¹ Brofherton v. Cleveland, 923 F.2d 477, 481 (4th Cir. 1991) (citation omitted).

² See HARVEY RACHLIN, LUCY's BONES, SACRED STONES, AND EINSTEIN's BRAIN: THE REMARKABLE STORIES BEHIND THE GREAT OBJECTS AND ARTIFACTS OF HISTORY, FROM ANTIQUITY TO THE MODERN ERA 206 (1996).

³ See id. at 203-04.

⁴ Id. at 205 (quoting Jeremy Bentham).

⁵ See generally GARY LADERMAN, THE SACRED REMAINS: AMERICAN ATTITUDES TOWARDS DEATH, 1799-1883 (1996) (discussing shifts in American attitudes toward death in two main time periods, the American Revolution and the Civil War).

⁶ See infra note 32 and accompanying text.

⁷ Scanning technologies have also created new opportunities for analyzing dead bodies for research purposes. See Body Voyage, COMPUTER LIFE, June 1, 1997, at 110, available in 1997 WL 8920243. A detailed three-dimensional atlas of the human body is on the internet. See Tom Standage, Anatomy Computers Are Killing Off the Cadaver, DAILY TELEGRAPH (London), Feb. 12, 1998, at 8. In proper historical tradition, the digital images were taken from the cadaver of a 39-year-old executed prisoner, Joseph Paul Jernigan, who had consented to have his body used for science. See Body Voyage, supra, at 110; Lawrence J. Magid, Beauty Is Only Skin Deep: Icky Stuff Is Deeper, L.A. TIMES, Sept. 29, 1997, at D4. After his death by lethal injection in Texas, x-ray images were made of the body which was then frozen, sliced into 1871 sections, and photographed once again— to be immortalized in cyberspace. See Ted Anthony, Dead Killer Becomes Online Body of Knowledge, L.A. TIMES, Jan. 7, 1996, at A4, available in LEXIS, News Library, Lat File. Dissected into seven gigabytes, Jernigan can be downloaded from the Internet and the images of his body are available throughout the world. See id. Jernigan's body—young, nontraumatized—was a boon for scientists, see id. (stating that “most people who die—either by old age or violence—don't leave prime human specimens behind“), but others expressed a vague sense of discomfort about a body, frozen, sliced and dissected into gigabytes. See, e.g., Magid, supra, at D4 (describing the idea as “macabre” and “ghoulish“). Their reservations about the treatment of Jernigan's body recalled earlier disputes over the sources of research cadavers from prisoners and the poor. See, e.g., Patton, Laura-Hill M., Note, A Call for Common Sense: Organ Donation and the Executed Prisoner, 3 VA. J. SOC. POL'Y & L. 387, 391-92 (1996)Google Scholar.

⁸ CAROLINE WALKER BYNUM, THE RESURRECTION OF THE BODY 114 (1995).

⁹ See Strossen, Nadine, Religion and Politics: A Reply to Justice Antonin Scalia, 24 FORDHAM URB. L.J. 427, 472(1997)Google Scholar.

¹⁰ See Hill, Rolla B. & Anderson, Robert E., The Evolving Purposes of the Autopsy: Twenty-First-Century Values from an Eighteenth-Century Procedure, 32 PERSP. BIOLOGY & MED. 223, 223-24(1989)CrossRefGoogle Scholar.

¹¹ In his classic 1801 anatomy textbook, Xavier Bichat wrote: “[Y]ou have taken notes at patients’ bedsides … and all is confusion for you in the symptoms which, refusing to yield up their meaning, offer you a succession of incoherent phenomena. Open up a few corpses: you will dissipate at once the darkness that observation alone could not dissipate.” 1 XAVIER BICHAT, ANATOMIE GENERALE at xcix (1801), quoted in MICHEL FOUCAULT, THE BIRTH OF THE CLINIC: AN ARCHAEOLOGY OF MEDICAL PERCEPTION 126 (A.M. Sheridan Smith trans., Pantheon Books 1973).

¹² See Humphrey, David, Dissection and Discrimination: The Social Origins of Cadavers in America, 49 BULL. N.Y. ACAD. MED. 819, 819 (1973)Google Scholar.

¹³ Id. at 824.

¹⁴ Michael Sappol, The Cultural Politics of Anatomy in 19th Century America: Death, Dissection, and Embodied Social Identity 526 (1997) (unpublished Ph.D. thesis, Columbia University) (on file with author) (stating further that “[d]issectors increasingly sought to forestall any identification with the body as a person, any identification that would evoke an emotional response in the anatomical student or the laity, even one so distancing as mockery“).

¹⁵ Id. at 528.

¹⁶ See id. at 526.

¹⁷ See id.

¹⁸ See Richardson, Ruth, Fearful Symmetry, Corpses for Anatomy: Organs for Transplantation, in ORGAN TRANSPLANTATION: MEANINGS AND REALITIES 66, 82 (Youngner, Stuart J. et al. eds., 1996)Google Scholar.

¹⁹ Id.

²⁰ The first anatomy law was passed in Massachusetts in 1828. See id. at 74.

²¹ But anatomists were apparently comfortable with using the bodies of those who were socially devalued. An anatomist at the University of Michigan reassured the trustees that “better people” could rest easy. See Humphrey, supra note 12, at 822.

²² Sappol, supra note 14, at 196.

²³ Id. (quotations omitted).

²⁴ Editorial, 8 HARPER's NEW MONTHLY MAGAZINE 690,690 (1853-1854).

²⁵ See BOURKE, JOANNA, DISMEMBERING THE MALE: MEN's BODIES, BRITAIN, AND THE GREAT WAR 217 (1996)Google Scholar.

²⁶ See id.

²⁷ See id. at 211.

²⁸ See id. at 219.

²⁹ Id.

³⁰ See Hill & Anderson, supra note 10, at 226; see also Tom McNamee, Experts Afraid Autopsies Are a Dying Tradition, CHI. SUN-TIMES, Nov. 16, 1997, at 12, available in 1997 WL 6379286 (noting that over the past “three decades, the number of autopsies performed has declined from 41% of all hospital deaths nationwide to 10%“).

³¹ See Grody, Wayne W., Molecular Pathology, Informed Consent, and the Paraffin Block, 4 DIAGNOSTIC MOLECULAR PATHOLOGY 155, 155-56 (1995)CrossRefGoogle Scholar (documenting technological advances that make actual tissue samples even more valuable); Hill & Anderson, supra note 10, at 228 (stating that not only the medical profession and medical science but all of society benefits from the performance of autopsies).

³² See Herman, Chester & Schwartz, David, Pathology and Laboratory Medicine, 275 JAMA 1839, 1839 (1996)CrossRefGoogle Scholar (arguing that because the availability of archived tissue specimens can provide a link between the emerging infections of today and the idiopathic illnesses of yesterday, the autopsy is the most important quality assurance indicator for the treatment of the sickest patients).

³³ For example, research on the existence of a breast cancer gene mutation could be done in corpses, but, more commonly, it is done on living volunteers. See, e.g., Steve Sternberg, When Cancer's a Family Affair, Challenge Is to Isolate Genetic Link, Develop a Test, ATLANTA J. & CONST., Jan. 8, 1994, at El (noting the progress made in locating the gene responsible for breast cancer by studying the chromosomes of families with a history of breast cancer).

³⁴ See Orlowski, James P. et al., The Ethics of Using Newly Dead Patients for Teaching and Practicing Intubation Techniques, 319 NEW ENG. J. MED. 439, 440-41 (1988)CrossRefGoogle Scholar; see also Gary Benfield, D. et al., Teaching Intubation Skills Using Newly Deceased Infants, 265 JAMA 2360, 2362 (1991)CrossRefGoogle Scholar (noting the inadequacies of using mannequins or animals for teaching intubation techniques). When techniques such as intubation cause serious harm to a living individual, it could be argued that the research intervention should be developed first on deceased individuals. However, even in those instances, criticisms arise if the consent of the next of kin is not obtained. See Orlowski, supra, at 440-41.

