Property interests in cadaverous organs: changes to Ohio anatomical gift law and the erosion of family rights.

• Author: Stickney, Melissa A.W.

1. INTRODUCTION II. THE ORIGINS OF ANATOMICAL GIFT LAW IN THE UNITED STATES AND IN OHIO A. English Ecclesiastical and Common Law B. Early Ohio Common Law III. STATUTORY CODIFICATION OF OHIO COMMON LAW A. The Uniform Anatomical Gift Act B. The Donor's Rights prior to the Adoption of SB188 into law C. The Next of Kin's Rights prior to the Adoption of SB188 into Law D. Ohio Code Provisions Relating to Property Rights IV. CASES INTERPRETING OHIO'S ANATOMICAL GIFT LAWS A. Brotherton v. Cleveland B. Criticism of Brotherton v. Cleveland V. SENATE BILL 188: OHIO'S NEW ANATOMICAL GIFT LAW A. A New Property Right Is Created B. Public Relations and Administrative Problems with the New Law VI. AN EQUITABLE SOLUTION A. Acknowledging Next of Kin's Property Right VII. CONCLUSION I. INTRODUCTION

   In Ohio, over 3000 patients are waiting to receive healthy organs for the purpose of organ transplantation. (1) However, only 574 patients actually received the needed organs and underwent transplant operations in 2001. (2) The national ratio of supply and demand for healthy organs mirrors the crisis situation in Ohio with over 80,000 patients waiting for organs and only 12,580 transplants performed in 2001. (3) Of these transplanted organs, organs from living donors now exceed cadaverous organ donations by 418 transplants. (4) Because of this dramatic organ shortage, legislatures, Organ Procurement Organizations (OPO), hospital staff, and scholars have all sought to find ways to create and implement a more effective organ donor system in the United States. These efforts have focused on improving one or both of the two distinct areas in the transplantation process: procurement and distribution. Procurement is the process by which doctors and OPO representatives work to secure a healthy organ from either a brain-dead individual or a living donor for purposes of transplantation. All states currently implement procurement operations on an encouraged volunteerism basis meaning that a donor or donor's family must voluntarily consent to the donation of specified organs prior to their removal and transplantation. (5) The distribution scheme then determines how the limited available organs are equitably allocated among those in need considering such disparate factors as biological compatibility between donor and donee, age of donee, gravity of donee's medical condition, geographical location of donor and donee, and time donee has spent on a waiting list. (6) Although the debates surrounding the equitable distribution of organs are worthy of examination, this note focuses solely on the procurement side of the problem. (7) In particular, this note examines how Ohio anatomical gift laws have been interpreted to grant a property right to the next of kin in the decedent's cadaverous organs.

   Ohio is one of three states (8) that recognizes the next of kin's right to make an organ donation as hinging on a property right. Commentators have vigorously debated whether granting property rights to either the donor/decedent or the next of kin hinders or facilitates the procurement process. These arguments often revolve around the moral, ethical, and practical consequences of granting a person property rights in cadaverous organs and the apprehension, in the case of some, or confidence, in the case of others, that an organ market would inevitably result. (9)

   The issue of property rights in organs is especially topical in Ohio where Senate Bill 188 (10) (SB 188) was passed into law on December 13, 2000 (11) amending Ohio's anatomical gift laws. SB 188 made several statutory changes to Ohio law, but three are particularly noteworthy in the context of the property rights debate. First, SB 188 created a property right in the donee, or recipient of the donated organ, that did not heretofore exist. (12) Contrary to current case law, this portion of the new law suggests either that a donor has a property right to her organs prior to her demise transferable to the donee upon the execution of the statutorily approved instruments or upon death or that the newly created donee's property right to the donated organ springs out of nowhere. Second, SB 188 extinguished the next of kin's property rights in the decedent's organs as established in Brotherton v. Cleveland (13) where the donor/decedent had consented in writing to be an organ donor using one of the statutorily allowed forms. Third, SB 188 authorized the creation of a donor registration system through the Ohio Department of Motor Vehicles (DMV) effective July 2002, which now provides OPOs with an easily accessible way of tracking potential donors's wishes and enforcing their property rights in the donor's organs.

