Mack, American Death and Burial Custom Derivation from Medieval European Cultures, Forum 6, 6-9 (1992)Google Scholar (discussing funeral and burial customs in American and European cultures).

92 Sophocles, supra note 1, at lines 72-77 (J.E. Thomas trans., Prestwick House 2005) (ca. 450 BC). 16. Similarly, when Homer speaks of Hector's challenge to the Achaeans, that “[i]f your champion cuts me down with bronze, [h]e can strip my armor and take it back to your ships. My body, though, he will return to my home [t]o be burned in honor by Trojans and their wives,” he is describing the duty of sepulcher. Homer, Iliad 80 (Stanley Lombardo & Sheila Murnaghan trans., Hackett Publishing 1979) (ca. 750 B.C.).

93 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, c. II, art. 15, Aug. 12, 1949.

94 Many of these cases involved the actions against the most common common-carrier of the late 1800s and early 1900s, railroads. See, e.g., Morrow v. S. Ry. Co., 195 S.E. 383 (N.C. 1938); St. Louis Sw. Ry. Co. v. White, 91 S.W.2d 277 (Ark. 1936); Hawthorne v. Delano, 152 N.W. 17 (Iowa 1915) (bodies of victims were run over by negligence of the train crew); Wilson v.St. Louis & S.F.R. Co., 142 S.W. 775 (Mo. App. 1912) (train personnel piled luggage and boxes on top of casket damaging it); Kyles v. S. Ry. Co., 61 S.E. 278 (N.C. 1908); Beaulieu v. Great N. Ry. Co., 114 N.W. 353 (Minn. 1907); Lindh v. Great N. Ry. Co., 109 N.W. 823 (Minn. 1906) (train personnel left casket on the train platform where it was exposed to rain resulting in damage); Long v. Chicago, R.I. & P. Ry. Co., 86 P. 289 (Ok. 1905) (train personnel dropped and broke the casket); Hockenhammer v. Lexington & E. Ry. Co., 74 S.W. 222 (Ky. 1903) (describing how a train hit a wagon holding a casket, thus destroying the casket); Louisville & N.R. Co. v. Hull, 68 S.W. 433 (Ky. 1902) (train personnel left casket at station); Beam v. Cleveland, C., C. & St. L. Ry. Co., 97 Ill. App. 24 (1901) (delay in the transportation of a corpse resulting in damage); Griffith v. Charlotte, C. & A.R. Co., 23 S.C. 25 (1885) (bodies of murder victims placed on the tracks and subsequently mutilated by the trains).

95 Newman v. Sathyavaglswaran, 287 F.3d 786, 788 (9th Cir. 2002) (calling the next of kin's “exclusive right to possess the bodies of their deceased family members” a “property interest” under “national common law,” and holding that “the deprivation of which must be accorded due process of law under the Fourteenth Amendment of the United States Constitution.”) (emphasis added).

96 Meagher v. Driscoll, 99 Mass. 281, 284 (1868).

97 Id. The Meagher hding was widely cited into the early Twentieth Century. See, e.g., Pulsifer v. Douglass, 48 A. 118, 119 (Me. 1901) (holding that “[a] dead body, after burial, becomes a part of the ground to which it has been committed; and an action of trespass may be maintained by the owner of the lot, in possession, against one who disturbs the grave and removes the body, so long, at least, as the cemetery continues to be used as a place of burial”); see also Feeley v. Andrews, 77 N.E. 766, 767 (Mass. 1906) (“[I]t may be taken to be settled in this commonwealth that such an owner of a burial lot can maintain trespass quare clausum fregit, for unlawfully entering upon the lot.”).

98 Meagher, 99 Mass. at 285.

99 Larson v. Chase, 50 N.W. 238, 238 (Minn. 1891).

100 Id. at 239.

101 Id.

102 Id. at 240.

103 Steagall v. Doctors Hosp., 171 F.2d 352, 353 (D.C. Cir. 1948); see also Finley v. Atl. Transp. Co., 115 N.E. 715, 718 (N.Y. 1917) (holding that the next of kin have a “legal right to the possession of the body for burial, and any unlawful interference with that right [is] an actionable wrong”).

104 Alderman v. Ford, 72 P.2d 981, 981 (Kan. 1937).

105 Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950).

106 Id.

107 Id. at 189-90; see also Moloney v. Boatmen's Bank, 232 S.W. 133 (Mo. 1921). The case involved a burned building with multiple victims buried in the rubble. Id. at 134. The plaintiff was injured in the subsequent recovery effort when a wall collapsed. Id. at 135. At issue was the negligence of the property owner in not bracing the damaged wall during the recovery. Id. The court found that the defendant's failure to take the time to brace the wall resulted from a “duty … as a matter of common humanity, to rescue the bodies of the victims from the débris as quickly and with as little mutilation as was reasonably possible” so as to return them to the next of kin in a timely manner. Id. at 139.

108 Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 242-43 (1872).

109 Jurisdictions are split as to the applicability of sepulcher rights to fetal materials. e.g., Emeagwali v. Brooklyn Hosp. Ctr., 2006 NY Slip Op 50221(U), at *5 (N.Y. Sup. Ct. 2006) (holding the “common law right of sepulcher … extends to the next of kin of stillborn fetuses”). Contra Walker v. Firelands Cmty. Hosp., 869 N.E.2d 66, 75-76 (Ohio App. 2007) (finding no action for “interference with the burial or cremation of a fetus that is at or less than 20 weeks of gestation and does not survive birth.”).