³⁵ See Robert Gannon, The Body Farm, 251 POPULAR SCI. 77, 77 (1997).

³⁶ See id. at 78.

³⁷ See id. at 77.

³⁸ See Ducor, Philippe, The Legal Status of Human Materials, 44 DRAKE L. REV. 195, 196 (1996)Google Scholar (discussing how medical technology has allowed for the transfer and processing of body parts and other products of human origin in a manner typical of banal commodities). See generally George J. Annas, Outrageous Fortune: Selling Other People's Cells, HASTINGS CENTER REP., Nov./Dec. 1990, at 36 (discussing the California Supreme Court case, Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990), which involved doctors making a substantial profit from cells originally removed from a patient's body allegedly without the patient's knowledge of the cells’ potential commercial uses).

³⁹ See Jonathan Freedland, In the Name of Science, GUARDIAN WEEKEND PAGE, Dec. 17, 1994, at T10, available in 1994 WL 9728006.

⁴⁰ See Gina Maranto, Einstein's Brain, DISCOVER, May 1985, at 28, 29.

⁴¹ Freedland, supra note 39, at T10 (quoting Abraham Pais, Einstein's friend and biographer).

⁴² See id.

⁴³ See Osgood File (CBS radio broadcast, Aug. 21, 1995), available in 1995 WL 2961323 (Charles Osgood's interview with Dr. Thomas Stoltz Harvey). The family's wishes were that the whole body be cremated. See RACHLIN, supra note 2, at 329. After learning the nature of Harvey's proposed study, the family gave permission for him to proceed on the condition that the results be reported in scientific journals and that no attempts to sensationalize the findings be made. See id. at 330.

⁴⁴ See Freedland, supra note 39, at T10.

⁴⁵ See id.

⁴⁶ See RACHLIN, supra note 2, at 330-31. Harvey Rachlin refers to these slide specimens as “an exciting scientific treasure.” Id. at 331.

⁴⁷ See id. at 333.

⁴⁸ See Michael Paterniti, Driving Mr. Albert, HARPER'S, Oct. 1997, at 35, 39.

⁴⁹ Osgood File, supra note 43. Harvey also suggested that another rationale for the autopsy was that “particularly since Einstein was German and in Germany back then autopsies were routine.” Scott LaFee, Einstein's Mind: His Brain Sits on a Shelf, Largely Unsought by the World, SAN DIEGO UNION-TRIB., May 17, 1995, at E1 (quoting Dr. Thomas Harvey). However, Einstein viewed himself as an American citizen for the last 15 years of his life. See Ray Monk, The Adulation of Einstein, SUNDAY TELEGRAPH (London), May 19, 1996, at 15, available in LEXIS, World Library, Txtlne File.

⁵⁰ See Maranto, supra note 40, at 32.

⁵¹ See RACHLIN, supra note 2, at 203-07; Marmoy, C.F.A., The ‘Auto-Icon’ of Jeremy Bentham at University College, London, 2 MED. HIST. 77, 77 (1958)CrossRefGoogle Scholar; Richardson, Ruth & Hurwitz, Brian, Jeremy Bentham's Self Image: An Exemplary Bequest for Dissection, 295 BRIT. MED. J. 195, 195 (1987)CrossRefGoogle Scholar.

⁵² See Rodin, Alvin E. & Key, Jack D., Osier's Brain and Related Mental Matters, 83 S. MED. J. 207, 207 (1990)CrossRefGoogle Scholar (documenting how nineteenth-century scholar and scientist, Sir William Osier requested the donation of his brain to science).

⁵³ See LaFee, supra note 49, at El (discussing how Einstein left no known written bequest donating his brain to science).

⁵⁴ See Richard O'Mara, Equated with Genius, BALTIMORE SUN, Mar. 16, 1996, at ID.

⁵⁵ See Maranto, supra note 40, at 30, 34.

⁵⁶ See RACHLIN, supra note 2, at 332.

⁵⁷ See Diamond, Marian C. et al., On the Brain of a Scientist: Albert Einstein, 88 EXPERIMENTAL NEUROLOGY 198, 201 (1985)CrossRefGoogle Scholar.

⁵⁸ However, Harvey did not participate in the research. See Harrison, supra note 42, at 6.

⁵⁹ See RACHLIN, supra note 2, at 333; Maranto, supra note 40, at 32.

⁶⁰ Anderson, Britt & Harvey, Thomas, Alterations in Cortical Thickness and Neuronal Density in the Frontal Cortex of Albert Einstein, 210 NEUROSCI. LETTERS 161, 161 (1996)CrossRefGoogle Scholar.

⁶¹ See id. at 161, 163.

⁶² See Don Colburn, Studying the 20th Century's Most Esteemed Brain, RECORD, Mar. 11, 1985, at B3, available in LEXIS, News Library, Arcnws File (quoting Dr. Janice Stevens).

⁶³ See Maranto, supra note 40, at 33.

⁶⁴ Freedland, supra note 39, at T10 (quoting Schulman).

⁶⁵ E.g., Kinney, Hanna C. et al., Neuropalhological Findings in the Brain of Karen Ann Quintan: The Role of the Thalamus in the Persistent Vegetative State, 330 NEW ENG. J. MED. 1469 (1994)CrossRefGoogle Scholar.

⁶⁶ E.g., Hruban, Ralph et al., Brief Report, Molecular Biology and the Early Detection of Carcinoma of the Bladder—The Case of Hubert H. Humphrey, 330 NEW ENG. J. MED. 1276 (1994)CrossRefGoogle Scholar.

⁶⁷ For example, the body thought to be Butch Cassidy was disinterred to establish its authenticity. See NOVA: Wanted: Butch and Sundance (PBS television broadcast, Oct. 12, 1993).

⁶⁸ See Associated Press, FBI Studies Hair Samples for Washington's DNA, ROCKY MOUNTAIN NEWS, Feb. 18, 1994, available in 1994 WL 6700303.

⁶⁹ See id.

⁷⁰ See Warren E. Leary, Panel Backs DNA Tests on Lincoln's Tissue, N.Y. TIMES, May 3, 1991, atB9.

⁷¹ See Warren E. Leary, Committee Urges Delay in Cloning Lincoln's Genes, N.Y. TIMES, Apr. 16, 1992, at B6.

⁷² See id.

⁷³ See id.; Larry Thompson, Experts Discourage Test of Lincoln Genes, WASH. POST, Apr. 16, 1992, at A14. In the initial proposal, the genetic “[fjesting would require destruction of tiny amounts of the samples to recover the … DNA, which could then be cloned to produce quantities sufficient for research.” Warren E. Leary, A Search for Lincoln's DNA, N.Y. TIMES, Feb. 10, 1991, at Al. In May 1991, a committee assembled by the National Museum of Health and Medicine approved attempts to clone Abraham Lincoln's genes for DNA testing. See Leary, supra note 70, at B9. The decision to clone Lincoln's DNA provoked heated debates within the scientific community. See Will Dunham, Plan to Clone Lincoln's DNA Draws Criticism, UNITED PRESS INT'L, May 6, 1991, available in LEXIS, News Library, Arcnws File. Researchers then decided to clone Lincoln's existing DNA to create more of it, allowing them to pursue the research on Marfan's syndrome. See id. In 1992, however, an expert panel convened by the National Museum of Health and Medicine recommended that researchers delay the cloning until genetic techniques improved. See Leary, supra note 71, at B6. The panel feared that the cloning would destroy all of the preserved material, precluding future uses. See id. Future tests may be possible using a technique known as polymerase chain reaction. See Richard A. Marini, Polymerase Chain Reaction, POPULAR SCI., May 1992, at 99, 99. This technique could create a sufficient DNA sample size to conduct the study by amplifying the inadequate samples. See id. The study was still pending in late 1997. See David N. Leff, First Steps on Long Road to Gene Therapy for Marfan's Syndrome Aortic Aneurysms, BIOWORLD TODAY, Oct. 20, 1997, available in LEXIS, News Library, Curnws File.

