Autopsy rights are those given to the deceased and the next of kin to determine whether and to what extent autopsies should be performed. Typically, the individual (prior to death) and next of kin get to decide whether an autopsy is performed, but there are exceptions such as when there is suspicion regarding the circumstances surrounding the death. If an autopsy is performed or incorrectly performed without authorization and without statutory authority, the next of kin may have a cause of action against the individuals responsible for the autopsy.
When the deceased individual (prior to death), or the next of kin request an autopsy, they normally have the right to do so. Often, issues arise when family members and/or the interests of the deceased conflict. States differ greatly on whose interests take priority, but more commonly the order is: the wishes of the deceased, then spouse, and then the other next of kin. Some states may give spouses and next of kin say over that of the deceased if the state follows a “property right” theory where a person loses their property rights in their own body at death.
Another set of issues often arise when the deceased and family do not want an autopsy performed, but a medical examiner, government official, attorney, or insurance company requests an autopsy. States set by statute in detail when public welfare allows for the deceased and next of kin’s objection to an autopsy to be set aside. If the cause and timing of the death relate to liability of another party, that party may be able to get an autopsy over the objection of next of kin. This is particularly the case where murder or medical malpractice is suspected. This can also be requested on behalf of insurers checking if the cause of death falls within an insurance policy.
There are exceptions where the next of kin or the intentions of the deceased may still be able to stop an autopsy from occurring. If an autopsy would violate the religious practice of the deceased, a state may give this priority over the next of kin and governmental officials in most circumstances. Also, the next of kin may be able to stop untimely or improper autopsies from occurring such as where an autopsy is sought after burial or the autopsy goes beyond that authorized in the circumstances.
If the party responsible for the autopsy wrongfully performs an autopsy, they can be sued by the family for different causes of action depending on the statute involved. Generally, there are tort causes of action available under some theory of an interference with the quasi-property rights of the next of kin in the deceased’s body. The exact theory and extent of rights varies greatly by state. Many states extend the tortious interference to autopsies that go beyond the scope of authorization by the deceased or next of kin such as when the performer of the autopsy unnecessarily removes organs and other parts of the body without returning them.
[Last updated in October of 2023 by the Wex Definitions Team]
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