110 E.g., Arnaud v. Odom, 870 F.2d 304, 308 (5th Cir. 1989) (noting that “Louisiana has indeed established a “quasi-property” right of survivors in the remains of their deceased relatives”); Fuller v. Marx, 724 F.2d 717, 719 (8th Cir. 1984) (holding that “under Arkansas law, the next of kin does have a quasi-property right in a dead body.”); Georgia Lions Eye Bank, Inc. v. Lavant, 335 S.E.2d 127, 128 (Ga. 1985) (noting that Georgia courts “have evolved the concept of quasi property in recognition of the interests of surviving relatives in the possession and control of decedents' bodies.”); Painter v. U.S. Fid. & Guar. Co., 91 A. 158, 160 (Md. 1914) (noting that Maryland “courts hold that the surviving husband or wife or next of kin have a quasi-property right in the body in the absence of testamentary disposition.”); Massey v. Duke Univ., 503 S.E.2d 155, 157 (N.C. App. 1998) (finding that North Carolina law “recognizes that the next of kin has a quasi-property right in the body—not property in the commercial sense but a right of possession for the purpose of burial—and that there arises out of this relationship to the body an emotional interest which should be protected and which others have a duty not to injure intentionally or negligently.”); Strachan v. John F. Kennedy Mem'l Hosp., 538 A.2d 346, 350 (N.J. 1988) (holding that “for more than half a century [New Jersey] has recognized a quasi property right in the body of a dead person”); Matter of Moyer's Estate, 577 P.2d 108, 110 (Utah 1978) (finding that dead bodies pose a “property right of a special nature; and we do not desire to be understood as saying that this right should be regarded as an absolute property right by which a person could give absurd or preposterous directions that would require extravagant waste of useful property or resources, or be offensive to the normal sensibilities of society in respect for the dead.”); Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d 438, 441 (W. Va. 1985) (holding that “[t]he quasi-property rights of the survivors include the right to custody of the body; to receive it in the condition in which it was left, without mutilation; to have the body treated with decent respect, without outrage or indignity thereto; and to bury or otherwise dispose of the body without interference.”).

111 Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 32 (N.Y.S.2d 2009); see also Carney v. Knollwood Cemetery Ass'n, 514 N.E.2d 430, 435 (Ohio App. 1986) (holding that Ohio “rejects the theory that a surviving custodian has quasi-property rights in the body of the deceased, and acknowledges the cause of action for mishandling of a dead body as a sub-species of the tort of infliction of serious emotional distress”).

112 Restatement (Second) of Torts § 868 cmt. a (1979) (“The technical basis of the cause of action is the interference with the exclusive right of control of the body, which frequently has been called by the courts a ‘property’ or a ‘quasi-property’ right. This does not, however, fit very well into the category of property, since the body ordinarily cannot be sold or transferred, has no utility and can be used only for the one purpose of interment or cremation. In practice the technical right has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress.”).

113 WTC Families for a Proper Burial, Inc. v. City of New York, 567 F. Supp. 2d 529, 532 (S.D.N.Y. 2008), aff'd sub nom. World Trade Ctr. Families for Proper Burial, Inc. v. City of New York, 359 F. App'x 177 (2d Cir. 2009).

114 Id. at 533.

115 Id. at 537.

116 Pollard v. Phelps, 193 S.E. 102, 106 (Ga. Ct. App. 1937).

117 Riley v. St. Louis County of Mo., 153 F.3d 627, 630 (8th Cir. 1998). Similarly, “[o]ne who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.” Restatement (Second) of Torts § 868 (1979); see also DeBoef, Ryan, Another One Bites the Dust: Missouri Puts to Rest Uncertainty about Anatomical Gift Immunity, 70 Mo. L. Rev. 1, 8 (2005)Google Scholar (“The right of sepulture can be divided into three categories. The first portion … is the right to conduct a prompt and proper initial burial and traditional ceremony. This right is created at the time of the decedent's death and terminates when the decedent's body is buried. The second portion … is the right to have [the decedent's] corpse remain undisturbed after burial. Finally, the right … includes the decedent's relatives' right to possess the decedent's corpse in the same condition it was when death supervened.”) (internal references and quotation marks omitted).

118 See, e.g., Golston v. Lincoln Cemetery, Inc., 573 S.W.2d 700 (Mo. Ct. App. 1978); Wall v. St. Louis & S. F. R. Co., 168 S.W. 257 (Mo. Ct. App. 1914); Wilson v. St. Louis & S. F. R. Co., 142 S.W. 775 (Mo. Ct. App. 1912).

119 Koerber v. Patek, 102 N.W. 40, 43 (Wis. 1905).

120 Id.

121 When the first autopsy was performed will never be known. What is known is that the western concept of studying the remains of the dead to instruct the living is a relatively recent phenomenon in human history. In Europe, 1679 saw the publication of Sepulchretum [or, Cemetery], by the aptly named Swiss physician, Theophilus Bonetus. In it he compiled the results of over 3000 notable autopsies. King, Lester S. & Meehan, Marjorie C., A History of the Autopsy, 73 Am. J. Pathology 514, 526 (1973)Google ScholarPubMed. In the New World, the first recorded autopsy (in any sense of the modern word) occurred in Hispaniola in 1533, only forty-one years following the first Columbus voyage. Jimenez, Fidelio A., The First Autopsy in the New World, 54 Bull. N.Y. Acad. Med. 618, 618 (1978).Google ScholarPubMed The purpose of the autopsy was to examine the body of conjoined twin girls for the purpose of ascertaining whether the children had one soul or two. Id. at 619. The surgeon concluded that “they were two separate persons and two souls”; although, the father, presented with the bill for two baptisms, was quoted as saying that “a single soul would do.” Id. It was not until 1761, however, and the publication of Giovanni Morgagni's De Sedibus et Causis Morborum Per Anatomen Indagatis Libri Quinque [or, The Seats and Causes of Disease Investigated by Anatomy in Five Books], that modern pathology, and for some, modern medicine, was born. Virchow, Rudolf, Morgagni and the Anatomic Concept (Schlueter, Robert E. & Auer, John trans.), 7 Bull. History Med. 975, 986 (1939).Google Scholar See also, Ventura, Hector, Giovanni Battista Morgagni and the Foundation of Modern Medicine (Hurst, J. Willis & Fye, W. Bruce eds.), 23 Clinical Cardiology 792 (2000)CrossRefGoogle Scholar (“Rudolf Virchow epitomized Giovanni Battista Morgagni's influence on the development of modern medicine when he wrote, ‘…beginning with Morgagni and resulting from his work, the dogmatism of the old schools was completely shattered, and [] with him the new medicine begins.”).