⁷⁴ See Maranto, supra note 40, at 34 (stating that it is no surprise that neurobiologists want to study Einstein's brain because he was the premier scientist of this century).

⁷⁵ See MCINTOSH, JANE, THE PRACTICAL ARCHAEOLOGIST: How WE KNOW WHAT WE KNOW ABOUT THE PAST 11 (1986)Google Scholar; see also VINE DELORIA, JR., RED EARTH, WHITE LIES: NATIVE AMERICANS AND THE MYTH OF SCIENTIFIC FACT 18-20 (1995) (discussing the placement of Native Americans in the science-spirituality dichotomy); TRIGGER, BRUCE G., A HISTORY OF ARCHAEOLOGICAL THOUGHT 104 (1989)Google Scholar (discussing white America's biological explanation of the Native Americans’ inferiority).

⁷⁶ See Stumpf, Gary D., A Federal Land Management Perspective on Repatriation, 24 ARIZ. ST. L.J. 303, 305(1992)Google Scholar.

⁷⁷ See Riding, James In, Without Ethics and Morality: Historical Overview of Imperial Archaeology and American Indians, 24 ARIZ. ST. L.J. 11, 15 (1992)Google Scholar (quoting JOHN C. GREENE, AMERICAN SCIENCE IN THE AGE OF JEFFERSON at xiii (1984)). ‘

⁷⁸ See Winski, John B., There Are Skeletons in the Closet: The Repatriation of Native American Human Remains and Burial Objects, 34 ARIZ. L. REV. 187, 192 (1992)Google Scholar. Additionally, the skeletal remains which were incidentally excavated received disrespectful treatment. See id. They were stored in boxes and treated as “relics or fossils,” or were turned over for scientific research. See id. See generally DOUGLAS H. UBELAKER, HUMAN SKELETAL REMAINS—EXCAVATION, ANALYSIS, INTERPRETATION: ALDINE MANUALS ON ARCHAEOLOGY (1978) (exploring scientific studies of aboriginal tribes, including osteological studies of sex, age, diet, disease and migration patterns).

⁷⁹ See Riding In, supra note 77, at 17; Winski, supra note 78, at 191.

⁸⁰ See Riding In, supra note 77, at 17; see also Winski, supra note 78, at 191 (noting that intelligence rankings were given to each race based on the measurements of crania).

⁸¹ See Riding In, supra note 77, at 19.

⁸² See id. at 19-20. In fact, it is thought that all of the remains collected by the Surgeon General's crania study are now part of the Smithsonian's collection. See id. at 23.

⁸³ See id. at 17-18; see also DELORIA, supra note 75, at 19 (discussing the primitive belief that human cranial capacity illustrated the intelligence of different races). Vine Deloria writes:

Id.

⁸⁴ See H.R. REP. No. 101-877, at 10 (1990), reprinted in 1990 U.S.C.C.A.N. 4367, 4369.

⁸⁵ See Leonard D. DuBoff, Protecting Native American Cultures, OR. ST. B. BULL., NOV. 1992, at 9, 9-10.

⁸⁶ See 16 U.S.C. §§ 431-433, 470(d) (1994); see also Gerstenblith, Patty, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 577-79 (1995)Google Scholar (describing how the President has the authority to designate anything situated on lands owned or controlled by the federal government as a national monument).

⁸⁷ See 16 U.S.C. §432.

⁸⁸ See United States v. Diaz, 499 F.2d 113, 115 (9th Cir. 1974).

⁸⁹ See 16 U.S.C. §§ 470aa-470ii. Specific examples of “archaeological resources” cited in the Act are human graves and skeletal material. See id. § 470bb(1).

⁹⁰ See Matt Crenson, Tracking the First Americans: DNA Gives Clues on Timing, Patterns of Ancient Migrations, DALLAS MORNING NEWS, Jan. 11, 1993, at 6D, available in LEXIS, News Library, Arcnws File. See generally FRANK W. EDDY, ARCHAEOLOGY, A CULTURAL-EVOLUTIONARY APPROACH 6-7 (1991) (discussing the objectives of anthropological archeology); Binford, Lewis R., Archaeological Perspectives, in NEW PERSPECTIVES IN ARCHAEOLOGY 5, 12 (Binford, Sally R. & Binford, Lewis R. eds., 1968)Google Scholar (noting that a major goal of archaeology is the “reconstruction of the lifeways of extinct peoples“).

⁹¹ See Peterson, John E., Dance of the Dead: A Legal Tango for Control of Native American Skeletal Remains, 15 AM. INDIAN L. REV. 115, 117 (1990)CrossRefGoogle Scholar; see also Stumpf, supra note 76, at 305 (discussing how archaeologists regard material remains with which they work as irreplaceable clues to the past).

⁹² Riding In, supra note 77, at 13.

⁹³ See id. at 26.

⁹⁴ See George Johnson, Indian Tribes’ Creationists Thwart Archaeologists. N.Y. TIMES, Oct. 22, 1991, at Al; see also DELORIA, supra note 75, at 39 (discussing how, although some Native American genesis stories involve migration, the majority of the stories involve spiritual creation); Bill Dietrich, Skeleton Leads to Bones of Contention: Science Collides with Tribal Beliefs, ARIZ. REPUBLIC, Sept. 1, 1996, at A28, available in 1996 WL 7734492 (noting that critics of American Indian skeletal investigations reject the tribal migration theory); Leslie Alan Horvitz, Indians and Anthropologists are Battling Over Old Bones, INSIGHT, Nov. 18, 1996, at 40, 40-41 (discussing the fact that because many tribes reject scientific theories of evolution and migration and embrace their own spiritual beliefs about creation, the chances of compromise between the scientists and the Native Americans are slim).

⁹⁵ See Horvitz, supra note 94, at 40; Johnson, supra note 94, at Al.

⁹⁶ Johnson, supra note 94, at Al (quoting Sebastian LeBeau, repatriation officer for the Cheyenne River Sioux, a Lakota tribe based in Eagle Butte, South Dakota).

⁹⁷ See DELORIA, supra note 75, at 84.

⁹⁸ Pub. L. No. 101-185, 103 Stat. 1336 (1989) (codified as amended at 20 U.S.C. § 80q (1994)). This Act applied only to items held by the Smithsonian Institute, which housed the largest collection of Native American skeletal remains and inventory. See H.R. REP. No. 101-340(1), at 9 (1989), reprinted in 1989 U.S.C.C.A.N. 776, 777. The law required the Smithsonian to repatriate its Native American remains and grave goods to requesting tribes who could present a preponderance of evidence showing they were familiarly related to the remains. See id. at 24 (section-by-section analysis of the Act).

⁹⁹ See Pub. L. No. 101-601, 104 Stat. 3048 (1990) (codified at 25 U.S.C. §§ 3001-3013 (1994)).

¹⁰⁰ See Harding, Sarah, Justifying Repatriation of Native American Cultural Property, 72 IND. L.J. 723,723(1997)Google Scholar

¹⁰¹ See H.R. REP. No. 101-340(1), at 9.