   By recognizing the supremacy of a donor/testator's right to bequeath her organs and subsequently deterring family from contesting a decedent's designation, the new statute may alleviate, to a small degree, the overwhelming shortage of transplantable organs in Ohio. The new law, however, poses a serious threat to the public perception of organ donation since families who do not agree with the decedent's wishes will have no standing to contest the donation and can, under the new law, even be subject to a declaratory judgment filed by the donee to prevent family interference in the donation. (14) The negative impact of these changes on families could result in a public relations fiasco which would, in turn, dampen Ohioans willingness to register with the DMV organ donor registration system and make the organ donor designation under other statutorily accepted instruments. Hence, the possible gain in viable organs resulting from SB 188 could be offset by a corresponding decline in obliging donors.

   Finally, although laudatory in purpose--to increase the number of viable cadaverous organs for transplantation--these changes pose considerable problems on the level of practical implementation. In particular, the medical community has traditionally deferred to the family's wishes when seeking an organ donation and has been reticent in facilitating a donation request in emotional situations. (15) When a family is obviously devastated or expresses aversion to donation, it is unlikely that the medical community will readily administer the new law which requires an expeditious request. (16) Under the new law, such a request is still dependant upon the hospital notifying the OPO representative or designated requester in a timely fashion. (17) Furthermore, even OPO representatives have expressed reservations about the usefulness of these changes in facilitating and improving the procurement process.

   Part II of this note briefly examines the origins of anatomical gift law in the United States and in Ohio. Part III examines the codification of Ohio common law and the adoption of the 1969 Uniform Anatomical Gift Act as the foundation of Ohio's anatomical gift laws. Part IV analyzes post 1969 Ohio cases that directly or indirectly help interpret Ohio's anatomical gift laws, with a particular focus on the legal reasoning in Brotherton II. Part V delves into the new law's grant of property rights in cadaverous organs to the donee and criticizes the new law because of administrative and public relations problems such changes could create. Part VII proposes a legislative alternative recommending statutory recognition of the next of kin's property rights in cadaverous organs.

   Overall, this note criticizes the changes to Ohio's anatomical gift law in so far as the new law grants property rights to the wrong party. In the face of Brotherton II, which held that the donor's family has property rights in the cadaverous organs, the new law appears to be a deliberate rejection of the family's property right. By gradually eliminating the family from the donor decision, the Ohio legislature may undermine the efficacy of a system which has long relied on families for cooperation and advocacy. Ohio and other states must recognize that there is no quick fix to the organ deficit problem short of replacing the voluntary donation system with a system based on a different paradigm. (18) Even a presumed consent system, the mildest of possible alternative donation models, does not bode will with a citizenry that values personal autonomy, freedoms, and the rights of family in decision making processes that involve the decedent's corpse. (19)

2. THE ORIGINS OF ANATOMICAL GIFT LAW IN THE UNITED STATES AND IN OHIO

   1. English Ecclesiastical and Common Law

      As applied to cadaveric body parts, two bodies of law generally inform anatomic gift law: laws governing the treatment of cadavers and laws governing testamentary bequests. These two strands of law, however, often intersect and overlap in ways which make it difficult for legal scholars to identify the two as separate points of origin.

      Under early English ecclesiastical law, the Church controlled the disposition of dead bodies in accordance with the belief that the soul continued beyond death while the corporeal form would only be resurrected upon Christ's second coming. (20) According to Christian belief, then, the Church had a vested interest in the dead bodies of the faithful. While the English Burial Acts of 1850 removed legal control of cadavers from the church, (21) secular courts continued, perhaps under ecclesiastical influence, to hold that no one could claim property rights in a corpse. (22) In a prominent 1857 case, for example, a son was convicted for unlawfully opening his mother's grave despite his laudable intention of burying her in a consecrated graveyard. (23) At the time, even the son's religious scruples were not adequate to support a quasi-property right in his mother's body.

      One exception to the general rule that no property rights existed in a corpse did, however, emerge in the English Anatomy Act of 1832 which was promulgated to provide medical schools with a steady supply of cadavers for educational purposes. (24) Under the 1832 Act, unclaimed corpses and...