122 See supra notes 17-19 and accompanying text.

123 For an example of a willed-body donation form, see Anatomical Gift Donation Form, Univ. of Haw. at Manoa, John A. Burns Sch. of Med., https://jabsom.hawaii.edu/wp-content/uploads/2014/08/2014_UH_WBP_Anat_Gift_Don_w_Obit_Form.pdf [http://perma.cc/LTM5-9VRK]. When signed and witnessed, the University of Hawaii form grants permission to use the body for “teaching, scientific research, training, or as the University shall in its sole discretion deem advisable.” Id. Similarly, the University of Tennessee's Forensic Anthropology Center's skeletal facility—the “Body Farm”—accepts donated bodies for the purpose of researching human decomposition. Body Donation Program Policy, Univ. of Tenn., Knoxville (2012), http://fac.utk.edu/pdf/Body_Donation_Packet_2_2013.pdf [http://perma.cc/JX2C-CR9X]; see also The Forensic Anthropology Center, Univ. of Tenn., Knoxville, http://web.utk.edu/~fac/ [http://perma.cc/ZYH7-S4XL] (using two acres of land to conduct “the first of its kind … systematic study of human decomposition”). The facility is run by the Department of Anthropology, and once signed and witnessed, the donee grants the department “or its designee” use of the willed body “for educational and research purposes.” Id.

124 Washington state law serves as an example: “(1) 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 or she may authorize dissection; and cases where the spouse, state registered domestic partner, 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 or her discretion, may make or cause to be made by a competent pathologist, toxicologist, or physician, an autopsy or postmortem in any case in which the coroner has jurisdiction of a body: PROVIDED, FURTHER, That the coroner may with the approval of the University of Washington and with the consent of a parent or guardian deliver any body of a deceased person under the age of three years over which he or she has jurisdiction to the University of Washington medical school for the purpose of having an autopsy made to determine the cause of death.” Wash. Rev. Code Ann. § 68.50.100 (West 2014).

125 Montana state law serves as an example of a coroner state. Mont. Code Ann § 46-4-103 (West 2013) states in part, “(1) If in the opinion of the coroner an autopsy is advisable, the coroner shall order one performed on any dead human body for which the death requires an inquiry and shall retain a medical examiner or associate medical examiner to perform it. Performance of autopsies is within the discretion of the coroner except that the county attorney or attorney general may require one. Consent of the family or next of kin of the deceased is not required for an autopsy that is ordered by the coroner, county attorney, or attorney general. In ordering an autopsy the coroner, county attorney, or attorney general shall order the body to be exhumed if it has been interred. (2) The right to conduct an autopsy includes the right to retain specimens the medical examiner performing the autopsy considers necessary.”

126 Scarpaci v. Milwaukee County, 292 N.W.2d 816, 822 (Wis. 1980) (“The medical examiner's authority to perform an autopsy is limited by statute. Absent a statutory basis for an autopsy, the medical examiner has no power to conduct or order an autopsy.”).

127 Kellogg v. Office of Chief Med. Exam'r of N.Y.C., 735 N.Y.S.2d 350, 358 (App. Div. 2001).

128 Scarpaci, 292 N.W.2d at 823 (“[T]he medical examiner can conduct or order an autopsy, whenever, from the circumstances surrounding the death, there is any reason to believe that death may have been due to murder, manslaughter, homicide resulting from negligent control of vicious animal, homicide by reckless conduct, homicide by negligent use of vehicle or firearm, homicide by intoxicated use of vehicle or firearm, self-murder, or unexplained or suspicious circumstances.”). Similarly, Palenzke v. Bruning, 98 Ill. App. 644, 649 (Ill. App. Ct. 1901) (“[The] right of a coroner to hold an inquest in accordance with the provisions of the statute is not open to question. But his right and power so to do is to be exercised in pursuance of the statutory authority. His office in this State [Illinois] gives him no general right to enter any house of mourning at his mere option or caprice, and take with him a doctor to perform an autopsy. He can do this only in case the deceased is ‘supposed to have come to his or her death by violence, casualty or undue means,’ and he is then required to summon a jury ‘forthwith to inquire into the cause and manner of death.’”).

129 Melfi v. Mount Sinai Hosp., 877 N.Y.S.2d 300, 309 (N.Y. App. Div. 2009) (citations omitted).

130 Foley v. Phelps, 37 N.Y.S. 471, 474 (N.Y. App. Div. 1896); see also Burney v. Children's Hosp. in Bos., 47 N.E. 401 (Mass. 1897) (finding against a hospital that performed an autopsy on a child without the family's consent).