¹⁰² See Bonnichsen v. U.S. Dep't of the Army, 969 F. Supp. 614, 617 (1997). The court granted the Army Corps of Engineers’ motions to dismiss the scientists’ § 1983 claim. See id. at 625. However, the scientists were allowed to argue that the government's decision was “arbitrary and capricious” under the Administrative Procedure Act and that the Native American Graves Protection and Repatriation Act (NAGPRA) was unconstitutional. See id. at 626.

¹⁰³ See id. at 617. These remains are also referred to as the “Richland Man.” See id.

¹⁰⁴ See id.

¹⁰⁵ See Dietrich, supra note 94, at A28.

¹⁰⁶ Peter R. Afrasiabi, Note, Property Rights in Ancient Human Skeletal Remains, 70 S. CAL. L. REV. 805, 805(1997).

¹⁰⁷ See Bonnichsen, 969 F. Supp. at 617-18. The Umatilla Indian tribe claimed the remains and expressed their intent to repatriate the remains before any further scientific research could be conducted. See Afrasiabi, supra note 106, at 805; see also Memorandum in Opposition to Defendants’ Motion to Dismiss at 2, Bonnichsen (No. 96-1481-JE) (copy on file with author).

¹⁰⁸ Bonnichsen, 969 F. Supp. at 618. The Asatru Folk Assembly, described by their Complaint as a church “that represents Asatru, one of the major indigenous, pre-Christian, European religions,” also filed suit asking the court to compel the Corps of Engineers to allow further scientific testing of the remains in order to determine whether the remains are Native or non-Native. See id. The Asatru contend that if in fact Kennewick Man is non-Native, they request custody of the remains “for study and ‘for eventual reburial in accordance with native European belief.'” Id. at 618-19. The Asatru and Bonnichsen claims were joined for the purposes of these hearings. See id. at 619.

¹⁰⁹ Id. at 618. These scientists include Robson Bonnichsen, an archaeologist at Oregon State University, who in 1994 discovered through DNA analysis that hairs found at burial sites in Oregon, Montana, Nebraska and Nevada were at least 10,000 years old. See Afrasiabi, supra note 106, at 817. A tribe has since claimed these hairs pursuant to NAGPRA and they will be repatriated. See id. Two other scientist plaintiffs, Douglas W. Owsley, a forensic anthropologist at the Smithsonian, and Richard L. Jantz, a professor of anthropology at the University of Tennessee in Knoxville, have developed a computerized, “specialized protocol for measuring and documenting human skeletal remains” which “permits various comparisons to be made between modern and ancient populations which would not otherwise be possible.” Complaint at 3, Bonnichsen (No. 96-1481-JE) (copy on file with author).

¹¹⁰ See Complaint at 9, Bonnichsen (No. 96-1481-JE).

¹¹¹ See Scripps Howard, U.S. Consults Family on Karen Silkwood's Remains, PLAIN DEALER (Albuquerque), Feb. 24, 1994, at 8A.

¹¹² Philip Cohen, Los Alamos Faces ‘Bodysnatch’ Lawsuit, NEW SCIENTIST, Nov. 2, 1996, at 10, 10.

¹¹³ See id.

¹¹⁴ See id.

¹¹⁵ See id.

¹¹⁶ See Ed Asher & Dennis Domrzalski, Body-Parts Testing Done Without Knowledge, Consent of Kin, ALBUQUERQUE TRIB., June 10, 1995, at A l l , available in LEXIS, Regnws Library, Albtrb File (detailing the practice of taking tissue samples from all corpses in Los Alamos without consent from relatives). The 1993 report “The Plutonium Experiment” won a Pulitzer Prize. See Ed Asher, Los Alamos Did Illegal Body Tests, Worker's Widow Alleges in Lawsuit, ALBUQUERQUE TRIB., Oct. 16, 1996, at Al, available in LEXIS, Regnws Library, Albtrb File.

¹¹⁷ Asher, supra note 116, at Al. The Freedom of Information Act can be found at 5 U.S.C. § 552 (1994 & Supp II 1996).

¹¹⁸ See Cohen, supra note 112, at 10.

¹¹⁹ See id.

¹²⁰ See id.

¹²¹ See id.

¹²² See id.

¹²³ See id.

¹²⁴ See id.

¹²⁵ See Mark Jewell, Irradiated Body Parts Held for Research; Many Tissues Acquired from Nuclear Workers, SEATTLE TIMES, Oct. 16, 1996, at Bl, available in 1994 WL 3654632; John Nolan, U.S. Agents Called ‘Body Snatchers’ for Taking Workers’ Tissues, NEWS TRIB. (Washington), Oct. 9, 1994, at A14, available in 1994 WL 4649878.

¹²⁶ See Jewell, supra note 125, at Bl.

¹²⁷ See id.

¹²⁸ See Laurie Garrett, Gathering Bodies: U.S. Collected Specimens in ‘50s for Radiation Tests, NEWSDAY (New York), June 25, 1995, at A5, available in 1995 WL 6659445.

¹²⁹ See id.

¹³⁰ See id.

¹³¹ Id. (quoting records released by the Advisory Committee on Human Radiation Experiments).

¹³² See id.

¹³³ See id.

¹³⁴ See Cohen, supra note 112, at 10.

¹³⁵ See id.

¹³⁶ See Hicks v. NLO, Inc., 631 F. Supp. 1207, 1208 (S.D. Ohio 1986).

¹³⁷ See id.

¹³⁸ See id.

¹³⁹ See id.

¹⁴⁰ See id. at 1208 n.3.

¹⁴¹ See id.

¹⁴² See id. at 1209.

¹⁴³ See Laura Tolley, Karen Silkwood Case Returns to Haunt Parents, L.A. TIMES, Apr. 24, 1994, at B3, available in 1994 WL 2158199.

¹⁴⁴ See id. Her father, Bill Silkwood, and activists in the anti-nuclear movement contended that she had been forced off the road. See id. This allegation became the theme of a popular film. SILKWOOD (ABC Motion Picture 1983).

¹⁴⁵ See Scripps Howard, supra note 111, at 8A.

¹⁴⁶ See id.

¹⁴⁷ See id.

¹⁴⁸ Id. (quoting letter sent to Bill Silkwood by Alan McMillan, head of the Los Alamos National Laboratory's Human Studies Project Team).

¹⁴⁹ See id.

¹⁵⁰ See id.

¹⁵¹ Id. (quoting Bill Silkwood).

¹⁵² Id.

¹⁵³ See Scott Lindlaw, UCLA Medical School Sued in Body Disposal, CHATTANOOGA FREE PRESS, Nov. 3, 1996, at C4, available in LEXIS, News Library, Chfrpr File.

¹⁵⁴ See id.

¹⁵⁵ See id.

¹⁵⁶ See id.

¹⁵⁷ See id.

¹⁵⁸ See id.

¹⁵⁹ See id.

¹⁶⁰ See Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d 438, 439 (W. Va. 1985).

¹⁶¹ See Morrow v. Southern Ry. Co., 195 S.E. 383, 385 (N.C. 1938); Kyles v. Southern Ry. Co., 61 S.E. 278, 280 (N.C. 1908).

¹⁶² KyIes, 61 S.E. at 281.

¹⁶³ Testimony in the New York State Legislature, October, 1997.

¹⁶⁴ The Nuremberg Code states, “The voluntary consent of the human subject is absolutely essential.” The Nuremberg Code, reprinted in THE NAZI DOCTORS AND THE NUREMBERG CODE: HUMAN RIGHTS IN HUMAN EXPERIMENTATION 2 (George J. Annas & Michael A. Grodin eds., 1992).

¹⁶⁵ See 45 C.F.R. § 46.116(a)(8) (1997) (requiring that informed consent, oral or written, notifies a research participant that his participation is voluntary, refusal to participate does not result in penalty and he may discontinue participation at any time without loss of benefits).

¹⁶⁶ Id. §§ 46.101-.409.

