Ohio Supreme Court holds family has no right to decedent’s brain

In Albrecht v. Treon, Slip Opinion No. 2008-Ohio-2617, the Ohio Supreme Court decided that [t]he next of kin of a decedent upon whom an autopsy has been performed do not have a protected right under Ohio law in the decedent’s tissues, organs, blood, or other body parts that have been removed and retained by the coroner for forensic examination and testing.”

After Christopher Albrecht died, the Hamilton County, Ohio coroner, in accordance with proper forensic practice and statutory obligations, retained his brain for further examination to determine the cause of death.   Christopher’s parents later learned that when the coroner released the body, the brain was missing and that the coroner disposed of the brain after completion of the autopsy.  Christopher’s parents then sued.

Christopher’s parents did not assert that they did not receive the body of their son for burial and did not claim the body was mishandled or abused.  Instead, they claim that once the autopsy was completed, they should have been given the opportunity to retrieve the brain for burial and that failure to have this opportunity violated their due process rights.

Here is an excerpt from the court’s conclusion:

We are mindful of the right of a decedent’s next of kin to attend to the proper preparation and burial or cremation of the body. But nothing in the United States Constitution, the Ohio Constitution, Ohio statutes, or common law establish a protected right in autopsy specimens in Ohio. * * * The interest that Ohio statutes at issue here give next of kin in an autopsied decedent’s body is to inter or cremate the body after the autopsy has been performed. Our decision today only addresses autopsy specimens, and not body parts or fluids that the coroner or the examining individual does not consider necessary to be examined, tested, or retained in the autopsy.

If the General Assembly believes that next of kin should have a right to autopsy specimens when the coroner’s office is through with them, it should provide that right by statute. The issues of whether notice is required, what notice is required, and whether and under what circumstances tissue and organs can be removed and retained during the course of an autopsy, are issues for the legislature, not the courts.