131 Palenzke, 98 Ill. App. at 651. In the Palenzke case, the coroner of Cook county and his accomplice—an undertaker with the unfortunate name of Louis Hacker—seized the body of appellant's deceased minor son from the appellant's house where they “proceeded, wantonly and maliciously, to ‘cut open, hack, tear and disfigure the body, bespattering the clothing and the house, furniture and premises; that the brain, liver and spleen were removed, and in the presence of friends and relatives were conveyed to and thrown into a privy or water-closet.” Id. at 647.

132 Correa v. Maimonides Med. Ctr., 629 N.Y.S.2d 673, 677 (N.Y. Sup. Ct. 1995). Contra Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 883 (Colo. 1994) (finding that the crematory “did not mistreat the body … or handle it with disrespect” and did not “act in an outrageous manner,” thus finding no property interest was damaged despite the mistaken cremation of plaintiff's son's body when it was confused with another body).

133 Shipley v. City of New York, 908 N.Y.S.2d 425, 427-28 (N.Y. App. Div. 2010).

134 Id. at 432.

135 Arnaud v. Odom, 870 F.2d 304, 306 (5th Cir. 1989).

136 Id.

137 Id. at 311. The court held that there were adequate state remedies available, and that “[a]s intimate as the right is of next of kin to possess the body of a loved one in the same condition as the body was at death, we are unable to extend over that right the constitutional umbrella of substantive due process on the facts of the instant case.” Id.

138 Fuller v. Marx, 724 F.2d 717 (8th Cir. 1984).

139 Id. at 719 (finding “no unconstitutional invasion of any property right” where physician removed and disposed of deceased's organs during autopsy, and deceased's wife did not make written request to take possession of said organs).

140 Id. (“It appears that it was the policy of the Medical Examiner's office to either incinerate organs after an autopsy or provide the organs to medical students. While there is some dispute over Dr. Marx's role in disposing of the organs, we assume … that they were disposed of at his direction.”).

141 Id. (citing Ark. Stat. Ann. § 82–434).

142 Id.

143 Id.

144 Id. Mrs. Fuller also alleged infringement of her “first amendment right to bury her husband in a manner consistent with her religious beliefs,” which included the burial of all of his organs. Id. The court held that while “[w]e do not question the sincerity of Mrs. Fuller's religious belief that in order to provide a decent Christian burial the organs as well as the body must be buried. We do not agree, however, that she was hindered in the free exercise of this belief.” Id. at 720. Moreover, although the court declined to extend quasi-property rights to bodily organs, it did not indicate whether such an extension would be improper. Id. at 719

145 Sherman v. Sherman, 750 A.2d 229, 234-35 n.10 (N.J. Super. Ct. Ch. Div. 1999).

146 Id.

147 Unif. Anatomical Gift Act (amended 2006), 8A U.L.A. 65 (2014).

148 Unif. Anatomical Gift Act, 8A U.L.A. 242 (1968).

149 Id.

150 Unif. Anatomical Gift Act (amended 2006), 8A U.L.A. 65 (2014) (“The system universally adopted in this country is contrary to the system adopted in some countries, primarily in Europe, where an individual is deemed to be a donor unless the individual or another person acting on the individual's behalf ‘opts out.’”).

151 Unif. Anatomical Gift Act § 2(a), 8A U.L.A. 260 (1968).

152 Unif. Anatomical Gift Act (amended 2006), 8A U.L.A. 64 (2014).

153 Unif. Anatomical Gift Act (amended 2006), 8A U.L.A. 214 (1987) (“[I]t has become apparent that the public policy instituted in 1969…is not producing a sufficient supply of organs to meet…demand.”).

154 Id.

155 Id. § 2(h) (providing that “[a]n anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor's death.”).

156 Id. § 4(a)(2)-(3).

157 Unif. Anatomical Gift Act (amended 2006), 8A U.L.A. 70 (2014) (“In light of a series of … lawsuits in which the [coroner's] [medical examiner's] actions were held to violate the property rights of surviving family members … the authority of the [coroner] [medical examiner] to make anatomical gifts was deleted from this [act].”).

158 Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991).

159 Id. at 478.

160 Id. (finding that the hospital asked the widow “to consider making an anatomical gift” but that “she declined, based on her husband's aversion to such a gift”).

161 Id.

162 Id.

163 Id. at 482.

164 Id.

165 Whaley v. County of Tuscola, 58 F.3d 1111, 1117 (6th Cir. 1995).

166 Id. Occasionally, courts may reach the same conclusion even when there has been no overt mistreatment of the deceased's body. In Jackson v. Christian Hospital Northeast-Northwest, 823 S.W.2d 137 (Mo. Ct. App. 1992), the family of the decedent brought suit against a hospital for allowing the corpse to be embalmed against the family's instruction. Rather than claiming mutilation of the corpse from the unauthorized removal of organs, the family alleged that the defendant's actions prevented the family from donating the body to a medical school for research. Jackson v. Christian Hosp. Ne.-Nw., 823 S.W.2d 137, 137 (Mo. Ct. App. 1992).

167 See Revised Unif. Anatomical Gift Act (Nat'l Council of Comm'rs on Unif. State Laws) (2006) (amended 2009).

168 Id. A compliant version of the UAGA was introduced into the Pennsylvania state legislature in 2014. If passed, Pennsylvania would become the forty-seventh state, leaving only Delaware, Florida, and New York with divergent versions. Organ Donation Advisory Committee 2014 Annual Report, Organ Donation Advisory Committee, http://www.health.pa.gov/My%20Health/Organ%20Donation/Documents/2014%20Organ%20Donor%20Annual%20Report.pdf [http://perma.cc/3W6R-K2J5].