¹⁶⁷ See Scarmon, Michael H., Note, Brotherton v. Cleveland: Property Rights in the Human Body—Are the Goods Oft Interred with Their Bones?, 37 S.D. L. REV. 429, 446-47 (1992)Google Scholar (discussing cases in various states that have analyzed claims with regard to cadavers based on property rights, using state law as a source of those rights). This is also manifested, for example, in states’ adoption of the Uniform Anatomical Gift Act (UAGA) (amended 1987), 8A U.L.A. 19 (1993 & Supp. 1997). See also Ania M. Frankowska, Fetal Tissue Transplants: A Proposal to Amend the Uniform Anatomical Gift Act, 1989 U. ILL. L. REV. 1095, 1106, which discusses how all 50 states have adopted the UAGA.

¹⁶⁵ Cf. Lori B. Andrews, My Body, My Property, HASTINGS CENTER REP., Oct. 1986, at 28, 30 (noting that “[i]n a Gallup poll, 20% of respondents said they would not donate organs because they did not like the idea of being cut up after they died“).

¹⁶⁹ See Reilly, Philip R. et al., Ethical Issues in Genetic Research: Disclosure and Informed Consent, 15 NATURE GENETICS 16, 19 (1997)CrossRefGoogle Scholar.

¹⁷⁰ Cf. id. (discussing biological information (i.e., nonpaternity) as an issue that should be raised with potential subjects because disclosure of such information may reveal things about the participant or his family he may not want to know).

¹⁷¹ Cf Suter, Sonia M., Note, Whose Genes Are These Anyway? Familial Conflicts over Access to Genetic Information, 91 MICH. L. REV. 1854, 1867 (1993)CrossRefGoogle Scholar (noting that a mother who has a daughter with testicular feminization syndrome, in which a person develops as a woman but remains genetically male, may refuse to tell her sisters of the risk to their daughters of inheriting the syndrome because of the associated social stigma).

¹⁷² See Daniel J. Kevles & Leroy Hood, Reflections, in THE CODE OF CODES: SCIENTIFIC AND SOCIAL ISSUES IN THE HUMAN GENOME PROJECT 300, 326-27 (Daniel J. Kevles & Leroy Hood eds., 1992) (highlighting the social stigma that has devolved from the linkage of genes with behavior); see also Cushing, T.H., Should There Be Genetic Testing in Insurance Risk Classification?, 60 DEF. COUNS. J. 249, 260-61 (1993)Google Scholar (discussing the possibility that genetic testing could lead to discrimination of certain ethnic, racial and gender groups). For instance, the early eugenics movement stigmatized immigrants from eastern and southern Europe by declaring that their genetic composition predisposed them to inferior intelligence, criminality, alcoholism and prostitution. See id.; see also Roberts, Dorothy E., The Nature of Blacks’ Skepticism About Genetic Testing, 27 SETON HALL L. REV. 971, 979 (1997)Google Scholar (discussing African American's cultural resistance to and skepticism about genetic testing due to fears of discrimination).

¹⁷³ See FLA. STAT. ANN. § 760.40(2)(a) (West 1997).

¹⁷⁴ SEE JENNIFER NORD, NATIONAL CONFERENCE OF STATE LEGISLATURES, GENETIC TESTING: THE INSURANCE INDUSTRY, THE RESEARCH COMMUNITY, AND INDIVIDUAL RIGHTS 1-5 (1997).

¹⁷⁵ These states are Georgia, Louisiana, Nevada, New York, Oregon and Texas. See GA. CODE ANN. § 33-54-6 (1996); LA. REV. STAT. ANN. § 22:213.7(D)(4) (West Supp. 1998); NEV. REV. STAT. § 629.151(4) (1997); N.Y. CIV. RIGHTS LAW § 79-l(4)(a) (McKinney Supp. 1997-1998); OR. REV. STAT. § 659.715(l﹜-(2) (1997); TEX. REV. Civ. STAT. ANN. art. 9031 § 3(d)(2) (West Supp. 1998).

¹⁷⁶ See Reilly et al., supra note 169, at 18-19.

¹⁷⁷ See Harriet A. Washington, Henrietta Lacks—An Unsung Hero, EMERGE, Oct. 1994, at 24, 24.

¹⁷⁸ See id.

¹⁷⁹ Id.

¹⁸⁰ See Tolley, supra note 143, at B3.

¹⁸¹ See. e.g., Lott v. State, 225 N.Y.S.2d 434, 436-37 (Ct. CI. 1962) (recognizing that patients’ religious beliefs should be taken into consideration in determining what is proper handling of their bodies after their death).

¹⁸² See MAURICE LAMM, THE JEWISH WAY IN DEATH AND MOURNING 10 (1969) (explaining that Jewish tradition maintains that man was created in the image of God, and therefore in death the body should retain the unity of that image). If parts are removed, they must be returned and buried with the body. See Kohn v. United States, 591 F. Supp. 568, 573 (E.D.N.Y. 1984) (citing Fred Rosner, Autopsy in Jewish Law and the Israeli Autopsy Controversy, in JEWISH BIOETHICS 331, 332, 335, 338 (Fred Rosner & J. David Bleich eds., 1979)).

¹⁸³ In fact, when Menorah Gardens and Funeral Chapels in Florida lost an amputated leg of an Orthodox Jewish woman, it paid a $1.25 million lawsuit settlement to her daughter. See Henry Fitzgerald, Jr., Woman Awarded $1.25 Million in Suit, SUN-SENTINEL (Ft. Lauderdale), May 16, 1997, at Bl, available in 1997 WL 3104029. “Orthodox Jews believe that at the end of time, not only will a person's soul be resurrected, but the body as well… . It's important that the whole body, including blood, be buried.” Id.

¹⁸⁴ See, e.g., Wilensky v. Greco, 344 N.Y.S.2d 77, 78 (Sup. Ct. 1973) (enjoining coroner from performing autopsy on automobile accident victim whose parents were Orthodox Jews for whom the procedure was “repugnant to their religious beliefs“).

¹⁸⁵ See Freedland, supra note 39, at T10.

¹⁸⁶ See Oliver Metzger, Note, Making the Doctrine of Res Extra Commercium Visible in United States Law, 74 TEX. L. REV. 615, 643 (stating that every state has some measure of legal protection for graves); see also Clark, Maria K., Note, Solving the Kidney Shortage Crisis Through the Use of Non-Heart-Beating Cadaveric Donors: Legal Endorsement of Perfusion as a Standard Procedure, 70 IND. L.J. 929, 939 (1995)Google Scholar (stating how the Uniform Anatomical Gift Act §§ 1-17 (amended 1987), 8A U.L.A. 29 (1993 & Supp. 1997), “adopted in some form by every state, and other statutes governing the disposition of dead bodies have unwittingly strengthened [the] notion of a property interest in cadavers“).

¹⁸⁷ E.g., Infield v. Cope, 270 P.2d 716, 719 (N.M. 1954).

¹⁸⁸ See Andrews, supra note 168, at 30.

¹⁸⁹ See UNIF. ANATOMICAL GIFT ACT § 2 (amended 1987), 8A U.L.A. 33-34 (1993).

¹⁹⁰ See id. § 3(a), at 40.

¹⁹¹ See Id. § 3(b)(2), at 41.

¹⁹² See Richard P. Jones, Judge Rejects Dahmer Brain Study: He Orders It Cremated, Ruling in Favor of Serial Killer's Father, MILWAUKEE J.-SENTINEL, Dec. 13, 1995, aU, available in 1995 WL 12846028.

¹⁹³ See Dahmer Family Split over Use of Brain, N.Y. TIMES, Aug. 3, 1995, at A22; Jones, supra note 192, at 1.

