In a ghoulish and deeply disturbing decision, the 6th Circuit Court of Appeals, in Albrecht v. Treon, held that parent’s had no right to get back the brain of their dead son following his autopsy.  Via Jonathan Adler at Volokh Conspiracy :

The Albrechts brought a Section 1983 suit against the county coroner, among others, alleging that they were deprived of a protected property interest without due process of law when the coroner removed and retained their dead son’s brain without notice.  According to the state, the brain was needed for additional study to aid in a criminal investigation. The question was certified to the Ohio Supreme Court, which held that under Ohio law the parents have no constitutionally protected interest in their child’s human remains that are retained for criminal investigation purposes, prompting a judgment for the state in district court.  Today, the Sixth Circuit affirmed, distinguishing Circuit precedent that recognized constitutionally protected property interests in a family member’s body parts retained for donation purposes.

Critical to this decision is that the brain was being retained for “criminal investigation purposes,” though this holding seems to ignore the real issue in the case of what becomes of the brain once such investigation purposes are over,

The autopsy required examination of their son’s brain. In order to examine and dissect a human brain more effectively, the jelly-like organ must be soaked in a formol saline solution for ten to fourteen days, a process referred to as “fixing” the brain, which firms the brain tissue for dissection. Due to the lengthy process of fixing the brain, it is the usual practice of the coroner to return the remains to next of kin for disposition without the brain. The coroner did not inform the Albrechts that he retained their son’s brain upon return of the body to them. When the examination of the brain was completed, it was destroyed in accordance with the coroner’s usual practice. The coroner did not notify the Albrechts that the brain was going to be destroyed.

The line that should strike fear in the heart of any person whose heart still beats is that “it was destroyed in accordance with the coroner’s usual practice.”  Usual practice?  Did the 6th Circuit blindly accept that concept?  What if the coroner’s usual practice was to sell it for dog food? 

This is not merely one weird case, but one that truly challenges the limits of propriety.  We’re talking here about the brain of a child being denied his parents.  Put aside the religious aspect, where prompt burial may be imperative, it’s just wrong. 

The issue is further fleshed out by two significant comments to Adler’s post, the first from a forensic pathologist.

This is a big deal for those of us who investigate these deaths. We have seen the creeping criminalization of our profession, to the point that it interferes with death investigation. For instance, in Florida, the so-called “Dale Earnhardt” law makes it a felony to use images from autopsies for teaching, research, or consultation without a court order. It’s saddening to go to professional conferences and have people from Florida go “I wish I could show you what I’m talking about, but I cannot.” 

There are many cases in which it is necessary to retain organs. The brain is particularly common because of its consistency. The brain is very soft, with the consistency of gelatin. That makes it very difficult to dissect fresh. In cases where there is the question of significant pathology in the brain that requires careful analysis, it is necessary to fix the it in formalin for a number of weeks prior to dissection. 

I find it particularly ironic that the legal community pillories the forensic community for not performing adequate research to provide better scientific basis for the conclusions we make, and at the same time wants to criminalize performing that research. In my jurisdiction, the use of material for forensic autopsies for research purposes is illegal unless what I do is directly part of the investigation. Thus, I can do studies about what I’m already doing but cannot do anything innovative.

What’s particularly fascinating is the “scientific” attitude that views human remains as fodder, whether for investigation or research.  Certainly, there are many who donate their organs for transplant or their bodies to science.  Not enough, perhaps, but many.  To the pathologist, it’s all just gooey stuff, to be used as needed to further science.  We’ve undermined their ability to play “show and tell” with other people’s bodies that happened to come into their clutches by particularly bad luck.

Another comment, by a lawyer (who I’m told by Bad Lawyer in the comments below is Patrick Perotti) from Dworken & Bernstein, who represented the parents, clarifies some of the details of the case:

This position by the government was not only inconsistent with our client’s desire, from a personal and religious standpoint, to respectfully dispose of all of her son. Equally important, the coroner’s position clearly suggested that if the government decided, after completion of the autopsy, to keep any number of body parts, or even the complete corpse, they had a right to do so. To burn it as medical waste. To sell it for research. To use it for scientific experimentation. 

As legitimate as some of those goals might seem, our society has not allowed the government to ignore the rights of citizens, simply because the outcome of the government’s desire would be beneficial.

Even in death, the government wants the right to control you, or at least those parts of you that serve its needs.

There is no question, and we conceded, that the government’s right to take possession of the body and to conduct a full autopsy on it was not challenged. That right in the government supercedes and subordinates the right of sepulcher. 

However, when the government right of autopsy (and retention of any parts needed as evidence) is finished, the right of sepulcher remains. The government cannot “keep” the body, the eyes, the brain, etc., whether they subsequently destroy it, sell it, or any other thing. They must return it to the next of kin.

There is no other way to describe the outcome of this case other than shocking.  It appears that the mere assertion of need combined with the incantation of “investigation” is sufficient to defeat something so fundamentally human as the desire of a parent to put her son, all of her son, to rest.  This is not a challenge to the right to autopsy a body, which itself raises questions for some people of particularly strong religious belief, but the right to get it back afterward.

The handling of the issue, if not the brain, is too cold and antiseptic, as if the concept of the death of a loved one was utterly foreign to the court.  I may not be the most sentimental guy in town, but even I’m repulsed by the inhumanity of this decision.  It’s just disgusting.