169 Revised Unif. Anatomical Gift Act § 8(a) (Nat'l Council of Comm'rs on Unif. State Laws 2006) (amended 2009).

170 Id. at 30 (drafter's comment).

171 Id. (emphasis added).

172 See, e.g., Brotherton v. Cleveland, 923 F.2d 477, 481 (6th Cir. 1991) (“The recent explosion of research and information concerning biotechnology has created a market place in which human tissues are routinely sold to and by scientists, physicians and others.”).

173 World Medical Ass'n, Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects (1964) (amended 2013) (therapeutic research focuses on methods, procedures, and treatments that promote and safeguard the health of human subjects).

174 Adams v. King County, 192 P.3d 891, 901 (Wash. 2008).

175 Id.; see also Albrecht v. Treon, 889 N.E.2d 120, 134 (Ohio 2008) (Pfeifer, J., dissenting) (“In the end, this case is not about a random piece of human tissue. It is about the decedent's brain. A brain is not a fingernail. The brain was the source of the deceased's every thought, aspiration, dream, fear, laugh, memory, or emotion; it was the origin of every word spoken, every song sung, every joke told; everything a family member loved about the deceased could be traced back to it. If the next of kin have any right to the decedent's body, the right must include the brain.” Contra Waeschle v. Dragovic, 687 F.3d 292, 294-95 (6th Cir. 2012) (“Assuming that a decedent's brain was removed by a medical examiner to conduct a lawful investigation into the decedent's cause of death, the decedent's next of kin does not have a right under Michigan law to possess the brain in order to properly bury or cremate the same after the brain is no longer needed for forensic examination.”) (quoting In re Certified Question from U.S. Dist. Court for E. Dist. of Mich., 793 N.W.2d 560, 561 (Mich. 2010)).

176 People v. Gayton, 919 N.Y.S.2d 616, 617 (N.Y. App. Div. 2011) (involving the unauthorized harvesting and sale of tissues from cadavers at a funeral home).

177 Hubenschmidt v. Shears, 270 N.W.2d 2, 4 (Mich. 1978).

178 Ravellette v. Smith, 300 F.2d 854, 858 (7th Cir. 1962).

179 Id. Conversely, some courts have found a property interest in at least one ubiquitous and easily lost bodily fluid—semen. In Hecht v. Superior Ct., 20 Cal. Rptr. 2d 275, 283 (Cal. Ct. App. 1993), the court concluded that a man who committed suicide after willing his semen to his girlfriend, had “at the time of his death, … an interest, in the nature of ownership, to the extent that he had decision making authority as to the use of his sperm for reproduction. Such interest is sufficient to constitute ‘property’ within the meaning of [the California Probate Code].” This may explain why the words “prostate” and “probate” sound very similar.

180 Bowman, Margaret B., The Reburial of Native American Skeletal Remains: Approaches to the Resolution of A Conflict, 13 Harv. Envtl. L. Rev. 147, 150 (1989)Google Scholar; see also Boyd, Thomas H., Disputes Regarding the Possession of Native American Religious and Cultural Objects and Human Remains: A Discussion of the Applicable Law and Proposed Legislation, 55 Mo. L. Rev. 883, 885 (1990)Google Scholar (finding that “the enactment of the National Museum of the American Indian Act that contains a process through which Native Americans may obtain the return of human remains and funerary objects” is one example “of compromise and a growing sensitivity and understanding of Native American concerns”).

181 Code of Ethics: Vermillion Accord on Human Remains, World Archaeological Congress, http://worldarch.org/code-of-ethics [http://perma.cc/9PVF-FK3K].

182 Id.

183 Seidemann, Ryan M., Bones of Contention: A Comparative Examination of Law Governing Human Remains from Archeological Contexts in Formerly Colonial Countries, 64 La. L. Rev. 545, 576, 581 (2004).Google Scholar

184 Code of Ethics: Vermillion Accord on Human Remains, supra note 181.

185 Native American Graves Protection and Repatriation Act, Pub. L. No. 101-601, 104 Stat. 3048 (1990); Native American Graves Protection and Repatriation, 25 U.S.C. §§ 3001-3013 (1990).

186 Native American Graves Protection and Repatriation Regulations, 43 C.F.R. § 10.1 (2010).

187 Archaeological Resources Protection Act of 1979, Pub. L. 96–95, (1979); Archaeological Resources Protection, 16 U.S.C. § 470aa-470mm (1979).

188 Archaeological Resources Protection Act of 1979, 16 U.S.C. § 470bb(1) (1979).

189 Id. (emphasis added).

190 Id. The 100-year requirement is in marked contrast to that employed by many other countries, notably those of Europe. In Germany, remains greater than 30-50 years are considered archaeological rather than forensic. Jörg Orschiedt et al., Germany/Deutschland, in The Routledge Handbook of Archaeological Human Remains and Legislation 165, 169 (Nicholas Márquez-Grant & Linda Fibiger eds., 2011). In an even more extreme example, in France—a country where cheeses often are allowed to ripen for more than 20 years—forensic investigations seldom are initiated when recovered human remains are shown to be older than 10 years. Juliette Michel & Philippe Charlier, France, in The Routledge Handbook of Archaeological Human Remains and Legislation 151, 152 (Nicholas Márquez-Grant & Linda Fibiger eds., 2011).