¹⁹⁴ In re Estate of Jeffrey L. Dahmer, No. 94 PR 175 (Wis. Cir. Ct. Dec. 14, 1995) (order releasing the brain of Jeffrey Dahmer to his father, Lionel Dahmer) (on file with author); Jones, supra note 192, at 1.

¹⁹⁵ NOVA, supra, note 67.

¹⁹⁶ See Deeann Glamser, Killer's Brain Causes Clash, USA TODAY, Jan. 6, 1993, at 3A.

¹⁹⁷ See id.

¹⁹⁸ See id.

¹⁹⁹ See id.

²⁰⁰ See id.

²⁰¹ See Peter Lewis et al., Doctor Says Dodd Felt No Pain—Neck Ligaments Tore, Then He Strangled, SEATTLE TIMES, Jan. 6, 1993, at CI, available in LEXIS, News Library, Majpap File.

²⁰² Kate Shatzkin et al., Dodd Autopsy Fuels Both Sides of Debate over Hanging, SEATTLE TIMES, Jan. 7, 1993, at Gl, available in LEXIS, News Library, Majpap File (quoting the Western State Hospital Medical Director, Dr. Jerry Dennis, who asked the family for Wesley Dodd's brain for research).

²⁰³ 225 N.Y.S.2d 434, 435 (Ct. CI. 1962).

²⁰⁴ See id. at 435-36.

²⁰⁵ See id. at 437 (awarding each family $1000).

²⁰⁶ Kohn v. United States, 591 F. Supp. 568, 573 (E.D.N.Y. 1984).

²⁰⁷ See Andrews, supra note 168, at 29 (stating that people have an interest in their extracorporeal body parts, but a protection of that interest “now tenuously rests on precarious doctrines that protect people from emotional distress“).

²⁰⁸ See Arnaud v. Odom, 870 F.2d 304, 305 (5th Cir. 1989).

²⁰⁹ See id. Arizona, California, Louisiana and Ohio all statutorily compel autopsies in suspected cases of sudden infant death syndrome. See ARIZ. REV. STAT. ANN. § 11-597 (West 1997); CAL. GOV't CODE § 27491.41 (West Supp. 1998); LA. REV. STAT. ANN. § 33:1563(C) (West 1988); OHIO REV. CODE ANN. § 313.121 (Anderson Supp. 1996).

²¹⁰ See Arnaud, 870 F.2d at 306.

²¹¹ See id.

²¹² See id.

²¹³ See id.

²¹⁴ See id. at 305-06.

²¹⁵ See id. at 306.

²¹⁶ See id.

²¹⁷ See id.

²¹⁸ See Theresa E. Morelli, Genetic Discrimination by Insurers: Legal Protections Needed from Abuse of Biotechnology, HEALTHSPAN, Sept. 1992, at 8, 8.

²¹⁹ See Scott McCartney, Believing Einstein's Brain Matters, Doctors Keep the Remains, ASIAN WALL ST. J., May 6, 1994, at 1, available in 1994 WL-WSJA 2009122. The DNA in the particular sample was too degraded to provide a definitive answer. See id.

²²⁰ Genetic testing on deceased individuals can also disrupt family relationships. Einstein's adopted granddaughter, Evelyn, asked a New Jersey physician, Dr. Charles Boyd, to use genetic testing to determine if she was actually Einstein's illegitimate daughter. See Einstein's Brain, ECONOMIST, Apr. 2, 1994, at 82, 82. To undertake the genetic comparison, Boyd obtained a piece of Einstein's brain from Harvey. See id.

²²¹ See UNIF. ANATOMICAL GIFT ACT § 3 (amended 1987), 8A U.L.A. 4 0 ^ 1 (1993).

²²² See Brotherton v. Cleveland, 923 F.2d 477, 482 (4th Cir. 1991).

²²³ See id. at 478, 482.

²²⁴ M. Susan Lindee, The Repatriation of Atomic Bomb Victim Body Parts to Japan: Natural Objects and Diplomacy, OSIRIS (forthcoming 1999).

²²⁵ See id.

²²⁶ See id.

²²⁷ See id.

²²⁸ Sappol, supra note 14, at 147.

²²⁹ See Karen Cook, Bones of Contention, VILLAGE VOICE, May 4, 1993, at 23.

²³⁰ See id.

²³¹ See Freedland, supra note 39, at T10.

²³² See id.

²³³ See id.

²³⁴ See LaFee, supra note 49, at El.

²³⁵ See Nancy Banks-Smith, The Man with No Brain, GUARDIAN, April 2, 1994, at 26.

²³⁶ See Bowman, Margaret, The Reburial of Native American Skeletal Remains: Approaches to the Resolution of a Conflict, 13 HARV. ENVTL. L. REV. 147, 152 (1989)Google Scholar (citing PROCEEDINGS: CONFERENCE ON REBURIAL ISSUES 3-15 (Polly Quick ed., 1985) (transcript of conference held at the Newberry Library, Chicago, on June 14-15, 1985) (comments of Steven Moore)).

²³⁷ PROCEEDINGS: CONFERENCE ON REBURIAL ISSUES, supra note 236, at 25.

²³⁸ See 25 U.S.C. § 3005 (1994).

²³⁹ See, e.g., Afrasiabi, supra note 106, at 807 (arguing that remains should not be “repatriated if they would thereby be lost to science and humankind forever“).

²⁴⁰ See 136 CONG. REC. H10.985, H10.988 (daily ed. Oct. 22, 1990) (statement of Rep. Campbell) (stating that “thousands upon thousands of native American human remains and sacred objects are housed in museums and Federal agencies across the country[,] … kept in boxes, crates, and small wooden file drawers, tagged and numbered“); Riding In, supra note 77, at 28 (arguing that “[I]ndians continue to be victims of a practice that is without scientific or moral justification… . Many scientists now agree that there are no overriding reasons to retain collections of recent Indian remains. Little research is done on these collections, and little new has been learned from them” (quoting Lawrence Rosen, Give American Indian Remains Back to Tribes, N.Y. TIMES, Nov. 15, 1988, at 30A)); see also Trope, Jack F. & Echo-Hawk, Walter R., The Native American Graves Protection and Repatriation Act: Background and Legislative History, 24 ARIZ. ST. L.J. 35, 41 (1992)Google Scholar (stating how at the turn of the century, “[scientific means were not always used by museum collecting expeditions … which can better be described, in some instances, as ‘fervid rip-and-run operations'“). See generally S. REP. No. 104-350 (1996), reprinted in 1996 U.S.C.A.A.N. 3802 (calling for amendments to the National Museum of American Indian Act of 1989 so that it imposes on the Smithsonian Institution the same artifact identification and repatriation requirements as those mandated by NAGPRA).

²⁴¹ See supra text accompanying notes 221-23.

²⁴² See supra text accompanying notes 164-94.

²⁴³ Carney v. Knollwood Cemetery Ass'n, 514 N.E.2d 430, 433 (Ohio Ct. App. 1986).

²⁴⁴ See, e.g., Hassard v. Lehane, 128 N.Y.S. 161, 162-63 (N.Y. 1911) (holding that a mother had a cause of action for “wrongful and unlawful dissection” and “wrongful and unlawful removal and detention of parts of the remains” against a coroner who removed, dissected and kept her dead son's spleen simply because it was enlarged).

²⁴⁵ E.g., Foley v. Phelps, 37 N.Y.S. 471, 473-74 (App. Div. 1896) (holding that a widow is entitled to the possession of her deceased husband's body in the same condition as when death occurred, for the purpose of proper care and burial).

²⁴⁶ See Grawunder v. Beth Israel Hosp. Ass'n, 272 N.Y.S. 171, 176 (App. Div. 1934), aff'd, 195 N.E. 221 (N.Y. 1935) (mem.); Gurganious v. Simpson, 213 N.C. 613, 614 (1938).

