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Improperly Authorized Organ Use as Tortious Interference with a Corpse:

There was an interesting Ninth Circuit opinion yesterday, certifying questions of state law to the Washington Supreme Court, and in the process summarizing the uncertainty in the law. Here's one question: Can any close enough relative (here a sister) sue for improperly authorized organ use as tortious interference with a corpse, or does it have to be the next of kin (here the father), who is in a position to authorize the use in the first place? I'd be inclined to say that only the father can sue, since exactly the same behavior would have been entirely permissible -- notwithstanding any possible distress to the sister -- if the father had said so. But apparently there's a disagreement among state courts on the subject, and the Ninth Circuit is asking the Washington courts what the rule ought to be.

There's also an interesting question about whether the Washington Anatomical Gift Act creates an implied private right of action, supplementing whatever remedy might be available under the common-law rules of tortious interference with a corpse.

Randy R. (mail):
I thought it was already illegal for funeral directors to have sex with corpses.
8.28.2008 12:45am
DWPittelli (mail) (www):
What I'd like to know is whether the next-of-kin can successfully sue to get the organ removed from its recipient and returned for burial with the rest of the donor corpse.
8.28.2008 10:15am
jazzed (mail):
Why are the words "detrimental reliance" rolling around in my brain?
8.28.2008 11:15am
John P (mail):
Interesting to compare this case to suits involving the death of child in utero. Who has standing to sue?
8.28.2008 12:33pm
Bill Poser (mail) (www):

What I'd like to know is whether the next-of-kin can successfully sue to get the organ removed from its recipient and returned for burial with the rest of the donor corpse.


I would hope that this is a situation in which the rule "Possession is nine-tenths of the law" applies.
8.28.2008 2:05pm
Dilan Esper (mail) (www):
It looks to me like a clash between two principles of law. The organ would normally be property of the estate, and the property rule would be that only the heir can sue.

But desecration of a corpse is a form of negligent infliction of emotional distress (see the Pasadena Crematoriums case under California law) and under NIED, any close relative has standing to sue. (The earliest NIED cases involved things like having to watch your sister get run over by a drunk driver in the street. You could sue for your own emotional distress even if your sister named someone else as the beneficiary of her will.)

So the question is, which tradition applies here?
8.28.2008 8:11pm