191 Native American Graves Protection and Repatriation Regulations, 43 C.F.R. § 10.1(b) (2010).

192 Iowa Code Ann. § 263B.7 (West 2012).

193 Id.

194 Colo. Rev. Stat. § 24-80-1302(1) (2015).

195 Id. at § 24-80-1302(3).

196 Id.; see also N.C. Gen. Stat. § 70-35 (2013) (determining the disposition of Native American remains in consultation “with an appropriate tribal group or community”; however, if the State Archaeologist cannot determine proper tribal affiliation, “the skeletal remains shall be … permanently curated according to standard museum procedures after adequate skeletal analysis”); Vt. Stat. Ann. tit. 18, § 5212b(f) (2012) (“When an unmarked burial site is first discovered, the discovery shall be reported immediately to a law enforcement agency. If … a law enforcement agency determines that the burial site does not constitute evidence of a crime, the law enforcement agency shall immediately notify the state archeologist who may authorize appropriate action regarding the unmarked burial site.”).

197 Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 33 (D.C. Cir. 1998).

198 E.g., Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004) (noting that the “well-established cultural tradition acknowledging a family's control over the body and death images of the deceased has long been recognized at common law.”); see also Reid v. Pierce County, 961 P.2d 333, 342 (Wash. 1998) (finding that county employees had violated the privacy rights of next of kin by displaying autopsy photographs at parties. “We hold the immediate relatives of a decedent have a protectable privacy interest in the autopsy records of the decedent. That protectable privacy interest is grounded in maintaining the dignity of the deceased.”). But cf. Smith v. City of Artesia, 772 P.2d 373, 375 (N.M. 1989) (holding for a police department in an action brought by the parents of a murdered girl following the release of nude crime-scene photographs of their daughter). The court found that “the cause of action is confined to physical abuse of the body [i.e., violation of sepulcher], which is not involved in this case.” Id.

199 Favish, 541 U.S. at 158.

200 Williams v. City of Minneola, 575 So. 2d 683, 689 (Fla. Dist. Ct. App. 1991).

201 Id. (holding that privacy rights can be implicated “when plaintiffs experience an independent violation of their own personal privacy rights other than the violation alleged to have occurred indirectly by virtue of the publicity given to the deceased”).

202 Douglas v. Stokes, 149 S.W. 849 (Ky. 1912).

203 Id. at 849.

204 Id. at 850.

205 Id. Similarly, in Melton v. Bd. of Cty. Comm'rs of Hamilton Cty., Ohio, 267 F. Supp. 2d 859, 864 (S.D. Ohio 2003) the court found that a coroner who allowed a private photographer to photograph a deceased body without the permission of the family committed “a wrongful intrusion into the family's privacy in such a manner as to cause mental suffering to a person of ordinary sensibilities.”

206 Kelley v. Post Publ'g Co., 98 N.E.2d 286 (Mass. 1951).

207 Id. at 286-87.

208 Id. at 287; see also Waters v. Fleetwood, 91 S.E.2d 344, 348 (Ga. 1956) (finding the mother of a murdered child was unable to sustain an action against a newspaper that published and sold graphic photographs of the child's body because of the public interest in the murder). The Court held that it is “the tendency of courts of other jurisdictions to hold that, where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one's legal right of privacy. We concur in this view.” Id.

209 See Restatement (Second) of Torts § 652D (Am. Law Inst. 1977) (“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”).

210 McCambridge v. City of Little Rock, 766 S.W.2d 909, 915 (Ark. 1989).

211 Id. at 911 (noting that the trial court required disclosure of the photographs pursuant to the Arkansas Freedom of Information Act).

212 Id. at 915; see also Bremmer v. Journal-Tribune Pub'g Co., 76 N.W.2d 762, 768 (Iowa 1956) (holding that a newspaper could publish photographs of a murdered boy's decomposing body because “the finding of the body of the missing local boy was one of proper public interest. In other words, the event was newsworthy.”). There are limits to the public interest, however. In a suit brought by an author to gain access to photographs of President Kennedy's autopsy, the Court found that “allowing access to the autopsy photographs would constitute a clearly unwarranted invasion of the Kennedy family's privacy.” Katz v. Nat'l Archives & Records Admin., 862 F. Supp. 476, 485-86 (D.D.C. 1994), aff'd, 68 F.3d 1438 (D.C. Cir. 1995).

213 Marsh v. County of San Diego, 680 F.3d 1148, 1155 (9th Cir. 2012) (internal citations and quotation marks omitted) (quoting Rochin v. California, 342 U.S. 165, 172-73 (1952)).

214 Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120 (D.C. Cir. 1999).

215 Earnhardt ex rel. Estate of Earnhardt v. Volusia County, No. 2001-30373-CICI, 2001 WL 992068 (Fla. Cir. Ct. July 10, 2001).

216 See, e.g., Fla. Stat. Ann. § 406.135 (West 2002). Under Florida's sunshine law, records and autopsy photographs made by medical examiners, or their agents, are confidential “except that a surviving spouse may view and copy a photograph or video or listen to or copy an audio recording of the deceased spouse's autopsy.” Access to anyone other than the surviving spouse, parent, or adult child requires a court order and “a showing of good cause.”

217 Dep't of Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (quoting S. Rep. No. 89-813, at 3 (1965)).

218 Id. at 361.

219 Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings, 5 U.S.C. § 552(b)(7) (2006).

220 Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 157-58 (2004).

221 Id. at 160-61.

222 Id. at 161.

223 Id. at 160-61.

224 Id. at 167.

225 Id. at 171. The opinion referenced an earlier finding in U.S. Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 749-50 (1989), where the Court held that the purpose of the FOIA is to make the actions of government transparent, not to disclose information about private citizens.

226 Favish, 541 U.S. at 172.

227 Id.

228 Reporters Comm. for Freedom of the Press, 489 U.S. at 751.

229 Id. at 780.

230 Id.

231 Favish, 541 U.S. at 173.

232 FOIA Counselor: Questions & Answers, Foia Update (U.S. Dep't of Justice, Washington, D.C.), Jan. 1, 1982, at 4, http://www.justice.gov/oip/blog/foia-update-foia-counselor-questions-answers-24 [https://perma.cc/93FD-3SVQ?type=source].