²⁴⁷ See, e.g., Whaley v. County of Tuscola, 58 F.3d 1111, 1115 (6th Cir. 1995) (holding that next of kin have a constitutionally protected property interest in the dead body of a relative and have a right to refuse the removal of corneas or eyeballs of decedent); Brotherton v. Cleveland, 923 F.2d 477, 482 (6th Cir. 1991) (holding that widow and children may have a protected property interest in decedent's body and the removal of the corneas for transplantation without consent presents a valid due process claim); Fuller v. Marx, 724 F.2d 717, 719 (8th Cir. 1984) (holding that widow had quasi-property right in the dead body, which was satisfied when husband's body returned in acceptable condition, even though some organs had been removed). But see State v. Powell, 497 So. 2d 1188, 1193 (Fla. 1986) (holding that next of kin have only a limited right to possess the dead body for burial, not a property right in the remains and statute authorizing removal of corneas during autopsy is constitutional).

²⁴⁸ Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d 438, 441 (W. Va. 1985).

²⁴⁹ 820P.2d 181, 184-85 & n.5 (Cal. 1991).

²⁵⁰ See id. at 185. For a more detailed description of the parts, see Christensen v. Superior Court, 271 Cal. Rptr. 360, 364-65 (Ct. App. 1990). The suit also alleged that the bodies had been cremated disrespectfully by burning 30 to 40 together at one time, mixing up the ashes. See id. at 365-66.

²⁵¹ Christensen, 820 P.2d at 193 (citing O'Donnel v. Slack, 55 P. 906, 907 (Cal. 1899)).

²⁵² Id. at 194.

²⁵³ See Theodore Silver, The Case for a Post-Mortem Organ Draft and a Proposed Model Organ Draft Act, 68 B.U. L. REV. 681, 691 & n.40 (1988).

²⁵⁴ See 18 AM. JUR. 2D Coroners § 10 (1985), which states that:

However, even in these situations, an “autopsy cannot be justified in the interest of science.” Id.

²⁵⁵ Id.

²⁵⁶ Weberman v. Zugibe, 394 N.Y.S.2d 371, 372 (Sup. Ct. 1977). In that case, the decedent had been struck by a car and her family sued to enjoin performance of an autopsy for religious reasons. See id. at 372; see also Atkins v. Medical Exam'r, 418 N.Y.S.2d 839, 841 (Sup. Ct. 1979) (holding that “where there is not criminal activity or suspicion of foul play, there is no sound reason to permit an invasion of deep seated religious beliefs“).

²⁵⁷ Hassard v. Lehane, 128 N.Y.S. 161, 162 (App. Div. 1911).

²⁵⁸ See id.

²⁵⁹ See id. at 164.

²⁶⁰ See CAL. GOV't CODE § 2749.43 (West 1996); MD. CODE ANN., EST. & TRUSTS § 5-310 (1996); N.J. STAT. ANN. § 52:17B-88.2 (West 1997); N.Y. PUB. HEALTH LAW § 4210-c (McKinney 1996); OHIO REV. CODE ANN. § 313.13.1 (Anderson 1997); R.I. GEN. LAWS § 23-4-4-1 (1996).

²⁶¹ 723 P.2d 252, 255 (N.M. Ct. App. 1985).

²⁶² See id.

²⁶³ See id.

²⁶⁴ See id. at 254.

²⁶⁵ See id.

²⁶⁶ See Atkins v. Medical Exam'r, 418 N.Y.S.2d 839, 840-41 (Sup. Ct. 1979). In a very similar case six years earlier, in Wilensky v. Greco, the Supreme Court of Orange County, New York, also enjoined the county coroner from performing an autopsy on an Orthodox Jewish man. See Wilensky v. Greco, 344 N.Y.S.2d 77, 78 (Sup. Ct. 1973). As in Atkins, the court ruled that the purpose of the autopsy, to determine the manner of death, was so obvious in the case of a man killed in a car accident that the state could not justify overriding the religious beliefs of the decedent or his family. See id. Thus, the autopsy was not performed and the coroner was directed to return the body to the plaintiff. See id.

²⁶⁷ See Atkins, 418 N.Y.S.2d at 810.

²⁶⁸ See id. at 841.

²⁶⁹ See id.

²⁷⁰ Id.; see also Weberman v. Zugibe, 394 N.Y.S.2d 371, 372 (Sup. Ct. 1977) (holding that an autopsy may not be performed over the religious, ethical or philosophical objections of a decedent's family, absent a showing of genuine necessity).

²⁷¹ 631 F. Supp. 1207, 1210 (S.D. Ohio 1986).

²⁷² 591 F. Supp. 568, 575 (E.D.N.Y. 1984).

²⁷³ See id. at 573.

²⁷⁴ See id.

²⁷⁵ See id.

²⁷⁶ See id. at 572-73.

²⁷⁷ See id. at 573. The court also stated that “[t]he United States similarly cannot excuse the retention indefinitely of those parts of the body that have not been cremated. To say that a practice is ‘accepted’ is not to justify it.” Id.

²⁷⁸ See supra notes 253-78 and accompanying text.

²⁷⁹ See James O. Pearson, Jr., Annotation, Liability for Wrongful Autopsy, 18 A.L.R. 4th 858, 893, § 11(b) (1996).

²⁸⁰ See id. at 891, § 11(a).

²⁸¹ See ARIZ. REV. STAT. ANN. § 11-597(B) (West 1997) (requiring autopsies in cases of “sudden and unexplained infant death” and allowing the examiner to retain tissue samples for research purposes as long as the parent of the infant does not object to the removal, and it is not likely to result in any visible disfigurement); CAL. GOV't CODE § 27491.41(e)-(g) (West 1997) (requiring autopsies in cases of sudden unexplained infant death, and allowing the removal and retention of tissues for research purposes without consent of the parent if the removal will not result in any “visible disfigurement,” and if the research is approved by the State Committee for the Protection of Human Subjects); id. § 27491.45(a) (stating that the coroner has the right to retain tissues that may be necessary for scientific investigation and to distribute the tissues for “training, educational, and research purposes” in cases where the decedent did not die in a state hospital and the next of kin has consented); D.C. CODE ANN. § 2-1605(a)-(c) (1997) (stating that the Medical Examiner's Office may retain “the corneal tissues, and the aortic and pulmonary heart valves” from autopsied bodies which are suitable for transplantation or medical research as long as the medical examiner does not know the decedent or his next of kin objects to the practice); FLA. STAT. ANN. § 872.04(1 ﹜-(2), (4) (West 1997) (requiring all autopsies to be performed with the consent of the decedent's next of kin, unless the next of kin cannot be located; however, once the consent to autopsy is obtained, the coroner may retain for scientific purposes those tissues “customarily removed” during autopsy); HAW. REV. STAT. ANN. § 841-14 (Michie 1997) (authorizing the coroner to retain tissues removed at autopsy for research purposes where the death occurred in a suspicious manner and even if the autopsy was conducted in the absence of decedent's or decedent's next of kin's consent); MINN. STAT. ANN. § 383B.225(7) (West 1997) (authorizing the coroner to conduct an autopsy in all cases of suspicious death but requiring oral or written consent from decedent's next of kin if the retention and removal of body parts “is done only for the advancement of medical knowledge and progress“); MONT. CODE ANN. § 46-4-103(l)-(2) (1997) (stating that where an autopsy is ordered by the coroner or county attorney or attorney general, a medical examiner may retain tissue,samples or organs for whatever purpose is deemed necessary, which presumably would include research, despite the decedent's or decedent's family's wishes); N.M. STAT. ANN. § 24-12-4(c), (e) (Michie 1997) (allowing the retention of any tissues “customarily removed during the course o f autopsies for research purposes where the autopsy is performed either at the direction of the district attorney regardless of familial consent); N.Y. PUB. HEALTH LAW §§ 4214(2), 4215(2) (McKinney 1997) (stating that research laboratories and educational facilities shall have priority in claiming and using all otherwise unclaimed bodies, whether subject to coroner autopsy or not, and that these facilities may retain cadaveric body parts for scientific purposes); N.C. GEN. STAT. §§ 130A-399 to -400 (1997) (explicitly allowing the retention of tissues obtained from autopsies performed on inmates dying in state mental health facilities for research purposes and requiring written consent from the decedent's next of kin); OKLA. STAT. ANN. tit. 21, § 1154 (West 1997) (allowing tissues to be retained from bodies autopsied by the coroner for research purposes in cases in which a decedent or his next of kin does not explicitly object); OR. REV. STAT. § 146.117(1) (1997) (stating that a medical examiner or district attorney may order an autopsy in all cases requiring “investigation,” without seeking any familial consent, and that tissues removed during the autopsy may be retained for research purposes if allowed by the State Medical Examiner Advisory Board); S.C. CODE. ANN. § 17-5-260 (Law Coop. 1997) (requiring autopsies in certain instances (such as suspicion of violence, etc.) but requiring the coroner to seek the informed consent of the decedent's next of kin before retaining any body parts solely for noninvestigative purposes, such as research); UTAH CODE ANN. § 26-4-4(2) (1995) (authorizing the medical examiner to retain tissues removed from autopsied bodies “for scientific purposes and those he considers necessary to accurately certify the cause and manner of death … or to determine [the body's] identity” but making no mention of next of kin consent to autopsy or consent to retain tissues); W. VA. CODE § 61-12-10 (1997) (stating that tissues may be retained by the chief medical examiner; statute's language, “necessary for further study or consideration,” is broad enough to allow the tissues to be used for research).

