OFFICES AND OFFICERS ‑- COUNTY ‑- CORONER ‑- AUTOPSY ‑- TRANSPLANTING OF ORGANS FROM DECEASED PERSONS

AGO 1962 No. 175 - Oct 25 1962

Attorney General John J. O'Connell

OFFICES AND OFFICERS ‑- COUNTY ‑- CORONER ‑- AUTOPSY ‑- TRANSPLANTING OF ORGANS FROM DECEASED PERSONS.

(1) Only the decedent and persons who have the right to control the disposition of the decedent's remains may authorize the transplanting of organs to a living person.

(2) Authorization for transplanting of the organs of a deceased person to a living person must be in writing.

(3) Authorization to perform an autopsy is required to be in writing in certain instances. As a practical matter written authorization may be required in all cases.

(4) Medical personnel appointed by the coroner to perform autopsies need not be deputized by him.

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October 25, 1962

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington

Cite as: AGO 61-62 No. 175

Dear Sir:

By letter previously acknowledged you requested the opinion of this office on questions which we paraphrase as follows:

(1) May the person having the power to perform or to authorize the performance of an autopsy, also authorize the transplanting of an organ from a deceased person?

(2) May a parent authorize the transplanting of an organ from a deceased unmarried minor?

(3) Must the authorization for a transplanting or for an autopsy be in writing?

(4) Is it necessary that persons performing autopsies under direction of the coroner be deputized by him?

We answer question (2) in the affirmative, question (4) in the negative, and questions (1) and (3) as explained in the analysis.

[[Orig. Op. Page 2]]

ANALYSIS

Question (1):

The county coroner is the public officer upon whom the duty of performing autopsies is conferred. RCW 68.08.010. The following persons may authorize an autopsy:

(a) County coroner, RCW 68.08.100.

(b) Persons with responsibility for burial, RCW 68.08.101.

(d) Department of labor and industries in industrial death cases, RCW 68.08.103.

The transplanting of an organ may be authorized only by the decedent (RCW 68.08.250) or by the persons who have the power of control over the remains, RCW 68.08.260.

With the exception of class (b) above, none of the enumerated persons or agencies may authorize the transplanting of an organ from a deceased person to a living person.

While an autopsy usually includes a dissection, the power to cause a dissection does not include the power to remove organs for the purpose of transplanting them. Such powers are strictly construed, AGO 55-57 No. 269 [[to Prosecuting Attorney, Whatcom County on May 16, 1956]], toward the goal of honoring the wishes of the decedent and those authorized to act for him. Herzl Congregation v. Robinson, 142 Wash. 469, 253 Pac. 654 (1927).

The persons who have "by law the right to control the disposition of the remains of a deceased person," RCW 68.08.260, are the surviving spouse, children, parents, other kin, and friends‑-in that order, RCW 68.08.160, 68.08.030. With respect to the unclaimed bodies of indigents, the board of county commissioners, RCW 36.39.030 and RCW 73.08.070, and the department of public assistance, RCW 74.08.120, have the power of control. The coroner, although given specific powers to perform autopsies and dissections, does not appear to have such "right to control the disposition of the remains . . ."

Question (2):

As a consequence of the above, the parents of a deceased unmarried minor may authorize the transplanting of the decedent's organ to the body of a living person, provided contrary directions were not given [[Orig. Op. Page 3]] by the decedent. RCW 68.08.260.

Question (3):

Regarding authorization for the transplanting of organs, RCW 68.08.250, and 68.08.260 contain a specific requirement that the donation of one's own remains or the donation of the remains of another, be made by written instrument. There are no provisions allowing donation of remains for purposes of transplanting other than by written instrument.

Regarding authorization for an autopsy, the request by the department of labor and industries in industrial death cases must be in writing. RCW 68.08.103. The court order following a petition made under RCW 68.08.102 will also be in writing. However, there is no requirement for a writing found in RCW 68.08.100 or 68.08.101. Consequently, authorization for an autopsy under either of these sections may be written or oral.

We note, however, that the overall strictness commonly employed on matters of this nature, the presence of possible civil and criminal sanctions for wrongful dissection, and the ephemeral nature of an oral authorization may well cause the coroner to require written authorization in all cases.

Question (4):

RCW 68.08.100, in so far as pertinent, provides:

". . . the coroner, in his discretion, may make or cause to be made by a competent pathologist, toxicologist, or physician, an autopsy . . ."

The coroner is thus authorized to delegate the actual performance of an autopsy to competent medical personnel peculiarly qualified to perform this task. Such persons may be appointed on a case by case basis and need not be deputized by the coroner.

Our conclusions are as follows:

(1) Only the decedent and persons who have the right to control the disposition of the decedent's remains may authorize the transplanting of organs to a living person.

(2) Authorization for such a transplanting must appear in a written instrument.

[[Orig. Op. Page 4]]

(3) Authorization to perform an autopsy is required to be in writing in some instances and not expressly required in others. As a practical matter, a written authorization may be required in all cases.

(4) Medical personnel appointed by the coroner to perform autopsies need not be deputized by him.

We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General