233 Restatement (Second) of Torts § 652D (Am. Law Inst. 1977).

234 See discussion supra Part III.A.

235 See discussion supra Part III.B.1.c.

236 See, e.g., Sherman v. Sherman, 750 A.2d 229, 235 (N.J. Super. Ct. Ch. Div. 1999) (quoting NJ statute which in the absence of direction by the deceased, will give certain family members “the right to control the disposition of the remains”); Estes v. Woodlawn Mem'l Park, Inc., 780 S.W.2d 759, 762 (Tenn. Ct. App. 1989) (“Absent an expressed desire of deceased, the surviving spouse … has the right of custody and burial of the remains of the deceased.”); Smart v. Moyer 577 P.2d 108, 110 (Utah 1978) (holding that a deceased person's wishes regarding his body should be recognized “within the limits of reason and decency as related to the accepted customs of mankind.”).

237 See supra notes 38-39 and accompanying text.

238 See generally Kumar, Ajay et al., Unknown Dead Bodies: Problems and Solutions, 36 J. Indian Acad. Forensic Med. 76 (2014).Google Scholar

239 See supra notes 38-39 and accompanying text.

240 See discussion supra Part III.B.1.c.

241 See, e.g., Avery v. R.I. Hosp., 495 A.2d 254, 257 (R.I. 1985) (“Other jurisdictions that have addressed the issue of whether the consent of a decedent's next of kin is needed—where statutory law grants a medical examiner authority to perform an autopsy or to examine a corpse—have held that such consent is not required. The rationale for this conclusion is that the public interest in determining the cause of death … is believed to outweigh the rights of family members regarding the body.”).

242 See, e.g., Kellogg v. Office of Chief Med. Exam'r of N.Y.C., 735 N.Y.S.2d 350, 358 (App. Div. 2001) (coroners enjoy “‘tethered discretion’ … which may be broadly exercised, however, only within the perimeter provided by the statutory ‘leash’ to which it is attached.”); Scarpaci v. Milwaukee Cty., 292 N.W.2d 816, 824 (Wis. 1980) (“medical examiner's power to conduct an autopsy is limited by law”); Koerber v. Patek, 102 N.W. 40, 41 (Wis. 1905) (finding act of autopsy may not unlawfully and willfully violate “quasi property” right in relatives of the deceased).

243 See, e.g., Stewart, supra note 19, at ix; Univ. of Dundee, Forensic Anthropology & Human Identification, Ctr. for Anatomy & Hum. Identification, http://cahid.dundee.ac.uk/about-us/forensic-anthropology-human-identification [http://perma.cc/MK4S-4XCM] (“Traditionally the forensic anthropologist has dealt exclusively with human skeletal remains … “.)

244 See Stewart, supra note 19, at ix (“Coroners and/or medical examiners … are trained primarily to deal with fleshed remains … [and when] the only possibility of getting the desired information is through the study of the skeleton … they often call upon forensic anthropologists for help … ”.).

245 Deadman, William J., The Identification of Human Remains, 91 Can. Med. Ass'n J. 808, 808 (1964)Google ScholarPubMed (finding in this 1964 article that “[t]he identification of skeletal remains, of more than 50 years' standing, is difficult and usually impossible.”)

246 See, e.g., Shelley v. County of San Joaquin, 996 F.Supp. 2d 921, 927-28 (E.D. Cal. 2014) (finding no property right in skeletal remains).

247 The exception to only recognized next of kin having legal standing occurs with archaeologically recovered remains that are determined to be Native American or Native Hawaiian. Under NAGPRA, and some associated state laws, representatives of these recognized cultural groups may exercise legal standing by establishing “cultural patrimony.” See Native American Graves Protection and Repatriation Regulations, 43 C.F.R. § 10.2(a)(3) (2010).

248 The duty to unknown individuals typically resides with the medical examiner or coroner. For example, in Minnesota “[a]fter an investigation has been completed, including an autopsy … the body shall be released promptly to the person or persons who have the right to control the disposition of the body … [and if] the identity of the deceased person is unknown, or if the body is unclaimed, the medical examiner or coroner shall provide for dignified burial or storage of the remains.” Minn. Stat. Ann. § 390.21 (West 2014). Similarly, in Michigan, “[i]f there are no relatives or representatives of the decedent known to the county medical examiner, he or she may cause the body to be buried pursuant to law.” Mich. Comp. Laws Ann. § 52.205 (West 2006 & Supp. | 2015).

249 Even though the duties owed the survivors attach upon identification, the survivors right to action commences with their becoming aware of the situation. Tinney v. City of New York, 94 A.D.3d 417, 418 (N.Y. App. Div. 2012) (holding that a surviving child's right to bring action “cannot arise until he or she became aware of defendant's actions … including learning for the first time that their father was dead”).

250 Mich. Comp. Laws Ann. § 52.205 (West 2006 & Supp. | 2015).

251 Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 32 (N.Y. 2009).

252 There is no clear indication in case law as to what time interval satisfies the requirement of timeliness, although in New York, the common law requirement has been described as an “absolute right to the immediate possession of a decedent's body for preservation and burial.”Id. at 32. Similarly ambiguous is Michigan, where the duty is to “promptly deliver or return the body or any portion of the body to relatives or representatives of the decedent after an examination or autopsy is performed.” § 52.205(6). Timeliness may also have to be interpreted in light of the deceased's religion. Kellogg v. Office of Chief Med. Exam'r of N.Y.C., 735 N.Y.S.2d 350, 358 (N.Y. Sup. Ct. 2001) (“[W]here the authority to conduct an autopsy exists, the law provides the next of kin with a limited right to make objection, and to request an exception, based on religious beliefs.”).