²⁸² See ARK. CODE ANN. § 12-12-320 (Michie 1995) (allowing the coroner to remove the pituitary gland automatically and donate it to the American Dwarf Association unless the next of kin objects, thus implicitly allowing research); CAL. GOV't CODE § 27491.46(a)-(b) (West 1997) (granting the coroner the right to retain the pituitary gland for research purposes in those cases in which the coroner has performed an autopsy and also allowing the removal of the pituitary to be transmitted to a public agency for use in manufacturing growth hormones if the coroner has no knowledge of the objection of decedent or person specified in CAL. HEALTH & SAFETY CODE § 7151(a) (West Supp. 1998)); id. § 27491.47(a) (authorizing the coroner to remove the corneas from autopsied bodies as long as there has been no objection from the deceased or the next of kin and the corneas are to be given to a nonprofit organization for transplant or “other scientific purposes“); COLO. REV. STAT. ANN. § 30-10-621(c) (West 1997) (authorizing coroners to remove the pituitary gland automatically from an autopsied body where the next of kin has not objected); CONN. GEN. STAT. ANN. § 19a-281(a) (West 1997) (authorizing coroners to remove the pituitary gland and corneas of autopsied bodies where these tissues would be “beneficial to the health of a living person” and where the decedent's next of kin has not objected); MD. CODE ANN., EST. & TRUSTS § 4-509.1(a) (1996) (stating that the corneas of an autopsied body may be removed for research or transplantation purposes as long as decedent's next of kin has not previously objected to the removal and removal will not interfere with a subsequent investigation or post-mortem facial appearance); MICH. COMP. LAWS ANN. §§ 333.10202, 333.2855 (West 1996) (automatically authorizing the removal of the corneas and pituitary gland of autopsied bodies for research and transplantation purpose; however, if consent by the decedent is necessary for autopsy, then § 333.2855(6) requires the next of kin's consent for the removal of the pituitary gland); Miss. CODE ANN. § 41-61-71(1)—(2) (1997) (authorizing the removal of the pituitary gland for transplant utilization from all bodies officially autopsied if consent is obtained, a reasonable attempt to determine the next of kin has failed or the coroner reasonably believes there is no next of kin and the removal would not interfere with a subsequent investigation or alter post-mortem facial appearance); MO. ANN. STAT. § 58.770 (West 1989) (authorizing the coroner or medical examiner to remove the pituitary gland from all autopsied bodies for research purposes unless “a contrary indication was given by the decedent or is declared by the next of kin“); N.C GEN. STAT. § 130A-391(a) (1997) (authorizing removal of the corneas from an autopsied body if the next of kin consents, no other objections to the procedure are known and the removal will not interfere with a subsequent investigation or alter post-mortem facial appearance); OHIO REV. CODE ANN. § 2108.53(c) (Anderson 1994) (automatically authorizing the removal of a decedent's pituitary gland for research and drug manufacturing purposes as long as the coroner has no reason to know that the decedent or his next of kin opposes the removal); id. § 2108.60(B) (authorizing the removal of corneas from bodies autopsied by the county coroner at the request of an eye bank official if the next of kin does not notify the coroner of an objection on the grounds it would violate the tenets of a well-recognized religion); OKLA. STAT. ANN. tit. 63, § 944.1(A) (West 1997) (authorizing the removal of the pituitary gland from an autopsied body unless the next of kin specifically objects); 20 PA. CONS. STAT. ANN. § 8641(a) (West Supp. 1997) (authorizing the coroner or medical examiner to remove corneas from bodies autopsied as part of an official “inquest” if the corneas will be used by an official eye bank for transplantation or research purposes, removal will not interfere with a subsequent investigation or post-mortem facial appearance and if there is no objection from the next of kin and a reasonable effort has been made to contact them); TENN. CODE ANN. § 38-7-106(b) (1996) (requiring the corneas of officially autopsied bodies to be removed for transplantation and research unless the decedent's next of kin has objected to the removal); id. § 68-30-204 (also stating that corneas may be removed automatically and donated unless the decedent's next of kin objects); TEX. HEALTH & SAFETY CODE ANN. § 693.012 (West 1992) (stating that the corneas of an autopsied body may be removed on request from an authorized official of an eye bank as long as the autopsy was performed “under circumstances requiring an inquest” and no objection from decedent's next of kin is known); VT. STAT. ANN. tit. 18, § 510 (Supp. 1997) (stating that the pituitary gland may be removed and used for purposes of manufacturing hormones regardless of consent except where the objection is based on religious grounds and the coroner has reason to know what decedent's religious inclinations are prior to removal).

²⁸³ See MINN. STAT. ANN. § 145.131 (West 1989).

²⁸⁴ See id. § 145.132 (stating that the doctor must have permission from the decedent's next of kin, county coroner and the medical research facility). Additionally, if a coroner, performing an autopsy which is required by law (such as those deaths that appear suspicious, violent, are the remains of inmates of public institutions or whose bodies are to be cremated, dissected, buried at sea or otherwise will be unavailable for examination in the future), “is informed by a physician or pathologist that a dead person is suspected of having had Alzheimer's disease, the coroner shall authorize the removal of the brain of the dead person.” Id. § 390.11. Otherwise, a coroner may only retain tissue or organs “deemed beneficial, and … done only for the advancement of medical knowledge and progress” where separate written or oral consent is obtained from the decedent's next of kin prior to the removal, retention and use of such organs and tissues. Id. § 383B.225(7).

²⁸⁵ Chester J. Herman & David A. Schwartz, Pathology and Laboratory Medicine, 275 JAMA 1839, 1839(1996).

²⁸⁶ See Grody, supra note 31 at 156.

²⁸⁷ See American Soc'y for Investigative Pathology, Balancing Research Progress and Informed Consent (Jan. 1995) (unpublished position statement, on file with author).

²⁸⁸ Grody, supra note 31, at 157.