253 Everman v. Davis, 561 N.E.2d 547, 550 (Ohio Ct. App. 1989), dismissed, 539 N.E.2d 163 (Ohio 1989).

254 Forensic Taphonomy: The Postmorten Fate of Human Remains 261 (William D. Haglund & Marcella H. Sorg eds., 1997) (finding that a “proper burial in a full-size, well-constructed tomb” was given for an adult “skeleton” consisting merely of “bone fragments … collected in [bear] feces”).

255 See infra notes 257-258 and accompanying text.

256 See cases cited supra note 94.

257 E.g., Foley v. Phelps, 37 N.Y.S. 471 (N.Y. App. Div. 1896).

258 E.g., Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991).

259 E.g., Restatement (second) of Torts § 868 (Am. Law Inst. 1979) (“[O]ne who intentionally, recklessly, or negligently removes, withholds, mutilates or operates upon the body of a dead person … is subject to liability …. ”); DeBoef, supra note 117, at 846 (finding “duty … to refrain from negligently interfering with the decedent's relatives' right to proper sepulture”).

260 E.g., Pollard v. Phelps, 193 S.E. 102, 107 (Ga. App. 1937) (finding no liability for railroad employees despite “mutilat[ion]” by vultures); Restatement (Second) of Torts § 868 (Am. Law. Inst. 1979) (implying the necessity of governing “one who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person”) (emphasis added).

261 See, e.g., Dru Sefton, ‘Nova’ Streams Documentary Revealing Major Scientific Discovery, Current (Sept. 10, 2015), http://current.org/2015/09/nova-streams-documentary-revealing-major-scientific-discovery/ [http://perma.cc/XK9R-GCJU] (describing how researchers used “hominid fossils” of “bone fragments” to identify the new species Homo naledi).

262 Univ. of Dundee, supra note 243 (“[E]valuation of both deceased and living individuals is frequently conducted in an [sic] non-invasive manner …. ”.).

263 AMS Dating of Bones, Antler, and Teeth, Beta Analytic Radiocarbon Dating, http://www.radiocarbon.com/carbon-dating-bones.htm [http://perma.cc/X9Q6-WAHN]; Dietary Isotopic Analysis—Measuring Stable Carbon and Nitrogen Isotopes, Beta Analytic Radiocarbon Dating, http://www.radiocarbon.com/dietary-isotopic-analysis.htm [http://perma.cc/S37Y-MZLQ].

264 Joint POW/MIA Accounting Command, Department of Defense, SOP 3.7, JPAC Laboratory Manual 11 (2015).

265 Joint POW/MIA Accounting Command, Department of Defense, SOP 3.8, JPAC Laboratory Manual 4 (2013).

266 See generally Statement of Policy, Procedure and Practice, Spokane County Medical Examiner's Office (2013), http://www.spokanecounty.org/data/medexaminer/pdf/pp/Collection%20of%20Body%20Fluids%20Samples%20and%20Tissues%20at%20Autopsy%20Transfer%20for%20Toxicologic%20Testing.pdf [http://perma.cc/A7NU-VAC7] (discussing general materials extracted during an autopsy).

267 See, e.g., Scarpaci v. Milwaukee County, 292 N.W.2d 816, 820-21 (Wis. 1980).

268 See Whaley v. County of Tuscola, 58 F.3d 1111 (6th Cir. 1995).

269 But see supra note 262.

270 See Stout, Sam D. & Paine, Robert R., Brief Communication: Histological Age Estimation Using Rib Clavicle, 87 Am. J. Physical Anthropology 111, 111 (1992)CrossRefGoogle Scholar (explaining “histological methods for estimating age at death using osteon population densities”).

271 At least for the purpose of determining the tax exempt status of research projects. IIT Res. Inst. v. United States, 9 Cl. Ct. 13, 25 (1985).

272 Id.

273 See supra notes 198, 200-02, 204-05.

274 See Reid v. Pierce County, 961 P.2d 333, 342 (Wash. 1998) (finding privacy interest only extends to “immediate relatives” of the deceased, thus implying the necessity of identifying the deceased before identifying said relatives with a possible privacy interest); supra p. 54.

275 Trotter, Mildred & Gleser, Goldine C., Estimation of Stature from Long Bones of American Whites and Negroes, 10 Am. J. Physical Anthropology 463, 507 (1952)CrossRefGoogle ScholarPubMed; Trotter, Mildred & Gleser, Goldine C., A Re-evaluation of Stature Based on Measurements of Stature Taken During Life and of Long Bones After Death, 16 Am. J. Physical Anthropology 79, 118 (1958).CrossRefGoogle ScholarPubMed

276 Jantz, R.L., Maximum Length of the Tibia: How Did Trotter Measure It?, 93 Am. J. Physical Anthropology 525, 525 (1994)CrossRefGoogle Scholar (describing formula's use “[f]or over forty years” as “consistent and reliable means to estimate statute from long bone measurements”).

277 See A Re-evaluation of Stature Based on Measurements of Stature Taken During Life and of Long Bones After Death, supra note 275 (referring throughout the study to sample of veterans used for measurements as “individuals,” but never by name).

278 Eva Mozes-Kor, The Mengele Twins and Human Experimentation: A Personal Account, in The Nazi Doctors and the Nuremberg Code 53, 58 (George J. Annas & Michael A. Grodin eds., 1992).